PLEASE CAREFULLY READ THESE CUSTOMER TERMS OF SERVICE.

DEFINITIONS

This document establishes a contractual agreement between you (the Customer) and TagOnTrack Inc. It outlines the services we will provide, the terms of our collaboration, and various aspects of our business relationship. While some of the language is legal in nature, we have endeavored to present it in a clear and understandable manner. These terms are crucial, and by using the Subscription Service or availing Consulting Services, you indicate your acceptance of these terms.

We regularly update these terms, and we will keep you informed of such updates through the Notification app in the TagOnTrack portal, your access point for the TagOnTrack subscription.

“Agreement” encompasses these Customer Terms of Service and all materials referenced or linked herein. Previously known as the Terms of Use, these are the terms governing our engagement.

“Billable Users” refers to the types of Users (defined below) for whom fees are charged, as specified at https://www.tagontrack.com/pricing.

“Billing Period” denotes the duration for which you prepay fees under an Order Form, matching or being shorter than the Subscription Term. For instance, a one-year Initial Subscription Term with a twelve-month upfront payment results in a twelve-month Billing Period.

“Confidential Information” includes all information designated as confidential, shared by either party (“Discloser”) with the other (“Receiver”), whether orally or in writing. It excludes information (i) publicly known without breaching any obligation to the Discloser or (ii) known to the Receiver before receipt from the Discloser.

“Consulting Services” encompasses professional services we provide to you, such as training, installation, integration, or other consulting services.

“Customer Data” refers to all information submitted or collected through the Subscription Service.

“Customer Materials” includes all materials you provide or present for public display via the Subscription Service.

“TagOnTrack Content” includes all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags incorporated into the Subscription Service or Consulting Services.

“Order Form” or “Order” is the TagOnTrack-approved form by which you subscribe to the Subscription Service and purchase Consulting Services, often completed through our online payment process. If purchasing only Consulting Services, the purchase form may be termed a “Statement of Work.”

“Sensitive Information” covers data like credit or debit card numbers, personal financial account details, Social Security numbers, passport numbers, driver’s license numbers, or similar identifiers; also, racial or ethnic origin, physical or mental health information, or other sensitive information subject to data privacy and security regulations, laws, or industry standards.

“Subscription Service” refers to our web-based inbound marketing and sales applications, tools, and platform subscribed to via an Order Form, developed, operated, and maintained by us. Accessible via https://www.tagontrack.com or another designated URL, it includes ancillary products and services like website hosting.

“Subscription Term” encompasses the Initial Subscription Term and all Renewal Subscription Terms.

“Third-Party Products” are non-embedded products and professional services from third parties, interoperating with or used in connection with the Subscription Service. These may include non-TagOnTrack apps and services listed on services.TagOnTrack.com.

“Third-Party Sites” denote third-party websites linked from within the Subscription Service, including Communication Services.

“Users” represent your authorized employees, representatives, consultants, contractors, or agents using the Subscription Service for your benefit, equipped with unique user identifications and passwords.

“We,” “us,” or “our” denotes TagOnTrack Inc.

“You,” “your,” or “Customer” refers to the individual or entity using the Subscription Service or receiving Consulting Services, identified in the applicable billing statement, Order Form, or Statement of Work as the customer.

THE SUBSCRIPTION SERVICE

Access

Throughout the Subscription Term, we will grant you access to use the Subscription Service as outlined in this Agreement.

Limits

Certain limits may apply to the number of Stations or users. These will be specified in your Order Form and this Agreement. All Billable Users incur associated fees. For User-based pricing, your authorized TagOnTrack partner Users will not be included in fee calculations.

Modifications

We make periodic modifications to the Subscription Service, including the addition or removal of features and functions, to enhance your experience. However, no changes will be made that significantly reduce the functionality during the Subscription Term. Some elements of the Subscription Service may be provided by third-party service providers.

Additional Features

You can subscribe to additional features by agreeing to a new Order Form.

