ReposiTrak

These Terms and Conditions and the Subscription Agreement to which they are attached (this “Agreement “), between ReposiTrak, Inc. (“ReposiTrak “, “we “, “us “, or “our “) and the Client identified in the Subscription Agreement (“you“) govern your access to and use of the ReposiTrak Services.

  1. The Services

1.1. ReposiTrak Services. The ReposiTrak Services are those services set forth in the Services Description of this Agreement which you accept or acknowledge by clicking a box indicating acceptance of a specific Service when it is presented to you when accessing the Services online or in a written agreement (the “ReposiTrak Services “).

1.2. Accessing the Cloud-Based Services.

1.2.1. Access to Cloud-Based Services. Subject to and conditioned on your and your Authorized Users’ compliance with the terms and conditions of this Agreement, during the Term, we will use commercially reasonable efforts to provide you and your Authorized Users with access to the cloud-based Services, for which you subscribed and paid to access, twenty-four (24) hours per day, seven (7) days per week, fifty-two (52) weeks per year, except for: (a) Scheduled Downtime, (b) Service downtime or degradation due to a Force Majeure Event, (c) any other circumstances beyond our reasonable control, including your or any Authorized User’s use of Third Party Materials, misuse of the Services or use of the Services other than in compliance with this Agreement and the Documentation, or (d) any suspension or termination of your or any Authorized User’s access to or use of the Services as permitted by this Agreement.

1.2.2. Access Credentials and Authorized Users. You and your Authorized Users will create your own password(s), and may receive additional Access Credentials, which must be used in order to access and use the Services. You agree that any information you provide in creating login accounts is complete and accurate, and you agree to keep it up to date. For example, we provide some notices by email to your login account, and you agree to keep that email current and valid as a method for providing notices under this Agreement.

1.2.3. Controls and Additional Responsibilities.

1.2.3.1. Controls. You will: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of User Data, including the uploading or other provision of User Data for the Services.

1.2.3.2. Responsibility. You have and will retain sole responsibility for: (a) all User Data, including its content and use (including any use by us in accordance with this Agreement); (b) all information, instructions and materials provided by or on behalf of you and any Authorized User in connection with the Services; (c) your information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by you or through the use of third-party services (“Your Systems“); (d) the security and use of your and your Authorized Users’ Access Credentials; and (e) all access to and use of the Services and Materials directly or indirectly by or through Your Systems or your or your Authorized Users’ Access Credentials, with or without your knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.

1.2.4. Program Data. The Services may include us providing you with access to certain Program Data in connection with your access to the applicable Services. Provided that you remain in compliance with this Agreement, we hereby grant to you the non-exclusive, non-transferable, revocable license to access and use, during the Term, the Program Data for your internal business operations and analysis only, and you may not sublicense, distribute, sell or otherwise transfer the Program Data, except that you may disclose Program Data to your third-party consultants, solely for use in connection with your internal business. Any consultant receiving Program Data will be subject to the restrictions contained in this Agreement, and you will be responsible for ensuring that each consultant which obtains Program Data is aware of and complies with the terms of this Agreement.

1.2.5. Technical & Maintenance Support Services. We will provide you with technical and maintenance support services in accordance with our Technical & Support Infrastructure Manual found on our website, as amended from time to time.

1.3. Services and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:

1.3.1. Control. We have and will retain sole control over the operation, provision, maintenance and management of the Services and Materials, including the: (a) Systems; (b) location(s) where any of the Services are performed; (c) selection, deployment, modification and replacement of the Services Software; and (d) performance of Services maintenance, upgrades, corrections and repairs; and

1.3.2. Sole Responsibility. You have and will retain sole responsibility for all access to and use of the Services and Materials by any Person by or through Your Systems or any other means controlled by you and your Authorized Users, including any: (i) information, instructions or materials provided by any of them to the Services or us; (ii) results obtained from any use of the Services or the Materials; and (iii) conclusions, decisions or actions based on such use.

1.4. Changes. We reserve the right, in our sole discretion, to make any changes to the Services and Materials that we deem necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Services to our customers, (ii) the competitive strength of or market for the Services or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable law.

