Last updated: May 18, 2018
Please read these Terms of Use ("Terms", "Terms of Use") carefully before using our services (the "Service") operated by Trakdesk (“Trakdesk”, “Trakdesk LLC”, “www.trakdesk.com”, "us", "we", or "our").
Your access to and use of the Service is conditioned upon your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who wish to access or use the Service.
By accessing or using the Service or Website, or authorizing or permitting any Agent or End-User to access or use the Service or Website, You hereby agree to be bound by these Terms. If You are entering into these Terms on behalf of a company, organization or another legal entity (an "Entity"), You are agreeing to these Terms for that Entity and representing to Trakdesk that You have the authority to bind such Entity and its Affiliates to these Terms, in which case the terms "Trakdesk Customer," "You," "Your" or related capitalized terms herein shall also refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and may not use the Service or Website.
This website and its services are provided by Trakdesk LLC, a company authorized under registration number 15108584 to conduct business, with its address being located at PO Box 611, Mableton, GA, 30126, USA. Trakdesk may also conduct business dba “Trakdesk” and www.trakdesk.com together with any subdomains or ‘Apps’.
DEFINITIONS
When used in these Terms with the initial letters capitalized, in addition to terms defined elsewhere in these Terms, the following terms have the following meanings:
Account: means any Trakdesk accounts or instances created by or on behalf of Trakdesk Customer or its Agents within the Service.
Affiliate: means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby "control" (including, with correlative meaning, the terms "controlled by" and "under common control") means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
Agent: means an individual authorized to use the Service through Your Account for such Service as an agent and/or administrator as identified through a unique login.
API: means the application programming interfaces developed and enabled by Trakdesk that permits a Trakdesk Customer to access certain functionality provided by the Service.
Directive: means Directive 95/46/EC on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data, AS WELL AS ANY SUBSEQUENT UPDATES UNDER THE General Data Protection Regulations in the UK or EU.
Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Service provided or made available by Trakdesk to You, Agents or End-Users through the Service or otherwise.
End-User: means any person or entity other than Trakdesk Customer or Agents with whom Trakdesk Customer or its Agents interact using the Service.
Form: means any generated service order form executed or approved by You and Trakdesk with relation to Your subscription to the Service, which form may detail, among other things, the number of Agents authorized to use the Service under Your subscription to the Service and the Service Plan(s) applicable to Your subscription to the Services.
Other Services: means third party products, applications, services, software, products, networks, systems, directories, websites, databases and information which the Service links to, or which You may connect to or enable in conjunction with the Service, including, without limitation, Other Services which may be integrated directly into Your Account.
Personal Data: means any information relating to a living person who is or can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity.
Processing/To Process: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
Service: means the Trakdesk Service, as applicable, together with all applicable Associated Services that You have purchased or to which You have subscribed, whether made available to You on a trial or paid basis.
Software: means software provided by Trakdesk (either by download or access through the internet) that allows an Agent or End-Users to use any functionality in connection with the Service.
Subscription Term: means the period during which You have agreed to subscribe to Trakdesk Service with respect to any individual Agent.
Website: means www.trakdesk.com and other websites that Trakdesk operates.
Your Data: means electronic data, text, messages, communications or other materials submitted to the Service by You, Agents and End-Users in connection with Your use of such Service, including, without limitation, Personal Data.
1. USE OF SERVICE AND WEBSITE
1.1 Subject to compliance by You, Agents and End-Users during the Subscription Term, You have the limited right to access and use a Service consistent with the Subscription Plan(s) that You subscribe to for Your internal business purposes. You may not allow multiple parties to use Your Account to provide customer service or support without prior notification to Trakdesk. Without limiting the foregoing, Your right to access and use the API is also subject to the restrictions and policies implemented by Trakdesk from time to time with respect to the API as set forth https://trakdesk.com/api or otherwise communicated to You in writing.
