TERMS OF SERVICE
These Terms of Service (“Terms”) are a legal agreement between you (“you” or “Customer”) and Aitrak Ltd (“Aitrak”) regarding your access to and use of the Aitrak service (“Service”), including any updates, upgrades, and supplements thereto, and the Aitrak website located at www.aitrak.co (the “Site”).
By using the Service, you agree to be legally bound by these Terms. If you accept these Terms on behalf of a company or other legal entity that will use the Site and/or the Service, you represent and warrant that you have the authority to legally bind that entity to these Terms. “You,” “your,” and “Customer” then refer to that entity, and to every user associated with that entity.
“Affiliate” means any entity which is controlled by, in control of, or is under common control with a party to these Terms, where “control” means either the power to direct the management or affairs of the entity or ownership of 50% or more of the voting securities of the entity.
“Authorised Users” means Customer’s employees and contractors (such as media agencies or marketing consultants) who are acting for Customer’s benefit and on its behalf.
“Confidential Information” means code, inventions, know-how, product plans, inventions, and technical and financial information exchanged under these Terms, that is identified as confidential at the time of disclosure or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed.
“Order Form” means any Aitrak ordering documentation or online sign-up or subscription flow that references this Agreement.
“Subscription Term” means the initial term for the subscription to the Service, as specified on Customer’s Order Form(s), and each subsequent renewal term (if any).
1. SERVICES AND TERMS
Access to the Service is provided to you via the Site, and the use of the Service is governed by these Terms. Aitrak reserves the right to suspend or terminate the Service without notice. Aitrak may modify these Terms without prior notice, and such modifications will become effective immediately when posted on the Site (www.aitrak.co/service). You agree to review the posted Terms periodically to determine if modifications have been made. By continuing to use the Service after modifications are posted, you will be deemed to have accepted the updated Terms.
2. ACCOUNT INFORMATION
3. USER AND USAGE DATA
Subject to Aitrak’s confidentiality obligations concerning Confidential Information as stated in Section 14 certain information regarding your use of the Service (“Usage Data”) is captured and transmitted to Aitrak. This Usage Data may be collected and used by Aitrak to provide you with services and support, and for research, marketing, analysis, and testing purposes.
4. ACCOUNT REGISTRATION AND AUTHORISED USERS
If any Authorised User stops working for Customer, Customer must immediately terminate that person’s access to its account and any Aitrak Service. Customer will be responsible for any and all actions taken using its and its users’ accounts, passwords, or access credentials. Customer must notify Aitrak immediately of any breach of security or unauthorised use of its account. Accounts are granted to specific Customers and must not be shared with others.
5. USER REPRESENTATIONS AND WARRANTIES
You warrant and represent that as to any User Content you submit to Aitrak (i) you will not knowingly transmit any virus or other destructive or disruptive code, (ii) you have taken all reasonable measures to prevent the transmission to Aitrak of any virus or other destructive or disruptive code, (iii) all such User Content will be free of information, images, logos, trademarks, or other materials that may violate any applicable law or regulation, infringe or misappropriate any intellectual property right, or otherwise damage any person, entity, or property, and (iv) you have sufficient right, title, and interest to transmit, store, copy, use, and display all User Content.
6. ACCESSING THE SERVICE
You are solely responsible for obtaining and maintaining, at your own cost and expense, an Internet connection suitable for accessing and using the Site and the Service. YOU ACKNOWLEDGE THAT THE SERVICE, THE SITE, YOUR DATA, AND USER CONTENT LOCATED ON THE SITE MAY NOT BE AVAILABLE AT ALL TIMES AND WITHOUT INTERRUPTION. AITRAK WILL NOT BE RESPONSIBLE FOR LOSS OF SERVICE OR FUNCTIONALITY DUE TO SLOW OR UNRELIABLE INTERNET CONNECTIONS. ALTHOUGH AITRAK WILL MAKE REASONABLE COMMERCIAL EFFORTS, AITRAK DOES NOT REPRESENT OR WARRANT THAT USER CONTENT AND DATA MAINTAINED ON THE SITE WILL BE FREE OF LOSS, VIRUS, CORRUPTION, OR ERROR, OR THAT ANY SUCH USER CONTENT OR DATA WILL BE RETURNED TO YOU. TO AVOID LOSS OF USER CONTENT OR DATA, YOU ARE ADVISED TO MAINTAIN YOUR OWN BACKUP COPIES OF THE SAME.
