Terms of Service

THESE TERMS AND CONDITIONS (TOGETHER WITH ANY ORDER FORM) THE “AGREEMENT”) IS ENTERED INTO BY AND BETWEEN TRAXERO NORTH AMERICA LLC, A DELAWARE LIMITED LIABILITY COMPANY (“TRAXERO”), AND THE CUSTOMER EXECUTING AN ORDER FORM HEREUNDER OR PURCHASING THE SERVICES THROUGH TRAXERO’S WEBSITE (“CUSTOMER” OR “YOU”). CUSTOMER AND TRAXERO ARE EACH A “PARTY,” AND TOGETHER, THE “PARTIES” TO THIS AGREEMENT. THIS AGREEMENT CONSISTS OF THE TERMS AND CONDITIONS SET FORTH BELOW, ANY ATTACHMENTS OR EXHIBITS REFERENCED IN THE AGREEMENT, AND ANY ORDER FORMS (AS DEFINED BELOW) THAT REFERENCE THIS AGREEMENT. THIS AGREEMENT PERMITS CUSTOMER TO PURCHASE SERVICES FROM TRAXERO PURSUANT TO ORDER FORMS AND GOVERNS CUSTOMER’S INITIAL PURCHASE ON THE EFFECTIVE DATE AS WELL AS ANY FUTURE PURCHASES MADE BY CUSTOMER THAT REFERENCE THIS AGREEMENT.

BY ACCESSING OR USING THE SERVICES (DEFINED BELOW), YOU SIGNIFY THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE TERMS HEREIN. IF YOU DO NOT AGREE, YOU MAY NOT USE THE SERVICES. YOU MAY ONLY ACCESS AND USE THE SERVICES IN ACCORDANCE WITH THIS AGREEMENT. YOU WILL ADHERE TO ALL LAWS, RULES, AND REGULATIONS APPLICABLE TO YOUR USE OF THE SERVICES.

1. Definitions

1.1 “Additional License Limitations” means any additional license limitations set forth in the applicable Order Form.

1.2 “Authorized User” means the personnel of Customer identified by name and registered with Traxero to receive a User ID pursuant to the number and type of end users set forth in the applicable Order Form.

1.3 “Customer Data” means (a) any personally identifiable information or personal information as defined by applicable data protection laws, excluding any Registration Information.

1.4 “Documentation” means Traxero’s technical documentation and usage guides for the applicable Software, as updated by Traxero from time to time and made available to Customer.

1.5 “Effective Date” means the date the Order Form is signed or the date that Customer first accesses the Services.

1.6 “Fees” means the fees payable by Customer for the applicable Services, as set forth in an Order Form.

1.7 “Order Form” means Traxero’s standard ordering document executed by Traxero and Customer which references this Agreement and specifies the Software or any other services that Customer has elected to receive and the Fees payable to Traxero, including any addenda and supplements thereto.

1.8 “Output” shall mean all documents, information, reports and other output generated in connection with the Services.

1.9 “Professional Services” means any training, advisory, development, or other services specifically set forth in an Order Form.

1.10 “Registration Information” means the information required to register each Authorized User to use the Software.

1.11 “Software” means the products and services ordered by Customer and made available online by Traxero, as more specifically set forth in the applicable Order Form.

1.12 “Service Data” means all query logs and any general, anonymized or otherwise aggregated information and data based on Customer’s and its Authorized Users’ use of the Services, excluding any Customer Data.

1.13 “Services” means the Software and any Professional Services.

1.14 “Usage Term” means the term for which the Software will be made available to Customer pursuant to the applicable Order Form.

1.15 “User ID” means a unique user identification assigned to each individual Authorized User.

2. Software

2.1 Access and Use of Software and Output. During the Usage Term and subject to Customer’s compliance with the terms and conditions of this Agreement and the Order Form, Traxero grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Software and any Output solely for its internal business purposes in accordance with any Additional License Limitations.

2.2 General Restrictions. Customer will not, and will not permit any Authorized User or third party under Customer’s direction or control to: (a) reverse engineer, reverse assemble, decompile, disassemble, or otherwise attempt to derive the source code (or the underlying ideas, algorithms, structure, or organization) of the Software; (b) provide, lease or lend the Software or any Output to any third party; (c) remove or obscure any proprietary notices or labels contained in the Software, any Output, or the Documentation; (d) create a derivative work of any part of the Software or any Output; (e) create Internet “links” to or from the Software, or “frame” or “mirror” any of Traxero’s content which forms part of the Software; (f) use the Software or any Output to develop an offering or product directly or indirectly competing with Traxero; or (g) interfere with or disrupt the integrity of the Software or any Output.

