1. Subscription Services.
1.2 Affiliate Use.
Arttracker Software may make changes to the Subscription Services at any time. IF You do not wish to continue to use the modified Subscription Services, You may elect to stop using the Subscription Services subject to providing Arttracker Software with seven days written notice of Your election to terminate. You shall remain liable for all Fees through the date of termination.
You and Your Authorized Users shall not:
(A) knowingly permit access to the Subscription Services by anyone other than Your Authorized Users;
(B) copy, modify, distribute, resell, display, or rent any portion of the Subscription Services except as permitted under the Agreement;
(C) attempt to disassemble, duplicate, copy, modify, decompile, frame, mirror, create derivative works from, reverse engineer, or distribute any portion of the Subscription Services or permit any third party to do so;
(F) use the Subscription Services to transmit any unsolicited commercial communications unless permitted by law;
(G) send, store, or transmit data that may violate the intellectual property rights of any third party, or which have been unlawfully obtained;
(H) send, store, or transmit materials or data into the Subscription Services containing Viruses, or use the Subscription Services to transmit Viruses to third parties;
(I) use the Subscription Services to store, transmit, or process data that: (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (ii) facilitates illegal activity; (iii) depicts sexually explicit images; (iv) promotes unlawful violence; (v) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability; or (vi) is otherwise illegal or causes damage or injury to any person or property; and Arttracker Software reserves the right, without liability or prejudice to any other rights, to disable Your access to the Subscription Services if You violate this Section 1.2(I); and
(J) except as permitted herein, share with any third parties, any Credentials, account numbers, and account profiles for the Subscription Services.
2. Proprietary Rights.
2.1 Arttracker Software and its licensors exclusively own and retain all rights,
title and interest in and to the Subscription Services, including all copies of any software used for the provision of the Subscription Services and all Intellectual Property Rights therein or relating thereto. All rights not expressly granted to You in the Agreement are reserved by Arttracker Software.
You hereby grant to Arttracker Software a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, fully paid-up license to use, modify and incorporate Your Feedback into the Subscription Services and to further market, distribute and sell the Subscription Services with Your Feedback incorporated therein.
2.3 Subscriber Data.
You shall exclusively own all rights, title, and interest in and to the Subscriber Data. You hereby grant to Arttracker Software a non-exclusive, worldwide, royalty-free, fully paid-up license during the Term of the Agreement and the follow-on period described in Section 8.3(B) to: (i) collect, analyze, use, store, and transmit the Subscriber Data, (ii) combine and aggregate the Subscriber Data with other data to perform the Subscription Services, and (iii) to disclose the Subscriber Data as required by law. You grant Arttracker Software a worldwide, irrevocable, non-exclusive, transferable, fully paid-up, and royalty-free license to aggregate, use, display, reproduce, distribute, and analyze Aggregated Subscriber Data in any format and through any applicable channels for any legal purposes.
2.4 Aggregated Use Data.
3. Privacy and Data Security.
3.1 Personally Identifiable Data.
You may not transfer, or cause to be transferred, or input Personal Data into the Subscription Services without notifying Arttracker Software in writing. To the extent that Subscriber Data is collected by, or on behalf of, You or Your customers from end users by the Subscription Services, You represent and warrant that all appropriate consents and waivers have been or will be obtained from such end-user(s).
3.2 Data Security and Storage.
Arttracker Software shall maintain commercially reasonable, industry standard security practices to transmit, store, and process Subscriber Data. In the event of Subscriber Data loss or corruption, Arttracker Software will use commercially reasonable efforts to restore such lost or corrupted data from the latest backup of Subscriber Data maintained by Arttracker Software. Arttracker Software shall not be responsible for any loss, destruction, alteration, unauthorized disclosure, or corruption of Subscriber Data not directly under the control of Arttracker Software. Arttracker SOFTWARE’S EFFORTS TO RESTORE LOST OR CORRUPTED SUBSCRIBER DATA PURSUANT TO THIS SECTION, SHALL CONSTITUTE Arttracker SOFTWARE’S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF SUBSCRIBER DATA. Arttracker Software reserves the right to modify its data storage practices, so long as those modifications do not reduce or diminish those storage practices in effect as of the Effective Date.
4. Your Obligations.
4.1 Marketing Support.
During the Term, You grant Arttracker Software the right to publish Your corporate logo on its website and in marketing materials that include examples of Arttracker Software customers and publicly acknowledge You as a Arttracker Software customer in a press release, the content of which, Arttracker Software and You shall mutually approve in advance. Subject to Your agreement, You may participate in a Arttracker Software customer case study, provided that Arttracker Software covers the costs of Your participation.