CUSTOMER SUPPORT

Support

Support is included in your Subscription Fee. Email support for the Subscription Service is available from 9 AM to 9 PM Eastern Time (GMT-5), Monday through Friday, excluding US national holidays. Support questions are accepted 24/7 at support@tagontrack.com. We strive to respond within one business day, usually achieving even faster response times. However, specific response times are not guaranteed.

Availability

We aim to maintain the Subscription Service’s availability 24/7, with the exception of planned downtime for maintenance.

CONSULTING SERVICES

You can purchase Consulting Services through an Order Form or Statement of Work. Fees for these services are additional to your Subscription Fee. Unless otherwise agreed, Consulting Services are conducted remotely. For on-site services, you will reimburse us for reasonable expenses. Invoices or reimbursement requests are due within thirty (30) days of receipt. Hours purchased as part of a consulting package expire as outlined in the Order Form, but no later than one hundred and eighty (180) days from purchase. Some or all elements of the Consulting Services may be provided by third-party service providers. Consulting Services are non-cancellable, and all fees are non-refundable.

FEES AND PAYMENTS

Subscription Fees

The Subscription Fee remains fixed throughout the Subscription Term unless you (i) exceed your Maximum users, (ii) change products or base packages, or… In case of a price change applicable to you, we will charge or invoice you under the new price structure, commencing with the next Billing Period in the Subscription Term, unless otherwise specified under “Fee Adjustments During a Billing Period.” To avoid additional charges, you should select the appropriate tier of Subscription Service based on your anticipated needs. The number of Users in the Subscription Service is monitored or audited remotely, with this information available on your Billing Page in your TagOnTrack portal.

Fee Adjustments in Next Billing Period

If you exceed your Maximum Contacts in a Billing Period, your Subscription Fee will be adjusted at the start of the next Billing Period, up to the current base package and tier price corresponding to the maximum number of Contacts from the prior Billing Period. This process continues throughout the Subscription Term. Our pricing and limits are outlined at https://www.tagontrack.com/pricing. We determine the number of Contacts in the Subscription Service and, upon request, provide you with the details we used for our conclusion.

Fee Adjustments During a Billing Period

The Subscription Fee may increase within a Billing Period if you surpass your Email Send Limit. It will be adjusted up to the tier price corresponding to your maximum monthly email sends from the ongoing Billing Period. Additionally, the Subscription Fee may increase during a Billing Period if you add Billable Users, change products, or subscribe to additional features for use during the Billing Period.

Payment by credit card

For credit card payments, you authorize us to charge your credit card or bank account for all fees at the beginning of the Initial Subscription Term and subsequent Billing Periods, including upgrades. You also authorize us to use a third party for payment processing, consenting to the disclosure of your payment information to such a third party.

Payment against invoice

If paying by invoice, we will invoice you at the start of the Initial Subscription Term and each subsequent Billing Period. All invoiced amounts are due and payable within thirty (30) days from the invoice date, unless otherwise specified in the Order Form.

Payment Information

Keep your contact, billing, and credit card information (where applicable) up to date. Changes can be made on your Billing Page within your TagOnTrack portal. All payment obligations are non-cancelable, and amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term.

Sales Tax

All fees exclude taxes, which we will charge as applicable. You agree to pay any taxes related to your use of the Subscription Service and performance of Consulting Services. You are not liable for taxes based on our gross revenues or net income. If in the European Union, fees exclude VAT, and you confirm your VAT registration. If subject to GST, fees exclude GST. If required to deduct or withhold any tax, you must pay the amount as required by law and provide us with an additional amount to ensure full payment without deduction or withholding.

SUBSCRIPTION TERM AND RENEWAL

Initial Subscription Term

The initial subscription term starts on the effective date of your Subscription and ends at the chosen period’s conclusion during the subscription process (“Initial Subscription Term”).

