I. INTRODUCTION AND AGREEMENT
TrackBee provides a survey platform through a Software as a Service (SaaS) model and is a product of Frametrics Consulting Pvt. Ltd. ('TrackBee', 'we', 'us', 'our') having address at 139/1, 2nd Floor, Humayunpur, Safdarjung Enclave, New Delhi-110029, India. At TrackBee we collect and process data to give an intuitive experience to our customer, and we provide 'Do It Yourself' (DIY) platform where you can create your own survey form to start with. Also you can use some of our ready templates, and access to admin panel of our Website that give you flexibility to upload your company/ organisation logo and set theme of the survey matching with company colour scheme and create personalize features through Text Piping feature, and other important features.
In our Website www.trackbee.com there is inbuilt validation tool for text data entry which performs standard validation like maximum and minimum range of value for phone number, email id, pincode validation, maximum number of selection for a checkbox, skipping of questions based on previous response, etc. We collect data via the web browser, mobile browser and Android App and through TrackBee Android mobile app, and through in person interactions.
At TrackBee, user get dashboard for real time data collection status, widget based question wise report, filter based response graph and Cross Tab analysis to get meaningful and actionable insights, download the survey responses in Excel for further analysis of response. We take customer/ user feedback and provide optimised solution along with continuous monitoring, and identify and create market segments, customer profiling based on the response of users from a customer perspective, assist in understanding customer's expectation and fulfilment, help identifying and converting idea into profitable product, decision making through customer advisory panel, IT enabled research solution, expert advice and other services. For complete understanding of what we do, please take tour of our Website and software application.
This Agreement becomes effective when You do any of the following:
- When You create an account for use of the Services while being presented a link to this Agreement;
- When you are executing or electronically accepting an Ordering Document referencing this Agreement;
- Using the Services (the earliest of the foregoing being the "Effective Date").
- If you do any of the foregoing or acquire the Services on behalf of an entity, the Agreement becomes binding on the entity you represent.
- Authorized User means any individual to whom Customer grants access authorization to use the TrackBee's Service that is an employee, agent, contractor or representative of
- Customer's Affiliates and/or
- Customer's and Customer's Affiliates' Business Partners.
- or the Customer himself/ herself, if Customer is individual and is representing self.
- Beta Features are new test features
- Confidential Information is defined as any information disclosed by either party to the other party of the Agreement, either directly or indirectly, in writing, orally, through electronic mode or by inspection of tangible objects (including, without limitation, documents, prototypes, samples, plant and equipment), which is designated as "Confidential," "Proprietary" or some similar designation. Confidential Information includes information involving TrackBee which is otherwise not publicly available but is available to any third party because of any business relation or legal relation TrackBee shares or had shared with such third party, and if such Confidential Information is obtained by receiving party from any such third party in complete breach of trust and in violation of one or more agreements operating between Parties. Any and all information related to TrackBee, TrackBee's way of operation, business strategies, trade secrets, any information which would cause harm to TrackBee in any manner if disclosed is considered as Confidential Information, irrespective of its mode of communication. Confidential Information may also include information disclosed to a disclosing party by third parties. Confidential Information shall not, however, include any information which
- was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party;
- becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party;
- is already in the possession of the party who is receiving the information at the time of disclosure by the disclosing party as shown by the receiving party, strictly subject to proof through files and records immediately prior to the time of disclosure;
- is obtained by the receiving party from a third party without a breach of such third party's obligations of confidentiality and without prejudicing TrackBee's business interest and legal protection;
- is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information, as shown by documents and other competent evidence in the receiving party's possession; or
- is required by law to be disclosed by the receiving party, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure.
- Customer's Account means the Web-based account provided by TrackBee to Customer, visitors, end user, company you represent that enables you to use the Subscription Services which is accessible to you via usernames and passwords created and/or assigned by Customer.
- Customer Content means, excluding the Services, any and all information, data, text, software, photographs, graphics, video, messages, tags and/or other materials and content, that Users post, upload, share, submit, store or otherwise provide or make available through or using the Services. Customer Content does not include any improvisation done to Customer Content where TrackBee's right legally exist as creator/ owner of any intellectual property created in course of improvisation and is treated as Confidential Information of TrackBee.
- Customer Data means any content, materials, data and information that Authorized Users enter into the production system of TrackBee or that Customer derives from its use of and stores in the TrackBee platform.
- Custom Works means, any custom designs, projects, or other works, including Deliverables, created by TrackBee for, or on behalf of, User by TrackBee; provided Custom Works specifically exclude the Services, Generic Tools, and any Pre-Existing IP of TrackBee and any proprietary right and work of TrackBee.
- Deliverables means any outputs specifically defined in an Statement of Work and characterized as "Deliverables" that will be provided by TrackBee to Customer, provided Deliverables expressly exclude the Services and any Pre-Existing IP of TrackBee and proprietary rights and works of TrackBee.
- Generic Tools means coding, programming techniques, designing techniques, architecture, trade secrets, methodology, APIs, functions, applications, knowledge, experience, skills, templates, other know-how and related Intellectual Property, TrackBee uses to provide the Services.
- Intellectual Property Rights means any and all patents, inventions, copyrights, moral rights, trademarks, domain names, trade secrets, know-how, and any other form of intellectual property and/or proprietary rights recognized in any jurisdiction whether existing now or acquired hereafter including any application or right to apply for registration of any of these rights.
- Law(s) means any and all applicable laws, regulations, statutes, rules, orders and other requirements of any international, federal, state or local governmental authority.
- Order Term means the period or term which is specified in an Ordering Document (including any renewals of the same) during which Users will have access to the Services.
