Connection Terms of Service

(Last updated April 20, 2022)

These TrackFly, Inc. Connection Terms of Service (the “Terms”), constitute a binding agreement between you, the person or entity accepting these Terms (“Connection Party” or “you”), and TrackFly, Inc. (“TrackFly,” “we,” or “us”) with respect to your access to and use of the TrackFly Platform (as defined below). Your access to and use of the TrackFly Platform is subject to your acceptance, without modification, of all terms and conditions set forth herein. For the avoidance of doubt, in the event that you access or use the TrackFly Platform both as a Connection Party and as a Brand Participant (as defined below), these Terms shall govern only your access and use in the capacity as a Connection Party. Any access to or use by you of the TrackFly Platform and/or TrackFly Service (as defined below) in your capacity as a Brand Participant shall be governed by any agreement or other terms of service entered into by you and TrackFly with respect to the TrackFly Service.

PLEASE READ THESE TERMS CAREFULLY. BY CLICKING “I ACCEPT”, BY PROVIDING OR MAKING AVAILABLE TO TRACKFLY ANY PROGRAM DATA (AS DEFINED BELOW), OR BY OTHERWISE ACCESSING OR USING THE TRACKFLY PLATFORM IN ANY MANNER, YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS AND BY SUCH OTHER TERMS, CONDITIONS, POLICIES, AND DOCUMENTS THAT MAY BE INCORPORATED HEREIN BY REFERENCE, INCLUDING, WITHOUT LIMITATION, THE TRACKFLY PRIVACY POLICY; (B) AFFIRM THAT YOU ARE AT LEAST 18 YEARS OF AGE (OR HAVE REACHED THE AGE OF MAJORITY IN THE JURISDICTION WHERE YOU RESIDE); AND (C) IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF A COMPANY OR OTHER ORGANIZATION, REPRESENT AND WARRANT THAT YOU HAVE THE ORGANIZATIONAL AND LEGAL AUTHORITY TO ACCEPT THESE TERMS ON SUCH COMPANY’S OR OTHER ORGANIZATION’S BEHALF AND TO BIND SUCH COMPANY OR ORGANIZATION. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR USE THE TRACKFLY PLATFORM IN ANY MANNER.

TRACKFLY MAY REFUSE ACCESS TO OR USE OF THE TRACKFLY PLATFORM FOR NONCOMPLIANCE WITH ANY PART OF THESE TERMS. THESE TERMS ARE VOID WHERE PROHIBITED BY LAW, AND ANY RIGHTS TO ACCESS OR USE THE TRACKFLY PLATFORM ARE REVOKED IN SUCH JURISDICTIONS.

1. DEFINITIONS. Any capitalized terms not otherwise defined herein shall have the definitions set forth below.

“Authorized Direct Connection” means an entity downstream in a Product supply chain from a Brand Participant that has been selected by the Brand Participant (in accordance with the terms and conditions governing the TrackFly Service) to access and use the TrackFly Platform for purposes of exchanging Program Data with Brand Participant in connection with such Brand Participant’s use and enjoyment of the TrackFly Service.

“Authorized User” means an employee or contractor of Connection Party who accesses and uses the TrackFly Platform, whether or not that individual is accessing or using the TrackFly Platform at any particular time.

“Brand Participant” means a brand, manufacturer, distributor, or other upstream participant in a Product supply chain that (i) has a current and active subscription to the TrackFly Service, and (ii) has selected Connection Party as an Authorized Direct Connection in connection with its use and employment of the TrackFly Service.

“Brand Product Data” means any Product information or other materials, data, information, trademarks, tradenames, images, logos, and other content uploaded or inputted, or made available for upload or input, to the TrackFly Platform by or on behalf of a Brand Participant.

“Connection Location” means a single physical location of Connection Party at which Product inventory is available for sale or other distribution.

“Indirect Connection Data” means quantitative inventory data, SKU level availability data, and other Product information available through the TrackFly Platform from external business entities in the Product supply chain that have registered on the TrackFly Platform but that are not associated with an Authorized Direct Connection.

