NEITHER TRACEAIR NOR ANY OF ITS EMPLOYEES ARE LICENSED SURVEYORS OR ENGINEERS AND TRACEAIR NEITHER PROVIDES NOT HOLDS ITSELF OUT AS A PROVIDER OF SURVEYING OR ENGINEERING SERVICES. NEITHER THE TRACEAIR PLATFORM NOR ANY RESULTS OBTAINED THROUGH THE USE OF THE PLATFORM SHOULD BE CONSIDERED A SUBSTITUTE FOR THE SERVICES OF LICENSED SURVEYORS AND/OR ENGINEERS.
PLEASE NOTE: THESE TERMS CONTAINS A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS USER’S RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES USER MAY HAVE WITH TRACEAIR. USER MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
1.1 “Authorized Purposes” for User’s internal business purposes related to the project described on User’s applicable Order Form.
1.2 “Authorized Users” means, where User is a business entity, User’s employees, consultants, contractors, and/or agents: (a) who are authorized by User to access and use the TraceAir Platform on User’s behalf, and (b) who have been supplied user identifications and passwords for such purpose by User (or by TraceAir at User’s request).
1.3 “User Data” means, other than such data sourced from third parties, all data submitted, stored, posted, displayed, or otherwise transmitted by or on behalf of User or its Authorized Users, and received and analyzed by the TraceAir Platform.
1.4 “User System” means User’s internal computers, servers and other equipment and software used to access and use the TraceAir Platform.
1.5 “Documentation” means the printed or electronic user instructions and help files made available by TraceAir for use with the TraceAir Platform, as may be updated from time to time by TraceAir.
1.6 “Intellectual Property Rights” means all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.
1.7 “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
1.8 “Open Source Software” means all software that is available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that approved by the Open Source Initiative (www.opensource.org).
1.9 “Order Form” means the TraceAir ordering documents required for the purchase of TraceAir’s services that are executed by the parties from time to time, including any mutually acceptable modifications, supplements and addenda thereto. Order Forms are incorporated herein.
1.10 “Services” means the TraceAir Platform and Support Services.
1.11 “Subscription Term” means the period for which User is permitted to access and use the TraceAir Platform. For Users who have executed an Order Form the includes use of the TraceAir Platform, the applicable Subscription Term shall be set forth in an Order Form. Other Authorized Users’ Subscription Terms will end when the Subscription Term of the User who created their account (or asked for their account to be created by TraceAir) expires.
1.12 “Support Services” means, if applicable, the support and maintenance services provided by TraceAir to TraceAir Platform subscribers, as described in User’s applicable Order Form.
1.13 “TraceAir Platform” means the hosted software platform provided by TraceAir at dashboard.traceair.net, provided that such definition excludes any Open Source Software that may be used to provide such platform.
2.1 Order Forms. Subject to the terms of this Agreement, User may order services for which an Order Form is required by entering into a TraceAir Order Form. User agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by NextHome regarding any future functionality or features
2.2 Access and Use License. Subject to User’s compliance with the terms and conditions contained in these Terms, TraceAir, during the relevant Subscription Term, herby grants User and, if applicable its Authorized Users, a limited, non-exclusive, non-transferable right to access and use the TraceAir Platform in accordance with the Documentation in each case solely for User’s Authorized Purposes and not for the benefit of any other person or entity. User’s use of the TraceAir Platform may be subject to certain limitations — for example, certain functionality or the number of Authorized Users permitted to use the TraceAir Platform may be limited, as further described in the applicable Order Form.
2.3 Restrictions. User shall not, directly or indirectly, and User shall not permit any Authorized User or third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the TraceAir Platform; (b) modify, translate, or create derivative works based on any element of the TraceAir Platform or any related Documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the TraceAir Platform; (d) use the TraceAir Platform for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of User and Authorized Users; (e) remove any proprietary notices from the Documentation; (f) use the TraceAir Platform for any purpose other than its intended purpose; (g) interfere with or disrupt the integrity or performance of the TraceAir Platform; (h) introduce any Open Source Software into the TraceAir Platform; or (i) attempt to gain unauthorized access to the TraceAir Platform, its related systems or networks, or to the content and data uploaded by other users.
2.4 Reservation of Rights. Except as expressly granted in these Terms, there are no other licenses granted to User or any Authorized User, express, implied or by way of estoppel. All rights not granted in these Terms are reserved by TraceAir.