If you request Aitrak to provide Service on your premises, you agree to provide a safe workplace for Aitrak employees and contractors and to provide access to your facilities, systems, and personnel as reasonably requested by Aitrak to perform the Service. You are responsible for providing and maintaining, at your own expense, an appropriate physical, electrical, systems, network, and security environment for any Service provided hereunder.
7. USAGE RIGHTS
Subject to all the terms and conditions of these Terms, Aitrak grants Customer a worldwide, non-exclusive, non-transferable, non-sublicensable right and license to access and use the Service for Customer’s internal business purposes, but only in accordance with these Terms. Customer may permit its Authorised Users to use the Service, provided their use is for Customer’s benefit only and remains in compliance with these Terms. Customer will be responsible and liable for all Authorised Users’ use and access and their compliance with the terms and conditions of these Terms.
Customer must not (and must not allow any third party to): (i) rent, lease, copy, transfer, resell, sublicense, lease, time-share, or otherwise provide access to the Service to a third party (except Authorised Users); (ii) incorporate the Service (or any portion of it) with any other site, product, or service; (iii) publicly disseminate information regarding the performance of the Service; (iv) modify or create a derivative work of the Service or any portion of it; (v) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or non-public APIs to any Service, except to the extent expressly permitted by applicable law and then only with advance notice to Aitrak; (vi) break or circumvent any security measures, rate limits, or usage tracking of the Service, or configure the Service (or any component thereof) to avoid sending events or impressions or to otherwise avoid incurring fees; (vii) access the Service for the purpose of building a competitive product or service or copying its features or user interface; (viii) use the Service for purposes of product evaluation, benchmarking, or other comparative analysis intended for publication without Aitrak’s prior written consent; or (ix) remove or obscure any proprietary or other notices contained in the Service, including the Aitrak logo from processed images.
All prepaid image credits are valid for 12 months from date of purchase and will then expire. Unused image credits will not be refunded.
8. FEES AND PAYMENT
Customer agrees to pay all fees in the currency and payment period specified in the applicable Order Form. Aitrak’s fees are exclusive of all taxes, and Customer must pay any applicable sales, use, VAT, GST, excise, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Aitrak. Customer will make tax payments to Aitrak to the extent amounts are appropriately included in Aitrak’s invoices. Aitrak sends invoices electronically, and invoices for the Service in advance as set out in the Order Form, and for additional charges, if applicable in the relevant Order Form, monthly in arrears. If Customer requires a Purchase Order number referenced on Aitrak’s invoice, Customer must promptly provide the Purchase Order number. If Customer does not promptly provide the Purchase Order number, Customer agrees to pay the invoice without a referenced Purchase Order Number. Some customers may have the option to pay by credit or debit card. If Customer is paying by credit or debit card, it authorizes Aitrak to charge fees automatically to Customer’s credit or debit card without invoice. Payments are non-refundable and non-creditable and payment obligations non-cancellable. Late payments may be subject to a service charge equal to the lesser of 1.5% per month of the amount due or the maximum amount allowed by law.
9. TERM AND TERMINATION
These Terms are effective until all Subscription Terms for the Service have expired or are terminated as expressly permitted in these Terms.
By executing an Order Form for purchase of the Service, Customer is agreeing to pay applicable fees for the entire Subscription Term. Customer cannot cancel or terminate a Subscription Term except as expressly permitted below. If no subscription start date is specified on the applicable Order Form, the subscription starts when Customer first obtains access to the Service. Each Subscription Term will automatically renew for additional successive periods unless: (i) otherwise stated on the applicable Order Form; or (ii) either party gives written notice of non-renewal at least thirty (30) days before the end of the then-current Subscription Term. Pricing for any Subscription Term renewal, new Order Form, or Order Form changes will be at Aitrak’s then-applicable rates.
Aitrak may suspend Customer’s access to the Service if Customer’s account is overdue. Aitrak may also suspend Customer’s access to the Service if it determines that: (a) Customer has breached any part of these Terms; or (b) suspension is necessary to prevent harm or liability to other customers or third parties, or to preserve the security, stability, availability or integrity of the Service. Aitrak will have no liability for taking action as permitted above. For the avoidance of doubt, Customer will remain responsible for payment of fees during any suspension period under this section. However, unless this Agreement has been terminated, Aitrak will cooperate with Customer to promptly restore access to the Service once it verifies that Customer has resolved the condition requiring suspension.
