Terms of Use Agreement

TRACELINK, INC. (“TRACELINK”) PROVIDES CERTAIN TRACELINK WEB-BASED SERVICES (THE “SERVICES”) AS SET FORTH HEREIN. PURSUANT TO THIS TERMS OF USE AGREEMENT (THE “AGREEMENT”), THE SERVICES ARE LICENSED (NOT SOLD) TO YOU (EITHER AS AN INDIVIDUAL, CORPORATION OR OTHER ENTITY). BY ACKNOWLEDGING “I AGREE”, YOU (OR ANY OTHER PARTY DESIGNATED OR AUTHORIZED BY YOU TO USE THE SERVICES) ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU SHOULD NOT USE THE SERVICES. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY OR SUCH OTHER LEGAL ENTITY.

BY ACCEPTING THE TERMS AND CONDITIONS OF THIS AGREEMENT YOU ARE PROVIDED ACCESS TO CERTAIN FREE SERVICES AS A MEMBER (“FREE MEMBER SERVICES”). OTHER INDIVIDUALS, INCLUDING BUT NOT LIMITED TO EMPLOYEES, CONSULTANTS, CONTRACTORS, AGENTS OR THIRD PARTIES WITH WHICH YOU TRANSACT BUSINESS MAY PROVIDE YOU ACCESS TO SERVICES REQUIRING SUBSCRIPTION FEES (“FEE BASED SERVICES”) UNDER A PILOT PERIOD (“SERVICES PILOT PERIOD”) OR A DESIGNATED SERVICES TERM (THE “SUBSCRIPTION TERM”). AS A MEMBER USING SUCH SERVICES, YOU ARE NOT RESPONSIBLE FOR THE SUBSCRIPTION FEES FOR THE SERVICES YOU DID NOT LICENSE.

THIS AGREEMENT GOVERNS YOUR LICENSE OF THE SERVICES FOR THE SERVICES PILOT PERIOD WHICH IS PROVIDED AT NO CHARGE. THE DURATION OF THE SERVICES PILOT PERIOD WILL BE PROVIDED AT THE TIME YOU INITIATE SUCH PILOT.

IN THE EVENT YOU PURCHASE A LICENSE FOR FEE BASED SERVICES FOR A DESIGNATED SUBSCRIPTION TERM, THIS AGREEMENT SHALL ALSO GOVERN THE LICENSE OF SUCH SERVICES.

THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT WITH RESPECT TO THE LICENSE AND USE OF THE SERVICES BETWEEN TRACELINK AND YOU.

1. LICENSE OF SERVICES

Subject to the terms and conditions of this Agreement, TraceLink hereby grants to You the non-exclusive and non-transferable right for Free Member Services, and Fee Based Services during the applicable Services Pilot Period or Subscription Term to access and use such Services solely for Your internal business purposes and for the purposes set forth in this Agreement. All right, title to and interest (including all intellectual property rights) in the Services and copies thereof remains exclusively with TraceLink.

2. SERVICES PILOT PERIOD

TraceLink will license the Fee Based Services to You at no charge for a designated Services Pilot Period. Such Services Pilot Period shall automatically terminate on the designated expiration date.

3. SUBSCRIPTION TERM

You may purchase a license for one or more Fee Based Services, and each such Service shall have a Subscription Term as designated pursuant to the TraceLink subscription process. The Subscription Term shall commence on the designated date and shall continue for the Subscription Term, unless terminated as provided herein. Upon the expiration of the initial Subscription Term, such Subscription Term shall automatically extend for additional Subscription Terms of the same number of months as the initial Subscription Term or an additional Subscription Term selected by You. You may cancel the automatic renewal of the Subscription Term or change the duration of Your Subscription Term by using the Manage Subscriptions functionality of the Services.

4. MEMBERS

You may authorize Members to use the Fee Based Services You license and such Members shall include, but not be limited to, employees, consultants, contractors, agents or third parties with which You transact business. You may authorize additional Members or remove certain Members from a TraceLink ProcessLink, at Your sole option.

5. DOCUMENTATION

TraceLink provides on its website its then current documentation in conjunction with Your use of the Services.

6. TERMINATION

TraceLink may terminate this Agreement (i) if You breach any material obligations under this Agreement or the TraceLink Privacy and Security Policy and such breach is not cured within ten (10) days after written notice of such breach; or (ii) if You become the subject of a petition in bankruptcy or any other proceeding relating to an assignment for the benefit of creditors, insolvency, receivership or liquidation.

In the event of a termination of this Agreement by You without cause, or a termination of this Agreement by TraceLink for breach by You of this Agreement, You shall not be eligible for a refund for Services then remaining for the applicable Subscription Term and You shall pay any applicable fees due prior to the effective date of termination.

Upon the effective date of termination of this Agreement, You shall immediately cease any and all use of the Services. Any expiration or termination of this Agreement shall not modify or alter any right or obligation of a party hereto which arose prior to such expiration or termination.

