TERMS OF USE 

Last updated April 29, 2022

These Terms of Service (this “Agreement”) constitute a binding agreement between you, as an individual to the extent you’re accessing the Service in your individual capacity, or the organization that you represent (“you”, “your” or “Customer”) to include all individuals you authorize to access your account, and governs your use of Traact, Inc.’s (“Traact”) Services (as defined below).  By signing up to use the Services, you agree to these Terms and to Traact’s Privacy Policy, which is available at https://www.traact.com/privacy. Customer and Traact are referred to herein individually as a “Party” and collectively as the “Parties”.

Traact has developed a proprietary software tool (the “Software”) to assist users in managing corporate entities and administering related functions.

  1. Software and Services.

    1. Software License. Subject to the terms and conditions hereof, Traact hereby grants to Customer a limited, non-transferable, and non-exclusive license (the “License”) to use the Software during the term hereof solely in accordance with the terms of this Agreement and any specifications, instructions, and documentation (collectively, the “Documentation”) provided by Traact from time to time. The License shall be subject to the terms and conditions of one or more order forms to be executed between Traact and Customer or other online or offline instrument used to register for the Services (as defined below) (each, an “Order Form”). Customer shall use the Software and the Documentation solely for its own internal business purposes and in accordance with the limitations, if any, set forth on an Order Form. 

    2. Modifications to the Software. Traact may modify and/or update the Software from time to time, so long as such modification(s) do not materially reduce the Software’s performance or capabilities. Traact shall have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer, any of Customer’s authorized employees and personnel who are authorized to access the Software and Documentation (“Authorized Users”), or any other third party may incur as a result of modifications to the Software in accordance with this Section 1.2. 

    3. Software Support. Traact will use commercially reasonable efforts to provide Customer ongoing support related to the Software as set forth in any Order Form (“Software Support Services”).

    4. Additional Services. During the term hereof, Traact may agree to provide Customer with such additional services as are set forth on any Order Forms executed hereunder (together with the Software Support Services, the “Services”). Except as specified herein or in an executed Order Form, nothing in this Agreement or in any Order Form shall be construed as a guarantee of future Services outside the scope of any executed Order Form. 

  2. Financial Terms. 

    1. Fees. In consideration for the grant of the License and the provision of the Services, Customer shall pay to Traact the fees set forth in the applicable Order Form (the “Fees”) in accordance with this Section 2. If Customer’s payment of the Fees is subject to recurring charges, then Customer hereby consents to Traact’s charging Customer’s payment method on record with Traact on a recurring basis without requiring Customer’s prior approval for each recurring charge, until termination of this Agreement or any applicable Order Form. Traact may update its pricing at any time and reserves the right to correct any errors or mistakes in pricing, even if Traact has already requested or received payment. Traact also reserves the right to refuse any order placed with respect to the Services.

    2. Invoices. Unless otherwise indicated on an Order Form, all invoices shall be due and payable within ten (10) days of the date of the invoice, and may be satisfied via an automatic charge to the credit card Customer keeps on file in Customer’s online account with the Services. Customer hereby agrees that Traact may charge any such credit card in Customer’s account for any Fees incurred by the Customer.  

    3. Method of Payment. Unless Traact states otherwise in writing, all amounts due and payable hereunder shall be paid (a) in U.S. Dollars, and (b) by credit/debit card via an authorized Traact payment processor or by any other method approved in writing by Traact. Customer agrees to provide current, complete and accurate purchase and account information for all purchases made with respect to the Services. Customer further agrees to promptly update account and payment information, including email address, payment method and payment card expiration date, so that Traact can complete such transactions and contact Customer as needed.

    4. Interest and Taxes. Interest on any late payments will accrue at the rate of 1% per month, or the highest rate permitted by applicable law, whichever is lower, from the date such amount is due until the date such amount is paid in full. Customer will be responsible for, and will pay all sales and similar taxes, and all similar fees levied upon the provision of the Software and the Services, excluding only taxes based solely on Traact’s income. Customer will indemnify and hold Traact harmless from and against any and all such taxes and related amounts levied upon the provision of the Services and any costs associated with the collection or withholding thereof, including penalties and interest.

