TrackHero End User License Agreement

THIS IS A LEGAL AGREEMENT – PLEASE CAREFULLY REVIEW

TrackHero, LLC provides experience management software (“Software”) and related services for use by event teams, venues, agencies, and other customers, (“Customers”) and Customer event participants.  The TrackHero mobile software application (“Mobile App”) is offered to Customers, Customer event participants, and anyone who decides to download the Mobile App (collectively, “Users”) to access and use certain TrackHero services.  Trackhero Software, including the Mobile App, and related services are described herein, collectively, as “Services”. 

Use of the TrackHero Mobile App and other related Services is governed by this End User License Agreement (“EULA”) and other documents specifically referenced in this EULA.  This EULA is a binding legal agreement on you as a User, so please review it carefully. 

BY DOWNLOADING, INSTALLING, AND/OR USING THE TRACKHERO MOBILE APP, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA.  IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT USE THE MOBILE APP.

As set forth below, TrackHero may revise this EULA at any time.  TrackHero will provide notice of any changes by email or in the Services.  Any amendments will become binding upon User thirty (30) days after provision of such notice or immediately upon User’s access or use of the Services after receipt of the Notice, whichever is earlier.

1. Binding Agreement. By downloading, installing, accessing, or otherwise using the Mobile App, you agree that this EULA binding on you.

2. Age Requirement. The Mobile App and related Services are for use by individuals who are eighteen (18) years old or older or by a User under the age of 18 with permission of the User’s parent or legal guardian.  For the avoidance of doubt, all references to “you” or “your” in this EULA refer to both the User and, in the case of a User under the age of 18, the User’s parent or legal guardian unless the context expressly provides otherwise.

3. Additional Terms and Conditions. In addition to the terms and conditions set forth herein, certain TrackHero Services may be subject to Service-specific additional terms and conditions (“Additional Terms”).  Service-specific additional terms may be separately set forth in a separate writing provided to User in connection with such Services, including but not limited to the Master Subscription Agreement and the Software Subscription Addendum between TrackHero and TrackHero Customers 

4. TrackHero Intellectual Property. The Mobile App and all other TrackHero Software and Services are the exclusive property of TrackHero and/or its licensors (collectively, “TrackHero Intellectual Property”).  TrackHero Intellectual Property may not be copied, distributed, republished, uploaded, posted, or transmitted except in connection with lawful and authorized use of TrackHero Services.  You agree that you will not alter, decompile, disassemble, reverse engineer, or otherwise modify any TrackHero Intellectual Property.  You agree that you do not acquire any ownership or other proprietary interest in TrackHero Intellectual Property through use of the Services.  All rights to TrackHero Intellectual Property, including but not limited to all copyrights, trademarks, service marks, trade secrets, and other similar rights are reserved.

5. Limited License. In exchange for User’s agreement to comply with this EULA, TrackHero provides a limited, non-transferrable, non-exclusive, revocable license to use its Software, including the Mobile App, the Services, and the TrackHero Intellectual Property incorporated therein in the United States of America for the limited purpose of accessing and using the Services.  Except as expressly agreed by TrackHero in a separate written signed agreement, you may not co-brand, frame, or hyperlink to TrackHero’s website, Mobile App, or Services.  “Co-branding” means to display a name, logo, trademark, or other means of attribution or identification of any party in such a manner as is reasonably likely to give the impression that such other party has the right to display, publish, or distribute the TrackHero Software or Services.  TrackHero may impose additional license requirements, including limitations on the types of uses, time period of use, and any other restrictions deemed appropriate by TrackHero in its sole discretion.

6. User Generated Content. The Mobile App offers the ability to generate and store content for use by Customers and Users (“User Generated Content”).
   
   a.  User Responsibility. User is solely responsible for User Generated Content shared through the Mobile App.  USER EXPRESSLY AGREES TO DEFEND, INDEMNIFY, AND HOLD TRACKHERO HARMLESS FOR ANY USER GENERATED CONTENT PURSUANT TO THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 15, BELOW.
   b.  TrackHero License. When a person generates and stores User Generated Content, TrackHero receives a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display all User Generated Content (i) to deliver the Services and (ii) for TrackHero’s business purposes, including enhancing and improving TrackHero’s Software and Services.  In addition, TrackHero may access, aggregate and/or anonymize User Generated Content for the purpose of providing reports and other de-identified content for its own business purposes, including sharing with third parties.

7. Submissions. From time-to-time, Users may communicate with TrackHero to provide suggestions, feedback, feature requests, enhancement requests, support requests, or other similar communications (“Submissions”).  When Users communicate Submissions to TrackHero, they provide TrackHero a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right and license (a) to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display all content, remarks, suggestions, ideas, graphics, or other information communicated, and (b) to incorporate Submission(s) into other works, in any form, media, or technology now known or later developed.  TrackHero is not required to keep any Submissions confidential and may use any Submissions in its business and for its own purposes (including, without limitation, for products or advertising) without incurring any liability for royalties or other consideration of any kind. 