1.5. Suspension or Termination of Services. We may, directly or indirectly, and by use of a Disabling Device or any other lawful means, suspend, terminate or otherwise deny your, any Authorized User’s or any other Person’s access to or use of all or any part of the Services or Materials, without incurring any resulting obligation or liability, if: (a) we receive a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires us to do so; or (b) we believe, in our reasonable discretion, that you or any Authorized User: (i) has failed to comply with any term of this Agreement; (ii) has accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any Documentation; or (iii) you or any Authorized User is or has been involved in any fraudulent, misleading or unlawful activities related to the Services; (c) your use of the Services disrupts, or threatens to disrupt, use of the Service by other subscribers; or (d) this Agreement expires or is terminated. This Section 1.5 does not limit any of our other rights or remedies whatsoever, including any rights or remedies at law, in equity or under this Agreement.

1.6. Fees. You will pay us the fees for the ReposiTrak Services as set forth in this Subscription Agreement. You represent and warrant that you have all necessary authorization to purchase and will pay for the Services.

  1. Data Privacy and Confidentiality

2.1. Privacy.

2.1.1. Data Protection Commitment. ReposiTrak shall Process Personal Data pursuant to all applicable privacy and data protection laws, regulations and requirements

2.1.2. Retention of Data. Personal Data shall be retained by ReposiTrak for a reasonable time in accordance with its provision of Services. Upon request, ReposiTrak shall provide specific information on how its retention policy applies to the Personal Data provided by you. Upon termination of ReposiTrak’s Services under this Agreement, and upon request by you, ReposiTrak shall return the Personal Data provided by you if such request is made to ReposiTrak within thirty (30) days. After thirty (30) days, ReposiTrak shall perform its standard delete function. The Personal Data will only be further retained as allowed under applicable law or required under regulatory provisions mandating record retention.

2.2. Confidentiality.

2.2.1. The parties acknowledge the need to share Confidential Information under this Agreement and each mutually agrees it will not use or disclose any Confidential Information received from the other party, other than as expressly permitted under the terms of this Agreement or as expressly authorized in writing by the Disclosing party.

  1. Accessing and Using the Website and Services.

3.1. Limitations. You will not, and will not enable or knowingly allow any Person to access or use the Services or Materials except as expressly permitted by this Agreement and the Documentation. You will not use the Services for any purposes beyond the scope of the access granted in this Agreement. You will not at any time, directly or indirectly, and will not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

3.2. Corrective Action and Notice. If you become aware of any actual or threatened activity prohibited by Section 3.1, you will, and will cause your Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify us of any such actual or threatened activity.

  1. Intellectual Property Rights

4.1. Consent to Use User Data . You hereby irrevocably grant all non-exclusive licenses, permissions and rights in or relating to User Data to us and the Personnel as are necessary or useful to perform the Services.

4.2. Reservation. Except as otherwise provided herein, this Agreement does not grant either party any rights, title or interest, implied or otherwise, to the other’s IP Rights. Except as expressly set forth in this Agreement, you own all IP Rights in your User Data and, as between us, we own all IP Rights in the Website, Services, our trademarks and Data. If you provide any suggestions, feedback, or improvements to the Website, and Services, we will have the right to use and have others use such suggestions, feedback, and improvements for any purpose.

  1. Suspension and Termination

5.1. Suspension of Services. In the event of non-payment for Services or of other fees due to ReposiTrak, after providing you with notice of non-payment, we also may temporarily suspend or terminate your access to the Services or withhold further performance of the Services

5.2. Termination. Either party may terminate this Agreement effective on written notice to the other party, if the other party breaches any of its obligations under Section 3. Moreover, either party may terminate this Agreement effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; and (c) either party may terminate this Agreement effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

5.3. Effect of Termination.

5.3.1. Upon expiration or termination of this Agreement for any reason (a) we will make your User Data available to you in accordance with Section 5.4 and return any documents to you within a reasonable time after we receive your written request, (b) we may disable access to the Services and Materials by you and your Authorized Users, and all applicable licenses and other rights granted to you and your Authorized Users will immediately terminate, and (c) you will immediately cease all use of the Services, Materials and our Confidential Information, and (i) within ten (10) days return to us, or at our written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on Materials or our Confidential Information; and (ii) permanently erase all Materials and our Confidential Information from all systems you directly or indirectly control; and (iii) certify to us in a signed written instrument that you have complied with the requirements of this Section 5.3.

