Carefully read all provisions of this License and Service Agreement, including the MANDATORY ARBITRATION and CLASS ACTION WAIVER provisions set forth herein. By selecting the “I AGREE” button or other mechanism designed to acknowledge agreement to the terms of an electronic copy of this License and Service Agreement (“Agreement”): (i) you represent and warrant that you are at least eighteen (18) years old and accept this Agreement on behalf of the entity for which you are authorized to act (e.g., an employer); (ii) you acknowledge that such entity is legally bound by this Agreement (and you agree to act in a manner consistent with this Agreement) or, if there is no such entity for which you are authorized to act, you accept this Agreement on behalf of yourself as an individual and acknowledge that you are legally bound by this Agreement; and (iii) you represent and warrant that you have the right, power and authority to act on behalf of and bind such entity (if any) or yourself. You may not accept this Agreement on behalf of another entity unless you are an employee or other agent of such other entity with the right, power and authority to act on behalf of such other entity. You are solely responsible for compliance with applicable local laws. If you do not agree to the terms of the Agreement, or you do not have the right, power and authority to act on behalf of and bind such entity or yourself as an individual (if there is no such entity), DO NOT SELECT THE “I AGREE” BUTTON OR OTHERWISE CLICK ON ANY BUTTON OR OTHER MECHANISM DESIGNED TO ACKNOWLEDGE AGREEMENT.
Your access to and use of the web-based tracking and billing platform (“Service”) comes with certain restrictions. Subject to and conditioned on your continuous compliance with this Agreement and payment of applicable fees, AffTrack, Inc. (“AffTrack”) grants you, as a licensee, only a limited, non-exclusive, non-assignable, non-sublicensable and non-transferable limited license, during the applicable term, to access and use the Service in accordance with the terms, conditions and restrictions of this Agreement. AffTrack owns the exclusive right, title and interest throughout the world in and to the Service and any portions or copies thereof, and all patents, trademarks, trade names, copyrights and trade secrets. Any and all rights not expressly granted to you under this Agreement are expressly reserved to AffTrack. You have no other rights, implied or otherwise. The structure and organization of Service, and any source code or similar materials relating thereto, shall be considered the confidential and proprietary trade secrets of AffTrack and may be used only in conjunction with and for your own authorized internal use of the Service. With the exception of those rights expressly granted herein, all rights concerning the web-based tracking and billing platform are retained by AffTrack. The Service is owned and copyrighted by AffTrack.
Unless otherwise set forth herein, you will not, directly or indirectly: (i) modify, create derivative works from, distribute, publicly display, publicly perform or sublicense the Service; (ii) in any way allow third parties to exploit the Service; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying ideas or algorithms of the Service; (iv) participate in any political hate-mongering, racial, ethnic, fraudulent, misleading or otherwise objectionable content or false advertising, (v) participate in any hacking or software pirating, (vi) participate in any activity in violation of any applicable state, federal or international laws, rules or regulations, (vii) participate in any activity that violates the federal CAN-SPAM Act of 2003, Cal. Bus. & Prof Code § 17529.5 or other state or international anti-SPAM legislation; or (viii) design, create, develop, implement, sell, offer or distribute a web-based affiliate marketing data tracking and analytics system that directly or indirectly competes with the Service, for one (1) year after the last date of your use of the Service. Any unauthorized or prohibited use of or access to the Service, or conduct not otherwise in accordance with this Agreement, shall constitute or result in infringement of AffTrack’s intellectual property rights as well as a breach of this Agreement. You agree to notify AffTrack promptly of any such unauthorized uses or other unauthorized access. AffTrack may seek equitable relief to stop the infringing activity as well as any other relief available at law. AffTrack reserves sole discretion with respect to whether your activities violate the terms set forth in this Agreement and may, without limitation or limiting any of the other remedies available to AffTrack at law or in equity, audit, remove and/or disable any content being promoted or displayed and terminate this Agreement, without liability to you. You acknowledge that the foregoing prohibitions are reasonable, that they are an essential element hereof and that absent such prohibitions, AffTrack would not enter into this Agreement.