“Inventory Data” means quantitative inventory and SKU-level availability data relating to a Product, including, without limitation, quantitative data with respect to Product purchases, sales, and other distribution activities occurring at a specific Connection Location.

“Participation Period” means any period of time during which Connection Party is and remains selected as an Authorized Direct Connection by a Brand Participant, subject to termination as provided in Section 8. The Participation Period will not include any period in which Connection Party is not a current Authorized Direct Connection of a Brand Participant.

“Product” means any products sold or otherwise provided, directly or indirectly, to Connection Party by a Brand Participant for purposes of facilitating the sale, resale, or other distribution of such products by Connection Party.

“Program Data” means Inventory Data, Indirect Connection Data, and Brand Product Data.

“TrackFly Platform” means TrackFly’s data exchange software-as-a-service platform, accessible through the website www.TrackFly.com (or such other website as may be designated by TrackFly from time to time), including Connection Party’s submission of Inventory Data to TrackFly in association therewith.

“TrackFly Service” means TrackFly’s web-based inventory and supply chain visibility and management service, offered to participants in a Product supply chain, which is facilitated by the TrackFly Platform.

2. PARTICIPATION AND USE RIGHTS. Subject to and conditioned upon Connection Party’s compliance with these Terms, during the term hereof TrackFly will provide your Authorized Users with access to and use of the TrackFly Platform for your internal business purposes and in accordance with TrackFly’s relevant user documentation, but only for the sole and exclusive purposes of: (i) providing Inventory Data for upload to and use in connection with the TrackFly Platform; and (ii) subject to all conditions and restrictions set forth herein, and exclusively during the Participation Period, accessing and exchanging Program Data with Brand Participants in furtherance of TrackFly’s provision of the TrackFly Service to such Brand Participants. TrackFly reserves the right to discontinue or modify the TrackFly Platform, or any aspect thereof, at any time.

3. USER ACCOUNTS. In order to access or use the TrackFly Platform, you may be required to establish a TrackFly user account (a “User Account”). You must provide true, accurate, current, and complete information as prompted by the applicable registration or login form, and you are responsible for keeping such information up to date. You are responsible and liable for all activities conducted through your User Account, regardless of who conducts those activities. You are responsible for maintaining (and for ensuring that any Authorized Users maintain) the confidentiality of any user IDs, passwords and other credentials associated with your User Account, and shall immediately notify TrackFly of any actual or suspected unauthorized access to or use of your User Account or any associated user IDs, passwords, or other credentials. You will cooperate fully with TrackFly and take all actions that TrackFly reasonably deems necessary to maintain or enhance the security of the TrackFly Platform, TrackFly’s computing systems and networks, and your access to the TrackFly Platform. TrackFly is not and shall not be deemed liable for any loss or damage to you arising from your (or your Authorized Users’) failure to comply with this Section 3.

4. RESTRICTIONS. You agree to access and use the TrackFly Platform solely for your internal business purposes, in accordance with any TrackFly user documentation, and in accordance with all applicable law. You shall not (and shall ensure that your Authorized Users do not): (i) copy, reproduce, frame, mirror, modify, decompile, disassemble, create derivative works based on, or reverse engineer the TrackFly Platform or any associated software or materials (except to the extent that applicable law prohibits or restricts reverse engineering restrictions); (ii) provide any third parties with access to the TrackFly Platform, or use any of the TrackFly Platform for time sharing or similar purposes for the benefit of any third party; (iii) sell, resell, rent or lease the TrackFly Platform or any output thereof; (iv) remove any copyright or proprietary notices contained in the TrackFly Platform or any output thereof (including, without limitation, any TrackFly Analytics (as defined below)); (v) breach, disable or tamper with, or develop or use (or attempt) any workaround for, any security measure provided or used by the TrackFly Platform; (vi) access the TrackFly Platform via any bot, web crawler or non-human user; (vii) access or use (or permit a third party to access or use) the TrackFly Platform or any output thereof for any unlawful purpose or for purposes of monitoring the availability, performance or functionality of the TrackFly Platform or for any other benchmarking or competitive purposes; (viii) attempt to gain unauthorized access to the TrackFly Platform or any related systems, software or networks; (ix) access the TrackFly Platform in order to build a competitive product or service, or copy any features, functions or graphics of the TrackFly Platform; (x) use the TrackFly Platform to transmit viruses or malicious code; or (xi) make any use of, or take any other action with respect to, the TrackFly Platform or any component thereof in a manner that violates applicable law, any provision of these Terms, or any contractual obligations to third parties to which you are bound. Additionally, and without limiting the foregoing, you agree that, as between you and TrackFly, you are solely and exclusively responsible for the Products (including, without limitation, for the safety, performance, and legality of the same), and you shall not access or use the TrackFly Platform in order to exchange data with respect to, or to otherwise assist in or facilitate the manufacture, sale, or distribution of, any Products that are prohibited by applicable law. TrackFly may suspend or terminate your or any Authorized User’s access to the TrackFly Platform, or any component thereof, if TrackFly reasonably determines that you or any Authorized User has violated any term or condition of these Terms. Connection Party shall be liable to TrackFly for any violation of these Terms by Connection Party or by any Authorized User.