TraceAir may use the services of one or more third parties to deliver all or part of the TraceAir Platform. TraceAir will pass through any warranties to the extent that TraceAir receives any from its then current third-party service provider that it can provide to User. User agrees to comply with any acceptable use policies and other terms of any third-party service provider that are provided or otherwise made available to User from time to time.
4.1 Accounts. User and all Authorized Users will be required to have an account with TraceAir before being permitted to access and use the TraceAir Platform. All the information provided when registering for an account must be accurate, complete and up to date. Users may change, correct, or remove their account information by logging into the account directly and making the desired changes. TraceAir reserves the right to terminate any account for which the provided information is untrue, inaccurate, incomplete or not current.
4.2 Passwords. User and its Authorized Users shall be responsible for maintaining the confidentiality of all user logins and passwords and for ensuring that each user login and password is used only by the person to which it was issued. User is solely responsible for any and all access and use of the TraceAir Platform that occurs using any Authorized User’s account. User shall not share, and shall restrict its Authorized Users from sharing, passwords. User agrees to immediately notify TraceAir of any unauthorized use of any account or login and password issued to User and/or its Authorized Users. TraceAir shall have no liability for any loss or damage arising from User’s or its Authorized Users failure to comply with the terms set forth in this Section.
4.3 No Circumvention of Security. Neither User nor any Authorized User may circumvent or otherwise interfere with any user authentication or security of the TraceAir Platform. User will immediately notify TraceAir of any breach, or attempted breach, of security known to User.
5.1 User System. User is responsible for (a) obtaining, deploying and maintaining the User System; (b) contracting with third party ISP, telecommunications and other service providers to access and use the TraceAir Platform via the Internet; and (c) paying all third party fees and access charges incurred in connection with the foregoing. Except as specifically set forth in these Terms or a separate agreement between User and TraceAir referencing these Terms, TraceAir shall not be responsible for supplying any hardware, software or other equipment to User under these Terms.
5.2 Acceptable Use. User shall be solely responsible for its actions and the actions of its Authorized Users while using the TraceAir Platform. User acknowledges and agrees: (a) to abide by all local, state, national, and international laws and regulations applicable to User’s use of the TraceAir Platform, including without limitation the provision and storage of User Data; (b) not to send or store data on or to the TraceAir Platform which violates the rights of any individual or entity established in any jurisdiction; (c) not to upload in any way any information or content that contain Malicious Code or data that may damage the operation of the TraceAir Platform or another's computer or mobile device; (d) not to use the TraceAir Platform for illegal, fraudulent, unethical or inappropriate purposes; (e) not to interfere or disrupt networks connected to the TraceAir Platform or interfere with other ability to access or use the TraceAir Platform; (f) not to distribute, promote or transmit through the TraceAir Platform any unlawful, harmful, obscene, pornographic or otherwise objectionable material of any kind or nature; (g) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (h) not to interfere with another user’s use and enjoyment of the TraceAir Platform; (i) not to use the TraceAir Platform in any manner that impairs the TraceAir Platform, including without limitation the servers and networks on which the TraceAir Platform is provided; (j) to comply with all regulations, policies and procedures of networks connected to the TraceAir Platform and TraceAir’s service providers; and (k) to use the TraceAir Platform only in accordance with the Documentation. User acknowledges and agrees that TraceAir neither endorses any User communications or User Data, nor does TraceAir assume any responsibility for any offensive material contained therein, any infringement of third party Intellectual Property Rights arising therefrom or any crime facilitated thereby. TraceAir may, but is not required to, remove any violating content posted or stored using the TraceAir Platform or transmitted through the TraceAir Platform, without notice to User. Notwithstanding the foregoing, TraceAir does not guarantee and is not obligated to verify, authenticate, monitor or edit the User Data, or any other information or data input into or stored in the TraceAir Platform for completeness, integrity, legality, quality, accuracy or otherwise. User shall be responsible and liable for the completeness, integrity, legality, quality and accuracy of User Data and other information input into the TraceAir Platform. User shall be solely responsible for ensuring compliance with applicable laws and regulations in its use of the TraceAir Platform, including but not limited to state licensing laws and regulations. User shall obtain any and all federal, state and local licenses and certifications which may be required to practice User’s profession.