5.4. Your Access to User Data after Termination. Except in the case of suspension of the Services or termination of this Agreement for nonpayment by you, we will make your User Data available to you for up to ninety (90) days after termination. After that ninety (90) day period, we will have no further obligation to make such data available to you and, except for the information we may maintain in accordance with our document retention policies and applicable law, your User Data will be deleted consistent with our data retention policies and procedures. Should you desire longer term storage of your data, archival services are available.

5.5. Survival. This Section 5.5 and Sections 4, 6, 7, 8, 9, and Appendix A will survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

  1. Disclaimers

6.1. Subject to your satisfaction of the requirements of the Agreement, we will use commercially reasonable efforts to make the Services available during the Term. THE FOREGOING WARRANTY IS EXCLUSIVE. THE SERVICES AND MATERIALS ARE PROVIDED “AS IS.” NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR ELSEWHERE TO THE CONTRARY, WE MAKE NO WARRANTIES, AND HEREBY DISCLAIM ALL WARRANTIES, OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SERVICES AND THE MATERIALS OR THAT THE SERVICES OR MATERIALS WILL BE UNINTERRUPTED, ERROR FREE OR THAT ANY CONTENT, INCLUDING YOUR USER DATA, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE DISCLAIM ALL WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE OR ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY OF ANY KIND THAT THE SERVICES OR MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET THE REQUIREMENTS OF YOU, ANY AUTHORIZED USER OR ANY OTHER PERSON, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS AND PRODUCTS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS OR PRODUCTS IS STRICTLY BETWEEN YOU AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS OR PRODUCTS.

6.2. YOU ACKNOWLEDGE AND AGREE THAT NEITHER US NOR ANY SERVICES, THIRD-PARTY SERVICES, OR MATERIALS PROVIDED BY US WILL BE CONSTRUED AS US PROVIDING BUSINESS, FINANCIAL, INVESTMENT, LEGAL OR OTHER ADVICE TO YOU, USERS, OR ANY THIRD PARTY. EACH PARTY WILL BE SOLELY AND INDIVIDUALLY RESPONSIBLE TO COMPLY WITH ALL LAWS AND REGULATIONS RELATING TO ITS RESPECTIVE BUSINESS OPERATIONS.

  1. Mutual Indemnification

7.1. Our Indemnities.

7.1.1. We will defend, indemnify and hold you and each of your officers, directors, employees, agents, successors and assigns harmless against any Losses arising from or relating to a third-party claim alleging that your use of the Services infringes or misappropriates any U.S. patent, copyright, or trade secret of a third party. The foregoing indemnity does not extend to claims arising from or relating to (i) third-party services or claims covered by your indemnification obligations under Section 7.2 of this Agreement, (ii) negligence or more culpable act or omission (including recklessness or willful misconduct) by a Person other than us, (iii) your breach of this Agreement, (iv) use of the Services in a manner not authorized by this Agreement or that does not conform with any usage instructions or guidelines in the Documentation; (iv) use of the Services in combination with any products, materials, equipment or services supplied by a Person other than us if the infringement or misappropriation would have been avoided by the use of the Services not so combined, or (iii) any modifications or changes to the Services by or on behalf of Persons other than us if the infringement would have been avoided without such modification or change. In the event of an infringement claim or threatened claim, we at our sole option, may: (a) revise the Services so that they are no longer infringing, (b) obtain the right for you to continue using the Services, or (c) terminate this Agreement upon thirty (30) days prior written notice and refund any unused fees you have prepaid to us.

7.2. Your Indemnity. You will defend, indemnify and hold us, our Affiliates, and our Subcontractors, and each of the foregoing’s officers, directors, employees, agents, successors and assigns harmless against any Losses arising from or relating to a third party claim (a) relating to your User Data, including any use of User Data by or on behalf of us, our Subcontractors and our Affiliates in accordance with this Agreement; (b) relating to the use of the Services by you, any Authorized User, or any third party on behalf of you or any Authorized User, in an unlawful manner or in violation of this Agreement or the Documentation; or (c) that the combination any products, materials, equipment or services supplied by a Person other than us and used with the Services infringes or misappropriates such third party’s intellectual property rights.