1.2 In addition to complying with the other terms, conditions and restrictions set forth below in these Terms, You agree not to (a) license, sublicense, sell, resell, lease, rent, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than authorized Agents and End-Users in furtherance of Your internal business purposes as expressly permitted by these Terms; (b) use the Service to Process data on behalf of any third party other than Agents or End-Users; (c) modify, adapt, or hack the Service or otherwise attempt to gain unauthorized access to the Service or related systems or networks; (d) falsely imply any sponsorship or association with Trakdesk, (e) use the Service in any unlawful manner, including but not limited to violation of any person's privacy rights; (f) use the Service to send unsolicited or unauthorized bulk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (g) use the Service to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person's intellectual property rights; (h) use the Service in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Service; (j) use the Service to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (k) use the Service to store or transmit any "protected health information" as that term is defined in 45 C.F.R. 160.103, unless expressly agreed to otherwise in writing by Trakdesk; (l) use the Service to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software ("Malicious Software"); or (m) attempt to use, or use the Service in violation of these Terms.
1.3 You are responsible for compliance with the provisions of these Terms by Agents and End-Users and for any and all activities that occur under Your Account, as well as for all Your Data. Without limiting the foregoing, You are solely responsible for ensuring that use of the Service to store and transmit Your Data is compliant with all applicable laws and regulations. You also maintain all responsibility for determining whether the Services or the information generated thereby is accurate or sufficient for Your purposes. Subject to any limitation on the number of individual Agents available under the applicable Subscription Plan(s) to which You subscribed, access to and use of the Service is restricted to the specified number of individual Agents permitted under Your subscription to the Service. You agree and acknowledge that each Agent will be identified by a unique username and password ("Login") and that an Agent Login may only be used by one (1) individual. You will not share an Agent Login among multiple individuals. You and Your Agents are alone responsible for maintaining the confidentiality of all Login information for Your Account. The Trakdesk Group will not be liable for any damage or loss including data loss that may result from Your failure to secure Your Account information, including Your username and password.
1.4 In addition to Our rights as set forth in Section 3.4, Trakdesk reserve the right, in Our reasonable discretion, to temporarily suspend Your access to and use of a Service: (a) during planned downtime for upgrades and maintenance to the Service (of which Trakdesk will use commercially reasonable efforts to notify You in advance through Our Webite) ("Planned Downtime"); (b) during any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Our reasonable control (including, without limitation, inability to access the Internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks; or (c) if We suspect or detect any Malicious Software connected to Your Account or use of the Service by You, Agents or End-Users. Trakdesk will use commercially reasonable efforts to schedule Planned Downtime for weekends (Eastern Time zone) and other off-peak hours.
1.5 A high speed Internet connection is required for the service to function as intended. You are responsible for procuring and maintaining the network connections that connect Your network to the Service, including, but not limited to, "browser" software that supports protocols used by Trakdesk, including the Transport Layer Security (TLS) protocol or other protocols accepted by Trakdesk, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You, Agents or End-Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Your Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Trakdesk. We assume no responsibility for the reliability or performance of any connections as described in this section.
1.6 Trakdesk does not guarantee that the Service or Website, or any content on them, will always be available or be uninterrupted. Trakdesk reserve the right to suspend, withdraw, discontinue or change all or any part of the Service or Website, without notice. We will not be liable to You if for any reason Our Service or Website is unavailable at any time or for any period. You are responsible for making all arrangements necessary for You to have access to Our Service or Website.
2. BILLING, PLAN MODIFICATIONS AND PAYMENTS
2.1 Service are billed on a subscription basis ("Subscription(s)"). You will be billed in advance on a recurring and periodic basis ("Billing Cycle"). Billing cycles are set either on a monthly or annual basis, depending on the type of subscription plan you select when purchasing a Subscription. At the end of each Billing Cycle, your Subscription will automatically renew under the exact same conditions unless you cancel it or Trakdesk cancels it. You may cancel your Subscription renewal either through your online account management page or by contacting Trakdesk customer support team. A valid payment method, including credit card, is required to process the payment for your Subscription. You shall provide Trakdesk with accurate and complete billing information including full name, address, state, zip code, telephone number, and a valid payment method information. By submitting such payment information, you automatically authorize Trakdesk to charge all Subscription fees incurred through your account to any such payment instruments. Should automatic billing fail to occur for any reason, Trakdesk will issue an electronic invoice indicating that you must proceed manually, within a certain deadline date, with the full payment corresponding to the billing period as indicated on the invoice.
