Trakstar Terms and Conditions

2.Term and Termination.

2.1.Agreement Term. The initial term of this Agreement shall commence upon the date on which Client has both (a) clicked “Accept” to this Agreement and (b) entered into an Order Form with Trakstar (the “Effective Date”) and, unless earlier terminated in accordance with this Agreement, continue until there is no Order Form in effect.

2.2.Order Form Term. The term of each Order Form shall begin on the ‘begin date’ of the applicable Order Form (the “Order Form Begin Date”) and shall continue for the duration specified on the relevant Order Form (the “Order Form Initial Term”), at which time, subject to any fee changes made by Trakstar pursuant to this Agreement, the Order Form Term shall automatically renew for subsequent renewal terms each of that number of years equal to the number of years of the Order Form Initial Term (each an “Order Form Renewal Term” and, together with the Order Form Initial Term, “Order Form Term”), unless and until either Party provides written notice of intent not to renew at least sixty (60) days prior to the end of the then-current Order Form Term.

2.3.Termination. Upon a material breach of this Agreement, the non-breaching Party may send written notice to the breaching Party informing the breaching Party of the nature of the breach and providing thirty (30) days to cure a non-monetary breach and ten (10) days to cure a monetary breach (the “cure period”). If the breaching Party does not cure the material breach within the cure period, the non-breaching Party may immediately terminate this Agreement.

2.4.Effects of Termination.

a.无论因何种原因导致订单表格到期或终止，(i) 该到期或终止前根据订单表格应付给Trakstar的任何款项均应立即到期并支付， 客户须立即支付全部款项（若因合理争议导致未付款项，则应在争议解决时按要求支付，并可能产生逾期付款费（定义见下文））；(ii) 订单表中规定的服务及相关系统的所有访问权限与使用权限将立即终止。

b.本协议因任何原因到期或终止时， (i) 在此之前根据所有订单表应付给Trakstar的任何款项均应立即到期并支付，客户须及时支付全部款项（若因合理争议导致未付款项，则该等款项应在争议解决时按要求支付，并可能产生逾期付款费（定义见下文））； (ii) 所有订单表项所载服务的访问权限及使用权限，以及相关系统的使用权限将立即终止，客户及所有用户须立即停止访问或使用该等服务，且须立即停止使用其持有或控制的另一方的任何保密信息（不限于此）； (iv) 客户可从系统中访问并下载客户数据（定义见下文），若客户在到期或终止日期后五（5）日内提出请求，Trakstar将在客户承担费用的前提下，协助客户以当时的状态下载客户数据，但需采用客户合理接受的格式。 Trakstar将依据其标准流程执行离职处理工作，相关流程文件可应要求提供副本。

c.此外，无论因何种原因导致本协议到期或终止， 客户确认并同意，除非双方事先另有书面约定或Trakstar依法另有要求，Trakstar无义务在协议到期或终止后三十（30）天内保留任何客户数据，且客户授权Trakstar在该30天期限届满时永久删除其仍持有或控制的所有客户数据。 客户应独自承担下载所有客户数据的责任，并确保遵守适用于客户的所有数据保留法规。

d.The following Sections will survive the termination or expiration of this Agreement: 2.4; 3.2; 3.3; 8; 9.1; 9.2; 9.3; 9.4; 9.5; 10; 11.2; 11.3; 11.4; 12; 14; and 15.

3. Fees; Payment and Taxes

3.1.Subscription Fees.

a.Client will pay Trakstar the “per seat” subscription fee set forth on the Order Form (the “Subscription Fee”), on an annual basis in advance upon receipt of invoice. Client must provide full legal name, full company name, a valid e-mail address, correct billing information and any other information requested, including any changes in this information throughout the term of the contract, in order to complete the payment process. Client acknowledges and agrees that if Client adds additional seats at any time(s) during the term, then Trakstar may invoice Client for such additional seats at the then-current Subscription Fee. All Subscription Fees are non-refundable with the exception of circumstances in which Client terminates this Agreement for Trakstar’s material, uncured breach in accordance with Section 2.3 above, in which case Client shall receive a pro-rated refund of the prepaid Subscription Fee for the remainder of the Contract Year (as defined below).

b.Client acknowledges and agrees that Subscription Fees, which are the fees paid for each “seat,” are fixed for each Contract Year during the term (provided that Client understands that it will be required to pay for additional seats that it adds at any point(s) during the term), where “Contract Year” means each 12-month period during the term of the applicable Order Form, with the first Contract Year commencing on the effective date of such Order Form and each subsequent Contract Year commencing on the annual anniversary of such effective date. Trakstar may change the Subscription Fees for the next Contract Year upon providing at least seventy-five (75) days’ notice to Client. Trakstar may provide such notice by e-mail, posting to the Site or posting on the System itself, and Client hereby consents to receiving such notice in such manner.

