These Terms and Conditions constitute a legally binding agreement made between you, whether personally or on behalf of an entity (you), and Flux ICT, located at Jan van de Capellelaan 102, 5642 LG Eindhoven, The Netherlands (we, us, referred to as Tracklete), concerning your access to and use of the Tracklete Rowing (rowing.tracklete.io) website as well as any related applications (the Site). By purchasing access to Tracklete Rowing, using a free access plan or participating in the Demo version or having any other form of access to Tracklete rowing, you, (referred to as “the user”) agree that by accessing the Site and/or Services, you have read, understood, and agree to be bound by all of these Terms and Conditions.
If you do not agree with all of these Terms and Conditions, then you are prohibited from using the Site and Services and you must discontinue use immediately. We recommend that you print a copy of these Terms and Conditions for future reference.
(The capitalized terms used in this agreement, in addition to those above, are defined in section DEFINITIONS.)
Grant of License to Access and Use Service
Interest on Late Payments.
Any amount not paid when due will bear interest from the due date until paid at a rate equal to 2% per month (24% annually) or the maximum allowed by Law, whichever is less.
Tracklete shall provide the Service to the user with a System Availability of at least 98% during each calendar month.
Tracklete may take the Service offline for scheduled maintenances that it provides the user the schedule for in writing (though this scheduled maintenance time will not count as System Availability), and change its schedule of maintenances on one month written notice to the user.
System Availability Definition
Percentage of Minutes per Month. “System Availability” means the percentage of minutes in a month that the key components of the Service are operational. Not Included in “System Availability. “System Availability” will not include any minutes of downtime resulting from scheduled maintenance, events of force majeure, malicious attacks on the system, issues associated with the user’s computing devices, local area networks or internet service provider connections, or Tracklete’s inability to deliver services because of the user’s acts or omissions.
The user shall implement reasonable safeguards to prevent unauthorized access to, use of, or disclosure of the disclosing party’s Data.
Tracklete shall conduct regular backups of all the user data on a daily basis. In case of a major service disruption Tracklete will automatically restore the user backups.
Tracklete may anonymously compile statistical information related to the performance of the Service for purposes of improving the Service service, but only if such information does not identify the data as the user’s or otherwise include the user’s name.
- Existence. The parties are corporations incorporated or private persons and existing under the laws of the jurisdictions of their respective incorporation.
- Authority and Capacity. The parties have the authority and capacity to enter into this agreement.
- Execution and Delivery. The parties have duly executed and delivered this agreement.
- Enforceability. Any agreement between Tracklete and the user constitutes a legal, valid, and binding obligation, enforceable against the parties according to its terms.
- No Conflicts. Neither party is under any restriction or obligation that the party could reasonably expect might affect the party’s performance of its obligations under this agreement.
- No Breach. Neither party’s execution, delivery, or performance of its obligations under this agreement will breach or result in a default under
- its articles, bylaws, or any unanimous shareholders agreement,
- any Law to which it is subject,
- any judgment, Order, or decree of any Governmental Authority to which it is subject, or
- any agreement to which it is a party or by which it is bound.
- Permits, Consents, and Other Authorizations. Each party holds all Permits and other authorizations necessary to
- own, sell, and operate its properties, or products, and
- conduct its business as it is now carried on.
- No Disputes or Proceedings. There are no Legal Proceedings pending, threatened, or foreseeable against either party, which would affect that party’s ability to complete its obligations under this agreement.
- No Bankruptcy. Neither party has taken or authorized any proceedings related to that party’s bankruptcy, insolvency, liquidation, dissolution, or winding up.
- Ownership. Tracklete is the exclusive legal owner of the Service Tracklete Rowing, including all Intellectual Property included in the Service and granted under the DELIVERABLE.
- Status of Licensed Intellectual Property. Tracklete has properly registered and maintained all Intellectual Property included in the Service and granted under the [DELIVERABLE] and paid all applicable maintenance and renewal fees.
- No Conflicting Grant. Tracklete has not granted and is not obligated to grant any license to a third party that would conflict with the [DELIVERABLE].
- No Infringement. The Service does not infringe the Intellectual Property rights or other proprietary rights of any third party.
- No Third Party infringement. To Tracklete’s Knowledge, no third party is infringing the Service.
the user shall be responsible for obtaining and maintaining all computer hardware, software, and communications equipment needed to internally access the Service, and paying all third party access charges incurred while using the Service.
the user shall be responsible for implementing, maintaining, and updating all necessary and proper procedures and software for safeguarding against computer infection, viruses, worms, Trojan horses, and other code that manifest contaminating or destructive properties (collectively “Viruses”). the user’s Use of Services.
