Traction AI's Terms of Service Agreement (this “Agreement”) is entered into between Traction AI LLC (“Traction”) with offices at 4717 Atlantic Brigantine Boulevard, Brigantine, New Jersey 08203, and customer (“Customer”), and describes the terms and conditions pursuant to which Traction will provide Customer access to their application, materials, and service ("Service") as defined below.
In consideration of the mutual promises and upon the terms and conditions set forth below, the parties agree as follows:
1.1 “Authorized User” means individuals granted access by Traction based on the licenses purchased under a Service Order and for which Customer has paid all applicable license fees to permit them to access and use the Service.
1.2 “Confidential Information” means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation documents, prototypes, samples, plant and equipment), which (i) is designated as “Confidential,” “Proprietary” or some similar designation at the time of disclosure, (ii) is customarily considered confidential between business parties, or (iii) which should reasonably be understood to be confidential based on the nature of the information and the circumstances of the disclosure. Confidential Information may include information disclosed to a disclosing party by third parties. Traction’s Confidential Information includes, but is not limited to, this Agreement, any addenda hereto signed by both parties, the Service, any responses to technical support requests, and any business information, technical data, or know-how relating to the Service, any services, or any associated technology or services, including without limitation all such information disclosed in written form. Confidential Information will not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.
1.3 “Customer Data” means any data that is accessed by Traction via the Customer’s business applications or provided directly to Traction by Customer.
1.4 “Service” means Traction’ web-based platform provided by Traction to Customer under this Agreement as set forth in a Service Order.
1.5 “Service Order” means a written Service Order substantially in the format attached to this Agreement as Statement of Work (SOW) signed by both parties and references this Agreement.
1.6 “Service Order Term” means the term of a Service Order, as specified in the applicable Service Order.
2.1 Grant. Subject to the terms and conditions of this Agreement, Traction hereby grants to Customer a non-exclusive, non-sublicensable, revocable, and non-transferable right during the applicable Service Order Term to access and use the Service by and through its Authorized Users for Customer’s internal business purposes and in accordance with any scope limitations identified in the applicable Service Order (the “Authorized Purpose”). Customer will not allow access to the Service by any person other than an Authorized User or for use other than as reasonably necessary for the Authorized Purpose.
2.2 Reservation of Rights. Customer acknowledges that it is only granted access to the Service for the Authorized Purpose during the applicable Service Order Term in accordance with Section 2.1 and agrees that it will not use the Service except as permitted under Section 2.1. Customer acknowledges that Traction and its licensors retain title to the Service. Traction and its licensors hereby reserve all rights to the Service or any copyrights, patents, trademarks or other intellectual property rights embodied or used in connection therewith, except for the rights expressly granted herein.
2.3 Additional Restrictions. Customer will not itself, or through any parent, subsidiary, affiliate, agent or other third party: (a) transfer, distribute, sell, lease, license or sublicense access to the Service or any part thereof; (b) attempt to decompile, disassemble, or reverse engineer the Service or any part thereof, in whole or in part; (c) allow access to the Service by any person other than an Authorized User; (d) write or develop any derivative software or any other software program based upon the Service or any part thereof or any Confidential Information; (e) use the Service or any part thereof to provide processing services to third parties, or otherwise use the Service or any part thereof on a ‘service bureau’ basis; or (f) provide, disclose, divulge or make available to, or permit use of the Service or any part thereof by any third party without Traction’s prior written consent.
2.4 Authorized Users. Customer acknowledges and agrees that it is responsible for all use or misuse of the Service by its Authorized Users, and a breach by any such Authorized User of any term of this Agreement will be deemed a breach of Customer under this Agreement. As between the parties, Customer agrees that it is responsible for notifying and obtaining the agreement of such Authorized Users to the restrictions with respect to the Service. Traction reserves the right to immediately suspend any or all Authorized Users’ access to the Service if Traction believes, in its sole discretion, that an Authorized User has misused the Service. Each Service account login provided to an Authorized User is personal to that specific individual and may not be transferred, sold or otherwise assigned to or shared with any other individual or entity. Customer will notify Traction if Customer wishes to add Authorized Users; Customer may accept or deny such request in its sole discretion. In the event Traction accepts Customer’s request to add Authorized Users, the parties will amend the applicable Service Order to include the name of such Authorized User.