3.2.Late Fees.

a.除非适用订单表另有明确规定，客户应在发票日期后三十（30）日内支付所有无合理争议的发票金额。 客户须在发票开具之日起三十（30）日内支付适用订单表中规定的后续年度所有应付金额，除非适用订单表另有明确规定。客户须在争议解决后按要求的时间和金额支付所有因合理争议而暂扣的应付金额。

b.Until paid in full, all amounts that are not subject to good faith dispute that are not paid within thirty (30) days of the date of invoice may, at Trakstar’s discretion, bear an interest charge at the lesser rate of twelve percent (12%) on an annualized basis or the maximum amount permitted under applicable law (the “Late Payment Fee”). With respect to amounts that were subject to good faith dispute, Client will promptly pay such amounts to the extent required by and at the time of the dispute resolution, together with the applicable Late Payment Fee, if any.

3.3.Taxes. All Subscription Fees are exclusive of, and Client will be responsible for, all taxes (including without limitation sales, value-added and similar taxes), duties and the like, other than taxes based upon or calculated by Trakstar’s net income.

4.Service Level Commitment

4.1.Availability; Service Level Exceptions. Trakstar shall use diligent, commercially reasonable efforts with the objective of making the System available to Client at least 99.5% of the time, subject to the following exceptions (“Service Level Exceptions”), for which Trakstar will not be liable:

a. Trakstar认为必要的系统或服务器定期维护程序、增强、维修或修正（包括但不限于不定期的产品更新与改进）；

b.因客户重大违反本协议（包括但不限于未及时支付到期且无合理争议的款项）导致Trakstar暂停客户系统访问权限的期间，前提是Trakstar已就该重大违约行为向客户发出通知，且客户在收到通知后十（10）日内未纠正该违约行为；

c. 客户或其用户的行为或疏忽导致服务水平不足或故障，包括但不限于：客户滥用系统、用户互联网浏览器的计划内或计划外中断、用户内部网络已知且持续的响应迟缓，或用户计算机硬件、电信系统或电力供应存在问题；或

d.超出Trakstar合理控制范围或Trakstar无法合理预见的因素，包括但不限于：电信或数字传输链路中断或故障、因客户互联网服务提供商（ISP）导致的延迟或故障、恶意网络攻击、网络拥塞或其他不可抗力事件（具体定义见下文第13条）。

4.2.Client Obligation. Client agrees that it shall notify Trakstar immediately if Client suspects the System is unavailable due to a fault of Trakstar. In such notice, Client shall provide reasonable information as requested by Trakstar for proper diagnosis and repair.

4.3.Outages. For purposes of this Agreement, an “Outage” occurs when the System is unavailable to Client in Client’s hosted production environment for a reason other than a Service Level Exception and such unavailability causes the System not to meet the 99.5% availability objective (with any Service Level Exception time not counted toward the unavailable time). If an Outage occurs in three (3) consecutive months, then Client may terminate this Agreement upon providing written notice to Trakstar, provided that Client must exercise this right to terminate within thirty (30) days of the latest consecutive Outage or the Agreement will be considered in good standing.

5.Support

5.1.First-Line Support. Client shall provide first-line support to its Users. Client shall appoint an “Internal Administrator” and notify Trakstar in writing regarding the Internal Administrator’s name and contact information. The Internal Administrator shall be responsible for: input of all Client-related information and data, User ID information, and organizational structure (including without limitation accurate job titles and/or roles, which will be used in connection with role-based access to the System); and training of Client’s Users. All User questions regarding the functioning of the System shall be directed first to Client’s Internal Administrator.

5.2.Second-Line Support. Provided that Client is current in its payment of Subscription Fees under this Agreement, Trakstar shall provide its standard technical support and maintenance to Client, solely through Client’s Internal Administrator, during Trakstar’s normal business hours (9:00 AM-8:00 PM Eastern Time M-F). Trakstar may provide such support via telephone, e-mail and other Internet based technology directly to Client’s Internal Administrator. Second-line support means direct technical support of the System, including, but not limited to: (a) direct response to the Internal Administrator’s inquiries concerning performance, functionality or operation of the System; (b) a direct response to reported problems for performance deficiencies with the System; (c) a diagnosis of problems for performance deficiencies of the System; and (d) a resolution of the problems for performance deficiencies of the System. Trakstar shall also provide standard error correction and maintenance modifications to the System.