2.3 Support and Maintenance. During the applicable Usage Term, Traxero will use commercially reasonable efforts to provide telephone and email support for the Software during its normal business hours in response to inquiries from Authorized Users. In addition to the foregoing, Traxero may, in its sole discretion, provide Customer and its Authorized Users with access to any online support and training material that Traxero generally offers to its licensees at no additional cost.

2.4 Evaluation Services. If Traxero provides Customer with a trial or evaluation version of the Software (the “Trial Services”), Customer agrees to use the Trial Services solely for evaluation purposes only, in accordance with the use guidelines and restrictions set forth in this Agreement, for the duration of the evaluation period expressly identified in the Order Form (the “Trial Period”). At the end of the Trial Period, Customer’s right to use the Trial Services automatically expires, and Customer acknowledges and agrees that Traxero will terminate the Software without liability or penalty. ANY TRIAL SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS AT CUSTOMER’S SOLE RISK. Traxero DISCLAIMS ANY AND ALL LIABILITY FOR CUSTOMER’S USE OF THE TRIAL SERVICES. The following Sections of this Agreement shall not apply to the Trial Services: Sections 9.1, and 10.1. IN LIEU OF THE LIMITATION OF LIABILITY SET FORTH IN SECTION 10.3 BELOW, TRAXERO’S CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO ANY USE OF THE TRIAL SERVICES SHALL NOT EXCEED $50.00.

2.5 Suspension. Traxero reserves the right to suspend, terminate or otherwise deny (1) the provision of Support and Maintenance Services to Customer, as applicable or (2) Customer’s or any other Authorized User’s access to or use of all or any part of the Software, without incurring any resulting obligation or liability, if: (a) Traxero receives a judicial or other governmental demand or order or law enforcement request that requires Traxero to do so; (b) this Agreement expires or is terminated; or (c) Traxero believes that Customer or any Authorized User has violated the terms of this Agreement or otherwise poses a security threat or vulnerability risk to Traxero, provided that Traxero will use reasonable efforts to limit any suspension or termination to the minimum extent and for the minimum duration necessary to prevent or terminate the underlying circumstance. If Traxero suspends (1) Support or Maintenance Services or (2) Customer’s right to access or use any portion or all of the Software, Customer will remain responsible for all Fees and charges incurred through the date of suspension and during the period of any such suspension.

2.6 Third-Party Services. The Software may be used by Customer to interface with certain third-party services and applications (“Third-Party Services”). Traxero assumes no liability and makes no warranty regarding the operation or functionality of such Third-Party Services. Traxero does not guarantee that the Software will interoperate with any particular Third-Party Service, and Traxero’s support obligations set forth in Section 2.3 shall not extend to any Third-Party Services. Customer represents and warrants that it will obtain all required consents and permissions prior to accessing any Third Party Services, and Customer will indemnify and hold Traxero harmless for any and all costs or liabilities arising from or related to any failure to obtain such required consents or permissions.

3. Customer Obligations

3.1 Authorized Users. Each Authorized User must comply with Traxero’s online registration process to obtain a User ID. Customer will require Authorized Users to keep all User IDs and password information strictly confidential and to not share such information. Customer will be responsible for notifying Traxero and restricting access by any Authorized User who is no longer authorized to access the applicable Software. In addition to the foregoing, Customer will (a) remain responsible for all obligations under this Agreement arising in connection with any use of the Software by any other person or entity authorized by, through, or as a result of an act or omission of Customer (“Other User”), including without limitation any Authorized User; and (b) be liable for any act or omission of any Other User, which, if performed or caused by Customer, would be a breach of this Agreement, with any such act or omission deemed to be a breach of this Agreement by Customer.

3.2 Compliance with Laws. Customer will ensure that all use of the Software and, as applicable, the disclosure of any Customer Data is at all times compliant with, any privacy policies of Customer, any confidentiality or professional obligations or duties of Customer, and all applicable local, state, federal and international laws, regulations, guidelines, and policies.

3.3 Provision of Customer Data. Traxero does not host, store, or process Customer Data, and Customer acknowledges and agrees that it will not provide or disclose any Customer Data in connection with this Agreement and Traxero will have no liability for any Customer Data. Customer will indemnify and hold Traxero harmless for any and all costs or liabilities arising from or related to such Customer Data and any inadvertent disclosure or provision of Customer Data in connection with this Agreement.