5. INVENTORY DATA.

1. Registration and Onboarding. In addition to the creation of a User Account under Section 3, in order to participate in the TrackFly Platform and to submit and otherwise make available Inventory Data in connection therewith, you are required to register for connection with the TrackFly Platform in accordance with all TrackFly instructions and to comply with all upload, export, syncing, and/or other technical instructions communicated to you by TrackFly. Although TrackFly agrees to use commercially reasonable efforts to support and facilitate your registration with and onboarding to the TrackFly Platform, as between you and TrackFly, you are ultimately responsible for such registration and compliance. TrackFly shall have no liability to you, nor to any Brand Participant or other third party, for any downtime or delays caused by your failure to promptly register for connection with the TrackFly Platform or to comply with TrackFly’s upload, export, syncing, and/or other technical instructions.
2. Inventory Data. You agree to provide and make available, in a manner consistent with all upload, export, syncing, and/or other technical instructions provided to you by TrackFly, full, complete, current, and accurate Inventory Data with respect to each Connection Location, together with such other information as may be reasonably requested by TrackFly. As between you and TrackFly, you are solely responsible for all Inventory Data and other data, materials, or content that you or any Authorized User uploads, inputs, or posts (or makes available for upload, input, or posting) to or in connection with the Platform Service, and for the accuracy, quality, integrity, legality, reliability, and appropriateness of such Inventory Data. Without limiting the generality of the foregoing, you shall not upload, input or post (and shall ensure that your Authorized Users do not upload, input or post) any Inventory Data or other data, materials, or content that (i) infringes, misappropriates or otherwise violates the intellectual property rights, rights of privacy or publicity, or other proprietary rights of any third party, (ii) you know to be inaccurate, incomplete, or incorrect, (iii) violates any applicable law, (iv) is, or is likely to be considered, immoral, libelous, tortuous, defamatory, threatening, vulgar, or obscene or harmful to minors, or (v) contains any malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code. Additionally, you represent and warrant to TrackFly that, with respect to any Inventory Data, you have or have obtained all permissions and consents necessary for you to properly comply with these Terms, to grant the license set forth in Section 10(b), and to otherwise permit the access and use of such Inventory Data by Brand Participants and others in the Product supply chain. TrackFly makes no representations or warranties with respect to, and disclaims any responsibility or liability for, any Inventory Data, and Connection Party will indemnify TrackFly for any failure by Connection Party or any Authorized User to comply with the requirements of this Section 5(b).
3. Other Program Data. In connection with your access to and use of the TrackFly Platform, you may receive, exclusively during any Participation Period, access to Brand Product Data and Indirect Connection Data. Any such Brand Product Data and Indirect Connection Data is made available to you by way of courtesy only, and TrackFly makes no representations or warranties, whatsoever, regarding the availability, accuracy, quality, or reliability of any such Brand Product Data or Indirect Connection Data, and TrackFly disclaims any responsibility or liability with respect to any Brand Product Data or Indirect Connection Data, or for the acts or omissions of the providers thereof. You agree to use any Brand Product Data or Indirect Connection Data accessed by or made available to you through or in connection with the TrackFly Platform (i) solely for your internal business purposes, (ii) in compliance with all applicable laws, rules, and regulations, and (iii) in a manner consistent with any contractual or other duties or obligations you may have to any Brand Participant or other third party. TrackFly shall have no liability to you for your inability to access or receive Brand Product Data or Indirect Connection Data following the termination of any Participation Period of otherwise.
4. TrackFly Analytics. In connection with its performance of the Platform Service, TrackFly may compile, aggregate, collate, synthesize, and/or analyze Inventory Data and other Product data and information in order to generate and/or identify trend insights and other analytics with respect to the same (“TrackFly Analytics”), which may be accessible to you through certain reports, data, or other deliverables available through the TrackFly Platform. You covenant and agree that, to the extent made available to you: (i) you shall only use the TrackFly Analytics for your own internal business operations, and (ii) without prejudice to Section 13, you shall not disclose, provide, resell, or otherwise make available the TrackFly Analytics to any third party, except for your advisors, contractors, and consultants that have been apprised of the confidential nature of the TrackFly Analytics and that are bound by confidentiality and non-disclosure obligations consistent with this paragraph. 