- the user shall abide by all local and international Laws and regulations applicable to its use of the Service,
- use the Service only for legal purposes, and
- comply with all regulations, policies and procedures of networks connected to the SaaS.
the user will not
- upload or distribute of any files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation ofthe Service,
- modify, disassemble, decompile or reverse engineer the Service,
- probe, scan, test the vulnerability of, or circumvent any security mechanisms used by, the sites, servers, or networks connected to the Service,
- take any action that imposes an unreasonably or disproportionately large load on the sites, servers, or networks connected to the Service,
- copy or reproduce the Service,
- access or use any other clients’ or their users’ data through the Service,
- maliciously reduce or impair the accessibility of the Service,
- use the service to post, promote, or transmit any unlawful, harassing, libelous, abusive, threatening, harmful, hateful, or otherwise objectionable material, or
- transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability. 10) Systematically retrieve data or other content from the Site to a compile database or directory without written permission from us
- Make any unauthorized use of the Site, including collecting usernames and/or email addresses of users to send unsolicited email or creating user accounts under false pretenses
- Use the Site to advertise or sell goods and services
- Make improper use of our support services, or submit false reports of abuse or misconduct
- Engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools
- Interfere with, disrupt, or create an undue burden on the Site or the networks and services connected to the Site
- Attempt to impersonate another user or person, or use the username of another user
- Sell or otherwise transfer your profile
- Attempt to access any portions of the Site that you are restricted from accessing
- Harass, annoy, intimidate, or threaten any of our employees, agents, or other users
- Delete the copyright or other proprietary rights notice from any of the content
- Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material that interferes with any party’s uninterrupted use and enjoyment of the Site, or any material that acts as a passive or active information collection
Information you provide to us
Your obligations about your data
You represent and warrant that:
- all registration information you submit will be true, accurate, current, and complete and relate to you and not a third party;
- you will maintain the accuracy of such information and promptly update such information as necessary;
- you will keep your password confidential and will be responsible for all use of your password and account
- you have the legal capacity and you agree to comply with these Terms and Conditions
- you are not a minor in the jurisdiction in which you reside, or if a minor, you have received parental permission to use the Site.
If you know or suspect that anyone other than you knows your user information (such as an identification code or user name) and/or password you must promptly notify us at [email protected]
If you provide any information that is untrue, inaccurate, not current or incomplete, we may suspend or terminate your account. We may remove or change a user name you select if we determine that such user name is inappropriate.
3rd party accounts
As part of the functionality of The Site, you may link your account with online accounts you may have with third party service providers (each such account, a Third Party Account) by either:
- providing your Third Party Account login information through The Site
- allowing us to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account.
You represent that you are entitled to disclose your Third Party Account login information to us and/or grant us access to your Third Party Account without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating us to pay any fees or making us subject to any usage limitations imposed by such third party service providers.
3rd party account access policy
By granting us access to any Third Party Accounts, you understand that
- we may access, make available and store (if applicable) any content that you have provided to and stored in your Third Party Account so that it is available on and through The Site via your account
- we may submit and receive additional information to your Third Party Account to the extent you are notified when you link your account with the Third Party Account.
Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts may be available on and through your account on The Site. Please note that if a Third Party Account or associated service becomes unavailable or our access to such Third Party Account is terminated by the third party service provider, then the content may no longer be available on and through The Site.
You will have the ability to disable the connection between your account on The Site and your Third Party Accounts at any time. Please note that your relationship with the third party service providers associated with your third party accounts is governed solely by your agreement(s) with such third party service providers. We make no effort to review any 3rd party content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and we are not responsible for any 3rd party content.
Content you provide to us
- There may be opportunities for you to post content to The Site or send feedback to us (User Content). You understand and agree that your User Content may be viewed by other users on the Site, and that they may be able to see who has posted that User Content.
- You warrant that any User Content does comply with our Acceptable Use Policy, and you will be liable to us and indemnify us for any breach of that warranty. This means you will be responsible for any loss or damage we suffer as a result of your breach of this warranty.
- We have the right to remove any User Content you put on the Site if, in our opinion, such User Content does not comply with the Acceptable Use Policy.
