Terms & Conditions of Service

These Terms apply to any order form (“Order Form”) incorporating these Terms for which Customer may use the Tracebit Platform. References to this Agreement mean the Order Form together with these Terms.

1. Tracebit Platform
   1. Tracebit will make the service (“Tracebit Platform”) available to Customer pursuant to this Agreement and grants to the Customer a limited, revocable, non-sublicensable, non-exclusive, non-transferable, royalty-free right during the Term to allow the Customer’s authorized employees and contracts (“Users”) to access and use the Tracebit Platform, subject to any Usage Limitations set forth in the applicable Order Form.  The Customer is responsible for all activities conducted under the Users logins on the Tracebit Platform.
   2. Tracebit will maintain a security program materially in accordance with industry standards designed to: (a) ensure the security of Customer data collected by the Tracebit Platform and output produced for Customer via use of the Tracebit Platform by Customer (collectively, “Customer Data”); and (b) prevent unauthorised access to Customer Data. Tracebit’s security safeguards include measures for preventing access, modification or disclosure of Customer Data by Tracebit personnel except: (i) to provide the Tracebit Platform and prevent or address problems; (ii) as required by applicable law; or (iii) as permitted herein or by Customer. Tracebit will not materially diminish the protections provided herein. 
   3. The rights granted herein are subject to the following “Licence Restrictions”. Customer will not directly or indirectly: (a) reverse engineer, decompile (except to the extent that such actions cannot be restricted under applicable law), modify, create derivative works of or otherwise create or derive the Tracebit Platform’s source code; (b) breach the security of the Tracebit Platform or render it unusable for any user; (c) use the Tracebit Platform or Tracebit Confidential Information to develop a product or service that competes with Tracebit’s; (d) transfer, resell, license, or assign the Tracebit Platform; or (e) use the Tracebit Platform in violation of applicable law, to infringe third party rights or outside the scope permitted hereunder.  
   4. Customer: (a) will comply with applicable laws; (b) will provide (in a diligent and timely manner) all cooperation, personnel and materials specified by Tracebit; (c) is responsible for all use of the Tracebit Platform under its account; (d) will use reasonable endeavours to prevent unauthorised access to the Tracebit Platform and notify Tracebit promptly of any unauthorised access; and (e) is solely responsible for obtaining and maintaining any equipment, software and ancillary services needed to use the Tracebit Platform.

2. Updates and Support
   1. Updates for the Tracebit Platform (“Updates”) may be provided from time to time by Tracebit when they are made generally available to all Tracebit customers.

3. Fees
   1. Customer will pay Tracebit the fees set forth in the Order Form in accordance with the payment terms set forth therein. Except as otherwise specified, fees are: (a) payable in the currency set forth in the Order Form; and (b) non-cancellable, non-pro-ratable for partial months, and non-refundable, except as set forth herein.
   2. Tracebit may, on 45 days’ notice to Customer, vary the fees to take effect at the beginning of any renewal of the subscription term, subject to any such increase being no more than the equivalent of Consumer Price Index plus 5%.
   3. Tracebit may suspend access to the Tracebit Platform upon notice if Customer fails to pay any amounts hereunder 5 days or more after their due date. If Customer disputes an invoice received from Tracebit, Customer must notify Tracebit in writing within 15 days of receiving the relevant invoice.
   4. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties (“Taxes”). Customer will not withhold Taxes from amounts due to Tracebit unless required by applicable law, in such circumstances the amount due from Customer shall be increased to an amount which (after making such withholding) leaves an amount equal to the payment which would have originally been due.