5.3 Accuracy of User’s Contact Information; Email Notices. User agrees to provide accurate, current and complete information as necessary for TraceAir to communicate with User from time to time regarding the Services, issue invoices or accept payment, or contact User for other account-related purposes. User agrees to keep any online account information current and inform TraceAir of any changes in User’s legal business name, address, email address and phone number. User agrees to accept emails from TraceAir at the e-mail addresses specified by it for login purposes. In addition, User agrees that TraceAir may rely and act on all information and instructions provided to TraceAir by Authorized Users from the above-specified e-mail addresses.
5.4 Temporary Suspension. TraceAir may temporarily suspend User’s or its Authorized Users’ access to the TraceAir Platform in the event that either User or any of its Authorized Users is engaged in, or TraceAir in good faith suspects User or any of its Authorized Users is engaged in, any unauthorized conduct (including, but not limited to any violation of these Terms). TraceAir will attempt to contact User prior to or contemporaneously with such suspension; provided, however, that TraceAir’s exercise of the suspension rights herein shall not be conditioned upon User’s receipt of any notification. A suspension may take effect for User’s entire account and User understands that such suspension would therefore include its Authorized Users’ accounts. User agrees that TraceAir shall not be liable to User, Authorized Users, or any third party if TraceAir exercises its suspension rights as permitted by this Section. Upon determining that User has ceased the unauthorized conduct leading to the temporary suspension to TraceAir’s reasonable satisfaction, TraceAir shall reinstate User’s and its Authorized Users’ access to and use of the TraceAir Platform. Notwithstanding anything in this Section to the contrary, TraceAir’s suspension of access to the TraceAir Platform is in addition to any other remedies that TraceAir may have under these Terms or otherwise, including but not limited to termination of these Terms for cause. Additionally, if there are repeated incidences of suspension, regardless of the same or different cause and even if the cause or conduct is ultimately cured or corrected, TraceAir may, in its reasonable discretion, determine that such circumstances, taken together, constitute a material breach.
6.1 Availability. Subject to the terms and conditions of these Terms, TraceAir will use commercially reasonable efforts to make the TraceAir Platform available with minimal downtime 24 hours a day, 7 days a week; provided, however, that the following are excepted from availability commitments: (a) planned downtime, or (b) unavailability caused by circumstances beyond TraceAir’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems or Internet service provider failures or delays. Certain enhancements to the TraceAir Platform made generally available at no cost to all users during the applicable Term will be made available to User at no additional charge. However, the availability of some new enhancements to the TraceAir Platform may require the payment of additional fees, and TraceAir will determine in its sole discretion whether access to any other such new enhancements will require an additional fee. These Terms will apply to, and the TraceAir Platform includes, any enhancements, updates, upgrades and new modules to the TraceAir Platform provided in connection therewith and subsequently provided by TraceAir to User hereunder.
7.1 Fees. User agrees to pay all fees applicable to User’s and its Authorized Users’ use of the TraceAir Platform using one of the payment methods TraceAir supports. Except as otherwise specified in these Terms, (a) fees are based on Services purchased, regardless of actual usage, and (b) payment obligations are non-cancelable and fees paid are non-refundable. All amounts will be paid without setoff or counterclaim, and without any deduction or withholding.
7.2 Suspension of Service. If any amounts owed by User for the Services are more than thirty (30) days overdue, TraceAir may, without limiting TraceAir’s other rights and remedies, suspend User’s and its Authorized Users’ access to the TraceAir Platform until such amounts are paid in full; provided that TraceAir agrees that it will not exercise its rights under this Section if the applicable charges are under reasonable and good-faith dispute and User is cooperating diligently to resolve the dispute.
8.1 Mutual Representations and Warranties. Each party represents, warrants and covenants that: (a) it has the full power and authority to enter into these Terms and to perform its obligations hereunder; and (b) its acceptance of and performance under these Terms shall not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust.
8.2 Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 8, THE TRACEAIR PLATFORM AND SUPPORT SERVICES ARE PROVIDED ON AN AS-IS BASIS. USER’S USE OF THE TRACEAIR PLATFORM AND SUPPORT SERVICES IS AT ITS OWN RISK. TRACEAIR DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE EXPRESS WARRANTIES MADE BY TRACEAIR IN SECTION 8 ARE FOR THE BENEFIT OF THE USER ONLY AND NOT FOR THE BENEFIT OF ANY THIRD PARTY. ANY SOFTWARE PROVIDED THROUGH THE TRACEAIR PLATFORM IS LICENSED AND NOT SOLD.
