Terms and Conditions

Last Updated: December 1, 2023

THIS AGREEMENT FOR USE OF SERVICE (“Agreement”) is made between Trackforce, Inc., a New York corporation (“Company”), and the business organization completing the registration process (“Customer”) to open and maintain an account with Company to access and use Company’s employee management and reporting service (“Service”) located on its website www.silvertracsoftware.com, or any successor address used by Company to provide the Service. (“Website”).  Company and Customer are collectively referred to as the “parties”. 

BY CLICKING THE BUTTON ACCEPTING THIS AGREEMENT OR ACCESSING, USING OR INSTALLING ANY PART OF THE SERVICE, CUSTOMER EXPRESSLY AGREES TO AND CONSENTS TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED, COMPANY WILL NOT ACTIVATE CUSTOMER’S SUBSCRIPTION TO USE THE SERVICE AND CUSTOMER MAY NOT ACCESS, USE OR INSTALL ANY PART OF THE SERVICE.  ANY PERSON CLICKING THE BUTTON ACCEPTING THIS AGREEMENT REPRESENTS TO COMPANY THAT HE OR SHE HAS THE AUTHORITY TO BIND COMPANY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.

CUSTOMER ACKNOWLEDGES THAT COMPANY MAY MODIFY THIS AGREEMENT AT ANY TIME. UNLESS CUSTOMER OBJECTS IN WRITING WITHIN THIRTY (30) DAYS FOLLOWING THE MODIFICATION(S), CUSTOMER WILL HAVE BEEN DEEMED TO HAVE ACCEPTED THE MODIFICATION(S) ON THE DATE THE MODIFICATIONS COME INTO EFFECT. CONTINUED USE OF THE SERVICE OR WEBSITE WILL BE DEEMED TO BE CUSTOMER’S ACCEPTANCE OF THE MODIFIED AGREEMENT. IN THE EVENT CUSTOMER DOES NOT ACCEPT TO BE BOUND BY THE MODIFIED AGREEMENT, CUSTOMER’S ONLY RECOURSE IS TO TERMINATE THE AGREEMENT AS SET OUT IN SECTION 7.3.

1. DEFINITIONS

   1. “Administrative User” shall initially mean the person named in the Sign-Up Form and who will be the primary point of contact with Company.  The Administrative User can only be changed thereafter by a duly authorized representative of Customer in writing.
   2. “Authorized User” shall mean the personnel of Customer authorized by Customer to use the Service and for whom the Administrative User has created a user identification and password, subject to the number of seats provided in the Subscription Package.
   3. “Billing Date” shall mean the date payments are due from Customer each month during the term of the Service.  The initial Billing Date shall be the Subscription Date and thereafter the Billing Date shall be the same date of each succeeding calendar month.
   4. “Customer” shall mean the “Organization” named in the Sign-Up Form.
   5. “Customer Data” shall mean the personal or business information of Customer created by Customer and uploaded by Customer to the Service, such as, by way of example, Customer employee and customer information, user notes and completed reports (i.e., incident reports, daily activity reports and the like).
   6. “Monthly Fee” shall mean the recurring monthly fee payable by Customer based on the Subscription Package purchased by Customer from time to time.
   7. “Service Information” shall mean the information provided by Company on the Website describing the Service.
   8. “Sign-Up Form” shall mean the form provided by Company and completed and submitted by Customer setting forth the type of Subscription Package purchased by Company, the Administrative User, the Monthly Fee, the number of Authorized Users and Customer information requested in the Sign Up Form, as may be amended by Customer and Company from time to time in writing.
   9. “Subscription Date” shall mean the date Company confirms in writing that it has accepted Customer’s subscription and has verified payment of Customer’s initial installment of the Monthly Fee for the Subscription Package purchased by Customer.
   10. “Subscription Package” shall mean the level of Service subscribed for by Customer.  The details of the Subscription Package shall be set forth in the Sign-Up Form and as otherwise may be agreed in writing by the Administrative User (on behalf of Customer) and an authorized representative of Company.