3.4 Data / Privacy and Security. Any Output is intended to be used as an internal document for Customer’s internal business purposes only. As such, Customer shall not disclose or disseminate any Output without the express written consent of Traxero, which consent may be withheld in Traxero’s sole discretion. Any reliance on the Output is at Customer’s or such third party’s risk. Nothing contained in the Software or any Output shall constitute professional advice. Traxero assumes no responsibility for the use of any information provided through the Software or any Output, and any use of the Software and/or any Output is at Customer’s own risk. In addition to the foregoing, Customer and its Authorized Users will be solely responsible for, and will rely on their own discretion, experience and judgment in, all aspects of any accuracy, and quality management, including without limitation, determining the accuracy, integrity and completeness of any and all information or data contained in or otherwise provided in connection with the Software and any Output. CUSTOMER, FOR ITSELF AND ON BEHALF OF ITS AUTHORIZED USERS AND ANY THIRD PARTIES, HEREBY WAIVES, AND CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR, ANY CLAIMS AGAINST TRAXERO AND ITS AFFILIATES FOR ANY LOSS, DAMAGE, CLAIM, OR COST RELATING TO OR RESULTING FROM CUSTOMER’S USE OR MISUSE OF THE SOFTWARE OR ANY OUTPUT OR THE DATA MADE AVAILABLE THEREBY.

4. Professional Services

If requested by Customer and agreed upon by Traxero, Customer may purchase Professional Services pursuant to a duly executed Order Form. Customer will pay Traxero at the per-hour rates set forth in the Order Form (or if not specified, at Traxero’s then-standard rates), and Customer will reimburse Traxero for any reasonable travel and lodging expenses incurred in connection with such Professional Services. Customer may only use the deliverables provided as part of the Professional Services in connection with the Software. Traxero will retain all right, title and interest in and to any work product, code (including SQL queries), and deliverable and any derivative, enhancement or modification thereof created by or on behalf of Traxero.

5. Fees and Payment

5.1 Fees and Payment Terms. All Fees will be paid by Customer within thirty (30) days of the date of each invoice, unless otherwise specified in the applicable Order Form. All payment obligations are non-cancelable, and the Fees are non-refundable. Any invoice which is unpaid by Customer when due shall be subject to a service charge of one and one-half percent (1.5%) of the amount due per month or the maximum permissible rate, whichever is greater.

5.2 Taxes. The Fees do not include taxes. Customer will be responsible for and reimburse and hold Traxero harmless against the payment of all taxes associated with this Agreement, other than taxes based on Traxero’s gross receipts or net income.

5.3 Reports; Right to Audit. Traxero, or its designee, will have the right to perform audits regarding Customer’s use of the Software, at reasonable intervals, upon reasonable notice during the term and for a period of one (1) year after termination of this Agreement. Customer agrees to make all relevant information available to Traxero, and as appropriate, to Traxero’s designee. If any such audit should disclose any underpayment of fees, Customer shall promptly pay Traxero such underpaid amount, together with interest thereon at a rate of one and one-half percent (1.5%) per month. If the amount of such underpayment exceeds five percent (5%) of amounts otherwise paid, then Customer shall immediately reimburse Traxero for its reasonable expenses associated with such audit.

6. Term and Termination

6.1 Term. The term of this Agreement shall continue from the Effective Date until the termination of this Agreement and all Order Forms as provided herein.

6.2 Termination.

(a) Each Party will have the right to terminate this Agreement or any Order Form upon thirty (30) days’ prior written notice if the other Party is in material breach of this Agreement or the applicable Order Form, and the breaching Party fails to remedy such breach within the cure period. Notwithstanding the foregoing, Traxero may terminate this entire Agreement and/or any Order Form upon written notice to Customer if Customer violates the scope of its license or any restrictions or obligations hereunder.

(b) If at any time Customer fails to pay to Traxero the amounts required under this Agreement as and when such sums are due, Traxero may in such event immediately suspend access to the Software and terminate this Agreement or the applicable Order Form by written notice to Customer, unless Customer pays all amounts due, including all accrued interest, within ten (10) days of such notice.

(c) Customer acknowledges and agrees that Traxero has agreed to enter into this Agreement under the laws applicable as of the Effective Date, and that Traxero has not accepted the risk of any changes in applicable law. In the event of a change or any changes in the law that alone or in the aggregate increase Traxero’s costs or render it commercially impractical for Traxero to provide the Software to Customer in accordance with this Agreement, Traxero shall be, at Traxero’s sole option, excused from its obligation to provide the Software. In the event Traxero exercises this option, it shall refund to Customer a pro-rata portion of any prepaid Fees for the unused Software.