6. TECHNICAL REQUIREMENTS. Your (and your Authorized Users’) access to and use of the TrackFly Platform is dependent upon access to telecommunications and Internet services. You acknowledge that TrackFly is not responsible for acquiring or maintaining any telecommunications or Internet services or other hardware or software that you or your Authorized Users may need to access, use, or connect with the TrackFly Platform, or to otherwise facilitate your uploading or other submission of Inventory Data to the TrackFly Platform, nor for any costs, fees, expenses, or taxes of any kind related to the foregoing.

7. PROGRAM FEES. TrackFly does not currently charge fees for access to the TrackFly Platform by Connection Parties. TrackFly reserves the right, however, to begin to charge fees associated with your access to or use of the TrackFly Platform or with respect to certain components, features, or functionality thereof. TrackFly will notify you, by email or by posting on the TrackFly Platform, prior to imposing any new or additional fees applicable to your access to or use of the same.

8. TERM AND TERMINATION. These Terms shall become effective upon your acceptance thereof and shall remain in full force and effect during any period in which you access or use the TrackFly Platform. TrackFly may terminate or restrict your access to any or all of the TrackFly Platform or your User Account, for any reason, and without warning. Any termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. Upon termination of these Terms, you and each Authorized User will immediately cease all access to and use of the TrackFly Platform.

9. PRIVACY. You acknowledge and agree that all information collected by TrackFly is subject to our Privacy Policy. By accessing or using the TrackFly Platform or Platform Service in any manner, you consent to all actions we take with respect to your information in compliance with our Privacy Policy.

10. COMPLIANCE WITH PRIVACY LAWS

a. TrackFly will only process Customer Data and Personal Information on behalf of, and as Service Provider of, the Customer, and not collect, retain, use, or disclose that data for any purpose other than to perform TrackFly's obligations under this Agreement, as permitted under CCPA and other applicable privacy and data protection laws (collectively, “Privacy Laws”). In no event will TrackFly “sell” (as defined by Privacy Laws) any such personal information.

b. TrackFly will not collect, use, retain, disclose, sell, or otherwise make Customer Data or Personal Information available for TrackFly’s own commercial purposes or in a way that does not comply with the CCPA or other Privacy Laws.

c. TrackFly will limit personal information collection, use, retention, and disclosure to activities reasonably necessary and proportionate to provide the Services set forth in the Agreement or another compatible operational purpose.

11. DATA SUBJECT RIGHTS - ASSISTANCE WITH REQUESTS

1. TrackFly will reasonably cooperate and assist Customer with meeting Customer's CCPA and Privacy Law compliance obligations and respond to CCPA-related inquiries, including responding to verifiable consumer requests, taking into account, the nature of TrackFly's processing, and the information available to TrackFly. TrackFly will make available to Customer, in a manner consistent with the functionality of the Service and TrackFly’s role as a Service Provider of Personal Information of data subjects, the ability to fulfill data subject requests to exercise their rights under Privacy Laws.
2. If TrackFly receives a request from Customer’s data subject to exercise one or more of its rights under Privacy Laws in connection with the Services, TrackFly will redirect the data subject to make its request directly to Customer. Customer will be responsible for responding to any such request including, where possible, by using the functionality of the Services. TrackFly shall comply with reasonable requests by Customer to assist with Customer’s response to such a data subject request.
3. TrackFly will notify the Customer immediately if it receives any complaint, notice, or communication that directly or indirectly relates either party's compliance with Privacy Laws relating to provisioning of the Services.