Renewal Subscription Term

Unless either party provides written notice of non-renewal, this Agreement automatically renews for the shorter of the Initial Subscription Term or one year (“Renewal Subscription Term”). Notice of non-renewal must be sent no more than ninety (90) days but no less than thirty (30) days before the Subscription Term ends. The Renewal Subscription Term follows the current terms and conditions, subject to renewal pricing in your Order Form or, if unspecified, our standard pricing at https://www.tagontrack.com/pricing. On renewal, the current product usage limits at https://www.tagontrack.com/pricing apply, unless agreed otherwise. You can send the notice of non-renewal by email to support@tagontrack.com.

End of Subscription Term

The Subscription Term concludes on the expiration date and cannot be canceled before its expiration.

TAGONTRACK’S PROPRIETARY RIGHTS

This Agreement grants access to and usage of the Subscription Service without a license to any software. The Subscription Service and Consulting Services are protected by intellectual property laws, owned by us or our licensors (if any). We retain all ownership rights. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on TagOnTrack Content, the Subscription Service, or the Consulting Services, except as expressly authorized in writing by us. TagOnTrack, TagOnTrack logos, and other marks are our trademarks and may not be used without our prior written permission.

We encourage customer feedback on the Subscription Service or Consulting Services and suggestions for improvement. All comments and suggestions are non-confidential, and we own all rights to use and incorporate them into the Subscription Service or Consulting Services without payment to you.

CUSTOMER’S PROPRIETARY RIGHTS

Between the parties, you exclusively own and maintain all rights to the Customer Materials and Customer Data. This Agreement does not confer any ownership rights to Customer Materials or Customer Data upon us. You grant us and our licensors permission to utilize the Customer Materials and Customer Data solely as required to provide the Subscription Service and Consulting Services to you. If you use the Subscription Service or receive Consulting Services on behalf of another party, you represent and warrant that you possess all sufficient and necessary rights and permissions to do so.

CONFIDENTIALITY

The Receiver will: (i) uphold the confidentiality of the Confidential Information with the same degree of care applied to its own confidential information of similar nature, but not less than reasonable care, (ii) refrain from using any Confidential Information beyond the scope of this Agreement, (iii) avoid disclosing Confidential Information to any third party, and (iv) restrict access to Confidential Information to its employees, contractors, advisors, and agents. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required under any federal, state, or local law, statute, rule, regulation, subpoena, or legal process.

CUSTOMER RESPONSIBILITIES

To realize the full value of the Subscription Service and Consulting Services, your participation and effort are necessary.

PUBLICITY

You grant us the right to include your name and company logo on our customer list and website.

CUSTOMER DATA

Limits on TagOnTrack

We will not utilize, or permit anyone else to use, Customer Data to contact any individual or company except as directed by you. Customer Data will be used solely to provide the Subscription Service and Consulting Services to you, in compliance with applicable law, this Agreement, and our Privacy Policy at https://www.tagontrack.com/privacy-data-policy/.

Aggregate Data

We may monitor the use of the Subscription Service by all our customers and use the data gathered in an aggregate and anonymous manner. You consent to our use and publication of such information, provided it doesn’t incorporate any Customer Data and/or identify you.

Safeguards

We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. You consent to the processing of Customer Data in the United States.

No Sensitive Information

YOU AGREE NOT TO USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.

PERSONAL DATA REGULATIONS – The Relationship between the Customer as the Data Controller and TAGONTRACK INC. as the Data Processor

For additional information on our data policies (GDPR), please refer to https://www.tagontrack.com/privacy-data-policy/.

The customer’s subscription with TAGONTRACK INC. serves as a platform for automating shipping processes, involving the processing of various personal data on behalf of the customer. This includes data about the customer’s customers, i.e., the recipients of the consignments.

Processed Personal Data

As part of the subscription, the Data Processor (TAGONTRACK INC.) has access to process, on behalf of the Data Controller (customer):

– Name and address of individuals receiving the consignments.