4. Proprietary Rights and Confidentiality
   1. As between the parties, Tracebit owns the Tracebit Platform, System Data, and Tracebit’s Confidential Information, and Customer owns Customer Data and Customer’s Confidential Information. Customer grants to Tracebit, its affiliates and applicable contractors a worldwide, limited-term licence to host, copy, transmit and display Customer Data, as reasonably necessary for Tracebit to perform this Agreement. “System Data” means data relating to the use of the Tracebit Platform that is not Customer Data, and statistical usage data derived from the operation of the Tracebit Platform, including data regarding web applications utilized in connection with the Tracebit Platform, configurations, log data, and the performance results for the Tracebit Platform. 
   2. Customer may provide Tracebit with suggestions for new or enhanced features (“Feedback”). Tracebit has the full, unencumbered right, without any obligation to compensate Customer, to exploit such Feedback.
   3. The Tracebit Platform integrates with certain third party content and/or technology controlled by or licensed to the Customer.  Tracebit does not endorse or approve any third party content or technology, and makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to such content and technology or its integration with the Tracebit Platform.
   4. Each party will use any information disclosed (whether before or after the Effective Date of this Agreement) directly or indirectly by the other that should reasonably be understood to be confidential (“Confidential Information”) solely in accordance with this Agreement and, except as permitted hereunder, not disclose the same to any third party without the other’s prior written consent, provided that information which: (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosing party’s disclosure; (c) was properly disclosed to receiving party, without restriction, by another person with authority to do so; or (d) is independently developed by receiving party without use of or reference to disclosing party’s Confidential Information is not Confidential Information. Furthermore, either party may disclose Confidential Information: (a) to its personnel and representatives who need to know it and are legally bound to keep it confidential by obligations consistent with those herein; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification and the opportunity to contest disclosure, and use its reasonable endeavours to minimise disclosure to the extent permitted by applicable law). Neither party will disclose the terms of this Agreement to any third party, except that it may confidentially disclose them to actual or potential lenders, investors or acquirers and Tracebit may refer to Customer’s name and trademarks in its marketing materials and website. Each party agrees to exercise due care in protecting Confidential Information from unauthorised use and disclosure. In the event of a breach of this Section or the Licence Restrictions, the non-breaching party will, notwithstanding anything herein, be entitled to seek injunctive and other equitable relief in any jurisdiction. Each party will promptly notify the other in writing if it becomes aware of any violations of this Section.

5. Warranties and Disclaimers
   1. Tracebit warrants that (a) the Tracebit Platform will materially conform with the technical specifications provided by Tracebit to Customer; and (b) any support will be provided in a professional and workmanlike manner. For breach of the foregoing, Customer’s exclusive remedy is repair or replacement (determined by Tracebit).  If Tracebit cannot do so, Customer shall be entitled to recover a pro-rata portion of the fees prepaid to Tracebit for the Tracebit Platform.
   2. Customer warrants that it has all rights necessary to provide any information or other materials it provides hereunder, and to permit Tracebit to use the same as contemplated herein.
   3. Except as set forth herein, each party disclaims all warranties and conditions, express or implied.

6. Indemnification
   1. Tracebit will defend Customer against any claim (“Claim”) brought against it by a third party alleging that use of the Tracebit Platform infringes its intellectual property rights and will, subject to Section 6.3, indemnify Customer for damages finally awarded by a court of competent jurisdiction against Customer (or any Tracebit approved settlement) in connection with such Claim. If the use of the Tracebit Platform has become, or in Tracebit’s opinion is likely to become, subject to any infringement claim, Tracebit may: (a) procure the right for Customer to continue using the Tracebit Platform as set forth herein; (b) replace the Tracebit Platform to make it non-infringing (with comparable functionality); or (c) terminate this Agreement and provide a pro rata refund of prepaid fees. Tracebit will have no Liability with respect to any Claim to the extent caused by: (i) use of the Tracebit Platform other than as permitted hereunder; (ii) compliance with designs, guidelines or specifications provided by Customer; (iii) Customer’s use of any downloadable component of the Tracebit Platform other than the latest version made available; (iv) modification of the Tracebit Platform by any party other than Tracebit without Tracebit’s written consent; (v) Customer Data or Customer Confidential Information; or (vi) the combination, operation or use of the Tracebit Platform with other applications, products or services, in each case provided such combination, operation or use causes the infringement (subclauses (i) through (vi), “Excluded Claims”). This Section represents Customer’s exclusive remedy for any claim related to infringement or misappropriation of intellectual property.
   2. Customer will defend Tracebit against any Claim brought against it by a third party arising out of the Excluded Claims, and will, subject to Section 6.3, indemnify Tracebit for damages finally awarded against Tracebit (or any Customer approved settlement) in connection with such Excluded Claim.
   3. When a party (“Indemnifier”) is to indemnify the other (“Indemnified”) the: (a) Indemnified shall promptly notify Indemnifier of the Claim in writing; (b) Indemnifier shall be given exclusive authority to defend and settle such Claim (provided that it may not settle without Indemnified’s prior written consent, not to be unreasonably withheld, conditioned or delayed); and (c) Indemnified shall reasonably cooperate with Indemnifier in connection with such Claim.