5.3.Additional Support. Notwithstanding the above, if Trakstar makes a reasonable business determination that the technical support requested by Client pursuant to Section 5.2 will entail detailed, specialized maintenance or support services different in kind or amount from those provided to other clients that subscribe to similar Services, then Trakstar shall notify Client that the requested support is considered an additional service which shall be subject to additional fees, to be negotiated.

5.4.

6.System Maintenance

Trakstar shall employ industry standard practices, using technical and organizational security measures customarily adhered to within the industry, to ensure the security, confidentiality and integrity of all Client data and other information or materials transmitted to or stored on the System by or on behalf of Client or any User (“Client Data”). Trakstar shall make backups of the Client Data in the System on a daily incremental basis during the week on a rolling, 7-day basis, and a full backup each weekend.

7.Certain Client Obligations

7.1.Client is responsible for all activity occurring under its account and will comply with all applicable local, state, national and foreign laws, treaties, and regulations in connection with its access or use of the System, including those related to data privacy, data security, international communications and the transmission of technical or personal data. Client will be solely responsible for ensuring that its Users receive sufficient training to enable proper access or use of the System. Client will be solely responsible for, and will bear the cost of, providing all equipment, facilities and connectivity, including without limitation any Internet access or telecommunications services, necessary to use and access the System.

7.2.A Client’s Users will access the System through Single Sign On (SSO) or non-SSO. If Client is to access the System through SSO, then Client will be responsible for administering the User credentials. If Client is to access the System through non-SSO, then as part of the registration and account creation process, each of Client’s Users will need a unique user name (“User Name”) and password (“Password”). User may not select a User Name that is identical to that used by another person or use a User Name that, in the sole opinion of Trakstar, is offensive or inappropriate. Client shall be solely responsible for its Users’ maintaining the confidentiality of Passwords. Client is solely responsible for all usage or activity on Client’s account, including but not limited to use of Client’s account, Client’s User Names, and Password by any third party. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of Client’s account, in Trakstar’s sole discretion, and Trakstar may refer Client to appropriate law enforcement agencies.

8.Confidential Information; Personal Information

8.1.Confidential Information.

a.For purposes of this Agreement, “Confidential Information” means (i) with respect to each party, all nonpublic, business-specific information disclosed or otherwise made available under this Agreement (but in all cases excludes Personal Information, which is addressed in Section 8.2 below) that relates to the provision or receipt, respectively, of the Services or either party’s suppliers, affiliates, investors, customers, products and/or services, pricing, research and development, technology, intellectual property, financial data, or operations and that is clearly identified as confidential at the time of disclosure or that, in light of the nature of the information itself or the circumstances surrounding its disclosure, ought in good faith to be deemed confidential, and (ii) with respect to Trakstar, the System and the Documentation.

b.Obligations. Client agrees to disclose to Trakstar only that Confidential Information of Client that is reasonably necessary to enable Trakstar to provide the Services, and Trakstar agrees to disclose to Client only that Confidential Information of Trakstar that is reasonably necessary to enable Client to receive the Services. The party receiving Confidential Information (the “Receiving Party”) from the other party (the “Disclosing Party”) will not use any Confidential Information of the Disclosing Party for any purpose other than the provision and receipt of Services under this Agreement, respectively, in accordance with all terms and conditions of this Agreement. Further, the Receiving Party will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. Client also agrees not to: (i) disclose to third parties (whether in writing or orally) any benchmark test data related to the System; and (ii) use Trakstar’s Confidential Information to create, or have a third party create, any computer software or documentation that is substantially similar to the System software.

c.义务终止。若接收方能证明以下任一情形成立，其根据本第8.1条对披露方任何保密信息承担的义务即告终止：(i)该信息在披露方披露时已为接收方合法知悉； (ii) 由第三方在无保密限制的情况下合法向接收方披露；(iii) 已成为或因非接收方过失而成为公众可普遍获取的信息；或(iv) 由接收方在未接触或使用披露方保密信息的情况下独立开发而成。 此外，接收方可在下列情形下披露披露方的保密信息：(1) 经披露方书面批准；(2) 接收方为依据本协议行使权利而进行的法律程序所必需； 或（3）法律或法院等司法/行政机构命令所要求，但接收方须立即以书面形式通知披露方，并在披露方合理要求且费用由其承担的前提下，配合披露方采取合法行动抗辩或限制该强制披露范围。

d.保密信息的返还。接收方应在披露方提出书面要求后，立即向披露方返还或销毁其持有或控制的所有披露方保密信息，并永久删除该等保密信息的电子副本。

8.2.Personal Information. Client Data might include information that can be used to identify, locate, or contact an individual, alone or when combined with other personal or identifying information (“Personal Information”). Each of the party’s rights and obligations with respect to Personal Information is set forth in Addendum A attached hereto.