- Ordering Document means any form (including an electronic form or Statement of Work), either executed by the Parties or agreed to by the Customer via the Site, that sets out the commercial terms of Customer's purchase of TrackBee's Services. All Ordering Documents shall be deemed to incorporate, and shall be subject to and governed by the Agreement.
- Pre-existing IP means any Intellectual Property Rights in materials and/or information (including, but not limited to, algorithms, methods, forms, software, software components in source or object code form) that is owned by, licensed to, or in the possession of TrackBee, in one or more of the following manner:
- On or prior to the creation of the Custom Work;
- After the commencement of the Custom Work but not specifically created as a part of the Custom Work, including any enhancements, improvements;
- Modifications to any of the foregoing in (i.) or (ii.) whether created prior to or after the Effective Date.
- Professional Services includes services which TrackBee offers to its Customer/ Users.
- Response Data means any information, data, text, creative, video, audio, photographs, images, illustrations, animations, logos, software, scripts, executable ﬁles, graphics, and interactive features, any of which may be submitted to, generated, provided, or otherwise made accessible on or through the Services by a respondent or by virtue of a respondent having opened a survey or form built via the Services.
- Services means the Site, Software, Professional Services, Pre-Existing IP, Statistical Data, products, services, applications, tools and other resources provided or made available by TrackBee or accessible at the Site, including any applicable support services, manuals, documentation and related material, and all related service names, logos, design marks, slogans, and all other material comprising the Site, Services, and Software.
- Software means any software, documentation, or data related to the Services provided by TrackBee and/or its Subcontractors.
- Statement of Work means a document entitled "SOW" or "Statement of Work" executed by the Parties and expressly incorporating this Agreement, as amended from time to time.
- Statistical Data means aggregated and anonymized statistical and performance information based on and/or related to Customer's use of the Services, which does not contain any personally identifying information and is compiled using a sample size large enough to ensure the underlying data cannot be attributed to Customer.
- Subcontractor means a service provider engaged by TrackBee that provides a part of the Services.
- Subscription Service means the web-based application(s) available to the Customer via the Site.
- Third Party Services means any software, products, tools, applications, or services that are used in connection with the Services that are not owned by TrackBee.
- User means any person, other than TrackBee's employees or agents engaged in providing Professional Services to Customer, accessing and/or using the Services through Customer's Account. User and Customer may be used interchangeably.
III. ACCEPTANCE CLAUSE:
- The Agreement creates a irrevocable and unconditional legally binding obligation and conditions to comply and abide by with the Agreement, unless any term is made specifically optional, as you click an "I Accept" button or checkbox presented with Services which you want to access and on which the Terms and Conditions applies.
- If you will be using / use the Services on behalf of an organization/ legal entity, you agree to the Agreements on behalf of that organization/ legal entity and you represent that you have the authority to do so and you have legal authority to bind the Organisation/ legal entity you are representing. In such case, you are required to send proof authorisation granted in your name by the by your organisation/ legal entity.
- TrackBee may modify terms and condition of the Agreement at any time by posting a revised / modified version on the platform (www.trackbee.com/terms-of-service) or otherwise providing notice to you. By continuing to use the Services after the effective date of any modifications made, you agree to be bound by the modified terms.
- After your initial explicit acceptance to this Agreement, such consent is continuous unless you specifically write to us notifying your withdrawal in writing to us.
IV. SERVICES TERMS
- On or as soon as reasonably practicable after the Effective Date and subject to Customer's payment of the fees set forth in the Ordering Document, TrackBee shall provide Customer with access to the Subscription Services ordered pursuant to such Ordering Document.
- Each User must provide his/her legal full name, a valid email address, and any other information requested in order to complete the signup process and create a login.
- Each login may only be used by one User. A single login shared by multiple Users is not permitted, and you may create separate logins for as many Users as you requires subject to Subscription Services plan.
- Prerequisite to use of Subscription Services- Customer/ client is responsible for obtaining all hardware, software and services, which are necessary to access the Services.
- Subject to the terms and conditions of the Agreement, TrackBee grants to Customer a limited non-exclusive, non-transferable, revocable right to access and use the Services ordered pursuant to an Ordering Document during the Order Term, solely for Customer's internal business purposes (unless otherwise expressly agreed by TrackBee) and in accordance with the limitations (if any) set forth in the Ordering Document. All rights not expressly granted herein are reserved by TrackBee
- User is responsible for maintaining the security of each User's account and password and you shall procure that each User complies with these Terms. We cannot and will not be liable for any loss or damage from your (or your Users') failure to comply with the Agreement.
- User is responsible for all data posted and all activity that occurs under your Account (even when data is posted by others who have accounts under your Account).
- Only one login may be allocated to each User.
- You may not use the Service for any illegal or unauthorized purpose and you must not, in the use of the Service, violate any applicable laws.
- User is not authorized to copy, modify, re-package (unless otherwise expressly agreed by TrackBee), reverse-engineer, or disassemble the Services or deal with Services in manner detrimental to TrackBee's interest. User's use of the Services confers no title or ownership in the Services and is not a sale of any rights in the Services. All ownership rights to the Services retained by TrackBee
- TrackBee, in its sole discretion, reserves the right to modify the Services, or any features of the Services at any time and for any purpose, including but not limited to, improving performance or quality, correcting errors, or maintaining competitiveness.
- Beta Features - From time to time, TrackBee may make Beta Features available to Customer. Whether to choose Beta Features or not is User's sole discretion. TrackBee reserves its sole right and discretion to discontinue Beta Features at any time. User understands and agrees that TrackBee may even never make Beta Features generally available. TrackBee will have no liability for any harm or damage arising out of or in connection with a Beta Feature or for discontinuing Beta Features.