12. INTELLECTUAL PROPERTY.

1. TrackFly Intellectual Property. As between you and TrackFly, the TrackFly Platform, the TrackFly Service, the TrackFly Analytics, and all software and other technologies embodied in or used to provide the foregoing, and all intellectual property rights therein or relating thereto, are and shall remain the exclusive property of TrackFly and/or its licensors. No rights are granted to Connection Party or any Authorized User hereunder other than as expressly set forth herein.
2. Inventory Data. As between Connection Party and TrackFly, Connection Party owns all right, title and interest in and to all Inventory Data submitted, inputted, uploaded, or made available for submission, input, or upload, by or on behalf of Connection Party. Connection Party hereby grants to TrackFly a nonexclusive, worldwide, transferable, sublicensable, irrevocable, royalty-free, fully paid-up license to extract, process, store, and otherwise access and use the Inventory Data for purposes of operating and making available the TrackFly Platform, providing the TrackFly Service to Brand Participants, making the Inventory Data available to (and permitting the use of such Inventory Data by) Brand Participants and other participants in your Product supply chain in connection with the foregoing, and for such other purposes as may be set forth herein.
3. Brand Product Data and Indirect Connection Data. For purposes of these Terms, the parties agree and acknowledge that the Brand Product Data and Indirect Connection Data shall be deemed to be owned by the respective providers of the same.
4. Data Use Rights. You acknowledge and agree that TrackFly may monitor Connection Party’s and its Authorized Users’ access to and use of the TrackFly Platform, and may track and compile data and information related to such access and use, including, without limitation, statistical and performance information related to the provision and operation of the TrackFly Platform and/or TrackFly Service (“Aggregated Statistics”). As between TrackFly and Connection Party, the Aggregated Statistics and all intellectual property rights therein or relating thereto are and shall remain the exclusive property of TrackFly. TrackFly may, without limitation, (a) make such Aggregated Statistics publicly available, (b) use the Aggregated Statistics to the extent and in the manner required by applicable law or regulation, and (c) use the Aggregated Statistics to maintain, optimize and improve the TrackFly Platform and TrackFly Service, to develop, improve, or offer other TrackFly products or services, or to otherwise operate TrackFly’s business. In addition, and without limiting any other rights of TrackFly hereunder, you hereby grant to TrackFly permission to use, on a de-identified basis, any Inventory Data or other data or information that TrackFly learns, acquires, or obtains in connection with these Terms, for the purposes of providing and improving the TrackFly Platform and/or the TrackFly Service, TrackFly’s other products and services, and for such other purposes as may be set forth herein or in the Privacy Policy.
5. Feedback. To the extent you or any Authorized User provides TrackFly with any suggestions, feature requests, evaluation results, feedback, or other input in relation to any aspect of the TrackFly Platform or TrackFly Service (collectively, “Feedback”), you hereby assign and agree to assign to TrackFly all right, title and interest in and to such Feedback, including any intellectual property rights therein, and agree that TrackFly will be free to use such Feedback in any manner, including by implementing such Feedback in the TrackFly Platform, TrackFly Service and/or TrackFly’s other technologies, products and services, without compensation or other obligation to you or any Authorized User.

13. PLATFORM AND DATA SECURITY. TrackFly will maintain appropriate physical, administrative, and technical safeguards to protect against the unauthorized accessing, use, destruction, corruption, loss or alteration of Inventory Data and Brand Product Information in a manner appropriate in light of the level of sensitivity of such data. TrackFly will use commercially reasonable efforts to promptly notify Connection Party of any material breach of security with respect to any Inventory Data in TrackFly’s control or possession.