2. SUBSCRIPTION FOR SERVICE

   1. Signing Up.  The Service is Company’s software as a service employee management and reporting solution offered to registered customers as may be described more fully in the Service Information.  Subject to the conditions specified in this Agreement and compliance by Customer with the terms hereof, Company agrees to provide Customer with a personal, non-transferable and non-exclusive account to allow Customer to access and use the Service solely for Customer’s internal business purposes.  This subscription allows Customer and Authorized Users (as hereafter defined) to, in accordance with the Subscription Package purchased by Customer:  (a) access the Website to use the Service; (b) download software applications to access the Service to handheld devices owned and used in Customer’s business by Customer and/or Authorized Users (the use of which is licensed to Customer on a nonexclusive basis and shall terminate upon termination of this Agreement); and (c) access and use the Service Information.  Only the Administrative User may make changes to Customer’s subscription.
   2. Terms and Conditions Relating to Use of Service.  Customer shall comply with all terms and conditions of this Agreement and any additional terms of service set forth on the Website from time to time, including terms and provisions for the creation and use of Customer’s account (provided such additional terms of service are not inconsistent with the terms and provisions of this Agreement).
   3. Non-Transferability of Account.  Customer’s subscription and account are non-transferable; no portion of the subscription or the Service may be resold to third parties.
   4. Customer Representations.  Customer and the Administrative User (as he or she may be changed from time to time as approved by Company) represent and warrant to Company, as of the Subscription Date and throughout the term of this Agreement, that: (a) the Administrative User is over the age of eighteen (18); (b) the Administrative User is the authorized agent of Customer and has the power and authority to enter into this Agreement and bind Customer to Customer’s obligations under this Agreement, the terms of the Sign-Up Form and any changes to information set forth in the Sign-Up Form made by the Administrative User and approved by Company; (c) all information provided by or on behalf of Customer to Company is truthful, accurate and complete; (d) the Administrative User is the authorized signatory of the credit or charge card provided to Company to pay the fees and other amounts due hereunder; (e) Customer shall comply with all terms and conditions of this Agreement; and (f) Customer  has provided and will provide accurate and complete registration information, including, without limitation, credit or debit card information and the Administrative User’s legal name, email and mailing addresses and telephone number.

3. ACCESS AND USE OF SERVICE

   1. Delivery of Access.  Customer, via its initial Administrative User, shall be provided with the information necessary to access and use the Service, including download information and the Administrative User’s identification and password allowing access to the Service, within forty-eight (48) hours of the Subscription Date.
   2. Authorized Users.  The Administrative User may add Authorized Users from time to time to access the Service as described in the Service Information and as may be limited by the Subscription Package purchased by Customer.
   3. Training and Support.  Customer shall have access to Company’s training resources provided through the Website including Company’s resource center and video library (located on the Website) at no additional charge.  Additional training and support may be available at a supplemental charge as may be agreed in writing by Company and Customer.  Company shall provide technical support to allow Authorized Users to report technical problems with the Website or the Service and to seek assistance with the use of the Service.  Technical support services shall be outlined in Company’s resource center.  Company shall not provide technical support relating to problems, errors or malfunctions caused by, among other things: (a) malfunction of Customer’s equipment; (b) Customer’s software; or (c) any other cause not directly attributable to Company or the Service.  
   4. Changes to Service.  Company may, in its sole discretion, and from time to time, without notice to Customer, make changes to the Website and/or the Service, including changes in the delivery, format, content, scope of services, medium and means of access. Customer is required to accept all patches, bug fixes and updates made by or on behalf of Company to the Service. To the extent any change to Website and/or the Service results in the discontinuation of a material function or service, Company will endeavor to – but makes not guarantee that it will - support the prior version of the Service for at least six (6) months from the effective date of such change.
   5. Equipment to Use/Access Service.  Customer shall be solely responsible for providing, maintaining and ensuring compatibility with the Service, all hardware, software, electrical and other physical requirements for accessing and using the Service, including, without limitation, telecommunications and internet access connections and links, web browsers, handheld equipment or other equipment, programs and services required to access and use the Service.
   6. Continuing Accessibility to Service.  The Service may be inaccessible or inoperable from time to time for any reason, including, without limitation: (a) equipment malfunctions; (b) periodic maintenance procedures or repairs which Company may undertake; or (c) causes beyond the control of Company or which are not reasonably foreseeable by Company.
   7. Customer Data Retention.  Company shall maintain Customer Data for up to four (4) years from the date first uploaded by Customer to the Service.  Company routinely backs-up Customer Data on at least a daily basis.  Nevertheless, Customer acknowledges that it is assuming the risk that Customer Data may be lost due to any cause.
   8.  Customer shall take prudent measures to protect against unauthorized use of Customer’s account, including changing passwords as necessary to prevent its unauthorized personnel from accessing the Service.  In any event, Customer shall be solely responsible for the security of, and shall be responsible for any authorized or unauthorized access to, Customer’s account by any person, which shall include responsibility for all charges incurred from use of the Service with Customer’s password.