7. YOUR RESPONSIBILITIES

You shall not use the Services for the benefit of any other third party or attempt to reverse engineer or decompile the Services. You shall not create derivate works based on the Services; copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes; access the Services in order to build a competitive product or service; or, access such Services for any benchmarking purposes.

You shall be solely responsible for the accuracy, quality, integrity and legality of Your own data and of the means by which You acquired Your own data; use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify TraceLink promptly of any such unauthorized access or use; and use the Services only in accordance with this Agreement, the documentation and applicable laws and regulations. You shall not sublicense, sell, resell, rent or lease the Services; use the Services to store or transmit malicious code, infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; or attempt to gain unauthorized access to the Services or their related systems or networks.

8. YOUR OBLIGATIONS

Services fees are at TraceLink’s then current charges and are exclusive of all federal, state, municipal, and other governmental excise, sales, use, value added, and other taxes now in force or enacted in the future. You agree to pay on or before their due date all such taxes, which arise out of or in connection with the Services or this Agreement, excluding taxes based on TraceLink’s net income.

Subject to credit approval, terms of payment for invoices are in US Dollars net thirty (30) days after the date of TraceLink’s invoice. In the event TraceLink authorizes payment by a valid credit card acceptable to TraceLink, You will provide TraceLink with valid and updated credit card information. Your credit card account will be charged at the time of Your initial order for Fee Based Services and, if applicable, upon the commencement of each additional Subscription Term.

Services fees are payable in advance, pursuant to the applicable Subscription Term. Any amount payable to TraceLink and not paid when due shall bear interest from the due date at the lesser of the rate of one (1%) percent per month or the maximum rate permitted by law. All costs of collection, including reasonable attorneys’ fees, shall be paid by You.

ALL SERVICES FEES ARE NON-REFUNDABLE.

9. DISCLAIMERS

THE SERVICES ARE PROVIDED “AS IS”. TRACELINK DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR ANY OTHER WARRANTIES, INCLUDING THOSE ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. IN NO EVENT DOES TRACELINK WARRANT THAT THE OPERATION OF ANY SERVICES SHALL BE UNINTERRUPTED OR ERROR FREE. ANY DATA YOU ENTER INTO THE SERVICES DURING A SERVICES PILOT PERIOD OR A SUBSCRIPTION TERM SHALL BE PERMANENTLY LOST AND/OR DELETED UPON THE EXPIRATION OR TERMINATION OF THE APPLICABLE SERVICES PILOT PERIOD OR SUBSCRIPTION TERM.

10. LIMITATION OF LIABILITY

IN NO EVENT SHALL TRACELINK’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER FOR THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE OF ANY CLAIM.

IN NO EVENT SHALL TRACELINK HAVE ANY LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT TRACELINK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11. GENERAL

11.1 Commercial Computer Software. If any Services are acquired by or on behalf of an agency or instrumentality of the United States government, You acknowledge and agree that such Services are "commercial computer software" or "commercial computer software documentation" developed at private expense and that the government's rights with respect to such Services shall be as set forth in this Agreement, pursuant to FAR § 12.212(a) and/or DFARS § 227.7202-1(a), as amended and as applicable.

11.2 Force Majeure. No default, delay or failure to perform on the part of either party, excluding Your payment obligations, shall be considered a breach of this Agreement if such default, delay or failure to perform is due to causes beyond the reasonable control of the party charged with a default, including, but not limited to civil disturbances, actions of governmental authorities, war, embargoes, acts of God or the public enemy.

11.3 Choice of Law. This Agreement and all claims related to it, its execution or the performance of the parties under it, shall be construed and governed pursuant to the laws of the Commonwealth of Massachusetts, without regard to its conflict of law provisions. The parties submit to the exclusive jurisdiction of the courts, both federal and state, located in the Commonwealth of Massachusetts. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

11.4 Export Laws. You shall comply with the export control laws or regulations of the United States or other export control laws, rules or regulations, as applicable.

11.5 Waiver and Amendment. No waiver or failure to enforce any term, condition or right under this Agreement by either of the parties hereto on any occasion shall be construed to be a waiver of such term, condition or right on any other occasion. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted.

11.6 Assignment. You may not assign this Agreement without the prior written consent of TraceLink. TraceLink may, without Your consent, assign the right to monies due or becoming due. TraceLink may also, without Your consent, assign this Agreement to an affiliate or assign this Agreement in the event of a sale of all or substantially all of TraceLink’s assets or stock.

11.7 Independent Contractors. The parties are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties.

11.8 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

11.9 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law or unenforceable, the provision shall be modified and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

11.10 Notices. Any notices pursuant to this Agreement shall be to the email address that You provided to TraceLink. Any notice to TraceLink by You shall be to notices@tracelink.com or to another designated email address of which TraceLink notifies You from time to time.

11.11 Anonymous Data. TraceLink may accumulate and aggregate certain anonymous statistical and related data in order to improve the performance and functionality of its Services, to develop new products and/or Services or to analyze the usage of TraceLink’s Services. TraceLink may use aggregated anonymous data for such purposes as TraceLink, in its sole discretion, deems to be appropriate.