2.2 If you upgrade or downgrade your Subscription, Your credit card or other payment method will be charged the new subscription rate immediately "on a pro-rated basis" when upgrading or downgrading. If you upgrade your subscription or increase the number of agents authorized to access and used the Service during Your Subscription term (a "Subscription Upgrade"), any incremental Subscription Charges associated with such Subscription Upgrade will be prorated over the remaining period of Your then-current Subscription Term, charged to Your Account and due and payable upon implementation of such Subscription Upgrade. In any future Subscription Term, unless you cancel "The Subscription Upgrade". Your Subscription Charges will reflect any such Subscription Upgrades.
2.3 Should you decide to downgrade your Subscription term, There will be No refunds or credits for any Subscription Charges or Other fees or payments already provided to you. Be aware that any downgrading of your Subscription may cause the loss of features, content or capacity of the service as available to You under Your Account. Trakdesk does not accept any liability for such loss.
2.4 Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively "Taxes"). You are responsible for paying Taxes except those assessable against the Trakdesk based on its income. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.
2.5 Trakdesk, in its sole discretion and at any time, may modify the Subscription fees for the Subscriptions. Any Subscription fee change will become effective at the end of the then-current Billing Cycle. Trakdesk will provide you with a reasonable prior notice of at least seven (7) days, of any change in Subscription fees to give you an opportunity to terminate your Subscription before such change becomes effective. Your continued use of the Service after the Subscription fee change comes into effect constitutes your agreement to pay the modified Subscription fee amount.
2.6 Except when required by law, paid Subscription fees are non-refundable. There will be no refunds or credits for partial months of the Service or if You do not use the Service during a period of time while your account is active.
3. CANCELLATION AND TERMINATION
3.1 We may terminate or suspend your account and bar access to the Service immediately, without prior notice or liability, under our sole discretion, for any reason whatsoever and without limitation, including but not limited to a breach of the Terms. If you wish to terminate your account, you can do so by navigating to Account Settings in the admin page and click on the Cancel Account option. However, You will remain liable for all charges accrued up to that time, including full monthly charges for the month in which You discontinued the Service. Unless Your Account and subscription to the Service is so terminated, Your subscription to the Service will renew for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in any Form, the Subscription Charges applicable to Your subscription to the Service for any such subsequent Subscription Term shall be Our standard Subscription Charges for the Subscription Plan to which You have subscribed as of the time such subsequent Subscription Term commences.
3.2 No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You decide to terminate Your subscription to the Service, or cancel Your Account prior to the end of Your then effective Subscription Term. Trakdesk strongly recommends You to export all Your Data before any termination or cancellation of Your Account. Following the termination or cancellation of Your subscription to the Service and/or Account, We reserve the right to delete all Your Data in the normal course of operation. Your Data cannot be recovered once Your Account has been cancelled.
3.3 If You terminate Your subscription to the Service, or cancel Your Account prior to the end of Your then-effective Subscription Term or We effect such termination or cancellation, in addition to other amounts You may owe Trakdesk, You must immediately pay any then-unpaid Subscription Charges associated with the remainder of such Subscription Term. This amount will not be payable by You in the event You terminate Your subscription to the Service or cancel Your Account as a result of a material breach of these Terms by Trakdesk, provided that You provide advance notice of such breach to Trakdesk and afford Trakdesk not less than thirty (30) days to reasonably cure such breach.
3.4 Trakdesk reserve the right to modify, suspend or terminate the Service (or any part thereof), Your Account or Your and/or Agents’ or End-Users’ rights to access and use our Services, and remove, disable and delete any Data if We believe that You, Agents or End-Users have violated these Terms. You are liable to pay Trakdesk any fees outstanding or due until the date of Your Account termination. Unless legally prohibited from doing so, and for Paid Subscriptions only, Trakdesk will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions, and allow you the opportunity to resolve such breach within 15 days from which you were notified by Trakdesk. Trakdesk shall not be liable to You, Agents, End-Users or any other third party for any such suspension, modification or discontinuation of the Service. Any suspected fraudulent, abusive, or illegal activity by You, Agents or End-Users may be referred to law enforcement authorities at Our sole discretion.