Either party may terminate these Terms, including any related Order Form, if the other party: (i) fails to cure any material breach of these Terms (including a failure to pay undisputed fees) within thirty (30) days after written notice detailing the breach; (ii) ceases operation without a successor; or (iii) if permitted by applicable law, seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any of these proceedings are instituted against that party (and not dismissed within sixty (60) days thereafter). Aitrak may also terminate these Terms or any related Order Forms immediately if Customer breaches any part of these Terms.
If Aitrak terminates these Terms for cause as provided above, any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by Customer. Except where these Terms specifies an exclusive remedy, all remedies under these Terms, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.
10. INTELLECTUAL PROPERTY
Aitrak and its licensor(s) own and retain all proprietary rights to the Site, the Service, and all associated software, copyrights, trademarks, brands, service marks, patents, or other proprietary rights under law, including all intellectual property conceived during and in the course of performing the Service. You are permitted to use the Site and its content only as specifically authorised in these Terms. Aitrak’s trademarks and/or service marks may not be used in connection with any product or service that is not provided by Aitrak, in any manner that is likely to cause confusion among customers or Users of the Site, tarnishes or dilutes the marks, or disparages or discredits Aitrak. The Service is the subject of pending patent application(s), and you are granted a limited right to use such Service only in conjunction with the Site and in accordance with the Terms.
11. OTHER SOFTWARE COMPONENTS
If you are accessing the Service through a mobile application or are utilizing application plug-ins or other software provided in conjunction with the Service, any additional terms and conditions accompanying such software will apply.
12. WARRANTY AND DISCLAIMER OF WARRANTIES
Aitrak warrants that the Service will be performed in accordance with any written documentation provided by Aitrak. If Aitrak has breached this warranty and you have notified Aitrak in writing stating the nature of that breach within thirty (30) days after the applicable Service was performed, then your exclusive remedy and Aitrak’s sole obligation will be, at Aitrak’s option, to re-perform the applicable Service or refund any amounts paid by you for non-conforming Service.
AITRAK DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THE SERVICE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, THE WARRANTY OF NON-INFRINGEMENT, AND ANY IMPLIED WARRANTY ARISING OUT OF A COURSE OF DEALING, A CUSTOM, OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, AITRAK MAKES NO WARRANTY THAT (A) THE SERVICE WILL MEET YOUR REQUIREMENTS, (B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE EFFECTIVE, ACCURATE, OR RELIABLE, OR (D) THE QUALITY OF ANY MATERIALS OR SERVICES OBTAINED BY YOU FROM THE SITE, FROM AITRAK, OR FROM ANY THIRD PARTIES’ WEBSITES TO WHICH THE SITE IS LINKED, WILL MEET YOUR EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS, OR DEFECTS. USE OF THE SERVICE, THE UPLOADING OF USER CONTENT AND ACQUISITION OF ANY MATERIALS OR CONTENT THROUGH THIS SITE OR THROUGH THIRD PARTIES’ WEBSITES TO WHICH THE SITE IS LINKED IS DONE AT YOUR OWN RISK.
13. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, AITRAK WILL NOT BE LIABLE FOR ANY DAMAGES INCLUDING, WITHOUT LIMITATION, DIRECT, SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF BUSINESS OR CONFIDENTIAL INFORMATION, LOSS OF PRIVACY, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE AND ANY RELATED PRODUCTS AND SERVICES, EVEN IF AITRAK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF AITRAK ARISING FROM THE SERVICE AND/OR THE SITE WILL NOT EXCEED ONE HUNDRED POUNDS (£100.00). BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATIONS OF LIABILITY, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Aitrak may disclose to you confidential information relating to the Service, including information related to Aitrak’s services that is capable of legal protection as know-how, a trade secret, and/or a patentable invention (“Aitrak Confidential Information”). You will provide Aitrak with User Content and Aitrak will provide you with results of analysis performed in the course of the Service (“User Confidential Information”). Customer or Aitrak Confidential Information will not include information that the receiving party can establish: (i) was in its possession before receipt from the disclosing party; (ii) is or becomes available to the public through no fault of the receiving party; (iii) is received in good faith by the receiving party from a third party and is not subject to a confidentiality obligation owed to that third party; or (iv) is independently developed by the receiving party.