  3. Customer Restrictions and Responsibilities. 

    1. Restrictions on Use of Software. Except as expressly authorized by this Agreement, Customer may not: (a) modify, disclose, alter, translate or create derivative works of the Software or the Documentation (or any components of the foregoing); (b) sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Software or the Documentation (or any components of the foregoing); (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any source code, object code, or underlying structure, ideas, or algorithms of the Software, in whole or in part; (d) use the Software to store or transmit any viruses, software routines or other code designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions; (e) use the Software or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable Laws; (f) interfere with or disable any features, functionality, or security controls of the Software or otherwise circumvent any protection mechanisms for the Software; (g) copy, frame or mirror any part or content of the Software; (h) build a competitive product or service, or copy any features or functions of the Software; (i) interfere with or disrupt the integrity or performance of the Software; (j) attempt to gain unauthorized access to the Software or related systems or networks; (k) disclose to any third party any performance information or analysis relating to the Software; (l) use the components of the Software or allow the transfer, transmission, export or re-export of such software components or any portion thereof in violation of any export control Laws administered by the U.S. Commerce Department, OFAC, or any other government agency; (m) remove, alter or obscure any proprietary notices in or on the Software, including any copyright notices; (n) access the Services through automated or non-human means, whether through a bot, script or otherwise; or (o) cause its personnel or any third party to do any of the foregoing. Customer will use its best efforts to prevent unauthorized access to, and use of, any passwords, and will immediately notify Traact in writing of any unauthorized use that comes to Customer’s attention. Notwithstanding anything to the contrary in this Agreement, Traact may temporarily suspend or permanently revoke Customer’s access to the Service if Traact determines or reasonably suspects that Customer has or intends to violate, or has assisted others in violating or preparing to violate, any provision of this Section 3 (any such temporary suspension, a “Service Suspension” and any such revocation, a “Service Revocation”). Traact shall have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any third party may incur as a result of a Service Suspension or Service Revocation, and Customer shall not be entitled to any refunds of any Fees on account of any Service Suspension or Service Revocation. Any breach by Customer of any provision of this Section 3 shall be an incurable material breach and will entitle Traact to terminate this Agreement and any Order Forms immediately pursuant to Section 10.2(a). 

    2. Customer Responsibilities. Customer shall be solely responsible for: (a) obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Software and the Services; (b) maintaining the security and accuracy of Customer’s infrastructure, equipment, accounts, passwords (including but not limited to administrative and user passwords) and files; (c) providing Traact and its personnel with support and system access needed to perform the Services; and (d) all acts and omissions of Authorized Users in connection with their use of the Software and Services. 

    3. Age Policy. The Service is not intended to be used by any person under 18 years of age. By using the Service, you represent to Traact that you are at least 18 years old and are legally able to enter into this Agreement. Traact does not knowingly collect or solicit personally identifiable information from anyone under 18; if you are under 18, please do not use or attempt to use the Services or send any personal information about yourself to Traact. If Traact learns it have collected personal information from anyone under 18, Traact will delete that information. 

  4. Confidentiality.  

    1. Definition. “Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) concerning or related to this Agreement or the Disclosing Party (whether before, on, or after the Effective Date) that is marked “Confidential” or “Proprietary” or with similar designation by the Disclosing Party, or that otherwise should reasonably be deemed to be confidential based on the context and nature of the information. Confidential Information includes, but is not limited to, computer programs in source and/or object code, technical drawings, algorithms, know-how, prototypes, models, samples, formulas, processes, ideas, inventions (whether patentable or not), discoveries, methods, strategies and techniques, research, development, design details and specifications, financial information, procurement and/or purchasing requirements, customer lists, information about investors, employees, business or contractual relationships, sales and merchandising data, business forecasts and marketing plans, and similar information. 