– Information about the individual type of item sent and the value/price of the item.

Purpose and Scope of Personal Data Processing

The Data Processor, as the provider of subscription-based solutions for handling the Data Controller’s freight processes, stores information and facilitates data exchange with relevant third parties, such as freight companies and customs authorities. The purpose is to manage the Data Controller’s freight processes.

It is emphasized that the Data Processor may only process personal data to the extent necessary for the operation of the Data Controller’s TAGONTRACK subscription and/or if required by law to process the data otherwise.

It is clarified that the freight companies receiving personal data are the Data Controller’s (customer’s) Data Processors, not TAGONTRACK INC.’s Data Processors. TAGONTRACK INC. acts as an intermediary in this regard.

THE DATA PROCESSOR’S OBLIGATIONS

The Data Processor may only process the personal data in question in accordance with the instructions of the Data Controller, i.e. the instructions contained in the TAGONTRACK solution under which the Data Processor shall manage freight processes for the Data Controller.

The Data Processor is required to comply with the currently-applicable personal data legislation and shall notify the Data Controller immediately if an instruction from the Data Controller is, in the Data Processor’s opinion, contrary to the General Data Protection Regulation.

The Data Processor shall use appropriate technical and organizational security measures to ensure that personal data is not destroyed, lost, degraded or disclosed to unauthorized bodies, misused or otherwise processed in breach of personal data legislation, whereby the Data Processor shall implement the measures necessary pursuant to article 32 of the General Data Protection Regulation.

The Data Processor is obliged to inform the Data Controller without undue delay of any data breach. In this regard, the Data Processor shall inform the Data Controller of:

– The nature of the data breach.

– If possible, the type and number of affected data subjects, as well as the type of personal data concerned and the number of records of personal data concerned.

– The measures that the Data Processor has taken or proposes should be taken to deal with the data breach, including, where appropriate, measures to limit its potential adverse effects.

– The probable consequences of the data breach.

– The Data Processor shall, at the Data Controller’s request, provide the Data Controller with sufficient information to ensure that the Data Processor has taken the necessary technical and organizational security measures.

The Data Processor shall provide all the information necessary to demonstrate that the Data Processor complies with the General Data Protection Regulation’s article 28, whereby the Data Processor shall allow and contribute to audits, including inspections carried out by the Data Controller or another auditor authorized by the Data Controller. It is emphasized that inspections/audits in every respect take place at the Data Controller’s expense.

The Data Processor shall secure/ensure that the persons who are authorized by the Data Processor to process personal data have committed themselves to confidentiality or are bound by an appropriate statutory professional secrecy obligation.

If a data subject asks the Data Processor (usually such requests will be made to the Data Controller) for access to and insight into that person’s personal data, the Data Processor shall immediately forward the request to the Data Controller.

The Data Processor shall assist the Data Controller with appropriate technical tools to enable the Data Controller to fulfill the Data Controller’s obligations to respond to requests for the exercise of the rights of the data subjects as specified in chapter III of the General Data Protection Regulation.

SPECIFICALLY ABOUT THE TRANSFER OF INFORMATION TO SUB-DATA PROCESSORS OR THIRD PARTIES

As a natural part of the TAGONTRACK solution, the Data Processor is entitled to disclose personal data to the Data Controller’s other data processors (freight companies), and the Data Processor is also entitled to exchange personal data with the customs authorities.

In all other cases, the Data Processor may only disclose or transfer personal data to third parties or sub-processors with the prior agreement with the Data Controller. However, the Data Processor may disclose or transfer personal data without the Data Controller’s instructions if permitted by law.

If the Data Processor hands over personal data to another data processor (sub-processor), the Data Processor is obliged to conclude a sub-processor agreement with the sub-processor, whereby the Data Processor’s sub-processor is subject to at least the same conditions as stated in this section.

The Data Processor shall notify the Data Controller if the Data Processor has plans to extend the circle of sub-processors and/or to replace existing sub-processors with others.