7. Limitation of Liability
   1. Nothing in this Agreement excludes or restricts any liability arising under, out of or in connection with this Agreement, whether or not foreseeable or in the contemplation of the parties at any time, in or under contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise (“Liability”) for: (a) anything that cannot be excluded or restricted under applicable law; (b) Customer’s payment obligations; or (c) subject always to section 7.2, a claim by either party in accordance with section 6 (indemnification)..
   2. Subject to clause 7.1, neither party has any Liability for any: (a) indirect, special or consequential loss; (b) loss of goodwill; (c) loss of actual or anticipated profits (d) lost sales or business; (e) work stoppage; (f) computer failure or malfunction; (g) damage to equipment; or (h) lost content or data.
   3. Subject to sections 7.1 and 7.2, the total aggregate Liability of a party for all claims shall not exceed the amounts paid by Customer under the applicable Order Form in the 12 months preceding the incident or claim, less any amounts already paid or payable by that party to the other party (including by way of damages, settlement or otherwise) in connection with any previous incidents or claims.

8. Term and Termination
   1. This Agreement begins on the Effective Date of the Order Form, continues for the initial subscription term and automatically renews for successive terms equal to the length of its initial subscription term, unless terminated in accordance with this Agreement. 
   2. Either party may terminate this Agreement on written (including email) notice to the other party on at least 30 days’ notice, to take effect at the end of the initial subscription term or then-current renewal term (as applicable). Each party may further terminate this Agreement upon written notice to the other party if: (a) the other party commits any material breach of this Agreement and fails to remedy such breach within 30 days after written notice of such breach; or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party becomes the subject of insolvency or similar proceedings that are not dismissed within 60 days. 
   3. Upon termination of this Agreement, the Customer will immediately uninstall applications providing access to the Tracebit Platform and all rights and obligations will immediately terminate except that accrued payment obligations and any terms that by their nature should survive such termination will survive, including the Licence Restrictions and terms and conditions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability, termination and the general provisions below.

9. General
   1. Neither party shall have Liability to the extent caused by events beyond its reasonable control, including natural disaster, act of god, pandemic, cyber-attacks, failure of third party or customer software, hardware or network, or any change in law and other than set out herein has no obligation to take any action to prevent or mitigate such events.
   2. Neither party may assign or transfer this Agreement without the other’s prior written consent unless such assignment is to a successor to substantially all of its assets or business related to this Agreement or an affiliate. No amendment to this Agreement, nor waiver of any rights hereunder, is effective unless mutually agreed. Failure or delay by either party to enforce this Agreement will not be deemed a waiver of future enforcement. Nothing herein establishes any partnership, agency, employment or joint venture between the parties. Neither party has authority to bind the other, and nothing herein gives rise or is intended to give rise to any rights of any kind to any third parties (whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise). If a court of competent jurisdiction determines that any provision of this Agreement is invalid or unenforceable, such provision will be enforced as nearly as possible in accordance with the intention of the parties, while the remainder of this Agreement remains in full force. “Including” means “including without limitation”. This Agreement comprises the entire agreement between the parties with respect to its subject matter, supersedes all other proposals, statements, materials and agreements (oral and written) and all statements, representations and warranties on which each party relies are incorporated into this Agreement. Neither party has a remedy for any statement, representation (including misrepresentation) or warranty (whether negligent or innocent) of any person not expressly set out herein and each party waives all rights and remedies which, but for this clause, might otherwise be available to it in respect of any such statement, representation or warranty. No terms contained in any purchase order or other document issued by Customer form part of any contract between the parties.
   3. This Agreement, together with any dispute arising out of or in connection with it or its subject matter, is governed by the laws of England. Each party irrevocably agrees that the courts of London, England, have exclusive jurisdiction to settle any dispute under this Agreement.
   4. Any notice hereunder will be given using the details in the latest effective Order Form and in writing by personal delivery, certified mail, return receipt requested or email provided no automated bounceback is received.