    2. Obligations. The Receiving Party shall maintain in confidence the Confidential Information during the term of this Agreement and for a period of two (2) years thereafter, and will not use such Confidential Information except as expressly permitted in this Agreement; provided, however, that any trade secrets shall be treated confidentially for so long as such information qualifies for protection as trade secret under applicable law. The Receiving Party will use the same degree of care in protecting the Confidential Information as the Receiving Party uses to protect its own confidential and proprietary information from unauthorized use or disclosure, but in no event less than reasonable care. Confidential Information will be used by the Receiving Party solely for the purpose of carrying out the Receiving Party’s obligations under this Agreement. In addition, the Receiving Party will only disclose Confidential Information to its directors, officers, employees and/or contractors who have a need to know such Confidential Information in order to perform their duties under this Agreement, and only if such directors, officers, employees and/or contractors are bound by confidentiality obligations with respect to such Confidential Information no less restrictive than the non-disclosure obligations contained in this Section 4.2. The Parties agree that Customer Data (as defined below) shall be considered Customer’s Confidential Information and the terms and conditions of this Agreement will be treated as Confidential Information of both Parties and will not be disclosed to any third party; provided, however, that each Party may disclose the terms and conditions of this Agreement (a) to such Party’s legal counsel, accountants, banks, financing sources and their advisors, (b) in connection with the enforcement of this Agreement or rights under this Agreement, or (c) in connection with an actual or proposed merger, acquisition, or similar transaction. 

    3. Exceptions. Notwithstanding anything to the contrary herein, Confidential Information will not include information that: (a) is in or enters the public domain without breach of this Agreement and through no fault of the Receiving Party; (b) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party; (c) the Receiving Party can demonstrate was developed by the Receiving Party independently, and without use of or reference to, the Confidential Information; or (d) the Receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation. In addition, the Receiving Party may disclose Confidential Information that is required to be disclosed by applicable Laws or by a subpoena or order issued by a court of competent jurisdiction or other governmental authority (each, an “Order”), but solely on the conditions that the Receiving Party, to the extent permitted by applicable Laws: (i) gives the Disclosing Party written notice of the Order promptly after receiving it; and (ii) cooperates fully with the Disclosing Party before disclosure to provide the Disclosing Party with the opportunity to interpose any objections it may have to the disclosure of the information required by the Order and seek a protective order or other appropriate relief. In the event of any dispute between the Parties as to whether specific information is within one or more of the exceptions set forth in this Section 4.3, the Receiving Party will bear the burden of proof, by clear and convincing evidence, that such information is within the claimed exception(s).  

    4. Remedies. The Receiving Party acknowledges that any unauthorized disclosure of Confidential Information will result in irreparable injury to the Disclosing Party, which injury could not be adequately compensated by the payment of money damages. In addition to any other legal and equitable remedies that may be available, the Disclosing Party will be entitled to seek and obtain injunctive relief against any breach or threatened breach by the Receiving Party of the confidentiality obligations hereunder, from any court of competent jurisdiction, without being required to show any actual damage or irreparable harm, prove the inadequacy of its legal remedies, or post any bond or other security.  

  5. Intellectual Property Rights. 

    1. Generally. Except as specified in Section 5.3, no provision of this Agreement shall be construed as an assignment or transfer of ownership of any copyrights, patents, trade secrets, trademarks, or any other intellectual property rights (collectively, “Intellectual Property Rights”) from either Party to the other.

    2. Software and Services. Traact shall own and retain all right, title and interest in and to: (a) the name, logo, trademarks, and service marks (collectively, “Marks”) associated with its business; (b) the Software and the Documentation; (c) all improvements, enhancements and modifications to the Software and the Documentation; (d) any work products or deliverables resulting from any Services provided to Customer under this Agreement (except for any work products or deliverables that is expressly set forth in an Order Form to be owned by Customer); and (e) all Intellectual Property Rights related to any of the foregoing. Traact reserves all rights in and to the Software and the Documentation not expressly granted to Customer in this Agreement. Except for the rights and licenses expressly granted in this Agreement, nothing in this Agreement grants to Customer or any third party, by implication, waiver, estoppel, or otherwise, any right, title, or interest in or to the Software or the Documentation. 