2.5 Feedback. If Customer provides to Traction (either on its own accord or at the request of Traction) feedback, analysis, suggestions and comments that do not include any Confidential Information (including, but not limited to, bug reports and test results, and design suggestions or ideas) related to the Service (collectively, “Feedback”) Customer hereby assigns to Traction all right, title and interest in and to any such Feedback to Traction and acknowledges that Traction is free to use the Feedback without payment or restriction.
2.6 Customer Data. Customer owns all right, title, and interest in all Customer Data. Except as expressly provided in this Section 2.5, (a) all such Customer Data is deemed Confidential Information of Customer, and (b) will not be utilized by Traction for any purpose other than to perform its obligations under this Agreement. Customer hereby grants to Traction a non-exclusive, worldwide, royalty-free, fully paid up, sub-licensable (directly and indirectly), transferrable, perpetual and irrevocable license to (a) anonymize and/or aggregate the Customer Data and use such anonymized and/or aggregated data (“Usage Data”) to derive statistical, usage data, and other data related to the functionality of the Service and improve the Service. Traction shall own all right, title and interest in Usage Data. For the avoidance of doubt, Usage Data shall not be considered Confidential Information. Traction is not responsible for performing, and is not liable for any failure to perform, any back-up of any Customer Data in or through the Service. Traction recommends that Customer perform regular exports and back-ups of Customer Data.
3.1 Payment of Fees. In consideration of the access granted pursuant to Section 2.1, Customer will pay Traction the fees set forth in each Service Order in accordance with the payment terms set forth therein. Unless otherwise set forth in a Service Order, all invoices are due 30 days from the date of receipt of the applicable invoice. Any amounts not paid when due will be subject to interest of 1.5% per month, which will be immediately due and payable.
3.2 Taxes. All charges and fees provided for in this Agreement are exclusive of any taxes, duties, or similar charges imposed by any government. Customer will pay or reimburse Traction for all federal, state, dominion, provincial, or local sales, use, personal property, excise or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes on the net income of Traction).
4.1 Representations and Warranties. Each party hereby represents and warrants to the other party that: (a) it is duly organized and validly existing under the laws of the state of its incorporation and has full corporate power and authority, and is duly authorized, to enter into the Agreement and to carry out the provisions thereof; (b) the person executing the Agreement on behalf of the party is authorized to do so; (c) the execution, delivery and performance of the Agreement by such party does not violate any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it; and (d) such party will comply with all applicable federal, state and local laws, rules and regulations in fulfilling its obligations hereunder. Customer further represents and warrants to Traction that: (1) Customer is the creator and owner of the Customer Data, or has the necessary licenses, rights, consents, and permissions to authorize Traction to use the Customer Data as necessary to exercise the licenses granted by Customer in this Agreement; (2) Customer Data and the use of Customer Data as contemplated by this Agreement, does not and will not: (A) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (B) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (C) cause Traction to violate any law or regulation. Additionally, Traction further represents and warrants to Customer that: (i) Traction is the creator and owner of the Service, or has the necessary licenses, rights, consents, and permissions to authorize Traction to offer the Service as necessary to exercise the licenses granted by Traction in this Agreement; (ii) Customer’s use of the Service and the Service itself will not: (A) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (B) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Customer to violate any law or regulation (3) Traction’s use of the Usage Data will not violate any privacy right, right of publicity or any other intellectual or proprietary right. Customer’s sole and exclusive remedy and Traction’s sole and exclusive liability with respect to the representations and warranties set forth in (i), (ii) and (iii) are the indemnification obligations set forth in Section 5.1.
4.2 Disclaimer. EXCEPT AS SET FORTH IN SECTION 4.1 ABOVE, TRACTION MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY REGARDING OR RELATING TO THE SERVICE, OR ANY MATERIALS OR SERVICES FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. TRACTION HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE AND ANY OTHER MATERIALS AND SERVICES, AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING. TRACTION DOES NOT WARRANT THAT THE SERVICE IS ERROR-FREE OR THAT OPERATION OF THE SERVICE WILL BE SECURE OR UNINTERRUPTED. TRACTION DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SERVICE IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE SERVICE WILL ALWAYS BE AVAILABLE.