- Free Trials - TrackBee may make some or all of the Services available to on a limited, nonexclusive, non-transferable, revocable, free trial basis for evaluation purposes only. Free Trials does not give automatic right to User/ customer/Free Trial account holder to qualify for Services of TrackBee. TrackBee reserves its right to modify any feature(s) and/ or terminate/ suspend Free Trial(s) prior to completion of term of Free Trials. TrackBee will have no liability for any harm or damage arising out of or in connection with free trial account and/ or termination/ suspension of free trial account before completition of term of such free trial services/ account(s). Users of free trial accounts acknowledge and agree that TrackBee is under no obligation to provide such user with any response data generated by usage of a free trial account.
V. PROFESSIONAL SERVICES TERMS
- Each User acknowledges and admits that User's cooperation is required for TrackBee to provide best suited Professional Services to each of its User. User acknowledges that its timely provision of responses, assistance, cooperation, complete and accurate information and data from its officers, agents, and employees, and suitably configured computer products and such other cooperation are essential to performance of any Professional Services, and that TrackBee will not be liable for any deficiency in performing Professional Services if such deficiency results from User's failure to provide full cooperation.
- Custom Works. In the course of providing the Professional Services, TrackBee may create Custom Works for User that incorporates, embeds, or integrates TrackBee's PreExisting IP. Other than any Pre-Existing IP incorporated, embedded, or integrated into the Custom Works, User owns all right title and interest in the Custom Works. TrackBee hereby grants to User a worldwide, non-exclusive license to use the Pre-Existing IP solely in conjunction with, and to the extent incorporated in an unmodified version of the Custom Works. User acknowledges and agree that any unauthourised use of TrackBee's Pre Existing IP used in the Customs shall make User liable to pay and compensate for damage done to TrackBee and for infringement committed thereof.
- User shall not by himself/ herself, and/ or shall not allow any employee or third party to copy, reverse-engineer, modify, improve, create derivative works of or use or circulate the PreExisting IP in any way outside of the Custom Works as delivered by TrackBee to User. In the event that any User, User's employee or third party at User's request or direction modifies, improves or creates derivative works of the Pre-Existing IP, whether or not in violation of the Agreement, User shall cause all right, title and interest in and to such modifications, improvements and/or derivative works to be assigned to TrackBee and will sign all further documents necessary to effect such assignment. TrackBee reserves its right to ask for further payments for effecting such directions of User. TrackBee shall not be paying consideration for such assignment.
- Generic Tools - TrackBee may use its Generic Tools when providing the Services to Customer. To the extent permissible by Law, TrackBee and/or its Subcontractors own all rights, title, and interests in such Generic Tools. For clarity, any API Connector/Integrations built by TrackBee are hereby expressly considered Generic Tools and at no point will any API Connector/Integrations be considered Custom Works or Deliverables.
- Customer/ User Definition of Requirements -Where User engages TrackBee to provide any Custom Works, User represents and warrants that Custom Works, as developed in accordance with the instructions and requests of User, do not infringe the Intellectual Property Rights or any other rights of any third party. User is solely responsible for review of any Custom Works to ensure they do not violate or infringe a third party's privacy rights, Intellectual Property Rights, or any other rights. User acknowledges and agrees that the provision of the Professional Services does not constitute any assumption of risk related to the Custom Works by TrackBee.
- Expenses - User shall pay for all travel expenses, fees, and out of pocket expenses incurred by TrackBee in providing the Services, provided that User approves such expenses in advance in writing.
VI. ACCEPTABLE USE OF SERVICES
- TrackBee reserves right to terminate/ suspend your account without prior notice, in case your use of Services is not in accordance with our terms and conditions.
- In case you found to involve in any illegal, unauthorised activities, your account may be terminated or suspended and you may face ban which would prohibit you to create any other account with us and/ or prohibit you to subscribe to any of our services.
- If you have faced with termination of account and/ or banned from creating any future account with us, you may ask us in writing to review your application along with details to permit you to create an account and/ or to lift the ban as the case may be. However, TrackBee reserves right not to accept your request without providing/ communicating you any reason.
- User acknowledges and agrees that TrackBee Services shall be put to legal, authorised and acceptable purpose only.
- User agree not to use TrackBee Sevices nor to assist others in using TrackBee's Services in ways that would (a) violate, misappropriate, or infringe the rights of others, including privacy, publicity, intellectual property, or other proprietary rights; You agree not to use our Sevices for any illegal, obscene, defamatory, threatening, intimidating, harassing, hateful, racially, or ethnically offensive manner, or in any manner that would instigate or encourage conduct that would be illegal, or otherwise inappropriate, including promoting violent crimes; You agree not to use our Services in manner that involve publishing falsehoods, misrepresentations, or misleading statements; impersonate someone; use which involve sending illegal or impermissible communications, involve any non-personal use of our Services unless otherwise authorized by us.
- User must not do by himself/ herself nor shall assist others to access, use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sublicense, transfer, display, perform, or otherwise exploit our Services in impermissible or unauthorized manners, or in ways that burden, impair, or harm us, Services, systems, our users, or others, including that you must not directly or through automated means reverse engineer, alter, modify, create derivative works from Customs Works/ Deliverables decompile, or extract code from our Services. You agree not to undertake anything using our Services that would use to send, store, or transmit viruses or other harmful computer code through or onto our Services. You shall not try to gain or attempt to gain unauthorized access to our Services or systems; nor shall try to interfere with or disrupt the integrity or performance of our Services. You shall not create accounts for our Services through unauthorized or automated means; so as to collect the information of or about our Users in any impermissible or unauthorized manner; or to sell, resell, rent, or charge for our Services; or distribute or make our Services available over a network where they could be used by multiple devices at the same time.