    3. Feedback. If Customer or any of its Authorized Users submits written suggestions or recommended changes to the Software or Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (collectively, the “Feedback”), Traact is free to use such Feedback regardless of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Traact, on Customer’s behalf and on behalf of its Authorized Users and/or agents, all Intellectual Property Rights in and to the Feedback, for any purpose whatsoever, although Traact is not required to use any Feedback.  

    4. Use of Customer Marks. Customer shall own and retain all right, title and interest in and to the Marks relating to Customer’s business and all Intellectual Property Rights related thereto. Notwithstanding the foregoing, Traact shall have the right to use the Customer’s Marks for promotional purposes on its website and marketing materials solely to refer to Customer as a customer of Traact. 

    5. User Content.  Traact respects the rights of third-party creators and content owners and expects that you will do the same. Given the nature of the Services and the volume of information submitted, Traact cannot and does not monitor all messages, data, information, text, graphics, audio, video or other materials and content of any kind posted/uploaded/transmitted to or through the Services by Traact users (collectively, “User Content”, and any such User Content posted to or through your account, “Your Content”). You expressly agree that Traact: (a) will not be liable for any User Content and (b) reserve the right to review, reject, delete, remove, modify, or edit any User Content at any time for any reason, without liability and without notice to you. Traact reserves the right, but is not obligated, to remove User Content from the Services for any reason, including any of Your Content that Traact believes violates this Agreement. For clarity, the rights you grant in this license are for the limited purpose of operating, promoting, developing and improving our Services. Subject to the limited license below, you retain all of your rights in all of Your Content. Unless agreed otherwise in writing signed by Traact, by submitting Your Content, you hereby grant to Traact for the purpose of providing you the Services a royalty-free, perpetual, irrevocable, fully transferable, sublicenseable, nonexclusive right and license to: (i) use, access, store, copy, modify, re-post, rearrange, display, distribute, reproduce, perform and create derivative works from all of Your Content and likeness in any form, media, software or technology of any kind now existing or developed in the future and the right to sublicense the foregoing rights through multiple tiers without compensation to you; and (ii) access your account and Your Content and to process and submit Your Content in furtherance of providing the Services. By submitting and posting Your Content on the Services, you hereby represent and warrant to us that (a) you have all necessary authority, rights and permissions to submit Your Content and grant the licenses described in the previous paragraph; (b) Your Content is accurate, current and complete; (c) Your Content does not infringe or misappropriate any copyright, trademark, trade secret, patent, or other intellectual property right of any third party or violate any other rights of third party, including, without limitation, any rights of privacy or publicity or any contractual rights; and (d) submitting Your Content does not violate any applicable law, regulation or any agreements between you and a third party, or otherwise cause injury to any third party.

 

  1. DMCA Policy.  It is Traact’s policy to respond to all claims of intellectual property infringement. Traact will promptly investigate notices of alleged infringement and will take appropriate actions required under the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2) (“DMCA”) and other applicable intellectual property laws.  Please submit any notification of claimed copyright infringement on the Services to the following Designated Agent (Contact for details: support@traact.com):

To be effective, the notification must be a written communication that includes the following:

 

  1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

  2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works at that site;

  3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;

  4. Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number and, if available, an electronic mail address at which the complaining party may be contacted;

  5. A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and

  6. A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

 

  1. Data.

    1. Ownership of Customer Data. All Customer Data (as defined below), including any Customer Data input into the Software by Customer or generated through Customer’s use of the Software, shall belong to Customer, provided that Traact shall have the right to access, use, and process such Customer Data to provide the Services and the functionality of the Software to Customer during the term of this Agreement. Customer acknowledges and agrees that Customer is solely responsible for any and all Customer Data that is input into the Software by Customer, including such Customer Data’s legality, reliability, and appropriateness. As used herein, “Customer Data” means data uploaded by Customer or resulting from Customer’s use of the Software, including Personal Data, Employee Personal Data and Third Party Personal Data (as such terms are defined below). 

