Master Subscription Terms
Last Updated November 6, 2024
IMPORTANT-READ CAREFULLY: These Master Subscription Terms (the "Master Subscription Agreement" or "MSA") forms part a legal agreement between the Customer identified in the Software Services Order Form attached hereto (“Order Form”) and Tracker Networks Inc. (Tracker Networks), a Canadian corporation with its principal place of business in Toronto, Ontario, for the licensing to Customer of Tracker Networks software services identified in the Order Form.
Intending to be legally bound, the parties agree as follows:
1. DEFINITIONS
“Customer Data” means all electronic data or information submitted by Customer to the purchased Services.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Order Form" means the ordering documents for purchases hereunder, including addenda thereto, that are entered into between Customer and Tracker Networks from time to time. Order Forms shall be deemed incorporated herein by reference.
"Services" means the online, Web-based applications provided by Tracker Networks via designated websites as described in the User Guide that are ordered by Customer under an Order Form.
"User Guide" means the electronic user guide for the Services, to be delivered to the customer upon request, as updated from time to time.
"Users" means individuals who are authorized by Customer to use the Services, for whom subscriptions to the Service have been purchased, and who have been supplied user identifications and passwords by Customer (or by Tracker Networks at Customer’s request).
2. STRUCTURE OF AGREEMENT
2.1. Order Forms. Terms governing the Services to be provided under this Agreement are contained in the applicable Order Form(s). When an Order Form incorporating this agreement by reference is accepted on behalf of Tracker Networks and Customer, this MSA becomes part of each such Order Form, effective as of the date of the later signature on such Order Form. For clarity, the Software Services Purchase Agreement (the “Agreement”) between Customer and Tracker Networks is comprised of the associated Order Form document and this MSA (including all attachments thereto). If there is a conflict between the terms of this MSA and the terms of any Order Form, the terms of the Order Form shall prevail over the terms of this MSA.
2.2. Acceptance. All purchases of subscriptions to use Services are subject to acceptance by Tracker Networks as evidenced by the signature of an authorized signing officer of Tracker Networks on a valid Order Form which is also executed by Customer.
2.3. Purchase Orders. In the event of any conflict or inconsistency between this Agreement and any purchase order or other document issued by Customer, the terms of this Agreement shall control and prevail. Any additional or conflicting terms in a purchase order, invoice, or other Customer-provided document are hereby expressly rejected and shall be void and of no effect, unless specifically agreed to in writing by both parties as an amendment to this Agreement.
3. PURCHASED SERVICES
3.1. Provision of Services. Subject to any restrictions on use expressly set forth herein, Tracker Networks hereby grants to Customer a non-exclusive, non-transferrable, revocable, limited right to, during the term set out in the applicable Order Form, access, use and display the Services for its internal business purposes. Customer agrees that purchases by the Customer hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Tracker Networks regarding future functionality or features.
3.2. User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as a subscription and may be used for no more than the specified volume of items tracked, (ii) use of Services may be limited to a maximum number of Users, (iii) if applicable, the allowed volume of items tracked may be increased subject to additional purchases. Limits on concurrent Users are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
4. USE OF THE SERVICES
4.1. Tracker Networks Responsibilities. Tracker Networks shall: (i) provide Customer support for the Services at no additional charge, (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, with the understanding that Customer’s primary requirements are for access between the hours of Eastern time 9:00 a.m. to 5:00 p.m. Monday to Friday, and except for: (a) planned downtime, which Tracker Networks shall schedule to the extent practicable during the weekend hours from 10:00 p.m. Eastern time Friday to 12:00 a.m. Eastern time Sunday), or (b) any unavailability caused by circumstances beyond Tracker Networks’ reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Tracker Networks employees), or Internet service provider failures or delays, and (iii) provide the Services only in accordance with applicable laws and government regulations. Tracker Networks will not be responsible for the accuracy, quality, integrity or legality of Customer Data.
4.2. Customer Responsibilities. Customer shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which Customer acquired Customer Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Tracker Networks promptly of any such unauthorized access or use, and (iv) use the Services only for the purposes of Customer’s business needs in Customer’s ordinary course of business and in accordance with the User Guide and applicable laws and government regulations. Customer shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease access to the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
5. FEES AND PAYMENT FOR SERVICES
5.1. User Fees. Customer shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on purchased subscriptions to use Services and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User subscription fees are based on monthly periods that begin on the subscription service start date and each monthly anniversary thereof.
5.2. Invoicing and Payment. Customer shall be invoiced in advance, in accordance with the billing frequency stated in the applicable Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. Customer is responsible for maintaining complete and accurate billing and contact information with Tracker Networks.