8. Acceptable Use and Prohibited Practices. The Services may only be used for lawful purposes consistent with this EULA, TrackHero’s privacy policy at www.trackhero.com/privacy-policy, which is expressly incorporated herein, and applicable laws and regulations.

   a.  User may not use the Services to engage in any illegal, fraudulent, or otherwise intentionally harmful activity or violate any person’s right to privacy or protections under applicable privacy and data protection laws.

   b.  User may not or post, send, submit, publish or transmit any User Generated Content or Submissions that:

   i.  User does not have the right to use, including intellectual property of a third party;
   ii.  advocates illegal activity or discusses an intent to commit an illegal act;
   iii.  is vulgar, obscene, pornographic, racist, or indecent;
   iv.  does not pertain to the Services, directly or indirectly;
   v.  is threatening, abusive, demeaning, or defamatory to any person;
   vi.  exploits or otherwise harms children;
   vii.  impersonates or misrepresents a connection to any other entity or person or otherwise manipulates headers or identifiers to disguise the origin of the content;
   viii.  solicits funds, advertisers, or sponsors;
   ix.  includes files or programs that contain malware (including viruses, worms and/or Trojan Horses) designed to interrupt, destroy or limit the functionality of any computer hardware, software, or communication system);
   x.  promotes any pyramid or similar scheme; or
   xi.  otherwise violates or reasonably could be interpreted as violating this EULA.

9. Compliance with Privacy Laws. Users are responsible for complying with all data privacy and data protection laws.  TRACKHERO DOES NOT PROVIDE LEGAL ADVICE AND DOES NOT GUARANTEE THAT USE OF INFORMATION PROVIDED THROUGH THE SERVICES WILL COMPLY WITH PRIVACY LAWS APPLICABLE TO USERS.  USERS ARE REQUIRED TO ENSURE THAT THEIR USE OF THE INFORMATION PROVIDED WILL COMPLY WITH ALL LAWS APPLICABLE TO THEM, INCLUDING ALL PRIVACY LAWS.  USERS EXPRESSLY AGREE TO DEFEND, INDEMNIFY, AND HOLD TRACKHERO HARMLESS, PURSUANT TO THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 15, BELOW, FOR ANY CLAIM OR GOVERNMENTAL INVESTIGATION INVOLVING ANY ALLEGED VIOLATION OF PRIVACY LAWS RESULTING FROM THEIR USE OF THE SERVICES.

10. Account Integrity. Users are responsible for the integrity of their account.  Each account is for a single user only.  TrackHero assumes no liability or responsibility for a User’s failure to maintain the integrity of their account(s) and the confidentiality of their login credentials.  Sharing of login credentials by multiple individuals is grounds for immediate termination of a User’s account.   

11. Security. Services delivered over the Internet are inherently not secure.  TrackHero uses commercially reasonable physical, administrative, and technical controls to protect the confidentiality, integrity, and availability of the Services, but cannot guarantee that use of the Services or any information Users provide will be 100% secure.  Users are responsible for taking all necessary measures to protect the security of devices used to access the Services and the confidentiality of all information transmitted to and received from TrackHero in connection with use of the Services.

12. Third Party Services. TrackHero’s website and the Services may provide the opportunity to access services offered by one or more third parties (“Third-Party Services”), including via hyperlinks within the website and Services.  TrackHero is not responsible for Third-Party Services, which may be governed by additional or different terms.  Users are required to review and accept the terms of Third-Party Services before using them.

13. Warranties. EXCEPT AS EXPRESSLY REQUIRED BY APPLICABLE LAW, TRACKHERO SERVICES ARE PROVIDED “AS IS.” USERS USE TRACKHERO SERVICES AT THEIR OWN RISK. TO THE FULL EXTENT PERMITTED UNDER APPLICABLE LAW, TRACKHERO GIVES NO EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS, AND WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR PRACTICE. TRACKHERO DOES NOT WARRANT AGAINST INTERFERENCE WITH ENJOYMENT OF THE SERVICES; THAT THE TRACKHERO SERVICE WILL MEET USER’S REQUIREMENTS; THAT OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR FREE FROM ERRORS, BUGS, CORRUPTION, LOSS OF DATA, INTERFERENCE, HACKING OR VIRUSES, OR THAT THE SERVICES WILL INTEROPERATE OR BE COMPATIBLE WITH ANY OTHER SOFTWARE. TRACKHERO DOES NOT WARRANT OR GUARANTEE ANY THIRD-PARTY PRODUCT OR SERVICE OFFERED VIA THE SERVICES.  SOME JURISIDICTIONS LIMIT OR PROHIBIT DISCLAIMERS OF IMPLIED WARRANTIES, IN WHICH CASE THIS DISCLAIMER MAY NOT APPLY TO YOU. 