14. THIRD PARTY APPLICATIONS. The TrackFly Platform may contain links to, incorporate, or otherwise allow you to access third party applications and services (“Third Party Services”) that are not owned or controlled by TrackFly. When you access third party websites or Third Party Services, you do so at your own risk. TrackFly encourages you to be aware when you leave the TrackFly Platform and to read the terms and conditions and privacy policy of each third-party website or Third Party Service (“Third Party Terms”) that you visit or from which you access any product or service. TrackFly has no control over, and assumes no responsibility for, the content, accuracy, Third Party Terms, or practices of any third-party website or Third Party Service. In addition, TrackFly will not and cannot monitor, verify, censor, or edit the content of any third-party website or Third Party Service. When you visit or use a third party’s website or Third Party Service, you acknowledge that such website or Third Party Service is subject to the applicable Third Party Terms, and you release us from any liability arising from your use of such websites or Third Party Service. You acknowledge that we are not responsible for such third parties or their products or services. Any such activities, and any Third Party Terms associated with such activities, are solely between you and the applicable third party.

15. CONFIDENTIALITY

1. Confidential Information. “Confidential Information” means (subject to the exclusions below) any non-public information relating to or disclosed by a party in connection with these Terms that should be reasonably understood to be confidential. TrackFly’s Confidential Information shall include, but shall in no way be limited to, the TrackFly Analytics. The receiving party will (i) use the same care to protect Confidential Information as it uses for its own similar information, but no less than reasonable care, (ii) not disclose Confidential Information to any third party without prior written authorization or as otherwise required for its performance hereunder, except that receiving party may disclose Confidential Information its employees, contractors and consultants who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are bound by obligations of confidentiality, non-use and non-disclosure no less protective of disclosing party’s Confidential Information than the provisions hereof, and (iii) use Confidential Information only for the purpose of fulfilling its obligations or exercising its rights expressly granted under these Terms. For the avoidance of doubt, nothing in this Section 13 shall prohibit TrackFly from sharing Inventory Data and other Product information with Brand Participants and with other TrackFly Platform participants in your Product supply chain, as contemplated herein. The receiving party will promptly return or destroy the other party’s Confidential Information in its possession or control upon request.
2. Exclusions. Confidential Information does not include information that: (i) is or becomes publicly available through no fault of the receiving party; (ii) was already in possession of the receiving party without confidentiality restrictions at the time of receipt from the other party, as evidenced by written records; (iii) was rightfully obtained by the receiving party on a non-confidential basis from a third party; or (iv) was independently developed by the receiving party without violation of this Section. If a receiving party is required to disclose Confidential Information by law, the receiving party will, where permitted by applicable law, promptly notify the disclosing party and reasonably cooperate with its efforts to limit or protect the required disclosure, but will otherwise not be in violation of this Section on account of making the required disclosure.