NO AGENT OF TRACEAIR IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF TRACEAIR AS SET FORTH HEREIN. TRACEAIR DOES NOT WARRANT THAT: (A) THE USE OF THE TRACEAIR PLATFORM WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT IT WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICES WILL MEET USER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY USER THROUGH THE TRACEAIR PLATFORM WILL MEET USER’S REQUIREMENTS OR EXPECTATIONS; (E) THE SERVICES WILL BE ERROR-FREE OR THAT ERRORS OR DEFECTS IN THE TRACEAIR PLATFORM WILL BE CORRECTED; OR (F) THE SERVER(S) THAT MAKE THE TRACEAIR PLATFORM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. TRACEAIR IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
User shall defend TraceAir and its affiliates, licensors and their respective officers, directors, employees and subcontractors (“TraceAir Indemnified Parties”) from and against any and all actions, proceedings, claims and demands by a third party (“Third-Party Claims”) which arise out of or relate to: (a) a claim or threat that the User Data or User System (and the exercise by TraceAir of the rights granted herein with respect thereto) infringes, misappropriates or violates any third party’s Intellectual Property Rights or privacy rights; or (b) User’s use or alleged use of the TraceAir Platform in violation of applicable law or other than as permitted under these Terms. User shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the Third Party bringing any such Third-Party Claim. User’s obligations under this Section are conditioned upon (x) User being promptly notified in writing of any Third-Party Claim under this Section, (y) User having the sole and exclusive right to control the defense and settlement of the Third-Party Claim, and (z) TraceAir providing all reasonable assistance (at User’s expense and reasonable request) in the defense of such Third-Party Claim. In no event shall TraceAir settle any such Third-Party Claim without User’s prior written approval. TraceAir may, at its own expense, engage separate counsel to advise TraceAir regarding a Third-Party Claim and to participate in the defense of the claim, subject to User’s right to control the defense and settlement.
10.1 Confidential Information. Each party (the “Receiving Party”) hereby understands and acknowledges that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of TraceAir shall include any and all non-public information regarding features, functionality and performance of the TraceAir Platform. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the termination of this Agreement or any information that the Receiving Party can document (a) is or becomes generally available to the public; (b) was in its possession or known by it, prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party. Nothing in this Agreement shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (x) assert the confidential nature of the Confidential Information to the agency; (y) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (z) cooperate fully with the Disclosing Party in protecting against any such disclosure and in obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
10.2 Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.
11.1 TraceAir Platform. As between TraceAir and User, all right, title and interest in the TraceAir Platform and any other TraceAir materials furnished or made available hereunder, and all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by User regarding the TraceAir Platform, including all copyright rights, patent rights and other Intellectual Property Rights in each of the foregoing, belong to and are retained solely by TraceAir or TraceAir’s licensors and providers, as applicable. User hereby does and will irrevocably assign to TraceAir all evaluations, ideas, feedback and suggestions made by User to TraceAir regarding the TraceAir Platform (collectively, “Feedback”) and all Intellectual Property Rights in the Feedback.
11.2 User Data. As between TraceAir and User, all right, title and interest in the User Data, belongs to and is retained solely by User. By posting, displaying, sharing or distributing User Data on or through the TraceAir Platform, User hereby grants to TraceAir a limited, sublicenseable non-exclusive, royalty-free, worldwide license to reproduce, display, publicly perform, distribute and otherwise use the User Data, and perform all acts with respect to the User Data as may be necessary for TraceAir to provide the Services to User, which may include display or distribution of such User Data to users or subsets of users of the TraceAir Platform specified by User, either expressly or by the nature of the Subscription Tier to which User has subscribed. TraceAir may modify, copy, translate or make any derivative works of User Data in connection with its provision of the TraceAir Platform as required to format such User Data for presentation within the TraceAir Platform, to continually improve the TraceAir Platform and to develop new services and offerings. TraceAir may also use User Data, in a deidentified fashion to demonstrate the capabilities of the TraceAir Platform to third parties.
11.3 Aggregated Statistics. Notwithstanding anything else in these Terms or otherwise, TraceAir may monitor User’s use of the Services and use User Data and other data and information related to such use, in an aggregate and anonymous manner, including to compile statistical and performance information related to TraceAir Platform and its users (“Aggregated Statistics”). As between TraceAir and User, all right, title and interest in the Aggregated Statistics and all Intellectual Property Rights therein, belong to and are retained solely by TraceAir. User acknowledges that TraceAir will be compiling Aggregated Statistics based on User Data and information input by other customers into the TraceAir Platform and User agrees that TraceAir may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify User or its Confidential Information.
