Last Modified: 12/6/2024

This terms-of-service agreement is a binding contract between you (the “Customer,” “you,” or “your”) and Traffic Masters LLC (the “Provider,” “we,” or “us”). This agreement governs your access to and use of the Services.

This agreement takes effect when you click the “I Accept” button below or by accessing or using the Services (the “Start Date”). By clicking on the “I Accept” button below or by accessing or using the Services you (1) acknowledge that you have read and understand this agreement, (2) state that you have the right, power, and authority to enter into this agreement and, if entering into this agreement for an organization, that you have the legal authority to bind that organization, and (3) accept this agreement and agree that you are legally bound by its terms.

If you do not agree to these terms, please select the “I Decline” button below. If you do not accept these terms, you must not access or use the Services.

1. Definitions. In this agreement, the following definitions apply:

“Authorized User” means the Customer and the Customer’s employees, consultants, affiliates, contractors, and agents (1) who are authorized by the Customer to access and use the Services under the rights granted to the Customer under this agreement and (2) for whom access to the Services has been purchased under this agreement.

“Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or for the Customer or any other Authorized User through the Services.

“Documentation” means the Provider’s end user documentation relating to the Services available at https://clicktracker.zendesk.com/hc/en-us.

“Provider IP” means the Services, the Documentation, and all intellectual property provided to the Customer or any other Authorized User in connection with the preceding. The Provider IP includes Aggregated Statistics and any information, data, or other content derived from the Provider’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data.

“Services” means the services provided by the Provider under this agreement that are detailed on the Provider’s website available at https://clicktracker.com/.

“Third-Party Products” means any products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Services.

2. Access and Use.

   1. Provision of Access. Subject to and conditioned on your payment of the Fees and compliance with all other terms of this agreement, the Provider hereby grants you a revocable, nonexclusive, nontransferable, nonsublicensable, limited right to access and use the Services during the term of this agreement solely for your internal business operations by Authorized Users in accordance with the terms of this agreement. The Provider shall provide you the necessary passwords and access credentials to allow you to access the Services.

   2. Documentation License. Subject to the terms contained in this agreement, the Provider hereby grants you a nonexclusive, nonsublicensable, nontransferable license for Authorized Users to use the Documentation during the term of this agreement solely for your internal business purposes in connection with use of the Services.

   3. Use Restrictions. You shall not, and shall not permit any Authorized Users to, use the Services, any software component of the Services, or Documentation for any purposes beyond the scope of the access granted in this agreement. You shall not, directly or indirectly, and shall not permit any Authorized Users to (1) copy, modify, or create derivative works of the Services, any software component of the Services, or Documentation, in whole or in part, (2) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation except as permitted under this agreement, (3) 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, (4) remove any proprietary notices from the Services or Documentation, or (5) 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 law, regulation, or rule.

   4. Aggregated Statistics. Despite anything to the contrary in this agreement, the Provider may monitor the Customer’s use of the Services and collect and compile data and information related to the Customer’s use of the Services to be used by the Provider in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services (“Aggregated Statistics”). The Customer acknowledges that the Provider will own all interest in the Aggregated Statistics, including all intellectual property rights in the Aggregated Statistics. You acknowledge that the Provider may compile Aggregated Statistics based on Customer Data input into the Services. The Provider may (1) make Aggregated Statistics publicly available in compliance with law, and (2) use Aggregated Statistics to the extent and in the manner permitted under law, on condition that the Aggregated Statistics do not identify the Customer or the Customer’s Confidential Information.

   5. Reservation of Rights. The Provider reserves all rights not granted to the Customer in this agreement. Except for the limited rights and licenses granted under this agreement, nothing in this agreement grants, by implication, waiver, estoppel, or otherwise, to the Customer or any third party, any intellectual property rights or other interest in the Provider IP.