4. FEES AND CHARGES

   1.  Customer shall pay to Company the Monthly Fee in advance on each Billing Date, based on Customer’s Subscription.  Unless otherwise agreed by Company in writing, the Monthly Fee shall be paid through Customer’s debit card or credit card on file with Company.
   2.  Customer shall pay any applicable taxes or fees related to any products or services purchased from Company (excluding Company income taxes), including, without limitation, all currency conversion charges, sales, use, value-added, goods and services, transaction, personal property or other tax, duty or levy of any kind.
   3. Pre-Authorization for Credit or Debit Card Billing.  Customer authorizes Company to initiate debit or credit entries to Customer’s designated debit card or credit card for the amounts owed pursuant to this Agreement (including Monthly Fees and taxes) at the depository financial institution of said card, and to debit or credit the same to Customer’s account with Company.  If a payment is dishonored or interrupted, Customer acknowledges that additional fees shall be charged to Customer, including, without limitation, the late charges and re-activation fees authorized in this Agreement.  Customer authorizes Company to charge Customer’s on-file debit or credit card with such late fees and/or re-activation fees.  Customer acknowledges that it is authorizing Company to debit or charge Customer’s authorized debit or credit card monthly in advance on each Billing Date.
   4. Fee Changes.  The Monthly Fee amount set forth in the Sign-Up Form shall not be increased by Company until the first anniversary of the Subscription Date. Company may thereafter adjust such Monthly Fee in Company’s discretion by providing Customer at least fifteen (15) days’ prior notice of such fee adjustment.  Customer may request additional services or a change to the Subscription Package by notifying Company.  Changes to the Subscription Package shall not be effective unless agreed to in writing by both Customer and Company.  Customer acknowledges that the foregoing first year fee guarantee shall only apply to the Subscription Package initially purchased by Customer and any changes in services, subscription levels or upgrades agreed to by Company shall be charged to Customer at the then prevailing prices.
   5. Late Charges/Fees.  If Company does not receive payment of the Monthly Fee within five (5) days of the date such fee is due, Company may, in its sole and absolute discretion: (a) assess a late charge of 10% of the unpaid amount or $125, whichever is greater, and, in addition; (b) charge a late fee equal to 1.5% per month on the unpaid amount (retroactive to the unpaid Billing Date), or the highest rate permitted by applicable law.  Customer agrees that the late charges described herein represent a fair and reasonable estimate of the costs Company will incur by reason of such late payment or default.

5. OWNERSHIP AND PRIVACY

   1. Company Owns Service.  The Service is proprietary to Company and its affiliates and is protected by intellectual property laws and international intellectual property treaties. Customer’s access to the Service is licensed and not sold. All worldwide ownership of and rights, title and interest in and to the Service, including without limitation, all data, content, and other information and materials contained therein other than Customer Data, and, all copyrights, patent rights, trademark rights, trade secret rights, inventions and other proprietary rights therein and thereto, are and shall remain exclusively in Company and its affiliates.
   2. Customer Grant is Non-Exclusive.  Customer acknowledges that the rights granted to Customer to access and use the Service is non-exclusive with absolutely no limitation on Company’s ability to provide to any other parties the right to access and use the Service, including, without limitation, Customer’s competitors.
   3. Limitations on Privacy.  Company shall take commercially reasonable measures to protect the confidentiality of and to avoid disclosure to third parties of any Customer Data.  Company will not monitor, edit, or disclose any Customer Data without Customer’s prior consent unless Company has a good faith belief that such action is necessary to: (a) comply with legal process or other legal requirements of any governmental authority; (b) protect and defend the rights or property of Company; (c) enforce this Agreement; (d) protect the interests of users of the Service other than Customer; or (e) operate or conduct maintenance and repair of Company’s services or equipment.
   4. Authorization to Use Customer Name for Marketing.  Notwithstanding anything to the contrary in this Agreement, Customer acknowledges that Company may, and expressly authorizes Company to, disclose on Company’s website and marketing materials that Customer is a client of Company.