14. TrackHero Limitation of Liability. TRACKHERO SHALL NOT BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS, LOSS OF REVENUE, DATA OR USE), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.  TRACKHERO’S TOTAL AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING HEREUNDER SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY TRACKHERO IN AN AMOUNT NOT TO EXCEED $100.00 OR THE AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER TO TRACKHERO FOR THE SOFTWARE SERVICES PROVIDED TO USER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT THAT IS THE BASIS FOR THE FIRST CLAIM, WHICEVER IS LESS.  The provisions of this Section 15 allocate risks under this Agreement between User and TrackHero.  TrackHero’s fees from Customers for use by Customer’s Users reflect the allocation of risks and limitation of liability above.

15. User Indemnification of TrackHero. User agrees to defend, indemnify and hold TrackHero and TrackHero’s service providers, licensors, members, directors, officers, employees, agents, and representatives (collectively, the “TrackHero Indemnitees”) harmless from and against any costs, losses, damages, liabilities and expenses, including reasonable attorneys’ fees attributable to any claim made by a third party relating to and/or arising out of User’s (a) breach of any representation or warranty made in this EULA; (b) negligence or willful misconduct (except to the extent directly, proximately, and solely caused by the TrackHero Indemnitee’s own negligence or willful misconduct); (c) breach of any Privacy Laws; and (d) any data security incident caused or suffered by User.

16. Suspension and Termination. TrackHero may suspend or terminate a User’s right to access and use the Mobile App and other related Services in its sole discretion without notice or opportunity to cure for any of the following reasons: (a) failure of the Customer associated with User’s account to pay for Services when due; (b) breach or suspected breach of any material provision of this EULA by User; or (c) discontinuance of the Service by TrackHero. 

17. Post-Termination/Cancellation Handling of Customer Data. Upon termination of this EULA or cancellation of User’s account, TrackHero will disable User’s access to the Services and any data associated with Customer’s account.  Upon User’s request, TrackHero will delete any data in User’s account.  This needs to be in writing to [email protected].  For the avoidance of doubt, TrackHero may retain and has no obligation to delete User Generated Content and Submissions.

18. Dispute Resolution.

 a.  User agrees to work with TrackHero in good faith to resolve any disputes relating to the Services for a period of thirty (30) days before initiating litigation.

b.  User expressly agrees that any dispute regarding this EULA or the Services must be commenced in the state or federal courts for Passaic County, New Jersey and User expressly consents to the jurisdiction of such Courts.

19. Miscellaneous.
    a.  Entire Agreement. This EULA, and the additional documents referred to herein, constitute the entire agreement among the parties relating to this subject matter. Notwithstanding the foregoing, any additional terms and conditions on the website or the Services will govern the specific Services to which they pertain.
    b.  Ammendments.  User acknowledges that TrackHero products are subscription-based Services and that, in order to provide improved customer experience, TrackHero may make changes to the Services, including the TrackHero Software and this EULA, in its sole discretion. TrackHero reserves the right to update the terms and conditions of this EULA by posting revisions on the TrackHero website, and those revisions will be binding upon User thirty (30) days after such notice or upon User’s access to or use of the Services following receipt of such notice, whichever is earlier.
    c.  Headings. Section headings used herein are for convenience only and are not intended to be, nor shall they be, used as an aid in interpretation of this EULA.
    d.  Severability. If any part of this EULA is found to be unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions.  All remaining provisions shall be interpreted to give effect to the intent of the parties in agreeing to this EULA.
    e.  Waiver. The failure of any Party to insist upon strict adherence to this EULA on any occasion shall not be considered a waiver thereof or deprive that Party of the right thereafter to insist upon strict adherence to this EULA.
    f.  Force Majeure. No Party shall be in default by reason of any delay or failure to perform as a result of any event, circumstance, or other cause beyond its reasonable control such as, but not limited to, acts of God, strikes, lock-outs, governmental orders or restrictions, acts of war, threats of war, hostilities, revolution, acts of terrorism, riots, epidemics, pandemics, public health emergencies, fire, earthquakes, floods, or disruption of internet access or other communications failures (other than as a result of failure to pay) (a “Force Majeure Event”).  The performance of this EULA shall be suspended during any Force Majeure Event.
    g.  Governing Law. This EULA will be governed and interpreted pursuant to the laws of New York notwithstanding any principles of conflicts of law.