   6. Suspension. Despite anything to the contrary in this agreement, the Provider may temporarily suspend the Customer’s and any other Authorized User’s access to any portion or all the Services if (1) the Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP, (B) the Customer’s or any other Authorized User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of the Provider, (C) the Customer or any other Authorized User is using the Provider IP for fraudulent or illegal activities, (D) subject to law, the Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding, or (E) the Provider’s provision of the Services to the Customer or any other Authorized User is prohibited by law, (2) any vendor of the Provider has suspended or terminated the Provider’s access to or use of any third-party services or products required to enable the Customer to access the Services, or (3) in accordance with section 4 (any such suspension described in clauses (1), (2), or (3), a “Service Suspension”). The Provider shall use reasonable efforts to provide written notice of any Service Suspension to the Customer and to provide updates regarding resumption of access to the Services after any Service Suspension. The Provider shall use reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Services Suspension is cured. The Provider will not be liable for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that the Customer or any other Authorized User may incur as a result of a Service Suspension.

3. Customer Responsibilities.

   1. Acceptable Use Policy. The Services must not be used for unlawful, fraudulent, offensive, or obscene activity, as further described and set out in the Provider’s acceptable use policy (“AUP”) located at https://clicktracker.com/p/acceptable_use_policy. You shall comply with all terms of this agreement, all laws, rules, and regulations, and all guidelines, standards, and requirements that may be posted on https://clicktracker.com/ or https://clicktracker.zendesk.com/hc/en-us on one or more occasions, including the AUP.

   2. Account Use. You are responsible and liable for all uses of the Services and Documentation resulting from access provided by you, directly or indirectly, whether that access or use is permitted by or in violation of this agreement. Without limiting the preceding, you are responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this agreement if taken by you will be deemed a breach of this agreement by you. You shall use reasonable efforts to make all Authorized Users aware of this agreement’s provisions as applicable to that Authorized User’s use of the Services and shall cause Authorized Users to comply with those provisions.

   3. Customer Data. You hereby grant the Provider a nonexclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts regarding the Customer Data as may be necessary for the Provider to provide the Services to you, and a nonexclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics. You shall ensure that Customer Data and any Authorized User’s use of Customer Data will not violate any policy or terms referenced in this agreement or any law. You are solely responsible for the development, content, operation, maintenance, and use of Customer Data. You state that you own all interest, including all intellectual property rights, in the Customer Data and that both the Customer Data and your use of the Services are in compliance with the AUP.

   4. Passwords and Access Credentials. You shall keep your passwords and access credentials associated with the Services confidential. You shall not sell or transfer them to any other person or entity. You shall promptly notify us about any unauthorized access to your passwords or access credentials.

   5. Third-Party Products. The Services may permit access to Third-Party Products. For purposes of this agreement, those Third-Party Products are subject to their own terms presented to you for acceptance within the Services by website link or otherwise. If you do not agree to abide by the applicable terms for any such Third-Party Products, then you shall not install, access, or use those Third-Party Products.

4. Fees and Payment. The Customer shall pay the Provider the fees as described on https://clicktracker.com/p/pricing (the “Fees”) in advance of the subscription period without offset or deduction. The Customer shall make all payments under this agreement in US dollars on or before the due date. If the Customer does not make any payment when due, without limiting the Provider’s other rights and remedies, (1) the Provider may charge interest on the past due amount at the rate of 1.5% a month calculated daily and compounded monthly or, if lower, the highest rate permitted under law, (2) the Customer shall reimburse the Provider for all reasonable costs incurred by the Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees, and (3) the Provider may suspend, in accordance with section 2(f), the Customer’s and all other Authorized Users’ access to any portion or all the Services until those amounts are paid in full. All Fees and other amounts payable by the Customer under this agreement are exclusive of taxes and similar assessments. The Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by the Customer under this agreement, other than any taxes imposed on the Provider’s income.

5. Confidential Information. On one or more occasions during the term of this agreement, the Provider and the Customer may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” at the time of disclosure (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is (1) in the public domain, (2) known to the receiving party, (3) rightfully obtained by the receiving party on a nonconfidential basis from a third party, or (4) independently developed by the receiving party. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees, agents, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations under this agreement and who are required to protect the Confidential Information in a manner no less stringent than required under this agreement. Despite the preceding, each party may disclose Confidential Information to the limited extent required (1) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with law, on condition that the party making the disclosure under the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order, or (2) to establish a party’s rights under this agreement, including to make required court filings. Each party’s obligations of nondisclosure regarding Confidential Information are effective as of the date that Confidential Information is first disclosed to the receiving party and will expire five years afterward, except that regarding any Confidential Information that constitutes a trade secret (as determined under law), those obligations of nondisclosure will survive the termination of this agreement for as long as that Confidential Information remains subject to trade secret protection under law.