- You state that you have attained legal age of 18 years and is capable of giving consent and sign legal documents.
- You agree not to use the Services to make available any content that is harmful to children, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libellous, invasive of another's privacy, hateful or racially, ethnically or otherwise objectionable.
- You agree not to use the Services to violate any applicable laws or regulations.
- You agree not to use the Services to impersonate any person or entity, or forge or manipulate headers or identifiers to disguise the origin of any content transmitted through the Service.
- You agree not to use the Services to make available any content that you do not have the right to make available or that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any person or entity; post content containing advertisements or other commercial solicitations without our prior written permission.
- You agree not to use the Services to make available viruses or any other computer code, files, programs or content designed to interrupt, destroy or limit the functionality of the Services or affect other users.
- You agree not to use the Services to interfere with or disrupt the Services or servers, systems or networks connected to the Services in any way.
- Use of Services - You must follow any guidelines or policies associated with the Services. You must not misuse or interfere with the Services or try to access them using a method other than the interface and the instructions that we provide. Unless otherwise expressly stated, you may not access or reuse the Services, or any portion thereof, for any commercial purpose.
- Anti-corruption laws - You agree to comply with all applicable anti-corruption laws including laws that prohibit unlawful payments to anyone for a corrupt purpose in relation to these Terms.
- Ownership and reuse. Using the Services does not give you ownership of any intellectual or other property rights or interests in the Services or the content you access. You must not use any branding or logos used in the Services unless we have given you separate explicit written permission. You may not remove, obscure or alter any legal notices displayed in or along with the Services. Unless you have explicit written permission, you must not reproduce, modify, rent, lease, sell, trade, distribute, transmit, broadcast, publicly perform, create derivative works based on, or exploit for any commercial purposes, any portion or use of, or access to, the Services (including content, advertisements, APIs and software).
- Support - Unless otherwise expressly stated, we do not promise to provide you with any support for the Services. If we provide you with support, it is at our sole discretion and may withdraw such support.
- Fees- We reserve the right to charge fees and/ or change fees for use of or access to the Services (and any associated support), whether currently in existence or not, in our sole discretion. If we decide to charge fees, our Payment Clause will apply and we will provide you with prior notice.
- Different features may be available in different versions of the Services and not all features may be available in your country or region. Also, not all features may be available if the user that you are communicating with is using a different version of the Services, or is using third-party software.
- Anti-abuse policy - We prohibit sending unsolicited emails or messages using our Services. You shall not, in connection with the Services, engage in commercial activity on non-commercial properties or apps or high-volume activity without our prior written consent. You may not engage in conduct or activity that is disruptive to the Services or the experience of other users.
VII. SERVICE AVAILABILITY CLAUSE
Our Services may be interrupted, including for maintenance, repairs, upgrades, or network or equipment failures. We may discontinue some or all of our Services, including certain features and the support for certain devices and platforms, at any time. Events beyond our control may affect our Services, such as events in nature and other force majeure events. You agree not to bring in any dispute or liability upon TrackBee or to claim any compensation for any loss / damage you suffered for interruption of Services resulted due to technical reasons or for discontinuation of some/ all Services as stated here and/ or for such reason which are beyond our control.
IX. PAYMENT CLAUSE
- User shall pay all fees specified in all Ordering Documents for the entirety of the Order Term. Fees are based on the Services ordered pursuant to an Ordering Document and payments are non-refundable and Payments cannot be cancelled. For customised plan and payments for such customized plan, you are requested to contact TrackBee.
- User agrees to make such calculated excess payments, in case User exceeds the limits set for them, and TrackBee also in case User exceeds the number of Users allotted in User's Subscription package and/or Ordering Document as per TrackBee's prevailing rate.
- Usage-based Fees - Services offered by TrackBee have certain features whose actual usage is assessed on the basis of User's actual usage of those features, User agrees to make payment for their such usage.
- User agrees to pay for any Add-On feature(s) that they use at any time by using the Add-On Feature and/or executing an Ordering Document for the Add-On Feature for Order term and also Renewal made thereof.
- User agrees to make accurate payments through one or more methods offered by TrackBee within duration specified, if any and also agrees to pay for renewals thereof within specified duration.
- User is responsible for reviewing the pricing schedule, features, and limits associated with its Ordering Document / Subscription.
- Late Payment- If any amount due is not received by the due date, then without limiting TrackBee's rights or remedies, TrackBee may apply a late fee of ......% of the outstanding balance per month, or the maximum rate permitted by Law, from the date such payment was due until the date paid; and/ or accelerate the payment of any fees payable; and/or condition future subscription renewals and orders on pre-payment or payment terms shorter than those specified in the Ordering Document.
- During Renewal of Services, User to see TrackBee's fees prevailing at that time, which may differ from fees charged at the time of Sevices which is due for renewal.
- Taxes - All fees stated in the Ordering Document are exclusive of any applicable taxes. User's Taxes may be added to the final price charged to User on User's invoice.
- Reactivation Fee - TrackBee may charge a re-activation fee to re-activate a suspended account and/ or terminated and/ or banned account.
- No Refunds- Except as otherwise provided in this Agreement or required by Law, TrackBee will not provide refunds or credits for partial or unused periods of service or mid-term downgrades.
- Disputing Charges- Any dispute to a charge on User's invoice must be made with specificity within 30 days after the date of the invoice that initially contained the disputed charge.