4. CREDIT
4.1 Trakdesk may choose to offer credits for some or all of it's Service. Trakdesk reserves the right to award credits at its sole discretion. Credits have no monetary or cash value and can only be used by You to offset Your subsequent payments of Subscription Charges. Credits may only be applied to Subscription Charges due for the Service specifically identified by Trakdesk when issuing the credit. Credits are non-transferable and can only be used by You.
4.2 Special note in relation to UK and EU customers only. Under the Consumer Contract Regulations (EU Directive), you have the right of cancellation during a “cool-off” period. This means you can change your mind and cancel any order or subscription within fourteen (14) days of your order, as long as your order originates within and you are resident within the UK/EU. Under the regulations, there are exceptions made to the automatic right of refund with regard to ‘Electronic goods or services’ and ‘Digitally Delivered Goods’. As our services are electronic and digitally delivered, your rights to automatic cancellation and refund does not apply to your transaction with Trakdesk. We are at liberty to refuse any refund requests or offer a refund at our entire discretion. Your legal rights are not affected by this.
5. DATA PRIVACY AND SECURITY; CONFIDENTIALITY
5.1 Subject to the express permissions of these Terms, Both Parties will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms, each of us may use each other’s Confidential Information solely to exercise our respective rights and perform our respective obligations under these Terms and shall disclose such Confidential Information solely to those of our respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information. The provisions of this Section shall supersede any non-disclosure agreement by and between You and Trakdesk agreed upon prior to these terms that would purport to address the confidentiality of Your Data and such agreement shall have no further force or effect with respect to Data.
5.2 Trakdesk will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Your Data. These safeguards includes encryption of Your Data in transmission (using TLS or similar technologies), except for Other Services that do not support encryption.
5.3 You agree that Trakdesk and the service providers We utilize to assist in providing the Service to You shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose Your Data to the extent necessary to provide the Service, including, without limitation, in response to Your support requests. Any third party service providers Trakdesk utilize will only be given access to Your Account and Your Data as is reasonably necessary to provide the Service and will be subject to confidentiality obligations. The Trakdesk Group may also access or disclose information about You, Your Account, Agents and End-Users including Your Data, in order to (a) comply with the law or respond to lawful requests or legal processes; (b) protect Trakdesk Group or its customers or partners rights of property, including enforcement of these terms or other policies associated with the Services; (c) act on a good faith belief that such disclosure is necessary to protect personal safety or avoid violation of applicable law or regulation. In addition to Your Data, We collect certain information (which may include Personal Data) about You, Agents and End-Users as well as Your and their respective devices, computers and use of the Service. We use, disclose, and protect this information as described in Our Privacy Policy, the then-current version of which is available at www.Trakdesk.com/privacy and is incorporated into the Terms.
5.4 To the extent Trakdesk process any of Your Personal Data on Your behalf in connection with use of Service by You, Agents or End-Users, Trakdesk and You hereby agree that You shall be deemed to be the data controller and Trakdesk shall be deemed to be the data processor as those terms are understood under the Directive (and any applicable national legislation implementing the Directive). In providing the Service, The Trakdesk Group and other authorized service providers, to Process Your Data, including and without limitation, any associated Personal Data pursuant to these Terms within the European Economic Area, the United States and in other countries and territories.
6. INTELLECTUAL PROPERTY
6.1 Both of us shall maintain all rights, title and interest in and to all our respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to You, Agents and End-Users to use the Service and the Website under these Terms do not convey any additional rights in the Service or Website, or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Service and Website as expressly stated herein, all rights, title and interest in and to the Service, the Website and all hardware, Software and other components of or used to provide the Service and Website, including all related Intellectual Property Rights, will remain and belong exclusively to Trakdesk. Trakdesk shall have a fully paid-up, royality-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service, Website or use any recommendations, suggestions, enhancements or feedbacks received from You, Agents or End-Users. Trakdesk and Trakdesk's other product and service names, and logos used or displayed on the Service are registered or unregistered trademarks of Trakdesk (collectively, “Marks”), and You may only use these Marks to identify You as a Trakdesk Customer; provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Trakdesk, Our services or products.