5.3. Overdue Charges. If any payments are not received from Customer by the due date, then at Tracker Networks’ discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) Tracker Networks may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 5.2 (Invoicing and Payment).
5.4. Suspension of Services. If any amount owing by Customer under this or any other agreement for Tracker Networks Services is 30 or more days overdue, Tracker Networks may, without limiting Tracker Networks’ other rights and remedies, suspend use of Services to Customer until such amounts are paid in full.
5.5. Payment Disputes. Tracker Networks shall not exercise rights under Section 5.2 (Overdue Charges) or 5.4 (Suspension of Services) if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently with Tracker Networks to resolve the dispute.
5.6. Taxes. Unless otherwise stated, Tracker Networks fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to HST, GST, value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, " Taxes"). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If Tracker Networks has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Tracker Networks with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer shall provide notice of any withholding tax and provide appropriate proof of payment and shall provide Tracker Networks with all reasonable assistance in obtaining a refund of such tax. For clarity, Tracker Networks is solely responsible for taxes assessable against it based on Tracker Networks income, property and employees.
6. PROPRIETARY RIGHTS
6.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Tracker Networks reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
6.2. Restrictions. Customer shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Customer own intranets or otherwise for Customer’s own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
6.3. Ownership of Customer Data. As between Tracker Networks and Customer, Customer exclusively owns all rights, title and interest in and to all of Customer’s Data.
6.4. Suggestions. Tracker Networks shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Services.
6.5. Statistical Data. Tracker Networks reserves all rights, title and interest in statistical system data derived by Tracker Networks from the Services, provided that such statistical data in no way compromises the obligations of Tracker Networks pursuant to the provisions of the Agreement including the obligation to safeguard the Customer’s Confidential Information as set out in Section 7 (Confidentiality).
7. CONFIDENTIALITY
7.1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information shall include Customer’s Data; Tracker Network’s Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
7.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
8. WARRANTIES AND DISCLAIMERS
8.1. Tracker Networks Warranties. Tracker Networks warrants that (i) the Services shall perform materially in accordance with the functionality described in the User Guide, and (ii) the functionality of the Services will not be materially decreased during a subscription term. For any breach of either such warranty, Customer’s exclusive remedy shall be as provided in Section 12.3 (Termination for Cause) and Section 12.4 (Refund or Payment upon Termination) below.
8.2. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).
8.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9. MUTUAL INDEMNIFICATION
9.1. Indemnification by Tracker Networks. Tracker Networks shall defend Customer against any claim, demand, suit, or proceeding ("Claim") made or brought against Customer by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify Customer for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Customer in connection with any such Claim; provided, that Customer (a) promptly gives Tracker Networks written notice of the Claim; (b) gives Tracker Networks sole control of the defense and settlement of the Claim (provided that Tracker Networks may not settle any Claim unless the settlement unconditionally releases Customer of all liability); and (c) provide to Tracker Networks all reasonable assistance, at Customer’s expense.
9.2. Indemnification by Customer. Customer shall defend Tracker Networks against any Claim made or brought against Tracker Networks by a third party alleging that Customer Data, or Customer use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Tracker Networks for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Tracker Networks in connection with any such Claim; provided, that Tracker Networks (a) promptly gives Customer written notice of the Claim; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless the settlement unconditionally release Tracker Networks of all liability); and (c) provides to Customer all reasonable assistance, at Tracker Network’s expense.
9.3. Exclusive Remedy. This Section 9 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability. WITH RESPECT TO THE SERVICES, IN NO EVENT SHALL TRACKER NETWORK'S LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT EXCEED THE SERVICES FEES ACTUALLY PAID TO TRACKER NETWORKS BY CUSTOMER IN THE 6 MONTHS PRECEDING THE INCIDENT FOR THE APPLICABLE SERVICES GIVING RISE TO THE CLAIM. THE FOREGOING SHALL NOT LIMIT CUSTOMER PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT FOR PURCHASED SERVICES).
10.2. Exclusion of Consequential and Related Damages. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL TRACKER NETWORKS BE LIABLE TO CUSTOMER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR SIMILAR DAMAGES, INCLUDING ANY LOST PROFITS OR LOST DATA ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, OR THE ACCURACY OF ANY DATA PROVIDED WITH OR PRODUCED BY THE SERVICES, EVEN IF TRACKER NETWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. SUPPORT
11.1. Support. Maintenance and support are included at no extra cost to Customer. Standard telephone and email support will be available from Monday to Friday between 9:00am EST/EDT to 5:00pm EST/EDT, excluding Canadian statutory holidays. Customer's Technical Support Contact: 416.848.7370
Email address: support@trackernetworks.zendesk.comTracker Networks shall provide Customer with a User Guide or equivalent online help documentation describing the key functions of the Software and providing appropriate operational instructions.