12.1 No Consequential Damages. NEITHER TRACEAIR NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, EVEN IF TRACEAIR OR ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE TRACEAIR PLATFORM, SUPPORT SERVICES OR THE RESULTS THEREOF. TRACEAIR WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
12.2 Limits on Liability. NEITHER TRACEAIR NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN AN AMOUNT EQUAL TO THE AMOUNTS PAID OR PAYABLE BY USER TO TRACEAIR FOR USE OF THE TRACEAIR PLATFORM DURING THE PERIOD OF SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED.
12.3 Essential Purpose. USER ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 12 (LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
13.1 Term. The term of these Terms commence on the Effective Date and continues until the expiration or termination of all Subscription Term(s), unless earlier terminated as provided in these Terms or in an applicable separate agreement between User and TraceAir referencing these Terms
13.2 Termination for Cause. A party may terminate these Terms upon written notice to the other party in the event the other party (a) files a petition for bankruptcy or has a petition for bankruptcy filed against it that is not dismissed within sixty (60) days after filing or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or (b) commits a material breach of any provision of these Terms and does not remedy such breach within thirty (30) days after receipt of notice from the other party or such other period as the parties may agree. In no event shall any termination relieve User of the obligation to pay any fees payable to TraceAir for the period prior to the effective date of termination.
13.3 Termination for Convenience. User shall have the right to terminate its use of the TraceAir Platform for convenience on at thirty (30) days prior written notice to TraceAir; provided, however, that under no circumstances shall User be entitled to any refund of any fees as a result of such termination.
13.4 Effects of Termination. Upon expiration or termination of these Terms, (a) User’s use of and access to the TraceAir Platform and TraceAir's performance of all Support Services shall cease; and (b) all fees and other amounts owed to TraceAir shall be immediately due and payable by User. TraceAir shall have no obligation to maintain or provide any User Data and may thereafter, unless legally prohibited, delete or retain all User Data in its systems or otherwise in its possession or under its control. In addition, within ten (10) days of the effective date of termination each Receiving Party shall: (a) return to the Disclosing Party, or at the Disclosing Party’s option, the Receiving Party shall destroy, all items of Confidential Information (other than the User Data) then in the Receiving Party’s possession or control, including any copies, extracts or portions thereof, and (b) upon request shall certify in writing to Disclosing Party that it has complied with the foregoing.
13.5 Survival. This Section and Sections 1, 2.3, 2.4, 5.2, 9, 10, 11, 12, 13.4, 14 and 15 shall survive any termination or expiration of these Terms.
14.1 No Agency or Partnership. No agency, partnership, joint venture, or employment is created as a result of these Terms or User’s use of any part of the TraceAir Platform. User does not have any authority whatsoever to bind TraceAir in any respect. The parties agree that TraceAir is a technology company whose primary business is providing a platform upon which users can share medical imaging and data. Neither TraceAir nor any users of the TraceAir Platform may direct or control the day-to-day activities of the other, or create or assume any obligation on behalf of the other.
14.2 Disputes Between Users.
(a) Images, information and data posted on the TraceAir Platform are the property of the users who upload them. To the extent User is permitted to access other users’ images, information and/or data, such images, information and/or data are licensed to User by their owner and not by TraceAir. User’s interactions with individuals and/or organizations found on or through the TraceAir Platform, including User’s decision to use images, information and/or data provided by such individuals and/or organizations is User’s decision for which User alone is responsible. User understands and agrees that TraceAir does not and cannot make representations as to the suitability of (i) any images, information and/or data User may access via the TraceAir Platform; (ii) any individual User may decide to interact with on or through the TraceAir Platform and/or (iii) the accuracy or suitability of any advice, information, or recommendations made by any user.