3. Account Registration and Click Packages
To obtain access to the Service, you may be asked to complete a registration form and provide relevant contact and billing information. You may also be asked to designate an account password and PIN number. AffTrack may deny approval or withdraw such approval at any time in its sole discretion, with or without cause. When registering with AffTrack you must: (i) provide true, accurate, current and complete information about yourself as requested by the Service’s registration form; and (ii) maintain and promptly update the registration data to keep it true, accurate, current and complete. You are responsible for all usage or activity on AffTrack via your account, and you must keep your account password secure. Distribution of your password to unauthorized users is expressly prohibited. You must immediately notify AffTrack of any known or suspected unauthorized use(s) of your account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your password or billing information. AffTrack will not be liable for any loss or damage arising from any unauthorized use of your account. Following account registration and agreement to the terms set forth herein, you will be asked to select a click package and a sub-domain, and to provide administrative information. Fees and related features shall be those in effect as posted on the AffTrack website (“Website”), here http://afftrack.com/affordable-pricing/ Applicable fees are also set forth below:
4. Free Trial
Following account registration and agreement to the terms set forth herein, AffTrack provides you with the option to select a ONE TIME free trial of 100,000 tracked clicks for thirty (30) days. Please note that overage charges will be assessed based upon the fee scheduled set forth at Section 3, above.
IF YOU FEEL THAT THE SERVICE IS NOT FOR YOU, YOU MUST CANCEL PRIOR TO THE EXPIRATION OF YOUR INITIAL THIRTY (30) DAY TRIAL IN ORDER TO AVOID BEING AUTOMATICALLY ENROLLED IN A MONTHLY $99.00/MO. FOR 100,000 TRACKED CLICKS PACKAGE. IF YOU ARE ENROLLED IN A MONTHLY TRACKED CLICK PACKAGE YOU WILL BE BILLED EVERY MONTH, UNTIL YOU CANCEL.
ALL DATA YOU PROVIDE DURING YOUR FREE TRIAL MAY BE PERMANENTLY LOST UNLESS YOU PURCHASE A CLICK PACKAGE BEFORE THE END OF THE TRIAL PERIOD. DURING THE FREE TRIAL THE SERVICE IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
5. Term and Termination
THE TERM OF THIS AGREEMENT SHALL COMMENCE ON THE FIRST DAY OF YOUR REGISTRATION AND AUTOMTATICALY CONTINUE UNTIL CANCELLED. THE TERM SHALL AUTOMATICALLY RENEW FOR SUCCESSIVE ONE (1) MONTH TERMS, UNLESS YOU PROVIDE WRITTEN NOTICE TO AFFTRACK OF YOUR INTENT TO TERMINATE THIS AGREEMENT PRIOR TO THE END OF THE END OF THE THEN CURRENT MONTHLY TERM. ALL TERMINTION REQUESTS RECEIVED AFTER THIS TIME PERIOD WILL BECOME EFFECTIVE ON THE LAST DAY OF THE FOLLOWING MONTHLY TERM. PAYMENTS MADE IN ADVANCE ARE NON-REFUNDABLE.
You may provide written notice of your intent to terminate via support ticket http://my.afftrack.com/support or via email at email@example.com.
AffTrack may terminate this Agreement, in its sole discretion, in advance of any renewal term period by providing written notice to you of it intention not to renew. Additionally, AffTrack may, in its sole discretion, immediately terminate your account at any time and discontinue your participation in the Service if you, without limitation, fail to make payment, engage in conduct may be harmful to AffTrack’s business or others that use the Service, violate any applicable law/regulation, or otherwise violate this Agreement. AffTrack shall have no liability with respect to such decisions.
Upon termination, you will no longer have account access and remain responsible for all charges incurred through the date of termination, including payment obligations during the remainder of any unexpired term. Fees paid prior to the date of termination are non-refundable. The foregoing shall apply regardless of who terminates this Agreement. Upon termination, the license granted herein will cease and AffTrack reserves the right to delete any and all information in your account, at its sole discretion.
Any and all provisions of this Agreement that by their nature are intended to survive termination to fulfill their essential purpose(s), shall so survive.