12. TERM AND TERMINATION
12.1. Term of Agreement. This Agreement commences on the date Customer accepts it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated.
12.2. Term of Purchased Subscriptions. Subscriptions purchased by Customer commence on the service start date specified in the applicable Order Form and continue for the subscription term specified therein.
12.3. Auto-Renewal. Where indicated on an associated Order Form, this Agreement shall auto-renew with all terms and conditions, unless either party indicates its intent to not renew, within the time period specified on the Order Form. Upon mutual agreement, Tracker Networks and Customer may elect to execute a future renewal letter in lieu of completing an auto-renewal. Execution of a renewal letter will not invalidate future auto-renewals, such that, when auto-renewals are indicated on an associated Order Form, auto-renewals will resume following the term of any executed renewal letter, unless a further renewal letter is executed or notification of non-renewal is provided. Where auto-renewal is specified on an Order Form, notice of non-renewal must be provided in writing with receipt acknowledged by the receiving Party within the specified timeframe to be considered valid notice.
12.4. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.5. Refund or Payment upon Termination. Upon any termination for cause by Customer, Tracker Networks shall refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Tracker Networks, Customer shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Tracker Networks for the period prior to the effective date of termination.
12.6. Return of Customer Data. Upon request by Customer made within 30 days after the effective date of termination of a Services subscription, Tracker Networks will make available to Customer for download a file of Customer Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, Tracker Networks shall have no obligation to maintain or provide any of Customer’s Data and shall thereafter, unless legally prohibited, delete all of Customer’s Data in Tracker Network’s systems or otherwise in Tracker Networks possession or under Tracker Networks control.
12.7. Surviving Provisions. Sections 5 (Fees and Payment for Purchased Services), 6 (Proprietary Rights), 7 (Confidentiality), 8.3 (Disclaimer), 10 (Limitation of Liability), 12.4 (Refund or Payment upon Termination), 12.5 (Return of Customer Data), and 13 (General Provisions) shall survive any termination or expiration of this Agreement. Section 9 (Mutual Indemnification) shall survive the termination or expiration of this Agreement for a period of 12 months.
13. GENERAL PROVISIONS
13.1. Publicity. Tracker Networks may, at its option issue a press release to the general public announcing the purchase of a subscription of the Services to Customer. Tracker Networks may refer to Customer in its other marketing materials. In addition, Customer shall at its sole discretion, permit Tracker Networks to bring in potential Tracker Networks customers to Customer’s site locations, (so Customer can explain why the Services was selected and the Services’ anticipated benefits), provided Tracker Networks maintains confidentiality under this Agreement. Customer, acting reasonably, shall have the sole authority to determine the timing of each site location visit.
13.2. Assignment. This Agreement may not be assigned in whole or in part by Customer without Tracker Networks’ prior written consent. Change in ownership of Customer shall constitute assignment. For certainty, Tracker Networks may assign this Agreement and any rights herein, in whole or in part, without the consent of Customer.
13.3. Export Controls. Customer acknowledges that the Services is restricted by the United States and Canadian governments from export to certain countries and Customer agrees that it will not distribute or re-export the Services in any way which will violate any of the export control laws or regulations of the United States or Canada.
13.4. Governing Law. This Agreement including attached Order Forms shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein without regard to conflicts of laws principles. The parties hereby consent to submit to the non-exclusive jurisdiction of the courts of the Province of Ontario. The parties hereby expressly waive the application of the United Nations Convention on the International Sale of Goods and any local implementing legislation.
13.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
13.6. Entire Agreement. This Agreement including each Order Form sets forth the entire agreement and understanding of the parties with respect to the subject matter hereof, and supersedes all prior oral and written agreements and understandings relating thereto. Neither party shall be bound by or be liable for any alleged representation, promise, inducement or statement of intention not set forth herein and no waiver, alteration, modification, or cancellation of any of the provisions of this Agreement shall be binding unless made in writing and signed by authorized representatives of the parties.
13.7. Reasonable Control. Tracker Networks shall not be liable for any delays in the performance of any of its obligations hereunder due to causes beyond its reasonable control.
13.8. Electronic Documents. The parties may sign facsimile and scanned copies of this Agreement which shall be deemed originals.
13.9. Language of Agreement. The parties hereto have expressly requested that this Agreement be drafted in English. Les parties aux présentes ont expressément convenu que cette convention soit redigée en anglais.