9.Client Data; Client-Third Party System

9.1.Client at all times has and will have sole responsibility:

a.关于客户数据，客户对所有客户数据的准确性、质量、完整性、合法性、可靠性及适用性承担责任，并在此向Trakstar声明、保证并承诺：(i)客户对所有客户数据及其他保密信息（包括但不限于所有知识产权和商业秘密权利）拥有必要权利； 且已取得所有必要同意、完成所有必要披露，并遵守所有适用法律法规（包括但不限于所有隐私及数据安全法律法规），以传输、输入、加载及使用其输入系统的客户数据及/或其他保密信息，并允许Trakstar提供服务，此等要求均符合适用法律、法规或规章的规定； (ii) 当客户数据及其他保密信息处于客户保管或控制期间，客户应负责采取所有适当的隐私与安全保障措施，包括但不限于在客户保管或控制期间实施相关行政管理、物理防护及技术防护措施。

b.with respect to any third party system, application, software or online service that Client requests Trakstar to access or use (each a “Client-Third Party System” and, collectively, the “Client-Third Party Systems”), for the quality, integrity, legality, reliability and appropriateness of all Client-Third Party Systems, and Client hereby represents, warrants and covenants to Trakstar that Client has all necessary rights in all Client-Third Party Systems (including without limitation all license and contract rights), and has obtained all necessary authorization from the relevant third parties, to have Trakstar access and use the Client-Third Party Systems pursuant to Client’s written instructions to allow Trakstar to access and use such Client-Third Party Systems in connection with the Services.

9.2.where Client, by virtue of itself and/or the Client Data that is submitted to the System, is subject to the General Data Protection Regulation, Regulation (EU) 2016/679 (“GDPR”), the terms of Trakstar’s data processing addendum attached as Addendum A (the “DPA”), together with the Standard Contractual Clauses and Appendices thereto, form a part of and are hereby incorporated into this Agreement by this reference and apply to the extent Client Data includes Personal Information. For the sake of clarity, when interpreting the DPA, Client will be the data controller, and Trakstar will act as a data processor. In the event Personal Information is transferred from the European Economic Area (EEA), the United Kingdom and/or Switzerland, the Standard Contractual Clauses or another adequate means of protection will apply, as further set forth in the DPA. For the purposes of the Standard Contractual Clauses, Client and its applicable affiliates are each the data exporter, and Client’s acceptance of this Agreement will be treated as Client’s or its applicable affiliate’s execution of the Standard Contractual Clauses and Appendices.

9.3.where Client, by virtue of itself and/or the Client Data that is submitted to the System, is subject to other Data Regulations, Client shall at all times comply with the Data Regulations. For purposes of this Agreement, “Data Regulation” means any applicable data protection, privacy or similar law or regulation that applies to data processed in connection with this Agreement, including FTC Guidance, self-regulatory principles set forth by the Digital Advertising Alliance, the California Consumer Privacy Act of 2018 Cal. Civil Code § 1798.100 et seq. and other U.S. state and federal legislation relating to data privacy and security, in each instance with respect to each of the foregoing as such laws and regulations are amended and revised from time to time.

9.4.Client acknowledges that use of the Services involves transmission of Client Data and other communications over the internet and other networks, and that such transmissions could potentially be accessed by unauthorized parties. Client must promptly notify Trakstar of any suspected security breach at [email protected]. Client is fully responsible, and Trakstar has no liability, for any viruses, worms, Trojan horses, or other disabling code, malware component, or code or program harmful to a network or system (collectively, “Malware”) contained in or originating from Client Data, provided that such Malware was not introduced to the Client Data through Trakstar or did not originate from Trakstar.