Each party (“Recipient”) may have access to confidential, proprietary or trade secret information disclosed by the other party (“Disclosing party”), including, without limitation, its ideas, trade secrets, procedures, methods, systems and concepts, whether disclosed verbally or in writing through any media (for each Disclosing Party, “Confidential Information”). AffTrack’s Confidential Information includes the Service, the system and information related thereto, and the underlying software, hardware and other technology used by AffTrack to provide the Service. Recipient acknowledges that Confidential Information contains valuable trade secrets and other proprietary information of the Disclosing Party and remains the sole and exclusive property of the Disclosing Party. Recipient will use all Confidential Information only for purposes directly related to the purpose for which it was provided. Recipient will restrict disclosure of Confidential Information to its employees with a need to know, will not disclose Confidential Information to any other party, will not pass out login’s to anyone for purposes of evaluating or examining the Service, and will otherwise protect Confidential Information as it protects its own proprietary information (but will in no case take less than reasonable measures). No information will be deemed “Confidential Information” to the extent that Recipient can show that it: (i) was or is in the public domain prior to the date of disclosure; (ii) was or is lawfully received by the Recipient from a third party who is not subject to an obligation of confidentiality with respect to such information; (iii) was or is already known by or in the possession of the Recipient; or (iv) is required to be disclosed under applicable law or by a governmental or court order, decree, regulation or rule, provided that the Recipient gives written notice to the Disclosing Party to the extent legally permissible prior to disclosure. The Recipient acknowledges that the Disclosing Party shall incur irreparable damage if the Recipient should breach any of the provisions of this Section. Accordingly, if the Recipient or any of its respective agents or representatives breaches or threatens to breach any of the provisions of this Section, the Disclosing Party shall be entitled, without prejudice, to all the rights and remedies available to it, including an equitable relief restraining any potential breach of the provisions of this Section by the Recipient, without having to prove damages or post a bond or other security. The confidentiality provisions set forth herein shall continue during the term of this Agreement and for three (3) years thereafter. However, AffTrack’s source code shall be kept confidential in perpetuity.
7. Data Ownership
You own all data and information that you provide AffTrack in conjunction with the Service, and are solely responsible for keeping all such information current. AffTrack expressly reserves the right to disclose all such data in an aggregate, non-personally identifiable form and/or to a third party in the event such disclosure is required by a court order, subpoena or other legal process. In the event of such a required disclosure, AffTrack shall provide you with reasonable notice thereof unless bound by a duty of confidentiality.
All data and information that is not your data is unequivocally owned by AffTrack. All right title and interest to, and ownership of such data and information, including, but not limited to, tracking data and methodologies produced in conjunction with the Service, is owned by AffTrack. Additionally, you hereby grant AffTrack a royalty-free, worldwide, perpetual, irrevocable and fully transferable right and license to use the data and information that you provide in connection with the design, development and implementation of analytical processes and procedures related to the Service.
8. Disclaimer of Warranties
THE WEBSITE AND SERVICE ARE PROVIDED “AS-IS” AND WITHOUT ANY OTHER EXPRESSED OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. AFFTRACK MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE WEBSITE OR SERVICE, OR THE OPERATION OR USE THEREOF. AFFTRACK HEREBY EXCLUDES ALL IMPLIED WARRANTIES AND CONDITIONS TO THE EXTENT PERMITTED BY LAW, INCLUDING, ANY IMPLIED WARRANTY ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE. AFFTRACK HEREBY EXCLUDES ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, AND OF NON-INFRINGEMENT, CONCERNING THE SERVICE AND OPERATION OR USE THEREOF. AFFTRACK DOES NOT WARRANT THAT THE WEBSITE OR SERVICE WILL MEET ALL OF YOUR BUSINESS REQUIREMENTS, OR THAT THE OPERATION OF THE WEBSITE OR SERVICE WILL BE UNINTERRUPTED OR ERROR FREE.
9. Disclaimer of Damages and Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL AFFTRACK BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT OR STRICT LIABILITY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, DATA OR GOODWILL, REGARDLESS OF WHETHER AFFTRACK KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL AFFTRACK’S TOTAL CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU AS FEES UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE CLAIM GIVING RISE TO THE ALLEGED DAMAGES.