The Data Processor must not transfer personal data to third countries that the EU Commission has not assessed as safe third countries.

If the information is transferred to foreign sub-processors, it must be stated in the data processing agreement, cf. 9.5.3, that sub-processors shall comply with the EU’s General Data Protection Regulation and any other current personal data law in force. Sub-processors in EU countries with specific regulatory requirements regarding data processing must also comply with these requirements.

DURATION OF DATA PROCESSING

The processing of personal data pursuant to this agreement continues until such time as the TAGONTRACK subscription concluded between the parties ceases.

However, in the event of the termination of a subscription, the Data Processor is bound by this agreement for as long as the Data Processor has access to personal data originating from the Data Controller.

In the event of termination of a TAGONTRACK subscription, the Data Processor is required to delete any backups and other copies of the personal data.

USE AND LIMITATIONS OF USE

ACCEPTABLE USE

You will comply with our Acceptable Use Policy at https://www.tagontrack.com/acceptable-use (“AUP”).

PROHIBITED AND UNAUTHORIZED USE

You will not:

(i) use or launch any automated system, including, “robots,” “spiders,” or “offline readers,” that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser;

(ii) use the Subscription Service in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party’s use of the Subscription Service;

(iii) attempt to gain unauthorized access to the Subscription Service;

(iv) access the Subscription Service other than through our interface; or

(v) use the Subscription Service for any purpose or in any manner that is unlawful or prohibited by this Agreement.

You will notify us right away of any unauthorized use of your Users’ identifications and passwords or your account by email: hello@tagontrack.com

THIRD-PARTY SITES AND PRODUCTS

Third-Party Sites and Products are not under our control. Third-Party Sites and Products are provided to you only as a convenience, and the availability of any Third-Party Site or Product does not mean we endorse, support or warranty the Third-Party Site or Product.

INDEMNIFICATION

You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Subscription Service by you; (b) your noncompliance with or breach of this Agreement, (c) your use of Third-Party Products, or (d) the unauthorized use of the Subscription Service by any other person using your User information. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.

Part 5 – Revised:

DISCLAIMERS AND LIMITATIONS OF LIABILITY

DISCLAIMER OF WARRANTIES

WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY, OR ACCURACY OF THE SUBSCRIPTION SERVICE, TAGONTRACK CONTENT, OR THE CONSULTING SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SUBSCRIPTION SERVICE AND CONSULTING SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE SUBSCRIPTION SERVICE AND THE CONSULTING SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

NO INDIRECT DAMAGES

TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.

LIMITATION OF LIABILITY

EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR INDEMNITY OBLIGATIONS, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE LESSER OF FIVE THOUSAND DOLLARS OR THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.

THIRD-PARTY PRODUCTS

WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.

YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO YOU.

TERMINATION, SUSPENSION, AND EXPIRATION

TERMINATION FOR CAUSE

Either party may terminate this Agreement for cause: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors. This Agreement may not otherwise be terminated before the end of the Subscription Term.

If the 3PL Customer has more than 10 connected stores, then TagOnTrack will allow for a ninety (90) day transition period for the Customer from the notice of termination.

SUSPENSION FOR PROHIBITED ACTS

We may suspend any User’s access to the Subscription Service for the use of the Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement.

SUSPENSION FOR NON-PAYMENT

We may suspend your access to all or any part of the Subscription Service upon ten (10) days’ notice to you of non-payment of any amount past due. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If the Subscription Service is suspended for non-payment, we may charge a reactivation fee to reinstate the Subscription Service.

EFFECT OF TERMINATION OR EXPIRATION

Upon termination or expiration of this Agreement, you will stop all use of the Subscription Service and TagOnTrack Content. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering the use of the Subscription Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.