You are responsible for Your Authorized Users’ use of the Subscription Services. You shall promptly notify Arttracker Software of any suspected or alleged violation of the Agreement by an Authorized User, including any unauthorized use of any password or account or any other known or suspected breach of security of the Subscription Services. Arttracker Software may suspend or terminate any Authorized User’s access to the Subscription Services upon notice to You in the event that Arttracker Software reasonably determines that such Authorized User has violated the Agreement.
4.3 Telecommunications and Internet Services.
You understand that Your Authorized Users use of the Subscription Services is dependent upon Your access to telecommunications and internet services. You must acquire and maintain at Your own expense such telecommunications and Internet services, including, without limitation, any and all fees and taxes of any kind related to the foregoing. Arttracker Software shall not be responsible or liable for any data loss or corruption, lost communications, or any other losses or damages caused by Your telecommunications and internet service providers or due to Your utilizing telecommunications and internet services.
4.4 Third Party Interactions.
You or Your Authorized Users may maintain accounts with Publishers that may be accessed via the Subscription Services. Any such accounts shall be subject to the terms and conditions of Your arrangements with such Publishers, and Arttracker Software hereby disclaims any and all responsibilities and liabilities related thereto.
In consideration for Arttracker Software providing the Subscription Services, You shall pay to Arttracker Software those Fees described in the applicable Order Form.
You agree to provide Arttracker Software with complete and accurate billing and contact information on the Order Form. The Fees shall commence on the Billing Start Date defined on the applicable Order Form. Platform Fees will be due even if You do not use the Subscription Services during a particular month or if Your use of the Subscription Services does not meet the lowest level of Fees calculated from the percent of spend rate. At the start of each license period, Arttracker Software will automatically issue an invoice to You. Arttracker Software will invoice You in accordance with the Order Form and will either (i) bill You in advance for the Platform Fees and bill You at the end of each month for any Fees in excess of the Platform Fees, or (ii) issue You with a single invoice at the end of each month for all Fees. Each invoice is due and payable as described on the Order Form (the “Due Date”).
5.2 API Costs.
If You incur third party API costs through Your use of the Subscription Services and such API costs are billed to Arttracker Software by Your Publishers, Arttracker Software will invoice You the applicable API costs at no additional mark up and You agree to pay Arttracker Software for such API costs. Arttracker Software will provide You with notice if such API costs are imposed on You.
5.3 Disputes and Overdue Payments.
If You believe in good faith that Your invoice is incorrect, You must contact Arttracker Software in writing within 10 days of Your receipt of the invoice and describe (in reasonable detail) the amount of the disputed charges and the reason for Your good faith disagreement. If Arttracker Software has not received payment within 10 days after the Due Date, interest shall accrue on the past due amounts at the rate of one and 1.5% per month, but in no event greater than the highest rate of interest allowed by law, calculated from the Due Date until the date that payment is received by Arttracker Software. You shall reimburse Arttracker Software for the reasonable costs of collection, including reasonable fees and expenses of attorneys. If Your account is 30 days or more past the Due Date, in addition to any of its other rights or remedies, Arttracker Software reserves the right to suspend the Subscription Services, without liability to You, until such amounts are paid in full.
5.4 Bank Fees.
Arttracker Software shall not be responsible for any fees Your financial institution may impose upon You in the payment of Your invoice (including without limitation any transfer fees).
Fees are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT if applicable) (collectively, “Taxes”). You shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Arttracker Software’s net income.
6.1 Definition and Exclusions.
By virtue of this Agreement, the parties may have access to each other’s Confidential Information. Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence.
6.2 Use and Nondisclosure.
During the Term and for a period of three years after expiration or termination of the Agreement, neither party shall make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under the Agreement. Each party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the Agreement, but in no event will either party use less effort to protect the Confidential Information of the other party than it uses to protect its own Confidential Information of like importance. Each party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with the obligations set forth herein. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing party must provide the non-disclosing party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information. Furthermore, You acknowledge and agree that, upon expiration or termination of the Agreement, Arttracker Software shall either destroy or deliver Subscriber Data back to You pursuant to Section 8.3, and shall have no other obligation to You regarding such Subscriber Data under this Agreement.
7.1 Warranty for Subscription Services.
Arttracker Software warrants that the Subscription Services shall perform materially in accordance with the Documentation, which may be updated from time to time by Arttracker Software, and the Subscription Services will not contain or transmit to You any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
8. TERM AND TERMINATION
8.2 Termination for Cause.
Either party may terminate this Agreement upon written notice: (A) if the other party materially breaches this Agreement and fails to correct the breach within 30 days following written notice specifying the breach; (B) if there is an adjudication of bankruptcy of any party under any bankruptcy or insolvency law; or (C) if a receiver for business or property of the other property is appointed or the other party makes any general assignment for the benefit of its creditors. Arttracker Software may terminate a demo account or free account at any time in its sole discretion.