6.3 Effect of Termination. Upon any termination or expiration hereunder, Traxero may immediately disable and discontinue Customer’s access to and use of the Software without additional notice to Customer, and Customer will return to Traxero all Documentation and other materials it has acquired pertaining to the Software and any Confidential Information (as defined in Section 8.2, below). In addition, all Fees and payment obligations of Customer will become immediately due and payable. In the event of any expiration or termination of this Agreement, the following terms and conditions of this Agreement shall survive and continue to bind the Parties: Sections 1, 2.3, 3, 4.2, 4.3, 5, 6.4, 7, 8, 9, 11, and 12.

7. Intellectual Property Rights; Ownership

7.1 Feedback. To the extent that Traxero receives from Customer or any Authorized Users any suggestions, ideas, improvements, modifications, feedback, error identifications or other information related to the Services or any other products or services (“Feedback”), Traxero may use, disclose and exploit such Feedback without restriction, including to improve the Services and to develop, market, offer, sell, and provide other products and services. All Feedback will be the exclusive property of Traxero, and Customer hereby assigns all rights in and to any Feedback to Traxero without further restriction or payment to Customer or any Authorized User.

7.2 Traxero Materials. Traxero is and will remain the exclusive owner of all right, title and interest in and to the Software, Documentation, Service Data, Feedback, Traxero’s Confidential Information, and all other specifications, manuals, tapes, programs, documentation, reports, systems, work product and/or other tangible or intangible material of any nature used, developed, provided or accessible to Customer in connection with this Agreement or any Order Form, including all intellectual property rights therein (the “Traxero Materials”). Customer hereby acknowledges and agrees that the Traxero Materials constitute and contain valuable proprietary products and trade secrets of Traxero, embodying substantial creative efforts and confidential information, ideas, and expressions.

7.3 Service Data and Information. Customer acknowledges and agrees that Traxero may collect Service Data, and Traxero may use Service Data to develop, improve, support, and operate its products and services during and after the term of this Agreement.

8. Confidential Information

8.1 Definition. “Confidential Information” means information of or relating to Customer or Traxero or their respective affiliates, subsidiaries, vendors, suppliers, service providers or licensors, that is competitively sensitive material not generally known to the public, including without limitation, information that relates to any past, present or future research and development, trade secrets, products and services, pricing, marketing, financial matters, or business affairs (including without limitation, policies, procedures, plans, methods of operation, specifications, manuals, programs, documentation, guidelines, procedures, forms, and report formats), systems, networks, computer equipment and software proprietary to or licensed by a Party, including without limitation, object or source code, custom software modifications, software documentation and training aids, and all data, code, techniques, algorithms, methods, logic, architecture, and designs embodied or incorporated therein.

8.2 Obligations. The Parties acknowledge that the Services require disclosure by each Party (“Disclosing Party”) to the other Party (“Receiving Party”) of certain of the Disclosing Party’s Confidential Information. With respect to Confidential Information of the Disclosing Party that is disclosed to the Receiving Party, the Receiving Party shall, subject to the exceptions stated herein: (a) maintain and protect the confidentiality of the information with the same care and measures to avoid unauthorized disclosure or access as the Receiving Party uses with its own Confidential Information, but in no event less than a reasonable standard of care; (b) use the information solely to carry out the purposes for which the information was disclosed; and (c) limit access to the information to: (i) employees of the Receiving Party, or of its subsidiaries or affiliates, who have a need to know to facilitate, monitor or review the delivery, receipt or performance of the Services; (ii) employees of the Receiving Party’s suppliers or licensors who have a need to know the information solely for the purpose of facilitating the performance, delivery or use of the Services; and (iii) the Receiving Party’s external attorneys and auditors. Any of the foregoing individuals to whom the Receiving Party discloses information must be under a legally binding obligation to maintain the confidentiality of the information. The Receiving Party shall remain responsible to the Disclosing Party for acts or omissions of such individuals that if committed by the Receiving Party would constitute a violation of the Receiving Party’s confidentiality obligations hereunder. Customer shall not disclose the terms and conditions of this Agreement, including without limitation, pricing, to any third party without Traxero’s prior written consent.