9.5.Client hereby authorizes Trakstar to receive, maintain, modify, distribute and display Client Data during the term of this Agreement, solely to enable Trakstar to provide the Services to Client and as otherwise authorized under this Agreement. Client further authorizes Trakstar to collect anonymized Service information, such as usage or traffic patterns, and aggregate it with such data from other clients to generate statistical information to analyze and improve the Services and to develop, display and distribute Trakstar’s Insights benchmark and similar reports, provided that Trakstar takes reasonable measures to ensure this information cannot be associated with Client, Client’s Users, or any identifiable natural person and provided further that Trakstar may only use such anonymized and aggregate Service information in deidentified form and may not attempt to reidentify the information. Except as permitted in this Agreement, Trakstar will not edit, delete, or disclose the contents of Client Data unless authorized by Client or unless Trakstar is required to do so by law or in the good faith belief that such action is necessary to: (i) conform with applicable laws or comply with legal process served on Trakstar; (ii) protect and defend the rights or property of Trakstar; (iii) enforce this Agreement; or (iv) perform Trakstar’s obligations described in this Agreement, the Specifications or in conformance with Client’s instructions.

9.6.Client will be solely responsible where Client, a person or entity acting on behalf of Client or a User deletes, corrects, destroys, damages, loses or fails to store any Client Data.

10.Intellectual Property

10.1.Trakstar Property. Client acknowledges that, as between Trakstar and Client, Trakstar is and will remain sole and exclusive owner of all right, title and interest in and to the System and Documentation, and all components and portions thereof, and all other materials, information, processes and technology used by Trakstar or made available to Client in connection with the Services, and any and all improvements, enhancements, updates, upgrades and modifications to any of the preceding (whether or not made in conjunction with this Agreement) and all Specific Works, and all patent, trade secret, copyright, trademark and other proprietary rights worldwide embodied in each of the preceding.

10.2.Client Property. As between Client and Trakstar, Client is and will remain the sole and exclusive owner of all right, title and interest in and to Client’s Confidential Information and the Client Data.

10.3.Protection of Proprietary Rights. Client shall not remove or obscure any proprietary, copyright, patent, trademark, design right, trade secret, or any other proprietary rights legends from the System or Documentation.

11.Limited Warranty; Disclaimer

11.1.Warranty. Trakstar represents and warrants that the System and the Services provided under this Agreement will substantially conform to the Specifications and the Documentation made available by Trakstar.

11.2.Disclaimer. Except as expressly provided in Section 11.1 above, Trakstar and its licensors expressly disclaim any and all representations, warranties and conditions of any kind or nature, express or implied, whether written or oral, including without limitation, representations, warranties and conditions of satisfactory quality, performance, merchantability, merchantable quality, durability, fitness for a particular purpose, title, non-infringement and those arising by statute or otherwise in law or from a course of dealing or use of trade. Trakstar and its licensors do not represent or warrant that: (a) the Services will meet the Client’s business requirements; (b) the Services will be error-free or uninterrupted or that the results obtained from its use will be accurate or reliable; or (c) all deficiencies in the System or any Services can be found or corrected. Some states do not allow limitations relating to implied warranties, so the above limitations may not apply to Client.

11.3.Acknowledgement. Where applicable, Client acknowledges that Trakstar has no control over, and no duty to take any action regarding: which of the Client’s Client Data the Client accesses via the System; what effects the Client Data may have on Client or any User; how Client may interpret or use the Client Data; or what actions Client may take as a result of having been exposed to the Client Data. Client releases Trakstar from any and all liability for Client having acquired or not acquired, used or not used, relied upon or not relied upon, acted upon or not acted upon Client Data obtained or obtainable through the System. Trakstar makes no representations or warranties concerning the content of any Client Data contained in or accessed through the System, and Trakstar will not be responsible or liable for the accuracy, completeness, copyright compliance or legality of Client Data contained in or accessed through the System.

11.4.Exclusive Remedy. Except for the exclusive remedy as provided above for service level commitments, and except for the exclusive remedy provided by Trakstar for infringement, for any breach of warranty or the failure of Trakstar to provide the services as required herein (a “deficiency”), the Client’s sole and exclusive remedy and Trakstar’s entire obligation hereunder shall be, at Trakstar’s option, for Trakstar to cure the deficiency or for Trakstar to refund an amount equal to the amount Client paid for the deficiency reduced by any benefit received by Client for the deficiency.