RETRIEVAL OF CUSTOMER DATA

As long as you have paid all fees owed to us, if you make a written request within thirty (30) days after termination or expiration of your Subscription, we will provide you with temporary access to the Subscription Service to retrieve, or we will provide you with copies of, all Customer Data then in our possession or control. We may withhold access to the Customer Data until you pay any fees owed to us. Thirty (30) days after termination or expiration of your Subscription, we will have no obligation to maintain or provide you with the Customer Data and may, unless legally prohibited, delete all Customer Data in our systems or otherwise in our control.

GENERAL AMENDMENT; NO WAIVER

We may update and change any part or all of these Customer Terms of Service, including the fees and charges associated with the use of the Subscription Service. If we update or change these Customer Terms of Service, the updated Customer Terms of Service will be posted at https://tagontrack.com/terms-of-service, and we will let you know through the Navigation app in the TagOnTrack portal used to access your TagOnTrack subscription. The updated Customer Terms of Service will become effective and binding on the next business day after it is posted. When we change these Customer Terms of Service, the “Last Modified” date above will be updated to reflect the date of the most recent version. We encourage you to review these Customer Terms of Service periodically.

If you do not agree with a modification to the Customer Terms of Service, you must notify us in writing within thirty (30) days after receiving notice of the modification. If you give us this notice, your subscription will continue to be governed by the terms and conditions of the Customer Terms of Service prior to modification for the remainder of your current term. Upon renewal, the Customer Terms of Service published by us on our website will apply.

NO WAIVER

No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.

CONTRACTING ENTITY AND APPLICABLE LAW

This Agreement is governed by the laws of the State of Delaware, U.S.A., without reference to conflicts of law principles. Both parties consent to the exclusive jurisdiction and venue of courts in Dover, DE, U.S.A., for all disputes arising out of or relating to the use of the Subscription Service or the Consulting Services.

FORCE MAJEURE

Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or another event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.

ACTIONS PERMITTED

Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.

RELATIONSHIP OF THE PARTIES

You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.

COMPLIANCE WITH LAWS

We will comply with all U.S. state and federal laws in our provision of the

 Subscription Service, the Consulting Services, and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process, or governmental request. You will comply with all laws in your use of the Subscription Service and Consulting Services, including any applicable export laws. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the US Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Subscription Service or Consulting Services to prohibited countries or individuals or permit the use of the Subscription Service or Consulting Services by prohibited countries or individuals.

SEVERABILITY

If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and the remainder of this Agreement will continue in effect.

NOTICES

Notice will be sent to the contact address set forth herein (as such may be changed by notice given to the other party), and will be deemed delivered as of the date of actual receipt.

To TAGONTRACK, Inc, 604, 447 Broadway, 2nd Floor, New York, NY, US, 10013, Attention: General Counsel.

We may give electronic notices by general notice via the Subscription Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center of the Subscription Service. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you.

ENTIRE AGREEMENT

This Agreement (including each Order Form and Statement of Work), along with our Privacy Policy and AUP, is the entire agreement between us for the Subscription Service and Consulting Services and supersedes all other proposals and agreements, whether electronic, oral, or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance, or website. Our obligations are not contingent on the delivery of any future functionality or features of the Subscription Service or dependent on any oral or written public comments made by us regarding future functionality or features of the Subscription Service.

ASSIGNMENT

You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without our prior written consent, which will not be unreasonably withheld. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.

NO THIRD PARTY BENEFICIARIES

Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

CONTRACT FOR SERVICES

This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.

AUTHORITY

Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.

SURVIVAL

The following sections shall survive the expiration or termination of this Agreement: ‘Fees and Payments’, ‘TagOnTrack’s Proprietary Rights’, ‘Customer’s Proprietary Rights’, ‘Publicity’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, ‘Termination, Suspension and Expiration’, and ‘General’.

PRECEDENCE

In the event of a conflict between the terms of this Agreement and an Order Form or Statement of Work, the terms of the Order Form or Statement of Work shall control, but only as to that Order Form or Statement of Work.