8.3 Exceptions. The Receiving Party shall not be in violation of this Agreement for: (a) disclosing Confidential Information of the Disclosing Party that (i) is or becomes publicly available other than as a result of a breach of this Agreement, (ii) is disclosed to the Receiving Party by a third party not subject to any obligation of confidentiality, (iii) was already known by the Receiving Party prior to the date of this Agreement (unless disclosed in connection with negotiations and discussions related to this Agreement or associated transactions), or (iv) was independently developed by the Receiving Party without reference to Confidential Information received from the Disclosing Party; or (b) disclosing Confidential Information of the Disclosing Party when required to do so by (i) the Receiving Party’s federal or state regulatory agencies, or (ii) a federal or state law or regulation, or a subpoena or court order or agency action that requires disclosure, provided, however, that, if disclosure of Confidential Information is required by any of the foregoing, the Receiving Party shall, unless prohibited by law, regulation or court or agency order, promptly notify the Disclosing Party and, at the Disclosing Party’s request and expense, cooperate with the Disclosing Party’s efforts, if any, to prevent or limit the disclosure. Nothing in this Agreement shall prevent either Party from using any general methodologies or know-how contained in the unaided memory of such Party’s personnel or those of its affiliates developed or disclosed under this Agreement, provided that in doing so it is not in breach of its obligations of confidentiality under this Section 8 or using any intellectual property rights of the other Party or any of its affiliates.

8.4 No License; Return of Information. Nothing in this Section shall be construed as a grant or assignment of any right or license in the Disclosing Party’s Confidential Information. The Disclosing Party’s Confidential Information shall at all times remain the property of the Disclosing Party. At any time the Disclosing Party reasonably requests, and in any event upon the termination or expiration of this Agreement, the Receiving Party shall, at the election of the Disclosing Party, promptly return to the Disclosing Party all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control, or certify in writing to the Disclosing Party that the Confidential Information has been destroyed.

8.5 Remedies and Responsibilities. The Receiving Party acknowledges that the Disclosing Party has the right to take all reasonable steps to protect the Disclosing Party’s Confidential Information, including without limitation, seeking injunctive relief and/or any other remedies that may be available at law or in equity, all of which remedies shall be cumulative and in addition to any rights and remedies available by contract, law, rule, regulation or order.

8.6 Data Sharing. Notwithstanding the confidentiality restrictions in this Section 8, Customer agrees that Traxero may furnish certain information to third-parties, as described herein.

(a) Vehicle History Reporting Information. Customer agrees that Traxero may furnish certain information to third-party vehicle history reporting companies (“VHR Companies”) for the use in creating commercially available vehicle history reports. The information that Traxero may furnish to VHR Companies includes, but is not limited to: the vehicle identification number, vehicle year, make, and model, license plate number and state of registration, odometer reading, airbag deployment status, area of damage, reason for towing, towing location, and other towing-related information (collectively, the “VHR Information”).

(b) Dispatch Job Information.

(i) Traxero understands that Customer has contracted, or may contract in the future, with third-party road service clubs, motor clubs, or other companies that provide substantially similar roadside assistance services (“Contracting Motor Clubs”).

(ii) Customer agrees that Traxero may furnish certain information relating to a dispatch assignment (the “Dispatch Job Information”) to Contracting Motor Clubs, both in real-time during the course of a dispatch assignment, or any time at the request of a Contracting Motor Club. The Dispatch Job Information is defined as follows:

● Current Driver/Truck locations on demand
● Current Driver/Truck Status (Available/Unavailable)
● Driver/Truck Type and Service
● capabilities
● Receive Time/Date
● Dispatch Time/Date
● Assign Time/Date
● Driver Confirm Time
● Driver Arrive Time
● Driver Leave Scene Time (Hooked)
● Driver Destination Arrive Time
● Driver Clear Time
● Continuous ETA updates
● Driver, Truck and Truck Type Assigned to Call
● Call Requested By
● Real-time location of the assigned truck, throughout the progress of the MOTOR CLUB call.
● Purchase Order
● Reason
● Service Provider Name
● Job Status (Received, Assigned, Cancelled, Finished, Impounded, Holding)
● PTO Status Change Time Stamps
● Driver Photo

(c) Customer may, at its discretion, disable Traxero from furnishing Dispatch Job Information to any Contracting Motor Clubs by utilizing the Software to opt out. Once disabled, Customer may, at its discretion, re-enable Traxero to furnish Dispatch Job Information to Contracting Motor Clubs by utilizing the Software to opt in.

(d) Traxero may disclose any Customer Proprietary or other information or data as required by law. As used in this subsection, “required by law” shall include, but not be limited to, disclosures compelled by lawful subpoena issued by a court of competent jurisdiction, government regulation, court order, or any other lawful process.]

(e) Roadside Alerts for consumers receiving updates on towing or roadside assistance dispatches: By accepting these terms and conditions, you are consenting to be enrolled in Traxero’s Roadside Alerts services. Subscription to the alerts is not required. For help, text HELP to or call 423-269-2707. You can also access our Privacy Policy Message frequency may vary and message and data rates may apply. Consumers may opt out at any time by texting STOP.