16. DISCLAIMER OF WARRANTIES. THE TRACKFLY PLATFORM AND TRACKFLY ANALYTICS, AS APPLICABLE, ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, AND TRACKFLY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, TITLE, AND NON-INFRINGEMENT. NEITHER TRACKFLY NOR ANY PERSON ASSOCIATED WITH TRACKFLY MAKES ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE TRACKFLY PLATFORM, PLATFORM SERVICE, OR TRACKFLY ANALYTICS. WITHOUT LIMITING THE FOREGOING, NEITHER TRACKFLY NOR ANYONE ASSOCIATED WITH TRACKFLY REPRESENTS OR WARRANTS THAT THE TRACKFLY PLATFORM OR PLATFORM SERVICE, OR ANY RESULTS, DATA OR OUTPUTS GENERATED THEREFROM OR AVAILABLE THERETHROUGH (INCLUDING, WITHOUT LIMITATION, ANY BRAND PRODUCT DATA, INDIRECT CONNECTION DATA, OR ANY TRACKFLY ANALYTICS), WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE TRACKFLY PLATFORM, THE PLATFORM SERVICE, THE TRACKFLY ANALYTICS, OR THE SERVERS THAT MAKE THE FOREGOING AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE TRACKFLY PLATFORM OR PLATFORM SERVICE, OR ANY DATA, INFORMATION, OR RESULTS MADE AVAILABLE TO YOU IN CONNECTION THEREWITH OR GENERATED THEREFROM (INCLUDING, WITHOUT LIMITATION, ANY BRAND PRODUCT DATA, INDIRECT CONNECTION DATA, OR TRACKFLY ANALYTICS), WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. AS BETWEEN YOU AND TRACKFLY, YOU ASSUME ALL RISK IN CONNECTION WITH YOUR USE OF, INTERPRETATION OF, AND RELIANCE ON THE TRACKFLY PLATFORM, AND ALL CONTENT, RESULTS, AND OUTPUTS GENERATED THEREBY, AND ALL DATA AND INFORMATION AVAILABLE THERETHROUGH (INCLUDING, WITHOUT LIMITATION, ALL INVENTORY DATA, BRAND PRODUCT DATA, INDIRECT CONNECTION DATA, AND TRACKFLY ANALYTICS). YOU EXPRESSLY AGREE AND ACKNOWLEDGE THAT THE TRACKFLY PLATFORM AND THE DEVELOPMENT AND DELIVERY OF ANY OUTPUTS THEREOF BY TRACKFLY (INCLUDING, WITHOUT LIMITATION, ANY TRACKFLY ANALYTICS) IS DEPENDENT UPON AND SUBJECT TO THE AVAILABILITY OF INVENTORY DATA AND THE COOPERATION OF PRODUCT SUPPLY CHAIN PARTICIPANTS. TRACKFLY SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER FOR ANY INVENTORY DATA, INDIRECT CONNECTION DATA, OR BRAND PRODUCT DATA, OR FOR ANY LOSS, DAMAGE, OR OTHER ISSUE CAUSED BY THE UNAVAILABILITY, INCOMPLETENESS, OR INACCURACY OF THE SAME, WHETHER CAUSED BY CUSTOMER OR A THIRD PARTY.

17. INDEMNITY. Connection Party will indemnify, defend and hold harmless TrackFly against any damages awarded by a court in connection with claims, demands, suits or proceedings made or brought by a third party arising from or related to (a) Connection Party’s or any Authorized User’s access to or use of the TrackFly Platform, (b) Connection Party’s or any Authorized User’s violation of these Terms or applicable law, (c) use or provision by Connection Party or any Authorized User of any Program Data or TrackFly Analytics made available to Connection Party through the TrackFly Platform, (d) Connection Party’s purchase, sale, distribution, or advertising of any Products, including, without limitation, any product liability claims, and (e) any violation of Connection Party’s obligations under Section 5(b) hereof. We reserve the right, at our own expense, to assume the exclusive defense and control of any action subject to indemnification by you, and in such event you agree to cooperate with us in defending such action.

18. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL TRACKFLY OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, OR SERVICE PROVIDERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR CONNECTION PARTY’S (OR ITS AUTHORIZED USERS’) ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE THE TRACKFLY PLATFORM, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE, OR LOSS OF DATA, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. IF TRACKFLY IS FOUND LIABLE FOR ANY LOSS OR DAMAGE UNDER ANY LEGAL THEORY RELATING IN ANY WAY TO THE SUBJECT MATTER OF THESE TERMS, IN NO EVENT WILL TRACKFLY’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY EXCEED THE AMOUNT OF $100.00. If you are not satisfied with the TrackFly Platform, your sole and exclusive remedy is to cease your access to and use of the TrackFly Platform.

Some jurisdictions do not allow the limitation of liability for incidental or consequential damages or other damages or liability, so the foregoing limitations may not apply to you. To the extent that in a particular circumstance any limitation on damages or liability set forth in this Section is prohibited by applicable law, then, instead of the provisions hereof in such particular circumstance, TrackFly shall be entitled to the maximum limitations on damages and liability available at law and equity in that particular circumstance.

You and TrackFly each understand and agree that the disclaimers, acknowledgements, exclusions, and limitations in this Section 16 and in Section 14 are essential elements of these Terms and that they represent a reasonable allocation of risk. In particular, you understand that TrackFly would be unable to make the TrackFly Platform available to you except on these terms and agree that these terms will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.