Aitrak and you will not disclose the other’s Confidential Information to a third party without express written authorization from the other party. Both Aitrak and you as the receiving party will protect that Confidential Information using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorised disclosure of the Confidential Information as the receiving party uses to protect its own confidential information of a like nature. If a party is required by judicial or administrative process to disclose the other party’s Confidential Information to a third party, it will: (i) promptly notify the other party; (ii) allow the other party a reasonable time to oppose such process; and (iii) only provide such Confidential Information pursuant to an appropriate protective order that preserves the confidentiality of that Confidential Information, unless otherwise required by judicial or administrative process.
15. USER CONTENT
You grant Aitrak a worldwide, perpetual, non-exclusive, royalty-free, sub-licensable, and transferable license to use, reproduce, prepare derivative works of, and display the User Content in connection with the Service, and to provide the same or similar services to third parties, provided that Aitrak will use User Content only for analysis and to improve the quality of the Service. Aitrak, in performing the required technical steps to provide the Service to Users, may: (i) transmit or distribute User Content over various public networks and in various media; and (ii) make such changes to your User Content as are necessary to conform and adapt that User Content to the technical requirements of connecting networks, devices, services, or media. You agree to permit Aitrak to take these actions.
Aitrak indemnifies and holds you harmless from any actual liabilities, claims, expenses, or demands, including reasonable attorneys’ fees and costs, made by any third party, arising out of an allegation that your use of the Service infringes the intellectual property rights of a third party. Such indemnification shall be conditioned on you notifying Aitrak of such claim within 10 days of your first notice of the claim, permitting Aitrak to control the defense and/or settlement of such claim, and providing information and assistance for the defense. You shall have the right to retain counsel and participate in the defense and settlement of any such claim at your expense. Aitrak shall not be required to indemnify, defend, or hold you harmless from infringement claims to the extent the alleged infringement arises from: (i) Aitrak’s compliance with your designs, specifications, or instructions; (ii) User Content; (iii) combining of the Service with another component, device, and/or system; (iv) configuring or programming the Service to operate in any way not so configured or programmed at the time provided by Aitrak; or (v) use of the Service other than for its intended use or not consistent with the Terms.
You indemnify and hold Aitrak, its parents, subsidiaries, affiliates, officers, and employees harmless from any liabilities, claims, expenses, or demands, including reasonable attorneys’ fees and costs, made by any third party due to or arising out of: (i) your use or misuse of the Service; (ii) the violation of applicable laws, rules, regulations, or these Terms; or (iii) infringement by User Content of any intellectual property or any other right of any person or entity. Aitrak reserves the right, at its own expense, to assume the exclusive defense and control of any matter that is subject to indemnification by you, in which event you will cooperate in asserting any available defenses.
17. DISPUTE RESOLUTION
Any disputes arising from the Service or these Terms will be resolved in accordance with the laws of the United Kingdom, without regard to its conflicts of law rules. EACH PARTY IRREVOCABLY WAIVES ANY RIGHT TO A JURY TRIAL WITH RESPECT TO ANY CLAIMS OR DISPUTES RELATED TO THE SERVICE, THE SITE, OR THESE TERMS. ANY LAWSUIT OR OTHER ACTION, REGARDLESS OF FORM, INCLUDING AN ACTION FOR BREACH OF WARRANTY, MUST BE COMMENCED WITHIN ONE YEAR AFTER THE LATER OF: (A) THE DATE ON WHICH THE ALLEGED BREACH OF WARRANTY OR OTHER CAUSE OF ACTION OCCURRED; OR (B) THE DATE ON WHICH THAT PARTY KNEW OR SHOULD HAVE KNOWN OF SUCH WARRANTY CLAIM OR OTHER CAUSE OF ACTION.
18. INTERNATIONAL USE
The Site and the Services may be subject to export control regulations or the export control regulations of other countries. You agree to comply strictly with all applicable export control laws, and assume sole responsibility for obtaining all necessary export or re-export licenses.
No party has relied on any warranty or other statement not included in these Terms. No change or modification of these Terms will bind Aitrak unless set forth in a written document that references these Terms and is executed by an authorised representative of Aitrak. Failure by either party to require strict performance will not be a waiver of a party’s right subsequently to require such strict performance. All representations, warranties, indemnifications, and other covenants contained in these Terms will survive to the full extent necessary to protect the party in whose favor they run.
These Terms and any corresponding right to use the Site or Service may not be transferred or assigned without the express, written consent of Aitrak. The original of these Terms is in English. If it is translated into another language, the English language version will control.
All notices which are required or permitted will be given in writing and via any nationally or internationally recognised overnight delivery service to: Aitrak Ltd, 15 Holkham Studios, Longlands, NR23 1RU, United Kingdom.