8.7 Other Terms. Customer acknowledges and agrees that Traxero does not desire to receive any Confidential Information from Customer that is not necessary for Traxero to perform its obligations under this Agreement. The Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure or is included in a filing required to be made by a Party with a governmental authority (provided that such Party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirors.

9. Warranties.

9.1 Mutual Warranties. Each Party represents and warrants that it has the legal power to enter into this Agreement.

9.2 Traxero Warranties. Traxero represents and warrants that (i) it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof, and that any Professional Services will be provided in a competent and workmanlike manner. Traxero will make commercially reasonable efforts to fix or modify, at no charge to the Customer, any part of the Software not operating in accordance with any documentation provided to the Customer.

9.3 Customer Warranties. Customer represents and warrants that: (i) Customer and any Authorized Users will use the Services for lawful purposes only and in accordance with this Agreement and all applicable laws, regulations and policies, (ii) Customer owns or has sufficient rights in and to the Customer Data Customer submits through the Services to grant the licenses set forth in this Agreement with respect to such content to Traxero, that any use by Traxero of such Customer Data as contemplated in this Agreement will not infringe on the rights of any third party or violate any applicable laws or regulations, and that such content shall not (a) violate any laws or regulations or any rights of any third parties, including but not limited to, such violations as infringement or misappropriation of any copyright, patent, trademark, trade dress, trade secret, music, image or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or publicity rights, moral or otherwise, or rights of celebrity, or any other right of any person or entity; (b) contain any material that is unlawful, fraudulent, threatening, defamatory, obscene, profane or hateful or (c) contain any disabling codes or instructions, or any viruses, worms, Trojan horses or other contaminants. You further represent and warrant that you will not share your log-in ID or password or any of the information contained within the Company Services with any third party whatsoever without the explicit written permission of Company. For the purpose of clarity, this includes providing access to, or allowing, third parties to log-in through your account, as well as copying and sharing reports and/or contact’s emails, names or phone numbers, with any other individual, business, marketing or survey company. You agree that you alone will be responsible for paying Company and other related parties, any damages, losses, penalties and costs whatsoever related to a breach by you of this section.

10. Limitations; Disclaimers

10.1 Service Limitations. The Software may be temporarily unavailable from time to time due to required maintenance, telecommunications interruptions, or other disruptions. Traxero may also make improvements and/or changes in the Software at any time without notice. Traxero will not be responsible for any damages that Customer may suffer arising out of the inability to use the Software.

10.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9 ABOVE, Traxero MAKES NO, AND HEREBY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE OR ANY OUTPUT, OR THE AVAILABILITY, FUNCTIONALITY, PERFORMANCE, LOSS OF DATA, OR RESULTS OF THE SOFTWARE. WITHOUT LIMITING THE FOREGOING, ACG DISCLAIMS ANY WARRANTIES THAT THE SOFTWARE OR ANY OUTPUT WILL BE ACCURATE, RELIABLE, ERROR-FREE, UNINTERRUPTED, OR RESULT IN COST SAVINGS OR PROFIT IMPROVEMENT. ACG MAKES NO, AND HEREBY DISCLAIMS ANY, IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.