6. RESTRICTIONS ON USE

   1. Prohibited Uses.  Customer is solely responsible for any and all acts and omissions that occur under Customers account and Customer agrees not to engage in unacceptable use of the Service, which includes, without limitation, use of the Service to:  (a) disseminate, store or transmit unsolicited messages, chain letters or unsolicited commercial email; (b) disseminate or transmit material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious; (c) disseminate, store or transmit files, graphics, software or other material that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person; (d) create a false identity or to otherwise attempt to mislead any person as to the identity or origin of any communication; (e) export, re-export or permit downloading of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses or exemptions; (f) interfere, disrupt or attempt to gain unauthorized access to other accounts on the Service or any other computer network; (g) disseminate, store or transmit viruses or any other malicious code or program; (h) disseminate, store or transmit any Customer Data that: (i) Customer does not have the lawful right to create, collect, transmit, store, use or process; or (ii) is subject to specific regulations or laws that impose increased obligations with respect to handling that type of information or any other information where unauthorized use or disclosure could cause material or severe harm or impact to Company, or other third parties; or (i) engage in any other activity deemed by Company to be in conflict with the spirit or intent of this Agreement.
   2. General Restrictions. Customer must not itself, and will not permit others to: (a) modify the Service; (b) reverse engineer, decompile or disassemble the Service or otherwise seek to obtain the source code or non-public APIs to the Service, except to the extent expressly permitted by applicable law (and then only upon advance written notice to Company); (c) perform any vulnerability, penetration or similar testing of the Service, unless otherwise authorized to do so by Company; or (d) use the Service for any purpose or in any manner not expressly permitted in the Agreement.
   3. No Resale Rights Granted.  Customer shall use the Service solely to support its business and shall not use the Service to establish or support an independent business of providing employee management and reporting software as a service.  Customer may incorporate the Service as a part of a comprehensive suite of services it provides to its clients but may not offer, market, license, sublicense, rent, sell, resell or distribute the Service as a separate service or upcharge for use of the Service or represent to third parties that the Service is owned by Customer or that Customer has the exclusive right to access or use the Service.  Customer shall not: (a) create Internet "links" to or from the Service, or "frame" or "mirror" any content forming part of the Service or modify, copy or create derivative works based on the Service, including any Service Information; or (b) use, transfer, distribute or dispose of any information contained in the Service in any manner that could compete with the business of Company.  
   4. Proprietary Materials.  Customer acknowledges and agrees that the Service Information: (a) is provided to Customer in confidence and may only be accessed and used by Authorized Users; (b) is the exclusive and proprietary property and information of Company; and (c) embodies valuable confidential and secret information of Company, the development of which required the expenditure of considerable time and money by Company and its affiliates.  Customer represents and warrants that it will not disclose or share the Service Information or any related materials or information to any unauthorized person or entity, including but not limited to third parties, directly or indirectly, without express written authorization from Company. In the event a request is made for Customer to disclose the Service Information or any related materials or information to a third party, Customer promptly shall give written notice to Company identifying the requesting persons or entities and, if known to Customer, stating the reasons such requests have been made. Company shall determine in its sole and absolute discretion whether the requested disclosures may be made, and if not, what action to take.
   5. Proprietary Notices.  Customer shall not remove, destroy, alter, cancel or deface any copyright, trademark, trade secret and other proprietary notices or ownership identification placed upon or made part of the Service or any portion thereof, including any documents or other items downloaded from or generated by the Service.  Notwithstanding the foregoing, Company may, in its sole discretion and subject to written agreement, approve the removal of certain ownership identification as part of a limited “white label” service which may be purchased by Customer.