X. INTELLECTUAL PROPERTY CLAUSE
- User's Property- By using the Services, submitting any Customer Content through the Services, or providing any Customer Content to TrackBee, User hereby grants TrackBee and its Subcontractors (if any) a worldwide, non-exclusive, royalty-free, fully paid, sublicensable and transferable license to use, process, store, edit, modify, aggregate, combine, reproduce, distribute, display, publicly perform, publicly display, host, communicate, distribute, and prepare derivative works of the Customer Content in connection with the Services for the duration of the Agreement and until such time as User requests deletion of the Customer Content in writing. However, it must be understood that license granted to TrackBee and its Subcontractors(if any), does not affect User's ownership or license rights in its Customer Content (excluding any Pre-Existing IP) unless otherwise agreed in writing. User represents and warrants that User has all rights to grant such licenses to TrackBee and its Subcontractors (if any) without infringement or violation of moral rights or any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other Intellectual Property Rights. User indemnifies TrackBee for any misuse of data by User.
- Response Data- Response Data is generated when an individual responds to survey form floated by User and individual responding to such survey form is the Respondent. TrackBee do not store Respondent's data but only act as processor. Subject to User's payment of applicable fees, TrackBee processes the collected Respondent's data and prepare Deliverables.
- User hereby grants TrackBee and its Subcontractors (if any) a worldwide, non-exclusive, royalty-free, fully paid, sublicensable and transferable license to use, host, store, reproduce, modify, and create derivative works of Response Data, in connection with the Services for the duration of the Agreement and until such time as User requests deletion of the Response Data in writing. User represents and warrants that User has all rights to grant such licenses to TrackBee and its Subcontractors without infringement or violation of moral rights or any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other Intellectual Property Rights.
- User Data- In addition, while using the Services, Users may provide information (such as a User's name, contact information, and/or other registration information) to TrackBee. User agrees to obtain the necessary consent to permit TrackBee to use this information and any technical information about User 's use of the Services for the limited purposes of tailoring/ modifying the user experience of the Services to the User, facilitating Users' use of the Services, and communicating with User. Further, User agrees that TrackBee may use such information to identify and understand trends in the various interactions with our Services and to conduct internal business analysis based on meta-data about usage, feature adoption and forecasting, on an anonymized, aggregated basis (unless otherwise agreed by User).
- TrackBee's Property - User acknowledges and agrees that all rights, title and interest in and to Services are the exclusive property of TrackBee or its affiliates (if any), licensors or suppliers. Unless stated otherwise, TrackBee and its licensors retain all Intellectual Property Rights in and to Services and all logos, graphics, software, algorithms, functionality, content (other than Customer Content) comprising the Services.
- Feedback- User may provide feedback, suggestions, and comments to TrackBee regarding the Services ("Feedback"). User hereby grants to TrackBee a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sub-licensable and transferable license to use, process, store, edit, modify, aggregate, combine, reproduce, distribute, display, perform, prepare derivative works, and otherwise fully exploit such Feedback in any medium or format, whether now known or later developed.
- Publicity - Unless otherwise agreed by the parties, User hereby agrees that TrackBee may reference User in marketing and public relations materials, including a press release announcing User as a customer. User hereby grants TrackBee a nonexclusive, worldwide license to use and display User's trademarks, trade names and logos in connection with the foregoing.
- No Guarantee of Results - User understands and acknowledges that, it is not possible to guarantee that the performance of the Services will be successful in producing any specific results.
- User hereby acknowledges and agrees that TrackBee shall not be liable for the failure of the performance of the Services to generate any expected or useful results.
- API Connector/Integration - TrackBee does not guarantee the continued availability of any API Connector/Integrations. TrackBee may discontinue any API Connector/Integration at any time in its sole discretion. User should not make purchase decisions based on the availability of any such API Connector/Integration. User acknowledges and agrees that User may be able to use the connected application to access Customer Content in Customer's Account and/or transmit data out of the Customer's Account. To the extent data is transmitted out of the Services, TrackBee is not responsible for the privacy, security or integrity of that data.
- Service Availability - From time to time, down-time, either scheduled or unscheduled, may occur in respect of the Services. TrackBee will work to ensure the amount of down-time is limited. In the case of anticipated or planned outages or system-wide issues affecting the basic use of the Services, TrackBee will endeavor to provide User with reasonable advance notice. User acknowledges and understand that TrackBee does not warrant that the Services will be uninterrupted or error free and that TrackBee may occasionally experience "hard outages" due to disruptions that are not within our control. Any such hard outage shall not be considered a breach of this Agreement by TrackBee. User releases TrackBee entirely of all responsibility for the consequences of any down-time.
- Advice - From time to time, User may obtain advice or information from TrackBee help or support pages, white papers, and/or TrackBee's employees (collectively, "Advice"). User acknowledges and agrees that such Advice will not be deemed to constitute financial, legal or tax advice. User should seek the advice of its own advisers prior to acting upon any such Advice. User agrees that use of and reliance on any such Advice is at its own risk and User releases TrackBee entirely of all responsibility for any consequences of its use of and reliance on any such Advice.
- User understands that downgrading its account may result in the loss of content, features, or capacity of Customer's Account and TrackBee does not accept any liability for any such losses. Use of the services and any reliance by User upon the services, beta features, or advice, including any action taken by User because of such use or reliance, is at User's sole risk. To the maximum extent permitted by law, TrackBee does not warrant or guarantee that the services will be uninterrupted, accurate or error free; nor does it make any warranty or guarantee as to the results that may be obtained from use of the services. The services, beta features, and advice are provided "as is" and to the extent permitted by law company disclaims all warranties, guarantees, express or implied, including (but not limited to) implied warranties of merchantability, fitness for a particular purpose and non-infringement.