10. Legal Compliance
You shall comply with all applicable local, state and federal laws, rules, ordinances, regulations and codes and will procure all required licenses and approvals in order to operate your business in compliance therewith. AffTrack will immediately terminate this Agreement in the event that you violate this provision. In addition to termination, AffTrack reserves the right to pursue all claims for violation of intellectual property or other rights and will pursue such actions as are available at law or in equity for continuing, flagrant or egregious violations. In the event of a breach of this provision, AffTrack may terminate your ability to use the Service temporarily or permanently, at AffTrack’s sole discretion.
You shall indemnify and hold AffTrack and its officers, directors and personnel harmless from any such fees, liabilities, claims, losses, damages or penalties arising out of: (i) breach of any representations or warranties by you; (ii) breach of this Agreement by you; (iii) your advertising and/or business practices; and/or (iv) your goods and/or services; and/or (v) use of the Service in a manner not in accordance with the terms set forth herein.
AffTrack shall indemnify and hold you and your officers, directors and personnel harmless from any such fees, liabilities, claims, losses, damages or penalties arising out of a breach of any representations or warranties by AffTrack. However, AffTrack shall have no liability or indemnity obligation for any such claim arising from a violation of this Agreement, use of the Service in combination with non-approved third party products or modifications to the Service.
The foregoing indemnification obligations are expressly conditioned on the indemnified party: (i) giving the indemnifying party prompt written notice of the relevant claim; (ii) reasonably cooperating with the indemnifying party, at the indemnifying party’s expense, in the defense of such claim; and (iii) giving the indemnifying party the right to control the defense and settlement of such claim, except that the indemnifying party shall not enter any settlement other than for money damages without the indemnified party’s prior written approval. The indemnifying party shall pay any and all costs, damages and reasonable attorneys’ fee and reasonable expert witness fees awarded against the indemnified party and all expenses incurred by the indemnified party in connection with or arising from any such claim, suit or proceeding. The provisions set forth herein shall survive the termination of this Agreement.
12. Technical Support, Training and Downtime
AffTrack may provide reasonable technical support and custom training services during normal business hours, in our sole discretion. Please contact us at (352) 515-9500 or firstname.lastname@example.org for assistance or to schedule a demo. Should the Service experience a defect or failure, AffTrack shall use commercially reasonable efforts to resolve it. In our sole discretion, AffTrack may reimburse you for monthly downtime, excluding maintenance downtime, events not within Afftrack’s reasonable control and/or downtime of which you were given advanced notice, in the form of a fee credit.
During the term of this Agreement, you expressly grant AffTrack a non-exclusive, non-transferable license to use, reproduce, publicly and digitally display and perform, transmit and broadcast your client, logos. Trademarks, trade names, service marks, URLs and slogans to advertise, promote and publicize AffTrack and the Service, including your inclusion in AffTrack’s marketing materials. Nothing herein shall be construed as giving you the right or license to use the AffTrack logo or any other trademarks, trade names or services marks of AffTrack without prior written approval.
14. Relationship of the Parties
The parties to this Agreement are independent contractors and nothing contained herein shall be construed to create a partnership, joint venture or agency relationship between AffTrack and you. As such, neither party shall be authorized to bind the other in any way. Nothing in the Agreement is intended or shall be construed to give any person other than the parties hereto, their respective successors and assigns, any legal or equitable right, remedy or claim under or in respect of the Agreement or any provision contained herein, including, any third party that may access the Service by means of your account.
15. Dispute Resolution, Mandatory Arbitration and Class Action Waiver
If any dispute arises under this Agreement, the parties agree to first try to resolve it with the assistance of a mutually agreed upon mediator in the State of Florida, Hillsborough County. Any costs and fees other than attorneys’ fees associated with the mediation shall be shared equally by the parties. If the parties are unable to arrive at a mutually satisfactory solution through mediation, the parties agree to submit the dispute to binding arbitration in the State of Florida, Hillsborough County. The parties agree that the binding arbitration will be conducted by a single arbitrator and (a) if you are based in the United States, under the rules of the American Arbitration Association or (b) if you are based internationally, under the rules of Arbitration of the International Chamber of Commerce. Judgment upon the award rendered by the arbitrator may be entered in any court with proper jurisdiction. Notwithstanding anything to the contrary contained herein, if you do not pay all fees due for the Service, you expressly agree that AffTrack may elect to resolve any non-payment dispute by submission to a court located in the State of Florida, Hillsborough County. If any litigation or arbitration is absolutely necessary to enforce this Agreement or the terms thereof, the prevailing party shall be entitled to reimbursement by the other party for reasonable attorneys’ fees, costs and related expenses. This Agreement will be governed by the laws of the State of Florida.