7. TERM, SUSPENSION AND TERMINATION

   1. Suspension of Service/Re-activation Fee.  If Company does not receive payment of the Monthly Fee, Company may, in its sole and absolute discretion and after notice to Customer, suspend Customer’s access to the Service until Customer brings its account current.  Should a suspension of services occur, Customer may also be assessed a $150 re-activation fee.  In addition, Company may prohibit or suspend use of the Service immediately after providing written notice to Customer if Company believes the Customer is violating this Agreement in a manner that is causing the Company damage.  The foregoing suspension rights shall be in addition to any other remedy Company may have.
   2.  This Agreement shall commence on the Subscription Date and shall continue in effect on a month-to-month basis until terminated as provided in this Agreement.
   3. Customer Termination.  Customer should provide notice at least thirty (30) days before their renewal, by providing written notice to billing@silvertracsoftware.comof Customer’s election to terminate this Agreement.  The cancellation shall take effect with their next renewal, at least thirty (30) days from receipt by Company of Customer’s cancellation request.  Any payments which become payable on or before the effective date of cancellation shall be paid and Company is authorized to charge Customer’s account in accordance with this Agreement.  Customer recognizes that this Agreement and the Service may only be terminated by Customer by providing written notice to Company of Customer’s election to terminate; failure to make a payment or otherwise violating this Agreement shall not terminate this Agreement or relieve Customer of its obligations hereunder.
   4. Company Termination.  This Agreement may be terminated by Company upon thirty (30) days prior written notice to Customer.  Company may also immediately terminate this Agreement after notice to Customer if: (a) Customer fails to timely make any payments due to Company; or (b) Customer fails to perform or observe any other material term or obligation set forth in this Agreement.  If this Agreement is terminated by Company for no cause, Customer shall be entitled to a refund of any fees paid relating to any time period after the effective date of termination.
   5. Effect of Termination.  Upon termination of this Agreement for any reason whatsoever, access to and use of the Service by Customer shall be immediately discontinued.  In such event, the license and rights granted hereunder shall expire, and Customer shall have no further rights or access to the Service.  Company’s right of termination under this Agreement shall be in addition to any other right or remedy Company may have at law or in equity. The termination of this Agreement shall not relieve Customer of its obligations to pay any amounts due Company on or before the effective date of termination and shall not entitle Customer to a refund of any amounts paid under this Agreement, except as expressly provided herein.  In addition to the provisions of this Section 7.5, the termination of this Agreement shall not relieve the parties of the rights and obligations set forth in Sections 8, 9, 10 and 11, which provisions shall continue after and survive the termination of this Agreement. 
   6. Access to Customer Data.  Customer acknowledges that Customer shall have no access to Customer Data after the effective date of the termination of this Agreement or four (4) years after uploading, whichever occurs sooner.  

8. PRIVACY POLICY

   1. Company respects your right to privacy and does not collect any personal data about you on this website, apart from information which Customers volunteer (for example by e-mailing, downloading or by using online forms). Any personal information which Customers volunteer to Company will be treated in accordance with industry standards of security and confidentiality and the Company’s privacy policy.
   2. COLLECTION AND USE OF TRACKING INFORMATION. The Company reserves the right to record every visit to the Website. This information is used to improve the operation of the Service and to provide statistical information about the use of the Website. Technical details in connection with visits to the Website may be logged. The Company does not attempt to identify individual visitors, or to associate the technical details listed below with any individual. Customers should note that these technical details, which the Company cannot associate with any identifiable individual, do not constitute "personal data" for the purposes of the Data Protection Acts, 1988 & 2003. Details logged may include the following items, the date and time of every visit to an individual page, each page visited on the Website on such a visit, the Website visitor’s IP/network address, the type of web browser used by the Website visitor, and the device used by the Website visitor. The Company may make these technical details available to affiliated or related companies in order to provide analysis of advertising and website traffic. Other companies may be granted access to this information solely for the purpose of providing services to the Company or on the Company’s behalf.
   3. GOOGLE REMARKETING TAG. The Website uses Google’s remarketing technology. This allows the Company to display relevant ads based on what pages a Website visitor may have viewed. The advertising will be displayed using cookies. This cookie doesn't record any personal information or identify the Website visitor personally. If a Website visitor would prefer not to receive any targeted advertising, deactivate the use of cookies by visiting the website https://www.google.com/settings/ads/. Google has its own independent data protection policy which can be accessed here (https://www.google.com/intl/en/policies/privacy/).
   4. FACEBOOK TRACKING PIXEL. The Company may from time to time use Facebook Advertising, Facebook Pixel Re-Marketing, and communications. This tool allows the Company to understand and deliver more relevant ads. The collected data remains anonymous, and the Company cannot see the personal data of any individual user. However, the collected data is saved and processed by Facebook. Facebook may be able to connect the data with the Website visitor’s Facebook account and use the data for their own advertising purposes (in accordance with Facebook’s Data Use Policy found under: https://www.facebook.com/about/privacy/). Facebook has ultimate control of the information gathered through Facebook Advertising, Facebook Pixel Re-Marketing, and communications. Website visitors can opt-out of Facebook’s use of cookies and Facebook Pixel Re-Marketing through settings on their Facebook Account.
   5. The Company’s Privacy Policy may change from time to time and all updates will be posted at: https://www.silvertracker.net/privacypolicy.htm.