6.2 The content on our Websites (excluding Content provided or uploaded by You), features and functionality are and will remain the exclusive property of Trakdesk and its licensors. The Service is protected by copyright, trademark, and other laws of both the United States and foreign countries. Our trademarks and trade dress may not be used in connection with any product or service without the prior written consent of Trakdesk.
7. THIRD PARTY SERVICES
If You decide to enable, access or use Other Services, be advised that Your access and use of such Other Services is governed solely by the terms and conditions of such Other Services, and Trakdesk does not endorse, are not responsible or liable for, and make no representations as to any aspect of such Other Services, including, without limitation, their content or the manner in which they handle data (including Your Data) or any interaction between You and the provider of such Other Services. You irrevocably waive any claim against Trakdesk with respect to such Other Services. Trakdesk is not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Other Services, or Your reliance on the privacy practices, data security processes or other policies of such Other Services. You may be required to register for or log into such Other Services on their respective websites. By enabling any Other Services, You are expressly permitting Trakdesk to disclose Your Data as necessary to facilitate the use or enablement of such Other Services.
8. CONTENT
8.1 Our Service allows you to post, link, store, share and otherwise make available certain information, text, graphics, videos, or other material ("Content"). You are responsible for the Content that you post on or through the Service, including its legality, reliability, and appropriateness. By posting Content on or through the Service, You represent and warrant that: (i) the Content is yours (you own it) and/or you have the right to use it and the right to grant us the rights and license as provided in these Terms, and (ii) that the posting of your Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity. We reserve the right to terminate the account of anyone found to be infringing on a copyright. You retain any and all of your rights to any Content you submit, post or display on or through the Service and you are responsible for protecting those rights. We take no responsibility and assume no liability for Content you or any third party posts on or through the Service. However, by posting Content using the Service you grant us the right and license to use, modify, publicly perform, publicly display, reproduce, and distribute such Content on and through the Service. You agree that this license includes the right for us to make your Content available to other users of the Service, who may also use your Content subject to these Terms. Trakdesk has the right but not the obligation to monitor and edit all Content provided by users. In addition, Content found on or through this Service are the property of Trakdesk or used with permission. You may not distribute, modify, transmit, reuse, download, repost, copy, or use said Content, whether in whole or in part, for commercial purposes or for personal gain, without express advance written permission from us.
9. LINKS TO OTHER WEBSITES
9.1 Our Service may contain links to third party web sites or services that are not owned or controlled by Trakdesk. Trakdesk has no control over, and assumes no responsibility for the content, privacy policies, or practices of any third party web sites or services. We do not warrant the offerings of any of these entities/individuals or their websites. You acknowledge and agree that Trakdesk shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such third party web sites or services. We strongly advise you to read the terms and conditions and privacy policies of any third party web sites or services that you visit.
10. INDEMNIFICATION
10.1 Trakdesk will indemnify and hold You harmless, from and against any claim against You by reason of Your use of the Service as permitted hereunder, brought by a third party alleging that the Service infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (an "IP Claim"). Trakdesk shall, at Our expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Trakdesk for such defense, provided that (a) You promptly notify Trakdesk of the threat or notice of such IP Claim; (b) Trakdesk has or will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim; and (c) You fully cooperate with Trakdesk in connection therewith. If use of the Service by You, Agents or End-Users has become, or in Trakdesk opinion is likely to become, the subject of any such IP Claim, Trakdesk may at its option and expense (a) procure for You the right to continue using the Service as set forth hereunder; (b) replace or modify the Service to make it non-infringing; or (c) if options (a) or (b) are not commercially reasonable and practicable as determined by Trakdesk, terminate Your subscription to the Service and repay You, on a pro-rated basis, any Subscription Charges previously paid to Trakdesk for the corresponding unused portion of Your Subscription Term. Trakdesk will have no liability or obligation with respect to any IP Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by You; (ii) modification of the Service by anyone other than Trakdesk; or (iii) the combination, operation or use of the Service with other hardware or software where the Service would not by itself be infringing.