19. DIGITAL MILLENNIUM COPYRIGHT ACT. TrackFly is committed to respecting and protecting the legal rights of copyright owners in accordance with the Digital Millennium Copyright Act (Section 512(c)(3) of the DMCA (17 U.S.C. § 512 et seq.)). If you believe any content infringes your intellectual property rights, please submit a notice to us describing such infringement (a “DMCA Takedown Notice”) with the following information:

1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works;
3. Identification of the material claimed to be infringing or to be the subject of infringing activity and that is to be removed or access disabled and information reasonably sufficient to permit the service provider to locate the material;
4. Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, email address;
5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
6. A statement that, under penalty of perjury, the information in the notification is accurate and you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.

Any DMCA Takedown Notice should be sent to: contracts@trackfly.com. You acknowledge that for TrackFly to be authorized to takedown any content, your DMCA Takedown Notice must comply with all of the requirements of this Section.

20. MISCELLANEOUS

1. Marketing. TrackFly may use Connection Party’s name as part of a general list of clients and may refer to Connection Party as a user of the TrackFly Platform in its general advertising and marketing materials.
2. Force Majeure. TrackFly will not be liable for any delay or failure in the performance of our obligations under these Terms if the delay or failure is due to any cause outside of our reasonable control.
3. Assignment. You may not assign or transfer these Terms or any rights or obligations hereunder to any other person without TrackFly’s prior written consent. Any purported assignment in violation of this paragraph is void and of no effect. TrackFly may assign these Terms or its obligations hereunder without restriction. These Terms shall be binding on the parties and their permitted successors and assigns. A person who is not a party to these Terms has no right to benefit under or to enforce any provisions hereof.
4. Export Compliance. Connection Party agrees to comply fully with all relevant export laws and regulations of the United States and other applicable jurisdictions to ensure that neither the TrackFly Platform, nor any direct products or outputs thereof, are: (i) exported or re-exported directly or indirectly in violation of such export laws and regulations; or (ii) used for any purposes prohibited by such export laws and regulations.
5. Governing Law and Venue. These Terms and any dispute or claim arising out of or related to these Terms, their subject matter or formation (in each case, including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of Utah, other than such laws and case law that would result in the application of the laws of a jurisdiction other than the State of Utah. The United Nations Convention on Contracts for the International Sale of Goods shall have no applicability. The parties further agree that the exclusive venue and jurisdiction for any dispute arising or relating to these Terms shall be a court of competent jurisdiction located in Salt Lake City, Utah. You agree to waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION OR CLAIM ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
6. Waiver of Jury Trial and Class Action Waiver. YOU HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THESE TERMS. YOU AND TRACKFLY EACH AGREE THAT ANY SUIT, PROCEEDING, OR OTHER ACTION ARISING OUT OF OR RELATED TO THESE TERMS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION.
7. Notices. TrackFly may give notice to Connection Party by means of electronic mail to Connection Party’s e-mail address on record with TrackFly (including any email account associated with Connection Party’s User Account) or by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service to Connection Party’s address on record with TrackFly. Connection Party may give notice to TrackFly by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service addressed to:

TrackFly, Inc.

1471 E. Snow Iris Circle

Sandy, UT 84092

Notice shall be deemed to have been given upon receipt or, if earlier, two (2) business days after mailing, as applicable. All communications and notices to be made or given pursuant to these Terms shall be in the English language. For contractual purposes, you consent to receive communications from us in electronic form and you agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

1. Severability and Waiver. If any part or provision of these Terms is held by a court of competent jurisdiction to be invalid, unenforceable, or in conflict with the law, that part or provision shall be replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision, and the remainder of these Terms will continue in full force and effect. Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If we waive any breach of these Terms, such waiver will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
2. Entire Agreement. These Terms, together with the Privacy Policy, constitute the sole and entire agreement between you and TrackFly with respect to the subject matter hereof, and supersedes and extinguishes all prior agreements, representations (whether oral or written), and understandings regarding such subject matter.
3. Survival. The provisions of the following Sections of these Terms will survive any expiration or earlier termination of these Terms: Sections 1, 2(b), 3 (with respect to the final sentence), 4, 5, 6 (with respect to the final sentence), 8-10, and 12-18.