10.3 Limitation of Liability. IN NO EVENT WILL TRAXERO (INCLUDING ITS SUBSIDIARIES, ITS PARENT AND SUBSIDIARIES OF ITS PARENT, ITS SERVICE PROVIDERS AND LICENSORS, AND THE EMPLOYEES, OFFICERS, DIRECTORS AND AGENTS THEREOF) BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES UNDER THIS AGREEMENT OR IN CONNECTION WITH ANY SERVICES OR SOFTWARE PROVIDED BY TRAXERO HEREUNDER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES, SOFTWARE, DATA OR ANY OUTPUT, EVEN IF TRAXERO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF AVAILABLE REMEDIES ARE FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. THE TOTAL LIABILITY, IF ANY, OF TRAXERO (INCLUDING ITS SUBSIDIARIES, ITS PARENT AND SUBSIDIARIES OF ITS PARENT, ITS SERVICE PROVIDERS AND LICENSORS, AND THE EMPLOYEES, OFFICERS, DIRECTORS AND AGENTS THEREOF) IN THE AGGREGATE OVER THE TERM OF THIS AGREEMENT FOR ALL CLAIMS, CAUSES OF ACTION OR LIABILITY WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE ARISING UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT AND/OR THE SERVICES OR SOFTWARE PROVIDED HEREUNDER (COLLECTIVELY, “CLAIMS’), SHALL BE LIMITED TO THE LESSER OF: (A) CUSTOMER’S DIRECT DAMAGES, ACTUALLY INCURRED, OR (B) THE TOTAL FEES PAID BY CUSTOMER TO TRAXERO IN THE MOST RECENT SIX (6) MONTH PERIOD. NOTWITHSTANDING THE FOREGOING, TRAXERO’S SOLE OBLIGATION IN THE EVENT OF AN ERROR BY TRAXERO IN THE PERFORMANCE OF ANY SERVICES UNDER THIS AGREEMENT SHALL BE LIMITED TO REPROCESSING APPLICABLE DATA OR REPERFORMING THE SERVICES. TRAXERO (INCLUDING ITS SUBSIDIARIES, ITS PARENT AND SUBSIDIARIES OF ITS PARENT, ITS SERVICE PROVIDERS AND LICENSORS, AND THE EMPLOYEES, OFFICERS, DIRECTORS AND AGENTS THEREOF) SHALL HAVE NO LIABILITY, EXPRESS OR IMPLIED, WHETHER ARISING UNDER CONTRACT, TORT OR OTHERWISE, FOR ANY CLAIM OR DEMAND: (A) RESULTING DIRECTLY OR INDIRECTLY FROM CUSTOMER’S INTERNAL OPERATIONS, EQUIPMENT, SYSTEMS OR SOFTWARE OWNED OR LICENSED BY CUSTOMER; OR (B) BY THIRD PARTIES, EVEN IF TRAXERO WAS ADVISED OF THE POSSIBILITY OF SUCH CLAIMS OR DEMANDS, EXCEPT AS EXPRESSLY PROVIDED OTHERWISE HEREIN.

10.4 Reliance on Limitations and Disclaimers. CUSTOMER ACKNOWLEDGES THAT Traxero HAS SET ITS FEES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH IN THIS AGREEMENT, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 10 WILL SURVIVE ANY TERMINATION OR EXPIRATION HEREUNDER AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

10.5 Other Limitations. Traxero may modify, remove, or add new functionalities and/or modules to the Software from time to time, with or without prior notice to Customer, and Traxero reserves the right to increase the Fees or to require an additional Order Form in connection with any additional or modified Software. Notwithstanding the foregoing, Customer acknowledges and agrees that its execution of this Agreement is not contingent upon the delivery of any future products or services or any statements of Traxero with respect to the same. The obligations of Traxero under this Agreement run only to Customer and not to its affiliates, customers, patients, payors, providers, or any other persons. Under no circumstances will any other person be considered a third-party beneficiary of this Agreement or otherwise entitled to any rights or remedies hereunder. Customer will have no rights or remedies against Traxero except as specifically provided in this Agreement. No action or claim of any type relating to this Agreement may be brought or made by Customer more than one (1) year after Customer first has knowledge of the basis for the action or claim.

11. Indemnification

11.1 Indemnification of Customer by Traxero. Traxero shall indemnify, defend, and hold Customer harmless from and against any and all claims, liabilities, losses, suits, damages, fines, costs, and expenses, including any reasonable attorneys’ fees, arising out of or relating to (1) Traxero’s gross negligence or willful misconduct or (2) a third party claim that the Software, when used as authorized under this Agreement, infringe a U.S. patent, U.S. copyright, or U.S. trademark. Traxero’s indemnification obligations under this Section are subject to receipt of the following from Customer: (i) the prompt written notice of such claim; (ii) the exclusive right to control and direct the investigation, defense and settlement of such claim; and (iii) all information and cooperation requested by Traxero in connection with such claim. If Customer’s use of the Software is (or in Traxero’s opinion is likely to be) enjoined, if required by settlement, or if Traxero determines such actions are necessary, Traxero may, in its sole discretion: (a) substitute substantially similar products or services; (b) procure for Customer the right to continue using the Software; or, if (a) and (b) are not commercially practicable, (c) terminate this Agreement and refund to Customer a pro-rata portion of any prepaid Fees for the unused Software. The foregoing obligations of Traxero will not apply if the claim is attributable to: (1) any modification, alteration, or configuration of the Software by any party other than Traxero; (2) the combination of the Software with hardware, software, technology or intellectual property not specified in the Documentation or provided by Traxero; (3) any unauthorized or improper use of the Software; (4) any act or omission of Customer or any Authorized User; or (5) any Customer Data or any third-party deliverables or components contained within the Software. THIS SECTION 11.1 SETS FORTH TRAXERO’S ENTIRE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