12.Limitations of Liability; Indemnification

12.1.Limitations.

a.TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, FOR ANY BREACH OR DEFAULT BY TRAKSTAR OF ANY OF THE PROVISIONS OF THIS AGREEMENT OTHER THAN ANY BREACH OR DEFAULT OF ADDENDUM A, UNDER NO CIRCUMSTANCE WILL TRAKSTAR AND ITS LICENSORS’ ENTIRE LIABILITY, IF ANY, EXCEED ONE TIMES (1X) THE SUBSCRIPTION FEE ACTUALLY PAID BY CLIENT TO TRAKSTAR FOR THE CONTRACT YEAR IN WHICH THE CAUSE OF ACTION FIRST AROSE. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, FOR ANY BREACH OR DEFAULT BY TRAKSTAR OF ADDENDUM A, UNDER NO CIRCUMSTANCE WILL TRAKSTAR AND ITS LICENSORS’ ENTIRE LIABILITY, IF ANY, EXCEED ONE TIMES (1X) THE SUBSCRIPTION FEE ACTUALLY PAID BY CLIENT TO TRAKSTAR FOR THE CONTRACT YEAR IN WHICH THE CAUSE OF ACTION FIRST AROSE.

b.TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT WILL TRAKSTAR AND ITS LICENSORS BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL LOSS OR DAMAGE, LOST BUSINESS REVENUE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF COVER, DAMAGES FOR DELAY, PUNITIVE OR EXEMPLARY DAMAGES, FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS OR ANY CLAIM AGAINST CLIENT BY ANY OTHER PERSON, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER IN AN ACTION BASED ON CONTRACT, WARRANTY, STRICT LIABILITY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, EVEN IF TRAKSTAR AND ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES AND EVEN IF THE REMEDY SET FORTH HEREIN SHALL BE DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

c.EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY TRAKSTAR TO CLIENT AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 12 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

12.2.Disclaimer. To the fullest extent allowed by law, Trakstar disclaims any liability or responsibility for the reliability, availability, or operability of the Services provided through the System. By using the System, Client acknowledge that Trakstar is not responsible or liable for any harm resulting from: (a) use of the System; (b) the temporary or permanent inability to access or retrieve any content from the System; and (c) downloading information contained on the System, including, without limitation, harm caused by viruses, worms, trojan horses, or any similar contamination or destructive program. The limitations specified in this Section will survive termination or expiration of this Agreement.

12.3.One Year Limit. No Party may bring an action, regardless of form, arising out of or related to this Agreement (other than to recover fees or expenses due to Trakstar) more than one year after the cause of action has arisen or the date of discovery of such cause, whichever is later.

12.4.Indemnification by Client. Subject to the provisions contained herein, Client agrees to defend, indemnify and hold Trakstar and its officers, directors, employees, agents, affiliates, licensors, distributors, and resellers harmless against any loss, damage, expense, or cost, including reasonable attorneys’ fees (including allocated costs for in-house legal services) (“Liabilities”) arising out of any claim, demand, proceeding, or lawsuit by a third party relating to Client’s acts or omissions related to Client’s representations, warranties and covenants set forth in Section 9.1.

12.5.Indemnification by Trakstar. In the event of a third party claim against Client asserting that Client’s use of the System infringes upon or violates any U.S. patent, copyright, trade secret, or other proprietary right, as Client’s exclusive remedy, Trakstar will defend, at Trakstar’s expense, and will indemnify Client and hold Client harmless against any loss, cost, expense (including attorneys’ fees), or liability arising out of such claim, whether or not such claim is successful. In the event an injunction or order should be obtained against use of the System by reason of the allegations, or if in Trakstar’s opinion the System is likely to become the subject of such a claim of infringement, Trakstar will, at its option and its expense, and as Client’s exclusive remedy: (a) procure for the Client the right to continue using the System; (b) replace or modify the same so that it becomes non-infringing (such modification or replacement shall be functionally equivalent in all material respects to the original); or (c) if neither (a) nor (b) is practicable, refund any prepaid subscription fees, on a pro-rated basis, for Services not rendered and terminate this Agreement. Notwithstanding the foregoing, Trakstar will not indemnify Client to the extent that the claim arises because Client altered the System or used it outside the scope of use identified in the Trakstar’s user documentation. In addition, Trakstar will not indemnify Client to the extent that an infringement claim is based upon (i) any information, design, specification, instruction, software, data, or material not furnished by Trakstar, or (ii) any system from a third party portal or other external source that is accessible to Client within or from the System (e.g., a third-party Web page accessed via a hyperlink) or (iii) based upon the combination of any system with any products or services not provided by Trakstar. This Section provides Client’s exclusive remedy for any infringement claims or damages.