- We are providing our services on an "as is" basis without any express or implied warranties, including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, non-infringement, and freedom from computer virus or other harmful code. We do not warrant that any information provided by us is accurate, complete, or useful, that our services will be operational, error free, secure, or safe, or that our services will function without disruptions, delays, or imperfections. We do not control, and are not responsible for, controlling how or when our users use our services or the features, services, and interfaces our services provide. We are not responsible for and are not obligated to control the actions or information (including content) of our users or other third parties. You release us, our subsidiaries, affiliates, and our and their directors, officers, employees, partners, and agents from any claim, complaint, cause of action, controversy, or dispute (together, "claim") and damages, known and unknown, relating to, arising out of, or in any way connected with any such claim you have against any third parties.
XII. WARRANTIES CLAUSE
- Mutual Warranties. Each Party represents and warrants that:
- it has the full right, power and authority to enter into, execute, and perform its obligations under the Agreement; and
- it will not violate Laws in the provision or receipt of the Services.
- TrackBee Warranties - TrackBee represents and warrants that TrackBee shall make every reasonable attempt to ensure there is no material degradation of the Services during the Order Term. Professional Services shall be performed by qualified personnel.
- Customer Warranties - Customer represents and warrants that:
- User has informed all persons whose information is collected:
- of the purpose for which that information was collected,
- that User may provide this information to its vendors and/or service providers for the purposes of use in relation to the Services, and
- that such information may be processed and/or stored by User's vendors and/or service providers; and User has obtained the consent of such persons for processing of their personal information by its vendors and service providers in the foregoing manner.
XIV. THIRD-PARTY WEBSITE LINK CLAUSE
Our Services may allow you to access, use, or interact with third-party websites, apps, content, and other products and services which are integrated with our Services or links to such Third Party's website may be hosted in our Site. You are requested to make yourself aware of terms and privacy policies of such third-party services, when you use such third-party's services.
XV. CONFIDENTIALITY OF SITE INFORMATION
- Confidential Information - Parties acknowledge that in the course of performing their obligations under the Agreement, each party may receive information that is either clearly marked as "confidential" or non-public information which, under the circumstances surrounding the disclosure, a reasonable person would conclude should be treated as Confidential Information from the other party. Receiving party (TrackBee or You, as the case may be) covenants and agrees that neither it nor its agents, employees, officers, directors or representatives will disclose or cause to be disclosed any Confidential Information of the disclosing party , except
- to those employees, representatives, or contractors of the receiving party who require access to the Confidential Information to exercise its rights under the Agreement and who are bound by confidentiality obligations, or
- as such disclosure may be required by Law, subject to and to the extent permitted by Law, the receiving party providing to the disclosing party written notice to allow the disclosing party to seek a protective order or otherwise prevent the disclosure. Notwithstanding the foregoing, nothing in this Agreement will prohibit or limit the receiving party's use of information:
- previously known to it without breach or obligation of confidence,
- independently developed by or for it without use of or access to the disclosing party's Confidential Information,
- acquired by either of the Party from a third party that was not under an obligation of confidence with respect to such information at the time of disclosure, or
- that is or becomes publicly available through no breach of the Agreement.
- Protection of Customer Content - Without limiting the above, TrackBee will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Customer Content. TrackBee do not modify or access the Customer Content except as required to provide the Services, prevent or address service or technical problems, or at User's request in connection with support matters.
- User Passwords - User is solely responsible for keeping Customers' and/or Users' account name, password, and any other login credentials confidential. User is responsible for any and all activities that occur within Customer's Account, whether authorized by User or not. User must notify TrackBee immediately of any unauthorized access or use of Customer's Account. TrackBee will not be held responsible or liable for any losses due to lost or hacked passwords.
XVI. AMENDMENTS / MODIFICATION TO THE AGREEMENT:
We may amend or update terms of the Agreement. We will provide you notice of amendments to our terms, as appropriate, and update the "Last Modified" date at the top of our terms. Your continued use of our Services confirms your acceptance of our terms, as amended. If you do not agree to our terms, as amended, you must stop using our Services. Please review our terms from time to time.
XVII. INDEMNIFICATION CLAUSE
- If you are using the Services on behalf of a organisation, business or other entity, or if you are using the Services, you and the entity will hold harmless and indemnify TrackBee from any suit, claim or action arising from or related to the use of the Services or violation of these Terms, including any liability or expense arising from claims (including claims for negligence), losses, damages, suits, judgments, litigation costs and legal fees.
- User Indemnity - User agrees to defend, indemnify and hold TrackBee, its officers, directors, shareholders, successors in interest, employees, agents, subsidiaries and affiliates harmless from any claims, losses, damages, liabilities, settlements, and expenses (including, but not limited to attorney fees) by a third party ("Claims") related to, arising from, or connected with:
- Users' use of the Services;
- Users' breach of this Agreement or the Acceptable Use of Service or any representation or warranty made by Customer therein;
- Custom Works requested by User, Customer Content, or Response Data (including, without limitation, Claims alleging that the Custom Works requested by User, Customer Content, or Response Data violates or misappropriates the Intellectual Property Rights or other rights of any third party);
- Users' negligence or intentional misconduct; 5) an allegation of defamation or invasion of privacy by User; and/or 6) any violation of Law by a User. Notwithstanding the foregoing, User shall not make any admissions on behalf of TrackBee or settle any claim without TrackBee's consent.