10.2 You agree to defend, indemnify and hold harmless Trakdesk and its licensee and licensors, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees), resulting from or arising out of a) your use and access of the Service, by You or any person using your account and password; b) a breach of these Terms, or c) Content posted on the Service.
11. LIMITATION OF LIABILITY
11.1 IN NO EVENT SHALL TRAKDESK, NOR ITS DIRECTORS, EMPLOYEES, PARTNERS, AGENTS, SUPPLIERS, OR AFFILIATES, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (I) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICE; (II) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICE; (III) ANY CONTENT OBTAINED FROM THE SERVICE; AND (IV) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
12. DISCLAIMER OF WARRANTIES
THE WEBSITE AND THE SERVICE, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND TRAKDESK EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OR OTHER TERMS WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT TRAKDESK DO NOT WARRANT THAT THE SERVICE OR WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM TRAKDESK OR THROUGH THE SERVICE OR WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
13. ASSIGNMENT; ENTIRE AGREEMENT; AMENDMENT
13.1 You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of these Terms or Your rights under these Terms or delegate performance of Your duties under these Terms without Trakdesk prior consent, We may, without Your consent, assign Our agreement with You to any member of the Trakdesk Group or in connection with any merger or change of control of Trakdesk or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to these Terms. Subject to the foregoing restrictions, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
13.2 These Terms, together with any Form(s), constitute the entire agreement, and supersede any and all prior agreements between You and Trakdesk with regard to the subject matter hereof. These Terms and any Form(s) shall apply to the terms or conditions in any purchase order or other order documentation You or any Entity which You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either party with respect to the subject matter hereof. Notwithstanding the foregoing, additional terms may apply to certain features and functionality Trakdesk offer (the “Additional Terms”). In those instances, Trakdesk will notify You of such Additional Terms prior to the activation of these features or functionality and the activation of these features or functionality in Your Account will be considered acceptance of the Additional Terms. All such Additional Terms will be considered incorporated into these Terms when You or any Agent authorized as an administrator in Your Account activate the feature or functionality. Where there is a conflict between these Terms and the Additional Terms, the Additional Terms will control.
13.3 We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. Kindly read these Terms before starting to use our Service or Website, as these will apply to your use of the Service and Website. Trakdesk will notify You not less than ten (10) days prior to the effective date of any such amendment and Your continued use of the Service following the effective date of any such amendment may be relied upon by Trakdesk as Your consent to any such amendment. Trakdesk failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of the Terms.
14. SEVERABILITY
If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect. The failure of Trakdesk to excerise any right provided for herein shall not be deemed a wavier or any right hereunder.
15. EXPORT COMPLIANCE AND USE RESTRICTIONS
The Service and other Software or components of the Service that Trakdesk may provide or make available to You, Agents or End-Users may be subject to U.S. or other territories export control and economic sanctions laws. You agree to comply with all such laws and regulations as they relate to access to and use of the Service, Software and such other components by You, Agents and End-Users. You shall not access or use the Service if You are located in any jurisdiction in which the provision of the Services, Software or other components is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and You shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (a) You are not named on any U.S. government or other government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (b) You are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) You shall not permit Agents or End-Users to access or use the Service in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) You shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which You, Agents and End-Users are located.
16. RELATIONSHIP OF THE PARTIES
The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
17. GOVERNING LAW
These Terms shall be governed and construed in accordance with the laws of the State of Georgia, United States, without regard to its conflict of law provisions. Any claims or actions are to be institu=ted in the relevant court in the State of Georgia, United States according to administrative procedure of the Georgia courts. Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect. These Terms constitute the entire agreement between us regarding our Service, and supersede and replace any prior agreements we might have had between us regarding the Service.