13.Force Majeure

Notwithstanding anything in this Agreement to the contrary, each party will be excused from performance hereunder (excluding payment obligations) for any period and to the extent that it is prevented from performing pursuant hereto, in whole or in part, as a result of delays caused by a Force Majeure Event. For purposes of this Agreement, “Force Majeure Event” means an act of God, war (whether or not actually declared), armed conflict or the serious threat of the same, hostility, blockade, military embargo, sabotage, insurrection, rebellion, act of a public enemy, riot or other act of civil disobedience, governmental act, judicial action, explosion, act of terrorism or threat thereof (including cyberterrorism), natural disaster (including without limitation asteroid strikes or volcanic activity), violent storm (including without limitation hurricanes, tornados or blizzards), atmospheric disturbance (including without limitation geomagnetic storm, solar flare or sun outage with respect to electricity grids, transformers and satellite transmissions), destruction by lightning, fire, earthquake, tsunami, flood, plague, epidemic, pan-epidemic, quarantine, civil commotion, strike or lockout or labor dispute (excluding for the avoidance of doubt strikes of Trakstar’s staff), satellite malfunction, prolonged internet outage, communications line failure or power failure.

14.Waiver of Jury Trials and Binding Arbitration

14.1.CLIENT AND TRAKSTAR ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY. OTHER RIGHTS THAT CLIENT WOULD HAVE IF CLIENT WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN CLIENT AND TRAKSTAR ARISING FROM OR RELATING IN ANY WAY TO CLIENT’S SUBSCRIPTION TO, ACCESS TO, OR USE OF THE SYSTEM WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.

14.2.The arbitration will be administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures (“Commercial Rules”). The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.

14.3.If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced.

15.Miscellaneous.

15.1.Assignment. Neither party may assign this Agreement without the other party’s prior written consent (not to be unreasonably delayed, conditioned or withheld), and any purported attempt to do so is null and void, provided, however, that either party may, without requiring the consent of the other party, assign this Agreement and all of its rights under this Agreement to an Affiliate or an assignee in the event of a merger, sale of assets of the business to which this Agreement is related, or consolidation. Any purported assignment or delegation in violation of this Section 15.1 is null and void. No assignment or delegation relieves the assigning party of any of its obligations under this Agreement.

15.2.Choice of Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Delaware.

15.3.Entire Agreement. This Agreement and all Exhibits hereto and Trakstar’s Acceptable Use Policy, a current copy of which can be accessed here, as well as agreements and other documents referred to in this Agreement constitute the entire agreement between the Parties with regard to the subject matter hereof and thereof. This Agreement supersedes all previous agreements between or among the Parties. There are no agreements, representations, or warranties between or among the Parties other than those set forth in this Agreement or the documents and agreements referred to in this Agreement.

15.4.Export Compliance. The Services, the System, and other Trakstar technology might be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any government denied-party list. Client further represents that it is not located, and will not access or use, or permit any User to access or use, any part of the System or Services in any U.S.-embargoed country or region (including but not limited to Cuba, Iran, North Korea, Sudan, Syria or Crimea), or access or use any part of the System or Services in violation of any applicable U.S., local or foreign export laws or regulations.

15.5.Feedback. Client may, but is not required to, provide feedback to Trakstar from time to time at its discretion, which feedback will not be treated as Client’s Confidential Information. To the extent Client does provide feedback to Trakstar, Client shall, and hereby does, grant Trakstar a perpetual, irrevocable, non-exclusive, worldwide, transferable, assignable, sub-licensable, royalty-free, fully paid-up license to use and exploit the feedback for any purpose.

15.6.Independent Contractor Relationship. The relationship between the Parties to this Agreement is that of independent contractors. Neither Party is an agent, representative or employee of the other Party. Neither Party will have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement will not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.

15.7.Notice. Any notice, approval, request, authorization, direction or other communication under this Agreement will be given in writing and will be deemed to have been delivered and given for all purposes (a) on the delivery date if delivered by confirmed facsimile; (b) on the delivery date if delivered personally to the Party to whom the same is directed; (c) one business day after deposit with a commercial overnight carrier, with written verification of receipt; or (d) five business days after the mailing date, if sent by U.S. mail, return receipt requested, postage and charges prepaid, or any other means of rapid mail delivery for which a receipt is available. The contact information below the Parties signatures may be used by the Parties hereto.

15.8.Severability. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such illegal, unenforceable, or invalid provisions or part thereof shall be stricken from this Agreement, and such provision shall not affect the legality, enforceability, or validity of the remainder of this Agreement. If any provision or part thereof of this Agreement is stricken in accordance with the provisions of this Section, then this stricken provision shall be replaced, to the extent possible, with a legal, enforceable, and valid provision that is as similar in tenor to the stricken provision as is legally possible.

15.9.Third-Party Beneficiaries. This Agreement does not and is not intended to confer any rights or remedies upon any person or entity other than Client and Trakstar.

15.10.Waivers. The failure by Trakstar to enforce any right or provision of this Agreement will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Trakstar.