7.3. Procedures. The party seeking to be indemnified (the “Indemnified Party“) will give prompt written notice to the other party (the “Indemnifying Party“) of any claim for which indemnification may be required under this Agreement. Neither the Indemnifying Party nor the Indemnified Party will settle or dispose of any such matter in any manner that would adversely affect the rights or interests of the other party (including the obligation to indemnify hereunder) without the prior written consent of the other party.

7.4. Sole Remedy. You understand and acknowledge that the provisions set forth in this Section 7 REPRESENT THE SOLE AND EXCLUSIVE LIABILITY OF US AND YOUR EXCLUSIVE REMEDY FOR ANY TYPE OF CLAIM DESCRIBED IN THIS SECTION.

  1. Limitation of Liability

8.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL YOU OR WILL WE OR ANY OF OUR AFFILIATES, SUBCONTRACTORS, LICENSORS OR PRODUCT OR SERVICE PROVIDERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNIFICATION AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT, OR DIMINUTION IN VALUE; (B) LOSS RELATING TO A FAILURE TO MEET THE REQUIREMENTS OF OR COMPLY WITH APPLICABLE LAW; (C) ANY PROCUREMENT OF A SUBSTITUTE SERVICE OR GOODS OR SERVICES, (D) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS MADE BY EITHER OF US IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OR ACCESS TO THE SERVICES; OR (E) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

8.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF YOU OR US OR ANY OF OUR AFFILIATES, SUBCONTRACTORS, LICENSORS OR PRODUCT OR SERVICE PROVIDERS UNDER OR IN CONNECTION WITH THIS AGREEMENT AND/OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNIFICATION AND OTHERWISE, EXCEED THE GREATER OF THE FEES PAID OR PAYABLE TO US BY YOU UNDER THIS AGREEMENT, OVER THE FIRST TWENTY-FOUR (24) MONTHS OF ITS TERM.

  1. Miscellaneous

9.1. Governing Law Arbitration; Venue. . The validity, construction and interpretation of this Agreement will be governed by the laws of the State of Utah. Except for the right of either party to apply to a court for a temporary restraining order, a preliminary injunction, or other equitable relief, any controversy, claim or action arising out of or relating to this Agreement, including the determination of the scope or validity of this section, will be settled by binding arbitration in Salt Lake County, Utah before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the award may be entered in any court having jurisdiction. The parties’ consent to the jurisdiction and venue of the federal and state courts located in Salt Lake County, Utah for any action permitted under this Section 9.1, challenge to this Section 9.1, or judgment upon the award entered.

9.2. Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement, and the transactions contemplated hereby and thereby.

9.3. Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach of a party’s obligations under Section 2 or 3 of this Agreement would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agree that, in the event of such breach or threatened breach, the other party will be entitled to petition a court of competent jurisdiction for equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any such court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

9.4. Assignment. You will not assign or otherwise transfer any of your rights, or delegate or otherwise transfer any of your obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without our prior written consent, except that you may assign this Agreement, without consent but upon written notice to us, in connection with any merger, consolidation or reorganization involving you. Any purported assignment, delegation or transfer in violation of this Section 9.4 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

9.5. Force Majeure. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of thirty (30) days or more.

9.6. Notices. (A) To You: We may provide any notice to you under this Agreement by email to you at the email address then associated with your account and will be effective upon posting or sending. We may also provide notice to you under this Agreement by (3) certified or registered mail, return receipt requested or (4) U.S. express mail, or national express courier with a tracking system, to the address then associated with your account, and will be effective upon delivery to your address then associated with your account. Accordingly, it is your responsibility to keep your contact information current. You will be deemed to have received any notice sent to the contact information associated with your account whether or not you actually receive it; (B) To Us: Notices given to us must be (1) by email to us at the following email address legal@parkcitygroup.com, or (2) in writing and delivered by (i) certified or registered mail, return receipt requested; or (ii) U.S. express mail, or national express courier with a tracking system, to Legal Dep’t., ReposiTrak, 5282 S Commerce Dr., Ste. D-292, Murray, UT 84107. Notices will be deemed given on the day actually received by us.