    2. Anonymized Data. Customer acknowledges and agrees that Traact may anonymize and aggregate Customer Data in a manner that it can no longer reasonably be used to identify individuals (“Anonymized Data”).  Customer grants Traact and its affiliates, an unlimited, perpetual, and irrevocable license to use the Anonymized Data for the purpose of improving the Software and Services, to understand and analyze trends across Traact’s customers, and for any other purpose. 

    3. Data Processing Agreement. To the extent that Customer Data includes personal data subject to applicable data protection laws, including the EU General Data Protection Regulation, the Personal Information Protection and Electronic Documents Act and the California Consumer Privacy Act, the terms of the Data Processing Agreement available at [URL] (the “DPA”) shall govern the processing of such data. The Parties agree that Traact may amend the terms of the DPA from time to time to the extent that Traact reasonably determines that such amendment is necessary to comply with applicable data protection laws. The latest posted version of the DPA shall govern the processing of personal data subject to applicable data protection laws.

    4. Employee and Third Party Data. Customer acknowledges that, as part of its use of the Software, Customer may transmit their own personal data (“Personal Data”) or the personal data of its employees or other personnel (“Employee Personal Data”) and personal data of third parties (“Third Party Personal Data”). To the extent Customer transmits or inputs any Personal Data, Employee Personal Data or Third Party Personal Data through or into the Software, Customer represents and warrants that it has obtained all legally required consent to capture, collect, display, input, share and transmit such Personal Data, Employee Personal Data and Third Party Personal Data into and through the Software.

  2. Representations, Warranties, Remedies and Disclaimers.

    1. Generally. Each Party represents and warrants that (a) it is validly existing and in good standing under the Laws of the place of its establishment or incorporation, (b) it has full corporate power and authority to execute, deliver and perform its obligations under this Agreement, (c) the person signing this Agreement on its behalf has been duly authorized and empowered to enter into this Agreement, and (d) this Agreement is valid, binding and enforceable against it in accordance with its terms, except to the extent limited under Laws relating to insolvency, bankruptcy, and the like. 

    2. Traact’s Representations and Warranties. Traact represents and warrants that (a) the Software will conform, in all material respects, to the Documentation and any other specifications set forth in the applicable Order Form, and (b) it will perform the Services, if any, in a professional and workmanlike manner. 

    3. Customer’s Representations and Warranties. Customer represents and warrants that Customer: (a) will use the Software and the Services only in compliance with this Agreement and all applicable local, state, federal and international laws and regulations, rules, orders, and ordinances (collectively, “Laws”); and (b) shall not infringe upon any third party’s Intellectual Property Rights in its use of the Software and the Services.

 

  1. Disclaimer. THE SOFTWARE AND SERVICES ARE PROVIDED “AS-IS” AND “AS-AVAILABLE.” EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TRAACT DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SOFTWARE AND THE SERVICES  PROVIDED UNDER THIS AGREEMENT, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (A) WARRANTIES OF MERCHANTABILITY; (B) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT TRAACT KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (C) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. 