- We are not responsible and accept no liability for any User Content including any such content that contains incorrect information or is defamatory or loss of User Content. We accept no obligation to screen, edit or monitor any User Content but we reserve the right to remove, screen and/or edit any User Content without notice and at any time. User Content has not been verified or approved by us and the views expressed by other users on the Site do not represent our views or values
- If you wish to complain about User Content uploaded by other users please contact us at [email protected]
- Termination on Notice: Either party may terminate this agreement for any reason on 30 business days’ notice to the other party.
- In the case that there is no breach of contract from Tracklete and the user cancels the agreement, no refund can be given for any prepaid period, unless otherwise specified in the sales agreement.
- Termination for Material Breach or contractual breach. Each party may terminate this agreement with immediate effect by delivering notice of the termination to the other party, if
- the other party fails to perform, has made or makes any inaccuracy in, or otherwise materially breaches, any of its obligations, covenants, or representations, and
- the failure, inaccuracy, or breach continues for a period of 30 Business Days’ after the injured party delivers notice to the breaching party reasonably detailing the breach.
- Termination for Failure to Pay. Tracklete may terminate this agreement with immediate effect by delivering notice of the termination to the user if the user fails to pay the in the sales contract agreed on Subscription Fee within 30 days after the invoice has been issued.
- Automatic termination. This contract is set for an indefinite period, billed in the Sales contract defined billing scheme. The contract is automatically extended by 1 year unless terminated by the purchasing party with a minimum 1 month notice period.
- Termination within the usage year. The user has the right to cancel the contract any time. No refunds will be provided by the offering party for any period the contract is already paid for.
Effect of Termination
- Refund Amounts. Refunds are only possible if the contract is prematurely terminated by the the user because Tracklete has breached or failed to fulfill the contract. Tracklete shall refund the the user within 30 business the percentage of the users already made paymnent for the remaining billing period. The refunded amount to the user cover the remainder of the term of all subscriptions after the effective date of termination.
- Pay Outstanding Amounts. the user shall immediately pay to Tracklete all amounts outstanding as of the date of, and any amounts outstanding as a result of, termination.
- Discontinuance of Use. the user shall cease all use of the Service upon the effective date of the termination.
- Recovery of Data. the user will have 30 days from the date of termination to retrieve any of data that the user wishes to keep. After the 30 day period the user will no longer have access to the Tracklete Rowing system or his data.
- Indemnification by Tracklete. Tracklete does not provide any form of indemnification.
- Indemnification by the user. Indemnification charges from Tracklete to the the user can occur in case the the user has breached the contract or has taken any other steps which lead to additional costs for Tracklete, the loss of IP or other financial losses occuring to Tracklete because of any action of the user.
Limitation on Liability
- Mutual Limit on Liability. Neither party will be liable for breach-of-contract damages suffered by the other party that are remote or speculative, or that could not have reasonably been foreseen on entry into this agreement.
- Maximum Liability. Tracklete’s liability under this agreement will not exceed the fees paid by the user under this agreement during the 12 months preceding the date upon which the related claim arose.
- Entire Agreement. The parties intend that these terms and conditions, together with all attachments, sales contracts, schedules, exhibits, and other documents that both are referenced in this agreement and refer to this agreement,
- represent the final expression of the parties’ intent relating to the subject matter of this agreement,
- contain all the terms the parties agreed to relating to the subject matter, and
- replace all of the parties’ previous discussions, understandings, and agreements relating to the subject matter of this agreement.
- Amendment. Tracklete may amend the terms and conditions of this agreement at any time by reasonable notice.
- Assignment. Neither party may assign this agreement or any of their rights or obligations under this agreement without the other party’s written consent.
- Method of Notice. The parties shall give all notices and communications between the parties in writing by (i) personal delivery, (ii) a nationally-recognized, next-day courier service, (iii) first-class registered or certified mail, postage prepaid, or (iv) electronic mail to the party’s address specified in this agreement, or to the address that a party has notified to be that party’s address for the purposes of this section.
- Receipt of Notice. A notice given under this agreement will be effective on the other party’s receipt of it, or if mailed, the earlier of the other party’s receipt of it and the 5th business day after mailing it.
- Governing Law. This agreement shall be governed, construed, and enforced in accordance with the laws of the Country Netherlands, without regard to its conflict of laws rules.
- Severability. If any part of this agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.
- Affirmative Waivers. Neither party’s failure or neglect to enforce any rights under this agreement will be deemed to be a waiver of that party’s rights.
- Written Waivers. A waiver or extension is only effective if it is in writing and signed by the party granting it.
- No General Waivers. A party’s failure or neglect to enforce any of its rights under this agreement will not be deemed to be a waiver of that or any other of its rights.