6. Privacy Policy. The Provider complies with its privacy policy, available at https://clicktracker.com/p/privacy_policy (“Privacy Policy”), in providing the Services. The Privacy Policy is subject to change as described in the Privacy Policy. By accessing, using, and providing information to or through the Services, you acknowledge that you have reviewed and accepted our Privacy Policy, and you consent to all actions taken by us regarding your information in compliance with the then-current version of our Privacy Policy.

7. Intellectual Property Ownership; Feedback. You acknowledge that we own all interest, including all intellectual property rights, in the Services. We acknowledge that you own all interest, including all intellectual property rights, in the Customer Data. If you or any of your employees, contractors, or agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including without limitation, new features or functionality relating to the Services, or any comments, questions, suggestions, or the like (“Feedback”), we are free to use that Feedback irrespective of any other obligation or limitation between you and us governing that Feedback. All Feedback is and will be treated as nonconfidential. You hereby assign us on your behalf, and shall cause your employees, contractors, and agents to assign us, all interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose, although we are not required to use any Feedback.

8. Warranty Disclaimer. The Services are provided “as is” and the Provider is not making any warranties, whether express, implied, statutory, or otherwise. The Provider is not making any implied warranties of merchantability, fitness for a particular purpose, title, or noninfringement, or any warranties arising from course of dealing, usage, or trade practice. The Provider is not making any warranty that the Services, or any products or results of the use of the Services, will meet your or any other person’s or entity’s requirements, operate without interruption, achieve any intended result, be compatible or work with any of your or any third party’s software, system, or other services, or be secure, accurate, complete, free of harmful code, or error-free, or that any errors or defects can or will be corrected.

9. Indemnification. The Customer shall indemnify the Provider against any losses, damages, liabilities, or costs (including reasonable attorneys’ fees) resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) alleging that the Customer Data, or any use of the Customer Data in accordance with this agreement, infringes or misappropriates that third party’s intellectual property rights and any Third-Party Claims based on Customer or any Authorized User’s (1) negligence or willful misconduct, (2) use of the Provider IP in a manner not authorized by this agreement, or (3) use of the Provider IP in combination with data, software, hardware, equipment, or technology not provided by the Provider or authorized by the Provider in writing. The Customer shall also indemnify the Provider for any Third-Party Claims arising out of or in connection with your use of the Services in violation of this agreement or the AUP. If the Provider seeks indemnification from the Customer under this provision, the Provider shall promptly notify you in writing of the claims brought against the Provider for which the Provider seeks indemnification. The Provider reserves the right, at its option and in its sole discretion, to assume full control of the defense of the claims with legal counsel of the Provider’s choice. The Customer shall not enter into any third-party agreement that would, in any manner, affect the Provider’s rights, constitute an admission of fault by the Provider, or bind the Provider in any manner, without the Provider’s prior written consent.

10. Limitations of Liability. In no event will the Provider be liable under or in connection with this agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, or otherwise, for any (1) consequential, incidental, indirect, exemplary, special, enhanced, or punitive damages, (2) increased costs, diminution in value or lost business, production, revenues, or profits, (3) loss of goodwill or reputation, (4) use, inability to use, loss, interruption, delay or recovery of any data, or breach of data or system security, or (4) cost of replacement goods or services, in each case regardless of whether the Provider was advised of the possibility of those losses or damages or those losses or damages were otherwise foreseeable. In no event will the Provider’s aggregate liability arising out of or related to this agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, or otherwise exceed the total amounts paid to the Provider under this agreement in the 12-month period preceding the event giving rise to the claim.

11. Term and Termination.

    1. Term. The term of this agreement begins on the Start Date and continues until terminated.

    2. Termination. In addition to any other termination right set out in this agreement, (1) you may terminate this agreement for any reason by cancelling your subscription, with termination effective on the last day of your subscription period, and (2) the Provider may terminate this agreement for any reason without notice.