  2. Software and Services Not Professional Advice. CUSTOMER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT: (a) TRAACT IS NOT A LAW FIRM AND AS SUCH TRAACT DOES NOT PROVIDE LEGAL ADVICE, OR ANY KIND OF PROFESSIONAL ADVICE, OF ANY KIND WHATSOEVER, (b) CUSTOMER IS RESPONSIBLE FOR ALL ASPECTS OF COMPLIANCE WITH APPLICABLE LAW PERTAINING TO CUSTOMER’S BUSINESS ACTIVITIES, (c) THE SOFTWARE, SERVICES, DOCUMENTATION, AND ALL INFORMATION AND MATERIALS PROVIDED THEREIN ARE PROVIDED TO CUSTOMER SOLELY FOR INFORMATIONAL AND ADMINISTRATIVE PURPOSES AND DO NOT CONSTITUTE LEGAL ADVICE OR ANY OTHER FORM OF PROFESSIONAL ADVICE AND SHALL NOT BE RELIED ON BY CUSTOMER AS ANY FORM OF LEGAL OR PROFESSIONAL ADVICE, (d) THE SOFTWARE, SERVICES, DOCUMENTATION, AND THE INFORMATION AND MATERIALS THEREIN IS NOT INTENDED TO CREATE AN ATTORNEY-CLIENT RELATIONSHIP, AND (e) TRAACT MAKES NO REPRESENTATION THAT ANY COMMUNICATIONS BETWEEN CUSTOMER AND TRAACT WILL BE SUBJECT TO ANY ATTORNEY-CLIENT PRIVILEGE. IF CUSTOMER REQUIRES LEGAL ADVICE AT ANY TIME, CUSTOMER SHALL CONSULT WITH A LICENSED ATTORNEY.

  3. Third-Party Sites and Services. The Services may be integrated with services provided by third parties as part of the functionality of the Services. Customer understands that Traact does not have control over third parties and that such third parties are not agents of Traact. Customer acknowledges and agrees that Traact makes no representation or warranty about, does not endorse and will not be liable for any third party’s products or services or the information provided by third parties, whether through the Services or otherwise. Accordingly, Traact is not responsible for your use of any third-party product or service or any harm or losses arising from or relating to your use of any third-party products or services. You should contact the third party with any questions about their products and services. Traact hereby disclaims and you hereby discharge, waive and release Traact and its licensors and suppliers from any past, present, and future claims, liabilities, and damages, known or unknown, arising out of or relating to your interactions with such third parties and their products and services.

  4. Data Maintenance. Traact will maintain certain data that you transmit via the Services for the purpose of managing the performance of the Services. Although Traact performs regular routine backups of data, you are solely responsible for all data that you transmit or that relates to any activity you have undertaken using the Services. You agree that Traact shall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against Traact arising from any such loss or corruption of such data.

  1. Indemnification Obligations. 

    1. Customer Indemnity. Customer, at its sole expense, will defend Traact and its affiliates, directors, officers, employees, and agents (“Traact Indemnitees”) from and against any third-party claims, suits, actions or proceedings (each a “Claim”) and indemnify Traact Indemnitees from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs, and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements) (collectively, “Losses”) to the extent arising from or relating to (a) any negligence or willful misconduct by Customer or its affiliates, directors, officers, employees, or agents, or any other party acting on Customer’s behalf (the “Customer Indemnity Parties”); (b) any alleged or actual breach of Customer’s representations, warranties and obligations under this Agreement; (c) the use of the Software by Customer Indemnity Parties, including without limitation any claim by Customer’s employees or agents related to the use of the Software by Customer Indemnity Parties; and (d) any violation of applicable Laws and Orders by Customer Indemnity Parties.

    2. Procedures. The obligations of Customer to indemnify the Traact Indemnitees pursuant to Section 8 are conditioned upon the Traact Indemnitees: (a) giving prompt written notice of the Claim to Customer once they become aware of the Claim (provided that failure to provide prompt written notice to the Customer will only alleviate an Customer’s obligations under Section 8 to the extent that any associated delay materially prejudices or impairs the defense of the related Claims); (b) granting Customer the option to take sole control of the defense (including granting Customer the right to select and use counsel of its own choosing) and settlement of the Claim (except that the Traact Indemnitees’ prior written approval will be required for any settlement that reasonably can be expected to require an affirmative obligation of the applicable Traact Indemnitees); and (c) providing reasonable cooperation to Customer and, at Customer’s request and expense, assistance in the defense or settlement of the Claim.