16. User Suggestions
Unless otherwise expressly agreed to in writing by AffTrack, all suggestions, solutions, improvements, corrections and other contributions related to the Service are freely offered to AffTrack without any claim to ownership or confidentiality by you or any obligation for implementation by AffTrack. In the event that AffTrack implements a user suggestion, such implementation shall be owned by AffTrack and nothing in this Agreement shall preclude AffTrack from implementing and using the know-how, techniques or procedures acquired by AffTrack.
AffTrack expressly reserves the right to update this Agreement, at any time, in its sole discretion. AffTrack will make the updated Agreement available by posting the updated version on our website, located at www.afftrack.com. AffTrack will attempt, in good faith, to inform you of updates via the email you provide us at the time that you create your account. Your continued use of the Service, however, shall be considered an assent to the terms of the modified Agreement. Please check the Website for updates on a regular basis and be certain to review the Agreement prior to each use of the Service. No conditions other than those set forth in this Agreement shall be binding on AffTrack unless AffTrack expressly agrees in a written instrument signed by an authorized AffTrack representative. AffTrack reserves the right to discontinue offering the Service and/or Website at any time.
Neither party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, except that either party may assign this Agreement to the surviving party in a merger of that party into another entity. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties. If a change in your corporate ownership should occur during the term of this Agreement, you expressly agree to immediately disclose the name of the new entity to AffTrack.
19. No Waiver and SeverabilityThe failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. Unless otherwise set forth in writing, no remedy referred to in this Agreement is intended to be exclusive.
The headings have been inserted for convenience only and have no legal effect. They shall not be considered when interpreting the provisions of this Agreement.
21. Entire Agreement
This Agreement constitutes the entire agreement with respect to the use of the Service and supersedes all prior or contemporaneous understandings or agreements, written or verbal, regarding such subject matter. In the event of any conflict between the terms of this Agreement and any other legal notices, agreements or policies, the terms of this Agreement shall govern. No amendment to or modification of this Agreement shall be binding unless in writing and signed by AffTrack. The parties agree that the terms of this Agreement shall not be construed in favor of or against either party by reason of authorship.
Notices in connection with this Agreement by either party will be in writing and will be sent by electronic mail, postal service, or a delivery service (such as UPS, FedEx or DHL), except that you may not provide notice to AffTrack of an AffTrack breach or provide notice of termination of this Agreement by electronic mail. Notices from AffTrack to you will be effective: (a) in the case of notices by email, one (1) day after sending to the email address provided to AffTrack; or (b) in the case of notices by mail or delivery service, five (5) days after sending by regular post or delivery service to the address provided to AffTrack. You hereby consent to service of process being affected on you by registered mail sent to the address set forth on your AffTrack account if so permitted by applicable law. Notices from you to AffTrack will be effective: (a) in the case of notices by email, one (1) day after sending to (and receipt by AffTrack) at email@example.com; or (b) in the case of notices by mail or delivery service, when received by AffTrack at 5430 Spring Hill Drive, Spring Hill, Florida 34606 USA, Attention: Legal.
23. Additional Assistance
If you have any questions or concerns about this Agreement or the Service, please send an email to firstname.lastname@example.org, call us at (352) 515-9500, or write to us at: AffTrack, 5430 Spring Hill Drive, Spring Hill, Florida 34606.
23. Electronic Signature
You acknowledge and agree that by accessing the Service, you expressly assent to the terms of this Agreement electronically by clicking on the button labelled “I AGREE” or such similar labels as may be designated by AffTrack to accept this AffTrack License and Service Agreement. You acknowledge and agree that by doing so, you are affixing your electronic signature, you are submitting a legally binding electronic signature and you are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by this Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the "E-Sign Act") or other similar statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED, COMPLETED OR OFFERED BY AFFTRACK. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
Effective:December 1st, 2015