4.3 Limitation of Liability. EXCEPT TRACTION INDEMNITY OBLIGATIONS BELOW, IN NO EVENT WILL TRACTION OR ITS LICENSORS (THE “TRACTION PARTIES”) BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY THEORY OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY: (A) FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE, OR USE OF THE SERVICE, OR (B) FOR ANY AMOUNTS THAT EXCEED THE FEES PAID BY CUSTOMER TO TRACTION FOR ACCESS TO THE SERVICE UNDER THIS THE APPLICABLE SERVICE ORDER RELEVANT TO THE CLAIM IN THE TWELVE MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY; IN EACH CASE, WHETHER OR NOT TRACTION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.1 Traction Indemnity. Traction will, at its expense, defend or settle any claim, action, or allegation brought against Customer that the Service infringes any copyright or trade secret of any third party and will pay any final judgments awarded or settlements entered into; provided that Customer (i) gives prompt written notice to Traction of any such claim, action, or allegation of infringement, (ii) gives Traction the assistance, authority, and information as Traction may reasonably require to settle or oppose such claims, and (iii) gives Traction the authority to proceed as contemplated herein. Traction will have the exclusive right to defend any such claim, action, or allegation and make settlements thereof at its own discretion, and Customer may not settle or compromise such claim, action, or allegation, except with prior written consent of Traction.
5.2 Options. In the event any such claim, action, or allegation of infringement is brought or threatened, Traction may, at its sole option and expense: (a) procure for Customer the right to continue use of the Service or infringing part thereof; or (b) modify or amend the Service or infringing part thereof, or replace the Service or infringing part thereof with other software having substantially the same or better capabilities; or, (c) if neither of the foregoing is commercially practicable, terminate this Agreement and repay to Customer a pro rata portion, if any, of any pre-paid and unused subscription fees.
5.3 Exclusions. Traction will have no liability hereunder if the actual or alleged infringement results from (a) Customer’s breach of this Agreement, (b) any modification, alteration or addition made to the Service or any use thereof, including any combination of the Service with software or other materials not provided by Traction, (c) Customer to use any corrections or modifications made available by Traction that would not result in any material loss of functionality, (d) use of the Service in a manner or in connection with a product or data not contemplated by this Agreement, or (e) any settlements entered into by Customer for such claims that are not pre-approved by Traction in writing.
5.4 Limitation. THIS SECTION 5 STATES THE ENTIRE LIABILITY OF TRACTION WITH RESPECT TO INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, OR OTHER PROPRIETARY RIGHT.
5.5 Customer Indemnity. Customer will, at its expense, defend or settle any claim, action, or allegation brought against Traction that arises out of or relates to a breach by Customer of any warranties in Section 4.1 that relate to Customer Data.
5.6 In the event either Party must Indemnify the other, the Indemnified Party shall (i) give prompt written notice of any Claim to the other (provided that any indemnification obligation shall only be reduced to the extent materially prejudiced by any delay; (ii) reasonably cooperate with the Indemnifying Party at Indemnifying Party’s expense; and (iii) allow the other Party sole control of the defense of any Claim; provided that, the Indemnifying Party shall not enter into any settlement without obtaining the other Party’s prior written consent. Either Party shall have the right to participate in the defense of a Claim with its own counsel, at its own expense.
6.1 Non-Use and Non-Disclosure. Each party agrees not to use any Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under this Agreement. Each party agrees not to disclose any Confidential Information of the other party to third parties or to such party’s employees who do not have a need to know. Notwithstanding, a receiving party may disclose such Confidential Information that is required by law to be disclosed if the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure. Neither party will reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party’s Confidential Information and which are provided to the party hereunder.
6.3 Return of Materials. Upon the termination or expiration of this Agreement, each party will either return to the other party or destroy all of the other party’s Confidential Information that such party may have in its possession or control.
7.1 Term. This Agreement will take effect on the Effective Date and will continue in effect as long as an executed Service Order remains in effect as provided within the term (the “Term”) of the Service Order. In the event that there are no outstanding Service Orders, either party can terminate this Agreement for any reason upon 30 days written notice to the other provided any fees accrued up to such date shall become payable and due upon termination.
7.2 Termination Events. Either Party may, by written notice to the other, terminate this Agreement or a Service Order upon notice if any of the following events (“Termination Events”) occur:
In addition to the foregoing termination rights, in the event of any material breach of this Agreement by either party (which, for clarity, includes failure by Customer to make payments when due) that remains uncured by the breaching party ten business days following receipt of notice of the breach, the non-breaching party may immediately terminate this Agreement by providing written notice of termination, provided that any breach caused by a party’s willful misconduct shall not be granted a cure period.