  2. Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, (A) NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF PROFITS OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE; AND (B) EXCEPT FOR CUSTOMER’S OBLIGATION TO PAY THE FEES, A BREACH OF SECTION 4 (CONFIDENTIALITY) OR SECTION 5 (INTELLECTUAL PROPERTY RIGHTS), AND CUSTOMER’S INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 8, EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY WILL NOT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO TRAACT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDEING THE EVENT WHICH GAVE RISE TO SUCH LIABILITY. 

  3. Term, Termination and Effect of Termination.

    1. Term. This Agreement commences upon the Effective Date and continues in effect until the expiration of the period specified in the initial Order Form (the “Initial Term”). Thereafter, in the event that the Parties execute one or more subsequent Order Forms, this Agreement will automatically renew for the time period specified in such additional Order Form(s) (each, a “Renewal Term”). Each Order Form shall specify a term applicable to such Order Form.

    2. Termination. Notwithstanding Section 10.1, either Party may terminate this Agreement, including all related Order Forms, as follows: (a) if the other Party materially breaches this Agreement (including, without limitation, in the case of Customer, nonpayment of the Fees) and does not remedy such failure within thirty (30) days after its receipt of written notice of such breach (unless the breach is of a nature that is incapable of being cured, in which case the non-breaching Party may terminate this Agreement immediately upon written notice); (b) if the other Party terminates its business activities or becomes insolvent, admits in writing to inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority; (c) upon written notice to the other Party, either Party may terminate this Agreement for convenience, provided that such termination will take effect at the end of the current paid term; or (d) as otherwise expressly set forth in this Agreement or an Order Form. 

    3. Effect of Termination. Upon any termination of this Agreement: (a) the License and any other rights granted to Customer under this Agreement with respect to the Software and the Services will immediately cease, (b) Customer shall immediately pay to Traact all amounts due and payable up to and through the effective date of termination, (c) except for a termination by Customer pursuant to Section 10.2(a) or a termination by Traact pursuant to Section 10.2(c), Traact shall have no obligation to refund any prepaid Fees, and (d) the Receiving Party will, at the option of the Disclosing Party, promptly return to the Disclosing Party or destroy all Confidential Information of Disclosing Party then in the Receiving Party’s possession. Upon Traact’s termination of this Agreement pursuant to Section 10.2(c), Customer shall be entitled to a refund of Fees for any period for which Customer has already paid but will not receive Services. Notwithstanding any terms to the contrary in this Agreement, any provision of this Agreement that, by its nature and context, is intended to survive this Agreement (including, without limitation, Customer’s obligation to pay any unpaid Fees and Sections 4 through 11, inclusive) will survive any termination of this Agreement. In no event will termination relieve Customer of its obligation to pay any Fees payable to Traact prior to the effective date of termination. In addition, if Traact terminates or suspends Customer’s account for any reason, Traact reserves the right to prohibit Customer from registering and creating a new account under Customer’s name, a fake or borrowed name, or the name of any third party, even if Customer may be acting on behalf of the third party.

  4. General Provisions.

    1. Entire Agreement. This Agreement, including all exhibits to this Agreement, all of which are incorporated herein by reference, sets forth the entire agreement and understanding of the Parties relating to the subject matter hereof, and supersedes all prior or contemporaneous agreements, proposals, negotiations, conversations, discussions and understandings, written or oral, with respect to such subject matter and all past dealing or industry custom.

    2. Independent Contractors. Neither Party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner or partner of the other Party, and the relationship between the Parties will only be that of independent contractors. Neither Party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other Party, whether express or implied, or to bind the other Party in any respect whatsoever.

    3. Dispute Resolution. The Parties agree to resolve any dispute, claim or controversy arising out of or relating to this Agreement according to the terms of this Section 11.3. First, the Parties agree to attempt in good faith to resolve the dispute through informal resolution. Second, if the dispute is not resolved through informal resolution, the Parties agree to participate in binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules in San Francisco, California. The Parties agree that, in the event of arbitration (or in the event of a lawsuit if this arbitration clause is deemed invalid or does not apply to a given dispute) the prevailing Party shall be entitled to costs and fees (including reasonable attorneys’ fees). Either Party may bring a lawsuit solely for injunctive relief without first engaging in the dispute resolution process described in this Section 11.3. In the event that the dispute resolution procedures in this Section 11.3 are found not to apply to a given claim, or in the event of a claim for injunctive relief as specified in the previous sentence, the Parties agree that any judicial proceeding will be brought in the state courts located in Santa Clara County, San Mateo County or the City and County of San Francisco, California. Both Parties consent to venue and personal jurisdiction there. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS AGREED TO OTHERWISE BY THE PARTIES, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS.