8.3 Rights and Obligations Upon Expiration or Termination.
(A) Upon expiration or termination of this Agreement: (i) Your and Your Authorized Users right to access and use the Subscription Services shall immediately terminate; (ii) You and Your Authorized Users shall immediately cease all use of the Subscription Services; and (iii) the parties will make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party.
(B) Arttracker Software will destroy or dispose of Your Subscriber Data in its possession unless Arttracker Software receives, no later than 30 days after the expiration or termination date, a written request to deliver to You the then-most recent back-up of Your Subscriber Data. Arttracker Software shall make commercially reasonable efforts to deliver the back-up copy to You within 30 days of receipt of such request. If requested by Arttracker Software, You shall pay reasonable expenses incurred by Arttracker Software in returning Subscriber Data to You. You agree and acknowledge that Arttracker Software has no obligation to retain and may delete Your Subscriber Data after 30 days from the expiration or termination date of the Agreement. Arttracker Software may retain all Aggregated Subscriber Data upon termination or expiration of the Agreement.
(C) Notwithstanding the foregoing, if the Agreement is terminated as a result of Your breach, Arttracker Software shall have no obligation to deliver any copy of the Subscriber Data to You, and may delete such Subscriber Data at any time after termination of the Agreement.
(D) Upon expiration or termination of this Agreement, Arttracker Software shall stop using Your corporate logo; provided, however, (i) Arttracker Software shall have a reasonable time to remove Your corporate logo from Arttracker Software’s website as well as from any promotional materials, (ii) Arttracker Software shall be entitled to distribute all of the promotional materials printed during the Term that include Your corporate logo, and (iii) Arttracker Software shall not be required to remove any such printed materials from circulation.
Section 5 shall survive any expiration or termination of this Agreement for so long as either of the parties has any rights, duties or obligations thereunder. Sections 1.2, 2, 3, 6, 8.3, 8.4, 9, 10 and 11.1 shall survive any expiration or termination of this Agreement.
Each party (an “Indemnifying Party”) will indemnify, defend, and otherwise hold harmless the other party (the “Indemnified Party”), its officers, directors, employees, agents, and subsidiaries from and against any claim or suit brought by a third party against the Indemnified Party relating to, or resulting from, the Indemnifying Party’s breach or alleged breach of this Agreement or any of the Indemnifying Party’s representations and warranties hereunder or violation of a third party’s Intellectual Property Rights. The Indemnified Party will promptly notify the Indemnifying Party of any and all such claims and will reasonably cooperate with the Indemnifying Party with the defense and/or settlement thereof; provided that, if any settlement requires an affirmative obligation of, results in any ongoing liability to or prejudices or detrimentally impacts the Indemnified Party in any way and such obligation, liability, prejudice or impact can reasonably be expected to be material, then such settlement will require the Indemnified Party's written consent (to be granted or withheld at the Indemnified Party’s sole discretion) and the Indemnified Party may have its own counsel in attendance at all proceedings and substantive negotiations relating to such claim.
10. LIMITATION OF LIABILITY.
EXCEPT FOR LIABILITY ARISING FROM A PARTY’S BREACH OF ITS OBLIGATIONS HEREIN REGARDING CONFIDENTIAL INFORMATION, A BREACH OF SECTION 1.2 (RESTRICTIONS), OR IN CONNECTION WITH THE INDEMNIFICATION OF THIRD PARTY CLAIMS RELATING TO INFRINGEMENT OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS, (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, AND (B) IN NO EVENT SHALL Arttracker SOFTWARE’S AGGREGATE LIABILITY TO YOU AND ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR YOUR ACCESS TO AND USE OF THE SUBSCRIPTION SERVICES EXCEED THE TOTAL MONTHLY SUBSCRIPTION FEES PAID OR PAYABLE BY YOU IN THE 12 MONTH PERIOD PRECEDING THE CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.
11.1 Governing Law.
Unless otherwise specified in the attached Country Schedule, the Agreement and all matters arising out of or relating to the Agreement shall be governed by the Dutch laws, without regard to its conflict of laws provisions; provided that the Agreement will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act, even if that law is adopted in California. If You are outside of the United States, the parties agree that rights and obligations of the parties under the Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the courts located in the Netherlands. You hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
11.2 Waiver and Severability.
The waiver by either party of any default or breach of the Agreement shall be in writing and shall not constitute a waiver of any other or subsequent default or breach. In the event any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement shall remain in full force and effect.