- TrackBee's Right to Defend - Promptly upon learning of any Claim against User arising from or related to allegations that the Services violate or infringe a third party's privacy or Intellectual Property Rights (an "Services Claim"), User shall give notice to TrackBee of the Services Claim and immediately deliver to TrackBee all original notices and documents (including court papers) received in connection with and/or related to the Services Claim. TrackBee shall have the exclusive right, but no obligation, to assume defense of such Services Claim at any time and at any stage. If TrackBee assumes defense of any such Services Claim, User agrees to, cooperate in the defense thereof as reasonably requested by TrackBee. Upon assuming the defense of an Services Claim, TrackBee may appoint any legal counsel selected by TrackBee and settle any Services Claims on such terms and conditions it deems advisable.
- User agrees that upon TrackBee's assumption of the defense of the Services Claim:
- TrackBee will not be liable to User for any legal costs or expenses subsequently incurred by User in connection with the Services Claim;
- is not an acknowledgment by TrackBee that it is liable to indemnify User in respect of the Services Claim; and
- it will not constitute a waiver by TrackBee of any defenses it may assert against the User, if User claims it is owed indemnification for such Services Claim.
XVIII. LIMITATION OF LIABILITY CLAUSE
- To the extent permissible by law, in no event will TrackBee be liable to User or any third party for any loss of profits, loss of use, loss of revenue, loss of opportunity, loss of anticipated savings, loss of goodwill, loss of data, interruption of business, or for any direct, indirect, special, incidental, exemplary, punitive or consequential damages of any kind arising out of or in connection with this agreement or the services, regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, even if TrackBee has been advised or is otherwise aware of the possibility of such damages. The foregoing disclaimer will apply to the maximum extent permitted by law.
- In the event that, notwithstanding the foregoing, TrackBee or its affiliates or successor-in-interest and/ or predecessor-in-interest is found liable to customer for damages from any cause whatsoever, and regardless of the form of the action, in no event will TrackBee's total liability arising out of or related to this agreement exceed the aggregate of fees paid by User for the Services in the twelve months preceding the applicable claim giving rise to liability. Multiple claims will not expand this limitation. The foregoing disclaimer will apply to the maximum extent permitted by law. User agrees that TrackBee's liability will be reduced by the extent, if any, to which customer contributed to the loss.
- User acknowledges that the limitations set forth in this section are integral to the amount of fees charged in connection with making the services available to customer, and that, if TrackBee were to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher.
XIX. DISPUTES RESOLUTION CLAUSE
- You agree to defend, indemnify, and hold harmless TrackBee from and against all liabilities, damages, losses, and expenses of any kind (including reasonable legal fees and costs) relating to, arising out of, or in any way in connection with any of the following:
- your access to or use of our Services, including information provided in connection therewith;
- your breach or alleged breach of our Terms; or
- any misrepresentation made by you. You will cooperate as fully as required by us in the defense or settlement of any Claim.
- Any Dispute relating to the enforcement or infringement of your or our intellectual property rights (such as copyrights, trademarks, domains, logos, trade dress, trade secrets, and patents) are excluded disputes.
- Parties shall try to resolve any and all disputes first through mediation, them through arbitration.
- Time Limit to Start Arbitration- Parties agree that for any dispute (except for the Excluded Disputes), Parties must commence an arbitration proceeding within one year after the dispute first arose; otherwise, such dispute is permanently barred.
- No Class Actions, Class Arbitrations, or Representative Actions for Users and not on behalf of any other person or entity, or any class of people. We and you each agree not to participate in a class action, a class-wide arbitration, disputes brought in a private attorney general or representative capacity, or consolidated Disputes involving any other person or entity in connection with any Dispute.
XX. GOVERNING LAW
XXI. TERM OF AGREEMENT
The term of this Agreement will commence on the Effective Date and, unless earlier terminated in accordance with this Agreement, and will continue to apply to all Ordering Documents for the duration of such Ordering Documents. Notwithstanding the foregoing, User's obligations pursuant to this Agreement will continue to apply to any use of the Services by a User. Except as otherwise specified in the applicable Ordering Document or where prohibited by applicable Law, the Ordering Document and all non-expiring items added during the course of the Order Term, shall automatically renew for additional periods equal in duration to the original Order Term or one year, whichever is shorter, unless either party gives the other notice of non-renewal at least 30 days before the end of the Order Term (or, if applicable, any renewal of the Order Term). The foregoing will not apply to any Statement of Work, which will terminate as stated therein.
XXII. TERMINATION AND SUSPENSION CLAUSE:
- TrackBee may cancel your order without citing any reason and shall not be liable for any losses suffered by the User as a result of this cancellation of order.
- Either party may terminate the Agreement or any individual Ordering Document for cause if the other party materially breaches this Agreement or an Ordering Document and does not remedy such breach within thirty (30) days after its receipt of written notice of such breach; or immediately if the other party terminates its business activities or becomes insolvent, admits in writing to the 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.
- User agrees that TrackBee will not be liable to User or to any third party for termination of User's access to the Services resulting from any violation of this Agreement by User. If User has an inactive account due to not login for 90 days, TrackBee may terminate this Agreement or any Ordering Documents for the inactive account in its sole discretion.
- TrackBee may suspend Customer's Account:
- for non-payment or untimely authorization of payment;
- at any time without notice for conduct that it believes, in its sole discretion, violates the Agreement or other agreements or guidelines which may be associated with User's use of the Services; or in pursuance to any Laws applicable to User's use of the Services; or if Customer's Account have become inactive for not logging for more than 90 days.