    4. Governing Law. The validity, interpretation, construction and performance of this Agreement, and all acts and transactions pursuant hereto and the rights and obligations of the Parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of California, without giving effect to principles of conflicts of law.

    5. Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by either Party, by operation of applicable Laws or otherwise, without the prior written consent of other Party, and any attempted transfer, assignment or delegation without such consent will be void and without effect. Notwithstanding the foregoing, either Party may assign its rights and obligations hereunder in connection with a merger, reorganization, consolidation, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will be binding upon, and will inure to the benefit of, the Parties and their respective representatives, heirs, administrators, successors and permitted assigns.

    6. Amendments and Waivers. No modification, addition or deletion, or waiver of any rights under this Agreement will be binding on a Party unless in writing and signed by a duly authorized representative of each Party. No failure or delay (in whole or in part) on the part of a Party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by applicable Laws. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default. Traact reserves the right to change the terms of this Agreement from time to time, with or without notice to you. If you continue to use the Services, you consent to the new terms of the Agreement. Any changes to this Agreement will become effective on the “Last Updated” date indicated above. If you continue to use the Services after such date, you consent to the new terms of the Agreement.

    7. Notices. Any notice made pursuant to this Agreement will be in writing and will be deemed delivered on (a) the date of delivery if delivered personally, (b) five (5) calendar days (or upon written confirmed receipt) after mailing if duly deposited in registered or certified mail or express commercial carrier, or (c) one (1) calendar day (or upon written confirmed receipt) after being sent by email, addressed to Customer at the address or email address on record with Traact in Customer’s account information, or addressed to Traact at the address or email address set forth in the section titled “Contact Traact” below, or to such other address or email address as may be hereafter designated by either Party. Any notice to Customer pertaining to an Order Form may be made by Traact to the contact listed by Customer for such purpose in the applicable Order Form.  Notwithstanding the above, you consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications that Traact provides to you electronically, via email and the Services, satisfy any legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY TRAACT OR VIA THE SERVICES.

    8. Severability. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the Parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.

    9. Force Majeure. Neither Party will be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control including, but not limited to, natural disasters (fire, storm, floods, earthquakes, etc.), a pandemic, acts of terrorism, civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of any third party services, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party.

    10. Construction. This Agreement shall be deemed to be the product of all of the Parties, and no ambiguity shall be construed in favor of or against any one of the Parties.

    11. U.S. Government Rights. If Customer is a federal government entity, Traact provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following:  Technical data and computer software rights related to the Services include only those rights customarily provided to the public as set forth in this Agreement.  The license rights hereunder are provided in accordance with Federal Acquisition Regulation (“FAR”) 12.211 (Technical Data) and FAR 12.212 (Computer Software) and, for U.S. Department of Defense transactions, Defense Federal Acquisition Regulation Supplement (“DFARS”) 252.227-7015 (Technical Data – Commercial Items) and DFARS 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). 

    12. California Users and Residents.  In accordance with California Civil Code Section 1789.3, California resident users are entitled to know that they may file grievances and complaints with California Department of Consumer Affairs, Consumer Information Center, 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834; or by phone at 916-445-1254 or 800-952-5210; or by email to dca@dca.ca.gov. For more information about protecting your privacy, you may wish to visit: http://www.ftc.gov.

    13. Contact Traact. You may contact Traact about this Agreement or the Services at:

Traact, Inc.

545 Bryant St

Palo Alto, CA 94086

United States

support@traact.com