11.3 Force Majeure.
Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of Fees due) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
11.4 Compliance with Laws.
Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, the applicable export laws and regulations of the United States.
11.5 Relationship Between the Parties.
Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
Neither party may assign this Agreement without prior written consent of the other party unless in connection with a merger, acquisition, or sale of all or substantially all of Arttracker Software’s or Your assets, and provided that the surviving entity has agreed to be bound by this Agreement. Notwithstanding the foregoing, Arttracker Software may assign this Agreement to any of its Affiliates without Your prior consent.
11.7 Entire Agreement.
11.9 Equitable Relief.
11.10 No Third-Party Beneficiaries.
Unless specified otherwise in the Agreement, no third party shall have any rights or obligations under the Agreement.
Arttracker Software may give notice to You by e-mail to Your e-mail address on record in Arttracker Software’s account information. You may give notice to Arttracker Software by sending an email to legal@Arttrackersoftware.com.
“Affiliate” means an entity that, directly or indirectly, through one or more intermediaries, owns or controls, is owned or controlled by, or is under common ownership or control with, a party; as used in this definition, the term “control” means the ownership of at least 50% of the equity of that entity or possessing the power to direct or cause the direction of the management of that entity.
“Aggregated Use Data” means data concerning the use, performance, and measurement data created by, or made available through the Subscription Services. These data may be related to or derived from Your use of the Subscription Services. Aggregated Use Data does not identify or permit identification of You, or Your customers, or contain Personal Data.
“Aggregated Subscriber Data” means aggregated Subscriber Data collected by Arttracker Software for the purpose of providing certain functionality within the the Subscription Services that is not directly accessible by, or identifiable to any other Arttracker Software customer.
“Authorized User” means Your employees, consultants, contractors, customers, or agents that have (i) been assigned a Credential to access and use the Subscription Services, (ii) registered to access and use the Subscription Services, and (iii) agree to comply with the terms and conditions of the Agreement.
“Confidential Information” means any written, machine-reproducible and/or visual materials that are labeled as proprietary, confidential, or with words of similar meaning, and all information that is orally or visually disclosed, if not so marked, if it is identified as proprietary or confidential at the time of its disclosure or in a writing provided within 30 days after disclosure. Arttracker Software Confidential Information includes, without limitation, the Subscription Services and any software used for the provision of the Subscription Services, whether in source or executable code, documentation, nonpublic financial information, pricing other than pricing publicly disclosed on Arttracker Software’s website, business plans, techniques, methods, processes, and the results of any performance tests of the Subscription Services.
“Cookie” means a text file that is set on a computer when the computer communicates with a server and is recovered by that server.
“Credentials" means the user identification and password to the Subscription Services delivered to You by Arttracker Software, or set by You via the Subscription Services.
“Documentation” means materials provided online via the Subscription Services in the help and training sections of the Subscription Services.
“Feedback” means voluntary comments and suggestions for improvements relating to the Subscription Services provided by You to Arttracker Software.
“Fees” means the charges specified in an Order Form.
“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, with respect to Arttracker Software, data generated by or otherwise derived from Your use of Subscription Services and any other intellectual property rights recognized in any country or jurisdiction in the world.
“Order Form” means a Arttracker Software Subscription Services order form that specifies the Fees, configuration, subscription period, and other details of the Subscription Services to be provided by Arttracker Software to You.
“Personal Data” means any data related to an identified or identifiable individual natural person; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to its physical, physiological, mental, economic, cultural or social identity.
“Publisher(s)” means one or more third parties, who provide You or Your Authorized Users with advertising services or other services that may be accessed via the Subscription Services.
“Subscriber Data” means any data that: (a) collects via Arttracker Software’s Cookies on Your properties, (b) Your proprietary data input by You or Your Authorized Users in the Subscription Services, (c) Your proprietary data received by the Subscription Services from Your Publishers, and (d) Subscriber Content that is stored or processed by the Subscription Services. Subscriber Data is deemed Your Confidential Information.
“Subscriber Content” means materials or advertisements created by or uploaded by Your Authorized Users into Arttracker Display or Arttracker Social for integration with Publisher Content.
“Subscription Services” means Arttracker Software’s hosted, online software application, accessible via web browser at the URL www.Arttracker.eu and any other URLs as Arttracker Software may designate from time-to-time and any optional third party services ordered by You and provided to You through Arttracker Software.
“Term” means the period specified in the Order Form(s).
“Viruses” means software viruses, works, Trojan horses, or other harmful computer codes, agents, scripts, files or programs.