(b) IF THERE IS A DISPUTE BETWEEN USERS OF THE TRACEAIR PLATFORM, OR BETWEEN ANY USER OF THE TRACEAIR PLATFORM AND ANY OTHER THIRD PARTY, USER ACKNOWLEDGES AND AGREES THAT TRACEAIR IS UNDER NO OBLIGATION TO BECOME INVOLVED. IN THE EVENT THAT A DISPUTE ARISES BETWEEN USER AND ANY OTHER USER OR THIRD PARTY, USER HEREBY RELEASES TRACEAIR, ITS OFFICERS, MANAGERS, MEMBERS, DIRECTORS, EMPLOYEES, ATTORNEYS, AGENTS, AND SUCCESSORS IN RIGHTS FROM ANY CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, FORESEEABLE OR UNFORESEEABLE, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR IN ANY WAY RELATED TO SUCH DISPUTES. IF USER IS A CALIFORNIA RESIDENT, USER WAIVES CALIFORNIA CIVIL CODE §1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
14.3 Intellectual Property Infringement.
TraceAir respects the intellectual property rights of others and encourages its users to do the same. Accordingly, TraceAir has a policy of removing User Data that violate intellectual property rights of others, suspending access to the TraceAir Platform (or any portion thereof) to any user who uses the TraceAir Platform in violation of someone’s intellectual property rights, and/or terminating in appropriate circumstances the account of any user who uses the TraceAir Platform in violation of someone’s intellectual property rights.
Pursuant to Title 17 of the United States Code, Section 512 (the “Digital Millennium Copyright Act” or “DMCA”), TraceAir has implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If you believe your copyright or other intellectual property right is being infringed by a user of the TraceAir Platform, please provide written notice to TraceAir’s agent for notice of claims of infringement:
Redwood City, CA 94063
To be sure the matter is handled immediately, your written notice must:
Unless the notice pertains to copyright or other intellectual property infringement, the agent will be unable to address the listed concern. TraceAir reserves the right, in its sole discretion, to terminate the account or access of any user of the TraceAir Platform who is the subject of repeated DMCA or other infringement notifications.
15. 1 Notices. All notices which any party to these Terms may be required or may wish to give may be given by addressing them to the other party at: email@example.com, for notices sent to TraceAir and, for notices sent to User, at the address currently maintained in TraceAir’s records by (a) personal delivery, (b) sending such notices by commercial overnight courier with written verification of actual receipt, (c) by email, effective (A) when the sender receives an automated message from the recipient confirming delivery or (B) one hour after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered, whichever happens first, but if the delivery or receipt is on a day which is not a business day or is after 5:00 pm (addressee’s time) it is deemed to be received at 9:00 am on the following business day, or (d) sending them by registered or certified mail. If so mailed or otherwise delivered, such notices shall be deemed and presumed to have been given on the earlier of the date of actual receipt or three (3) days after mailing or authorized form of delivery. All communications and notices to be made or given pursuant to these Terms shall be in the English language.
15.2 Governing Law and Venue. These Terms and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the United States and the State of California as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms. The parties further agree to waive and opt-out of any application of the Uniform Computer Information Transactions Act (UCITA), or any version thereof, adopted by any state of the United States in any form. Notwithstanding the provisions of Section 15.3 below, TraceAir has the right to pursue equitable relief in the state and federal courts located in San Mateo County California, and User agrees to the exclusive jurisdiction and venue of such courts.
15.3 Dispute Resolution and Arbitration; Class Action Waiver
Please Read This Provision Carefully. It Affects Your Legal Rights.
(a) This Dispute Resolution and Arbitration; Class Action Waiver provision (this “Provision”) facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort — including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence — or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between User and TraceAir. Effectively, then, “dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided to User (such as TraceAir’s licensors, suppliers, dealers or third-party vendors) whenever User also asserts claims against TraceAir in the same proceeding.
(b) This Provision provides that all disputes between User and TraceAir shall be resolved by binding arbitration because acceptance of these Terms constitutes a waiver of User’s right to litigation claims and all opportunity to be heard by a judge or jury. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees). User may, however, opt-out of this Provision, which means User would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). BOTH USER AND TRACEAIR AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
(c) Pre-Arbitration Claim Resolution. For all disputes, whether pursued in court or arbitration, User must first give TraceAir an opportunity to resolve the dispute, which is accomplished by emailing TraceAir at firstname.lastname@example.org the following information: (1) User’s name, (2) User’s address, (3) a written description of the dispute, and (4) a description of the specific relief User seeks. If TraceAir does not resolve the dispute within 45 days after receiving User’s notification, then User may pursue the dispute in arbitration. User may pursue the dispute in a court only under the circumstances described below.