9. LIMITATION OF LIABILITY; DISCLAIMERS; INDEMNITY

   1. Disclaimer of Warranties.  Customer agrees that its use of the Website and Service is at its sole risk and acknowledges that the Website, Service and anything contained within the Website and Service, are provided “AS IS” and “AS AVAILABLE,” and that Company makes no warranty of any kind, express or implied, as to the Website and Service, including, but not limited to, any warranties of merchantability, title non-infringement, or fitness for a particular purpose or use.  Company does not warrant that the Service is compatible with Customer’s equipment or that the Website or Service are free of errors, viruses or any other harmful, invasive, or corrupted files, and is not liable for any damage Customer may suffer as a result of such destructive features, including, without limitation, the loss of Customer Data.  Notwithstanding the foregoing disclaimer, Company shall perform all commercially reasonable steps to protect the Website from viruses or any other harmful, invasive, or corrupted files.
   2. Limitation of Liability.  Except for Company’s gross negligence or willful misconduct, Company shall have no responsibility or liability to Customer, or any other person for: (a) any injury or damages arising in connection with the Website and Service; or (b) any fault, inaccuracy, omission, delay or any other failure in the Website and Service.  NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, SHALL COMPANY, ITS EMPLOYEES, OFFICERS, SUPPLIERS AND ITS THIRD-PARTY AGENTS BE LIABLE TO CUSTOMER OR ANYONE ELSE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS) EVEN IF COMPANY HAS BEEN ADVISED SPECIFICALLY OF THE POSSIBILITY OF SUCH DAMAGES, ARISING FROM THE USE OF OR INABILITY TO USE THE WEBSITE, SERVICE OR ANY PORTION OF THE SERVICE OR THE BREACH OF ANY PROVISION OF THIS AGREEMENT. IN NO EVENT, SHALL THE TOTAL LIABILITY OF COMPANY TO CUSTOMER FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING BUT NOT LIMITED TO, NEGLIGENCE) EXCEED THE LESSER OF: (A) THE TOTAL FEES PAID TO COMPANY BY CUSTOMER PURSUANT TO THIS AGREEMENT; OR (B) AN AMOUNT EQUAL TO SIX (6) X THE MONTHLY FEE.
   3. Customer Indemnification of Company.  Customer shall indemnify, defend and hold harmless Company and its employees, representatives, suppliers and agents, against any claim, suit, action or other proceeding (and any costs incurred therefrom, including attorneys’ fees) brought against them by a third party, to the extent that such claim, suit, action or other proceeding is based on or arises in connection with: (a) Customer’s use of the Service; (b) the use of the Service by someone using Customer’s account who gained access to such account through Customer; (c) Customer Data; or (d) a violation of this Agreement by Customer or any person using Customer’s account who gained access to such account through Customer.
   4. Company Indemnification of Customer.  Company shall indemnify, defend and hold harmless Customer and its employees, officers, directors and agents against any claim, suit, action or other proceeding (and any costs incurred therefrom, including attorneys’ fees) brought against them by a third party, to the extent that such claim, suit, action or other proceeding is based on or arises in connection with the infringement of any third party’s US intellectual property rights by Customer’s authorized use of the Website or Service.