9.7.  Export Compliance. You will comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any User Data outside the US.

9.8. Waiver. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving.

9.9. Third Party Beneficiaries. There are no third-party beneficiaries under this Agreement.

9.10. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

9.11. Entire Agreement. This Agreement, constitutes the entire agreement between us and you with respect to the subject matter hereof; it supersedes all prior negotiations, agreements, and undertakings between the parties with respect to such subject matter.

 

Appendix A

Definitions

  1. “Access Credentials” means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
  2. “Affiliate” means, with respect to any person or entity, any other person or entity that controls, is controlled by or is under common control with such person or entity. For purposes of this Agreement, a person or entity shall be in “control” of an entity if it owns or controls at least fifty percent (50%) of the equity securities of the subject entity entitled to vote in the election of directors (or, in the case of an entity that is not a corporation, for the election of the corresponding managing authority), or otherwise has the power to control the management and policies of such other entity.
  3. “Aggregated Statistics” means, notwithstanding anything to the contrary in this Agreement, we may monitor your use of the Services and collect and compile Aggregated Statistics. As between you and us, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by us. You acknowledge that we may compile Aggregated Statistics based on User Data input into the Services. You agree that we may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify your Confidential Information. “Aggregated Statistics” means data and information related to your use of the Services that is used by us in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
  4. “Authorized User” means your employees, consultants, contractors or agents who (a) you identify when setting up your account using the Services, and (b) who have a bona fide need to access and use the Services.
  5. “Confidential Information“means any and all information disclosed by either party (the “Discloser“) to the other (the ” Recipient“), which is marked “confidential” or “proprietary” or which should reasonably be understood by the Recipient to be confidential or proprietary, including, but not limited to, User Data, any information that relates to business plans, services, marketing or finances, research, product plans, products, developments, inventions, processes, designs, drawings, engineering, formulae, markets, software (including source and object code), hardware configuration, computer programs, and algorithms of the Discloser. Our Confidential includes all Materials and the financial terms and existence of this Agreement.
  6. “Data” means data about the configuration and use of the Services, and information provided to you only via login at the Website other than as derived from User Data.
  7. “Disabling Device” means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by us or our designee to disable access to or use of the Services automatically with the passage of time or under the positive control of us or our designee.
  8. “Documentation” means any manuals, instructions or other documents or materials that we provide or make available to you in any form or medium and which describe the functionality, components, features or requirements of the Services or Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
  9. “Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby, or (b) prevent you or any Authorized User from accessing or using the Services or Systems as intended by this Agreement. Harmful Code does not include any Disabling Device.
  10. “IP Rights” means all current and future worldwide intellectual property rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights.
  11. “Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers.
  12. “Materials“means the Documentation, Systems, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by us in connection with the Services or otherwise comprise or relate to the Services or Systems. For the avoidance of doubt, Materials include Aggregated Statistics, Program Data and any information, data or other content derived from our monitoring of your access to or use of the Services, but do not include User Data.
  13. “Personal Data” means any information relating to an identified or identifiable natural person (‘data subject’).
  14. “Personnel” means all individuals involved in the performance of Services as employees, agents or independent contractors of us or any Subcontractor.
  15. “Processing” means certain data that we, in our sole discretion, make accessible to customers through the Services. Program Data is our Confidential Information.
  16. “Program Data” means certain data that we, in our sole discretion, make accessible to customers through the Services. Program Data is our Confidential Information.
  17. “Scheduled Downtime“means scheduled downtime for routine maintenance of the Services.
  18. “Services” means the services and items we provide under this Agreement. You may only access the specific Services that you specifically subscribe to when entering into this Agreement. The main functions of the Services are described in the Documentation.
  19. “Systems“means the information technology infrastructure used by or on behalf of us in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by us or through the use of third-party services.
  20. “Territory” means the United States.
  21. “Third Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not proprietary to us.
  22. “User Data” means the information, data and content submitted by Users into the Services, including information derived from such submissions, account information, credit card information, bank account information, accounting information, transactions and reports.
  23. “Website(s)“means parkcitygroup.com, repositrak.com or any subsequent website used by us to provide the Services.