11.2 Indemnification of Traxero by Customer. Customer shall indemnify, defend, and hold harmless Traxero and its affiliates, and each of their officers, agents, employees, affiliates, subsidiaries, assigns and successors in interest from and against any and all claims, liabilities, losses, suits, damages, fines, costs, and expenses, including any reasonable attorneys’ fees, arising out of or relating to: (a) the conduct of any business in connection with or otherwise related to the Software or any improper or misuse of the Software; (b) Customer’s use of and access to the Services, including any Customer Data transmitted or received by Customer; (c) Customer’s violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (d) the compliance with any directions provided by or on behalf of Customer; (e) any violation by Customer or its Authorized Users of any applicable laws, rules, regulations, or professional or legal standards; or (f) any willful, grossly negligent, criminal or fraudulent acts or omissions of Customer in the performance of this Agreement or any actions taken by Customer outside the scope of this Agreement.

12. General

12.1 Assignment, Successors. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective permitted successors and assigns. Traxero may assign or otherwise transfer its interest or any part thereof under this Agreement to another party without the consent of Customer [except that such party must expressly assume responsibility for all obligations hereunder in writing].

12.2 Force Majeure. Neither Party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for the failure to pay any Fees due hereunder) if the delay or failure results from any cause beyond such Party’s reasonable control, including, without limitation, any acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.

12.3 Governing Law. This Agreement shall be governed by the laws of the State of Delaware, excluding its conflict of laws principles. The federal and state courts located in Orange County, Florida shall have exclusive jurisdiction over any disputes arising from or relating to this Agreement, and each Party consents to such jurisdiction and venue.

12.4 Notice. All notices required to be given under this Agreement shall be in writing and shall be given or made by delivery in person, by courier service, by confirmed facsimile, or by registered or certified mail (postage prepaid, return receipt requested) at the address listed on the Order Form.

12.5 Independent Contractor. Traxero is acting as an independent contractor in its capacity under this Agreement. Nothing contained in this Agreement or in the relationship of the Customer and Traxero shall be deemed to constitute a partnership, joint venture, or any other relationship between the Customer and Traxero. Neither Party will be liable for obligations incurred by the other.

12.6 No Agency or Endorsement. Customer expressly acknowledge and agree that all Authorized Users are independent individuals and/or entities and not Traxero’s contractors, agents or employees. We do not make any representations or warranties of any kind with respect to any Authorized User or services provided or requested by Authorized Users, nor shall Traxero be deemed to endorse any Authorized User. We are not liable for the acts, errors, omissions, representations, warranties, breaches or negligence of any Authorized User or services provided or requested by Authorized Users, or for any personal injuries, death, property damage, or other damages or expenses resulting therefrom. We are not a party to any transaction with another Authorized User, and we are in no way responsible for the performance or non-performance of any Authorized User thereunder or the quality or lack thereof of any services provided by a Authorized User.

12.7 Use of Name. Traxero may use Customer’s name and logo in advertising, publicity, or otherwise publicize the fact that Customer is a customer of Traxero.

12.8 Export Control. Customer shall not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations that may be imposed by the U.S. Government and any country or organization of nations within whose jurisdictions Customer operates or does business, such as the Export Administration Regulations (“EAR”) maintained by the United States Department of Commerce, trade and economic sanctions maintained by the United States Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) maintained by the United States Department of State.

12.9 Subcontractors. Traxero may use the services of third party service providers and subcontractors and permit such parties to exercise any rights granted to Traxero hereunder in order to provide the applicable Services under this Agreement, provided that Traxero remains responsible for the overall performance of the Services hereunder.

12.10 Attorneys’ Fees and Costs. The prevailing Party in any action related to this Agreement will be entitled to seek the recovery of its attorneys’ fees and costs in connection with such action.

12.11 Miscellaneous. This Agreement, together with any exhibits or addenda hereto and all Order Forms, constitutes the entire agreement between Traxero and Customer with respect to the subject matter hereof. There are no restrictions, promises, warranties, covenants, or undertakings other than those expressly set forth herein and therein. This Agreement supersedes all prior negotiations, agreements, and undertakings between the Parties with respect to such matter. Traxero may, at any time, amend, alter, or modify this Agreement, including the Privacy Policy or exhibits hereto, at Traxero’s sole and exclusive discretion. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit, addendum or Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a purchase order or any other ordering documentation of Customer (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. No provision of this Agreement shall be construed against or interpreted to the disadvantage of any Party hereto by any court by reason of such Party having or being deemed to have structured or drafted such provision. The headings in this Agreement are for reference purposes only and shall not be deemed to have any substantive effect. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, then the remaining provisions of this Agreement will remain in full force and effect. The waiver by either Party of a breach of any provision of this Agreement shall not be taken or held to be a waiver of the provision itself.