10. RESOLUTION OF DISPUTES BY ARBITRATION

    1. Arbitration of Claims.  Any dispute or claim relating in any way to this Agreement or Customer’s use of the Service will be resolved by binding arbitration, rather than in court, except that either Customer or Company may assert claims in small claims court if the claims qualify. There is no judge or jury in arbitration, and court review of an arbitration award is limited.  However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would.  The arbitration shall be held using JAMS in the San Diego, California metropolitan area and shall be before one arbitrator, who shall be chosen from a panel of arbitrators selected by JAMS.  The decision of the arbitrator shall be final and binding upon Customer and Company and judgment upon such award may be entered in any court of competent jurisdiction.  The costs of the arbitrators and of the arbitration shall be borne one-half by each of the parties.  The costs of each party’s counsel, accountants, etc., as well as any costs solely for their benefit, shall be borne separately by each party (subject to the right of recovery of attorneys’ fees by the prevailing party pursuant to this Agreement).
    2. Customer Acknowledgments.  Customer hereby acknowledges that these arbitration provisions constitute a waiver of Customer’s right to commence a lawsuit in any jurisdiction with respect to the matters which are required to be settled by arbitration as provided in this Agreement.  The foregoing arbitration provisions shall not preclude any party from seeking equitable or interim relief in a court of law and the parties agree that the courts located in San Diego County shall be the appropriate venue for obtaining such equitable or interim relief.

11. NOTICES

    1. Notices in Writing.  All notices, requests, demands or other communications required or permitted under this Agreement shall be in writing, which may include email transmission.
    2. Means of Notice Delivery.  All notice, demands and requests shall be effective upon delivery of such notice as follows:

    If to Company, as follows:

    - Billing related communications: billing@silvertracsoftware.com;
    - Support related communications: support@silvertracsoftware.com; and
    - All other communications: info@silvertacsoftware.com.

    If to Customer at the email address specified for the then current Administrative User as set forth in the records of Company.

    3. Updates to Notice Information.  It shall be the responsibility of Customer to update Company regarding any changes to Customer’s notice information. Customer acknowledges that any notice provided by Company to Customer in accordance with this Agreement will be deemed delivered to Customer whether or not Customer actually receives such notice.

12. MISCELLANEOUS PROVISIONS

    1. Binding Agreement.  Except as otherwise provided herein, this Agreement shall be binding upon, and inure to the benefit of, the parties hereto, and their respective successors and assigns.
    2. Applicable Law.  This Agreement shall be governed by, and construed in accordance with, the laws of the State of California without regard to its conflict of laws rules.
    3. Entire Agreement.  This Agreement contains the entire agreement between the parties hereto with respect to the subject matter hereof.
    4. Attorneys’ Fees.  In the event of any dispute, arbitration, action, or other proceeding brought by either party against the other under this Agreement, the prevailing party shall be entitled to recover all reasonable costs and expenses incurred in connection with such dispute, arbitration, action, or other proceeding, including, without limitation, the fees and costs of its attorneys, whether or not such dispute, arbitration, action, or other proceeding proceeds to formal resolution or judgment.
    5. Trade Compliance.  In connection with this Agreement, each party will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations, including all such laws and regulations that apply to a U.S. company, such as the Export Administration Regulations, the International Traffic in Arms Regulations, and economic sanctions programs implemented by the Office of Foreign Assets Control.  Customer represents and warrants that Customer and Customer’s financial institutions, or any party that owns or controls Customer or Customer’s financial institutions, are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority.
    6. Independent Contractors.  Customer and Company are independent contractors and this Agreement will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.
    7. No Waivers. The failure by Company to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit Company’s right to enforce such provision at a later time. All waivers by Company must be in writing and specifically mention the provision being waived to be effective.
    8. Neither party will assign the Agreement to any third party without the other party’s prior written consent. Notwithstanding the foregoing, the Company may assign the Agreement, in whole or in part, without the Customer’s consent, in connection with the transfer or sale of all or any of its business or assets to an affiliate or to a third party, whether by merger, sale of stock, sale, reorganization, donation of assets or otherwise. Subject to the first sentence, the rights and liabilities of the parties hereto are binding on, and will inure to the benefit of, the parties and their respective successors and permitted assigns. Any attempted assignment other than in accordance with this Section 12.8 will be null and void
    
    

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