7.3 Survival and Termination Obligations. Immediately upon expiration or termination of this Agreement for any reason, Customer will cease all access to and use of the Service. Sections 1, 2.2-2.7, 3 (to the extent any fees are due as of the effective date of termination), 4, 5, 6, 7.3, 7.4, and 8 will survive any termination or expiration of this Agreement. Customer will cease all use, purge and destroy all copies, portions, and excerpts of the Service in its possession and any related documentation and provide certification of destruction to Traction.
7.4 Effect of Termination. Immediately upon expiration or termination of this Agreement or an Service Order for any reason: (a) each Party shall comply with Section 12 with respect to all of the other Party’s Confidential Information and shall immediately return to the other Party all other property, including copies thereof, received from the other Party pursuant to or in contemplation of this Agreement or the applicable Order Form; and (b) Traction shall refund to Customer any prepaid fees for unused Products and Services. Notwithstanding the foregoing, upon termination (by either Party) or expiration of this Agreement or an Order Form.
8.1 Assignment. Neither party shall, in whole nor in part, assign, transfer, sell or otherwise dispose of any of its rights under this Agreement, whether by operation of law or otherwise, to any third-party, without the prior written consent of the other party; provided that either party may assign this Agreement in whole to a successor in interest in connection with a merger, acquisition, or sale of all or substantially all of such party’s assets. Any attempt by either party to assign or transfer this Agreement in violation of this Section shall be void.
8.2 Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be (a) delivered in person, (b) sent by first class registered mail, or air mail, as appropriate, or (c) sent by overnight air courier, in each case properly posted and fully prepaid to the appropriate address set forth in the first paragraph of this Agreement. Either party may change its address for notice by notice to the other party given in accordance with this Section. Notices will be considered to have been given at the time of actual delivery in person, three business days after deposit in the mail as set forth above, or one day after delivery to an overnight air courier service.
8.3 Limitation on Claims. No action arising out of any breach or claimed breach of this Agreement or transactions contemplated by this Agreement may be brought by either party more than one year after the cause of action has accrued. For purposes of this Agreement, a cause of action will be deemed to have occurred when a party knew or reasonably should have known of the breach or claimed breach.
8.4 No Warranties. No employee, agent, representative or affiliate of Traction has authority to bind Traction to any oral representations or warranty concerning the Service. Any written representation or warranty not expressly contained in this Agreement will not be enforceable.
8.5 Force Majeure. Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquake, fire and explosions, but the inability to meet financial obligations is expressly excluded.
8.6 Waiver. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action. No exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.
8.7 Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties will endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
8.8 Integration. This Agreement (including any addenda hereto signed by both parties) contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. This Agreement may not be amended, except by a writing signed by both parties.
8.9 Conflicting Terms. No terms, provisions or conditions of any purchase order, acknowledgement, or other business form that Customer may use in connection with the acquisition or licensing of the Service will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of Traction to object to such terms, provisions or conditions.
8.10 Export. Customer acknowledges that the Service may contain features subject to United States and local country laws governing import, export, distribution and use. Customer is responsible for compliance by the Customer and its Authorized Users with United States and local country laws and regulations and will not export, use or transmit the Service (i) in violation of any export control laws of the United States or any other country, or (ii) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Order.
8.11 U.S. Government Restricted Rights. If the Service is accessed or used by any agency or other part of the U.S. Government, the U.S. Government acknowledges that Traction provides the Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Traction to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
8.12 Publicity and Public Disclosure. Neither Party may use the other Party's name, logo(s), or other identifying information or image for any purpose whatsoever without the prior written consent of the other Party in each instance. Traction shall not make any public disclosures concerning this Agreement or the relationship between Traction and Customer without the prior written consent of Customer in each instance. After the execution of this Agreement, the Parties will work in good faith to prepare a mutually agreeable press release. Each Party agrees to adhere to the logo and trademark usage guidelines of the other Party in connection with any approved use of the other Party’s name, logo(s), or other identifying information. Customer may revoke its consent at any time upon notice to Traction.
8.13 Counterparts. This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement.
8.14 Governing Law. This Agreement will be governed by the laws of the United States and the State of Delaware, without reference to conflict of laws principles. Any dispute between the parties regarding this Agreement will be subject to the exclusive venue of the state and federal courts in Wilmington, Delaware. The parties hereby consent to the exclusive jurisdiction and venue of such courts.