增补件 A

个人信息

1.Data Processing Addendum

1.1.A copy of the Trakstar Data Processing Addendum can be found at https://www.trakstar.com/data-processing-addendum and will be executed with Clients to whom the UK and EU General Data Protection Regulation applies.

2.CCPA

2.1.Definitions. The following definitions and rules of interpretation apply in this Agreement: (i) “CCPA” means the California Consumer Privacy Act of 2018, as amended (Cal. Civ. Code §§ 1798.100 to 1798.199), the CCPA Regulations (Cal. Code Regs. tit. 11, §§ 999.300 to 999.337), and any related regulations or guidance provided by the California Attorney General, terms defined in the CCPA, including personal information and business purposes, carry the same meaning in this Addendum; (ii) “Contracted Business Purposes” means the services described in this Agreement for which Trakstar receives or accesses personal information; and (iii) “Authorized Persons” means the persons or categories of persons that Client authorizes to provide Trakstar with personal information processing instructions, which includes Employees, Contractors, Applicants, Hiring Managers, Trainees, and Trainers.

2.2.Trakstar’s CCPA Obligations.

a.Trakstar仅为合同约定业务目的收集、使用、保留或披露个人信息，该等目的系客户向授权人员提供个人信息或允许其访问个人信息所依据。

b.Trakstar不会为自身商业目的或以不符合《加州消费者隐私法案》(CCPA)的方式收集、使用、保留、披露、出售或以其他方式提供个人信息。若法律要求Trakstar为与合同约定业务目的无关之目的披露个人信息，Trakstar须首先告知客户该法律要求，并给予客户提出异议或质疑的机会，除非法律禁止此类通知。

c.Trakstar将把个人信息的收集、使用、保留和披露限制在合理必要且与实现合同约定业务目的或其他兼容运营目的相称的活动中。

d.Trakstar必须立即遵守客户的任何要求或授权人员的任何指示，包括要求Trakstar提供、修改、转移或删除个人信息，或停止、减轻或纠正任何未经授权的处理行为。

e.若合同约定业务目的要求Trakstar代表客户向个人收集个人信息，Trakstar将在收集时始终提供符合《加州消费者隐私法案》(CCPA)的告知书，且该告知书须经客户事先书面批准。未经客户事先书面同意，Trakstar不得以任何形式修改或变更该告知书。

f.在《加州消费者隐私法案》（CCPA）允许的情况下，Trakstar可对个人信息进行聚合、去标识化或匿名化处理，使其不再符合个人信息的定义，并可将此类聚合、去标识化或匿名化数据用于自身研发目的及其他商业用途，例如趋势分析或基准测试。 Trakstar不会尝试或实际重新识别任何先前已聚合、去标识化或匿名化的数据，并将通过合同条款禁止下游数据接收方尝试或实际重新识别此类数据。

2.3.Assistance with Client’s CCPA Obligations.

a.Trakstar将合理配合并协助客户履行其《加州消费者隐私法案》（CCPA）合规义务，并回应与CCPA相关的咨询，包括处理可验证的消费者请求，同时将考虑Trakstar处理数据的性质及Trakstar可获取的信息。

b.若Trakstar收到任何直接或间接涉及双方遵守《加州消费者隐私法案》（CCPA）的投诉、通知或通讯，必须立即通知客户。具体而言，若Trakstar收到依据CCPA提出的可验证消费者请求，必须在[十（10）]个工作日内通知客户。

2.4.Subcontracting

a.Trakstar可使用分包商提供部分合同业务服务。Trakstar不得向分包商披露任何《加州消费者隐私法案》视为销售的信息。

b.对于使用的每家分包商，Trakstar将向客户提供一份最新清单，其中披露：

(1) The subcontractor’s name, address and contact information.

(2) The type of services provided by the subcontractor.

(3) The personal information categories disclosed to the subcontractor in the preceding 12 months.

c.Trakstar对分包商履行其协议义务的行为仍对客户承担全部责任。

d.若Trakstar对分包商履行其个人信息义务的情况进行审计，Trakstar将向客户提交审计结果。

2.5.CCPA Warranties.

a.各方在收集、使用、保留或披露个人信息时，均应遵守《加州消费者隐私法案》的所有适用要求。

b.Trakstar声明其无理由认为任何《加州消费者隐私法案》（CCPA）的要求或限制会妨碍其提供任何合同约定业务目的或履行本协议项下义务。若Trakstar获悉CCPA要求发生任何可能对其履行本协议产生不利影响的变更，须在知悉后立即通知客户。