- Effect of Termination and / or Suspension- Upon expiration or termination of the Agreement or Suspension of account
- User's right to use the Services shall cease, and TrackBee will have no further obligation to make the Services available to User;
- except as otherwise expressly stated herein, all rights and licenses granted to User under this Agreement shall cease;
- User will pay fees for the entire Order Term under all Ordering Documents in effect prior to the termination date, less any fees already paid pursuant to such Ordering Documents; and
- TrackBee may delete Customer Content, Response Data, and/or any archived data within thirty (30) days after the date of expiration or any termination of this Agreement. Any statutory retention requirements with respect to Customer Content and Response Data remain User's responsibility. Termination and/ or suspension is subject to Survival clause.
- Subject to any statutory rights you might have, if your account is terminated, access to your username, password and all related information, ﬁles and content associated with your account may be terminated and your username may be recycled for use by others.
XXIII. SURVIVAL CLAUSE
All covenants, representations and warranties made in the Agreement continue in full force until the Agreement has terminated pursuant to its terms and all obligations (other than inchoate indemnity obligations and any other obligations which, by their terms, are to survive the termination of the Agreement) have been satisfied. The obligation to indemnify TrackBee, intellectual property, confidentiality, dispute resolution, limitation of liability, non-solicitation clause, and all such clause and terms which is capable to survive through termination of the Agreement, shall survive until the statute of limitations with respect to such claim or cause of action shall continue.
If any provision of this Agreement is held invalid, illegal or otherwise unenforceable, it shall be deemed modified to render it enforceable while preserving the parties' original intent to the fullest extent, and the rights and obligations of the parties shall be construed and enforced accordingly. If the provision cannot be modified, then that provision will be deemed severed from this Agreement and all other provisions will remain in full force and effect.
XXV. NOTICES AND COMMUNICATION
Notices to User will be effective when TrackBee posts them to Customer's Account or sends them to the email address associated with Customer's Account; provided that any notice of breach and/or an indemnifiable claim must be made via email to the email address associated with Customer's Account. Notices to TrackBee will be effective when delivered to legal@TrackBee.com and where it is required to make any written communication, shall be made to
Frametrics Consulting Pvt. Ltd.
139/1, 2nd Floor, Humayunpur,
New Delhi 110029
XXVI. MISCELLANEOUS PROVISION
- The headings in the Agreement do not affect its interpretation.
- Force Majeure: TrackBee will not be liable for any delays or failure in performance of any part of the Services, from any cause beyond TrackBee's control. This includes, but is not limited to, acts of God, changes to Laws, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, floods, strikes, power blackouts, and acts of hackers or third party internet service providers.
- Remedies: Each Party acknowledges and agrees that any actual or threatened breach of the Agreement will constitute immediate, irreparable harm to the TrackBee for which monetary damages would be an inadequate remedy, that injunctive relief is an appropriate remedy for such breach, and that if granted, the breaching party agrees to waive any bond that would otherwise be required. If any legal action is brought by a party to enforce the Agreement, the prevailing party will be entitled to receive its attorneys' fees, court costs, and other collection expenses, in addition to any other relief it may receive from the non-prevailing party.
- Assignment. Neither the Agreement nor any right or obligation under th Agreement may be transferred, assigned or delegated by Customer, by operation of Law or otherwise, without the prior written consent of TrackBee. Any attempted assignment or transfer in violation of the foregoing shall be null and void ab initio and shall not confer any rights or remedies upon any person or entity not a party hereto. This Agreement may be assigned or transferred by TrackBee without the consent of the User. Subject to the foregoing, the Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.
- Relation between Parties- Parties is independent contractors. This Agreement does not create a partnership, joint venture, agency, or fiduciary relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as employment related taxes. No rights for third party beneficiaries are created by this Agreement. Nothing in this Agreement is intended to confer any rights or remedies on any person or entity which is not a party to this Agreement.
- Non Solicitation Clause - During the Term, and for a period of one year thereafter, Customer shall not solicit for hire, on behalf of itself or any other organization, any personnel of the TrackBee with User has had contact pursuant to the relationship established under this Agreement. If User violates this User shall pay TrackBee an amount equal to the aggregate compensation paid by TrackBee to the solicited employee in the six months preceding User's solicitation of such employee.
- Waivers Clause- Any waiver by TrackBee must be in writing and signed by an authorized TrackBee representative. No waiver by TrackBee of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No failure or delay by TrackBee in enforcing any right or provision under this Agreement shall be construed as a waiver of such right or provision or of any other right or provision.
- Electronic Signatures -This Agreement and any Ordering Document may be executed in one or more counterparts, each of which when so executed and delivered or transmitted by facsimile, email or other electronic means, shall be deemed to be an original and all of which taken together shall constitute but one and the same instrument.
- TrackBee may ask you to agree to additional terms for certain of our Services in the future, which will govern to the extent there is a conflict between our Terms and such additional terms.
- TrackBee Services are not intended for distribution to or use in any country where such distribution or use would violate local law or would subject us to any regulations in another country. TrackBee reserve the right to limit our Services in any country.
- Except as contemplated herein, our Terms do not give any third- party beneficiary rights.
- You cannot restrict, waive or modify any clause without our express consent.
- You will not transfer any of your rights or obligations under our Terms to anyone else without our prior written consent.
- All of our rights and obligations under our Terms are freely assignable by us to any of our affiliates or in connection with a merger, acquisition, restructuring, or sale of assets, or by operation of law or otherwise, and we may transfer your information to any of our affiliates, successor entities, or new owner.
- Nothing in our Terms will prevent us from complying with the law.
- We reserve all rights not expressly granted by us to you. In certain jurisdictions, you may have legal rights as a consumer, and our Terms are not intended to limit such consumer legal rights that may not be waived by contract.
- TrackBee thrive to grow with its Customers and always appreciate your feedback or other suggestions about our Services. We may use your feedback or suggestions without any obligation to compensate you for them.