(d) Exclusions from Arbitration/Right to Opt Out. Notwithstanding the above, User or TraceAir may choose to pursue a dispute in court and not by arbitration if: (a) the dispute qualifies for initiation in small claims court; or (b) USER OPTS-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT USER FIRST CONSENTS TO THESE TERMS (the “Opt-Out Deadline”). User may opt-out of this Provision by emailing TraceAir at email@example.com the following information: (1) User’s name; (2) User’s address; (3) a clear statement that User does not wish to resolve disputes with TraceAir through arbitration. A decision to opt-out of this Provision will have no adverse effect on User’s relationship with TraceAir, but any opt-out request received after the Opt-Out Deadline will not be valid and User must pursue User’s dispute in arbitration or small claims court.
(e) Arbitration Procedures:
(f) Arbitration Award. The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
(g) Location of Arbitration. User or TraceAir may initiate arbitration in either the San Mateo County California or the federal judicial district that includes User’s billing address. In the event that User selects the latter, TraceAir may transfer the arbitration to San Mateo County California so long as TraceAir agrees to pay any additional fees or costs which the arbitrator determines User incurs as a result of the transfer.
(h) Payment of Arbitration Fees and Costs. So long as User places a request in writing prior to commencement of the arbitration, TraceAir will pay all arbitration fees and associated costs and expenses. But, User will still be responsible for all additional fees and costs that User incurs in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if User provides notice and negotiates in good faith with TraceAir as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that User is the prevailing party in the arbitration, User will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
(i) Class Action Waiver. Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both User and TraceAir specifically agree to do so following initiation of the arbitration. If User chooses to pursue the dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to User. Neither User, nor any other user of the TraceAir Platform can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
(j) No Judge or Jury In Arbitration. Arbitration does not involve a judge or jury. User understands and agrees that by accepting this Provision, User and TraceAir are each giving up the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, User and TraceAir might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that User would have if User went to court (e.g., the rights to both appeal and certain types of discovery) may be more limited or may also be waived.
(k) Severability. If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court.
(l) Continuation. This Provision shall survive the termination of these Terms and User’s discontinued use of the TraceAir Platform. Notwithstanding any provision in this Agreement to the contrary, TraceAir agrees that if it makes any change to this Provision (other than a change to the Notice Address), User may reject any such change and require TraceAir to adhere to the language as of the date User entered into this Agreement if a dispute between TraceAir and User arises.
15. 4 Publicity. TraceAir has the right to reference and use User’s name and trademarks and disclose the nature of the Services provided hereunder in each case in TraceAir business development and marketing efforts, including without limitation TraceAir’s web site.
15.5 Export. The TraceAir Platform utilizes software and technology that may be subject to United States and foreign export controls. User acknowledges and agrees that the Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the TraceAir Platform, User represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The TraceAir Platform may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. User agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. TraceAir and its licensors make no representation that the TraceAir Platform is appropriate or available for use in other locations. Any diversion of the User Data contrary to law is prohibited. None of the User Data, nor any information acquired through the use of the TraceAir Platform, is or will be used for nuclear activities, chemical or biological weapons, or missile projects.
15.6 General. User shall not assign its rights hereunder, or delegate the performance of any of its duties or obligations hereunder, whether by merger, acquisition, sale of assets, operation of law, or otherwise, without the prior written consent of TraceAir. Any purported assignment in violation of the preceding sentence is null and void. Subject to the foregoing, these Terms shall be binding upon, and inure to the benefit of, the successors and assigns of the parties thereto. There are no third-party beneficiaries to these Terms. Except as otherwise specified in these Terms, these Terms may be amended or supplemented only by a writing that refers explicitly to these Terms and that is signed on behalf of both parties. No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted. If any of these Terms is found invalid or unenforceable that term will be enforced to the maximum extent permitted by law and the remainder of the Terms will remain in full force. The parties are independent contractors and nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. These Terms constitute the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral. Except for User’s payment obligations hereunder, neither party shall be liable to the other party or any third party for failure or delay in performing its obligations under these Terms when such failure or delay is due to any cause beyond the control of the party concerned, including, without limitation, acts of God, governmental orders or restrictions, fire, or flood, provided that upon cessation of such events such party shall thereupon promptly perform or complete the performance of its obligations hereunder.
You may also write to us via postal mail at:
TraceAir Technologies Inc.
Redwood City, CA 94063