- No Course of Dealing. No single or partial exercise of any right or remedy will preclude any other or further exercise of any right or remedy.
- Force Majeure. Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for payment obligations.
Relationship of the Parties
- No Relationship. Nothing in this agreement creates any special relationship between the parties, such as a partnership, joint venture, or employee/employer relationship between the parties.
- No Authority. Neither party will have the authority to, and will not, act as agent for or on behalf of the other party or represent or bind the other party in any manner.
- Cooperation. You will reasonably cooperate with any of the Tracklete’s investigation of Service outages, security problems, and any suspected breach of the Agreement. Where agreement, approval, acceptance, consent or similar action by either party hereto is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld.
Disclaimer/Limitation of Liability
- The Site and Services are provided on an as-is and as-available basis. You agree that your use of the Site and/or Services will be at your sole risk except as expressly set out in these Terms and Conditions. All warranties, terms, conditions and undertakings, express or implied (including by statute, custom or usage, a course of dealing, or common law) in connection with the Site and Services and your use thereof including, without limitation, the implied warranties of satisfactory quality, fitness for a particular purpose and non-infringement are excluded to the fullest extent permitted by applicable law. We make no warranties or representations about the accuracy or completeness of the Site’s content and are not liable for any (1) errors or omissions in content: (2) any unauthorized access to or use of our servers and/or any and all personal information and/or financial information stored on our server; (3) any interruption or cessation of transmission to or from the site or services; and/or (4) any bugs, viruses, trojan horses, or the like which may be transmitted to or through the site by any third party. We will not be responsible for any delay or failure to comply with our obligations under these Terms and Conditions if such delay or failure is caused by an event beyond our reasonable control.
Authorized Usersmeans the list of Persons authorized to use the Services under this agreement, i.e. every subscriber to of the user to Tracklete’s services.
Business Daymeans a day other than a Saturday, a Sunday, or any other day on which the principal banks located in Eindhoven, The Netherlands are not open for business.
Datameans all of the data the user creates with or uses with the Service, or otherwise related to the user’s use of the Services.
Effective Dateis defined in the introduction to this agreement.
Governmental Authoritymeans (a) any federal, state, local, or foreign government, and any political subdivision of any of them, (b) any agency or instrumentality of any such government or political subdivision, (c) any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that its rules, regulations or orders have the force of law), and (d) any arbitrator, court or tribunal of competent jurisdiction.
Intellectual Propertymeans any and all of the following in any jurisdiction throughout the world (a) trademarks and service marks, including all applications and registrations, and the goodwill connected with the use of and symbolized by the foregoing, (b) copyrights, including all applications and registrations related to the foregoing, (c) trade secrets and confidential know-how, (d) patents and patent applications, (e) websites and internet domain name registrations, and (f) other intellectual property and related proprietary rights, interests and protections (including all rights to sue and recover and retain damages, costs and attorneys’ fees for past, present, and future infringement, and any other rights relating to any of the foregoing).
Lawmeans (a) any law (including the common law), statute, bylaw, rule, regulation, order, ordinance, treaty, decree, judgment, and (b) any official directive, protocol, code, guideline, notice, approval, order, policy, or other requirement of any Governmental Authority having the force of law.
Legal Proceedingmeans any claim, investigation, hearing, legal action, or other legal, administrative, arbitral, or similar proceeding, whether civil or criminal (including any appeal or review of any of the foregoing).
Ordermeans any decision, order, judgment, award, or similar order of any court of competent jurisdiction, arbitration panel, or Governmental Authority with jurisdiction over the subject matter, whether preliminary or final.
Permitsmeans all material licenses, franchises, permits, certificates, approvals, and authorizations, from Governmental Authorities necessary for the ownership and operation of the party’s business.
Personincludes (a) any corporation, company, limited liability company, partnership, Governmental Authority, joint venture, fund, trust, association, syndicate, organization, or other entity or group of persons, whether incorporated or not, and (b) any individual.
Taxesincludes all taxes, assessments, charges, duties, fees, levies, and other charges of a Governmental Authority, including income, franchise, capital stock, real property, personal property, tangible, withholding, employment, payroll, social security, social contribution, unemployment compensation, disability, transfer, sales, use, excise, gross receipts, value-added and all other taxes of any kind for which a party may have any liability imposed by any Governmental Authority, whether disputed or not, any related charges, interest or penalties imposed by any Governmental Authority, and any liability for any other person as a transferee or successor by Law, contract or otherwise.
Virusesis defined in section [USER OBLIGATIONS].
The Sitetracklete.io and all subdomains.