    3. Effect of Termination. On termination of this Agreement, the Customer shall immediately discontinue use of the Provider IP. No termination of this agreement will affect the Customer’s obligation to pay all Fees that may have become due before that termination, or entitle the Customer to any refund.

12. Modifications. We may amend this agreement on one or more occasions and the amended agreement becomes effective on posting. You will be notified of modifications through direct email communication from us. You are responsible for reviewing and becoming familiar with any such modifications. Your continued use of the Services after the effective date of the modifications will be deemed acceptance of the modified terms.

13. Export Regulation. The Services use software and technology that might be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Services or the software or technology included in the Services to, or make the Services or the software or technology included in the Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. You shall comply with all federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), before exporting, re-exporting, releasing, or otherwise making the Services or the software or technology included in the Services available outside the US.

14. Resolving Disputes.

    1. Florida law governs all adversarial proceedings arising out of this agreement or the Services.

    2. As the exclusive means of bringing adversarial proceedings to resolve any dispute arising out of this agreement or the Services, a party may demand that the dispute be resolved by arbitration administered by NAM (National Arbitration and Mediation) in accordance with its comprehensive dispute resolution rules and procedures. Judgment on any award rendered in any such arbitration may be entered in any court having jurisdiction. Any arbitration commenced in accordance with this section 14(b) must be conducted by one arbitrator. An arbitration commenced in accordance with this section 14(b) must be conducted virtually using Zoom or a virtual meeting platform that provides similar functionality. If virtual arbitration is not possible due to technical issues, because the arbitrator is unwilling or unable to attend the arbitration virtually, or for one or more other compelling reasons, the arbitration must be conducted in Palm Beach County, Florida. The arbitrator must not award punitive damages in addition to compensatory damages. Each party hereby waives any right to recover any such damages in any arbitration. Arbitration must proceed only on an individual basis. The parties hereby waive all rights to have their disputes heard or decided by a jury or in a court trial and the right to pursue any class or collective claims against each other in court, arbitration, or any other proceeding. Each party shall only submit their own individual claims against the other and will not seek to represent the interests of any other person. The arbitrator must not compel any class or collective claim or consolidate different arbitration proceedings with or join any other nonparty to an arbitration between the parties. The arbitrator, not any court, will have exclusive authority to resolve any dispute relating to the enforceability or formation of this agreement and the arbitrability of any dispute between the parties, except for any dispute relating to the enforceability or scope of the class and collective action waiver, which will be determined by a Florida federal or state court of competent jurisdiction sitting in Palm Beach County.

    3. In an adversarial proceeding between the parties arising out of this agreement or the Services, the prevailing party will be entitled to recover from the other party, in addition to any other relief awarded, all expenses that the prevailing party incurs in those proceedings, including legal fees and expenses.

    4. Apart from proceedings arising from a claim under section 9, neither party may bring adversarial proceedings to resolve any dispute arising out of this agreement or the Services more than one year after the date that dispute arose.

    5. The invalidity, illegality, or unenforceability of any provision in this agreement does not affect any other provision in this agreement or the validity, legality, or enforceability of that provision in any other jurisdiction.

15. Miscellaneous. This agreement constitutes the entire understanding between the parties regarding the Services. Each party acknowledges that because it has not relied on, and will not be relying on, any statements made by the other party regarding the Services, it will have no basis for bringing any claim for fraud in connection with any such statements. Any notices to us must be sent to [email protected]. You hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Services. You acknowledge that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing. No waiver of any provision of this agreement will be effective unless it is in writing and signed by the party granting the waiver. No failure or delay in exercising any right or remedy under this agreement will operate as a waiver of that right or remedy. A waiver granted on one occasion will not operate as a waiver on future occasions. This agreement is personal to you. Except with our prior written consent, you shall not transfer to any other person or entity (1) any discretion granted under this agreement, (2) any right to satisfy a condition under this agreement, (3) any remedy under this agreement, or (4) any obligation imposed under this agreement. Any purported transfer in violation of the preceding sentence will be void.