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TERMS OF SERVICE

1. Description

TrackingDesk is a cloud based application for running, managing, distributing, analyzing and tracking web and mobile advertising. It is running on a distributed cloud based infrastructure and is accessible through the website trackingdesk.com and associated domain names.

2. Access rights

2.1 TrackingDesk grants to Customers a non-exclusive, non-assignable, and non-transferable right to use TrackingDesk according to all of the terms and conditions set forth herein.

2.2 Access to TrackingDesk requires prior registration to the site and login access codes provided by TrackingDesk.

2.3 Customer is exclusively responsible for their use of TrackingDesk. Customer shall not grant access to any 3rd party to use or gain access to TrackingDesk and shall use strict security measures to protect against unauthorized use and/or access. Customer is solely responsible for use of TrackingDesk by their employees or any unauthorized person.

2.4 TrackingDesk shall not access Customers’ accounts for purposes other than administrative or technical support.

3. Customer requirements

3.1 Customer shall provide accurate and up to date information to TrackingDesk and shall maintain up to date account information via the TrackingDesk application administration interface.

3.2 If the customer is an individual, Customer represents and warrants: he/she is at least 18 years old and has full capacity to perform acts according to the laws of its country.

3.3 When a person signing to TrackingDesk acts on behalf of their employer or a third party, this person represents and warrants it has a full legal authority to bind their employer or such other entity to this Terms and Conditions.

3.4 Customer or the person acting on behalf of Customer authorizes TrackingDesk to process their personal data provided during registration for the needs of executing this agreement and rendering the services of TrackingDesk.

3.5 Customers shall not access, or attempt to access, TrackingDesk by any means other than the means provided directly by TrackingDesk – Via the website or API.

3.6 Customer shall not attempt to interfere with the operation of TrackingDesk.

3.7 Customer shall not attempt to gain unauthorized access to accounts registered to other customers, or any systems or networks connected to TrackingDesk or TrackingDesk website.

3.8 Customer shall not attempt to obtain: (A) any information from TrackingDesk, including without limitation: email addresses or phone numbers of other account holders or other software data; (B) intercept, examine any proprietary communications methods used by TrackingDesk, TrackingDesk infrastructure, (C) use any software that purpose is to provide unauthorized access to, or distort, delete, damage TrackingDesk website and associated websites.

3.9 Customer shall not use TrackingDesk for any illegal, obscene or offensive purpose.

3.10 Customer shall ensure that all the marketing materials used via TrackingDesk are free from viruses, worms, Trojan horses, and other malicious software or code.

4. Intellectual Property

4.1 Customer shall not rent, lease, sell, sublicense, distribute, transfer, copy, or modify or attempt to reverse engineer TrackingDesk.

4.2 Customer shall not attempt, in any shape or form, to reverse engineering or modify the source code of TrackingDesk.

4.3 Customer shall not use TrackingDesk in any manner, or in connection with any content, data, hardware, software or other materials, that (A) infringes upon or violates any patent, copyright, trade secret, trademark, or other intellectual property right of any third party, (B) constitutes a defamation, libel, invasion of privacy, or violation of any right of publicity or other third-party right or is threatening, harassing or malicious (C) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person’s identity (whether a real identity or online nickname or alias) (D) violates any applicable law, ordinance, rule, regulation or treaty.

5. Service Standards

5.1 TrackingDesk reserves the right to modify TrackingDesk without notice and without liability.

5.2 TrackingDesk has no obligation to review the Customer’s use of TrackingDesk. TrackingDesk does not control, nor is to be held responsible for Customer’s use of TrackingDesk or any of the content that Customer sends or receive through TrackingDesk.

5.3. Analytics. TrackingDesk shall provide you with information, reports and analytics in respect of the ad campaigns you run through TrackingDesk application (“Analytics”). TrackingDesk makes no warranty that the Analytics provided shall be useful to your business. You are solely responsible for any action you may take based on the Analytics, and in making any decision you should take into account the possibility that information provided by the Analytics may not correctly reflect current or future trends.

5.4 TrackingDesk setup: You are solely responsible for the setup of your TrackingDesk account, campaigns, traffic sources, advertisers and affiliate programs. TrackingDesk can and will provide support and guidance via its knowledge base or support center in order to assist you in setting up your account. Any errors in setup resulting in traffic losses, campaign low performances are solely the responsibility of the customer and TrackingDesk cannot be held responsible.

6. Proprietary Rights

6.1 All algorithms, methods of computation and data processed by TrackingDesk to measure network traffic, used for geo-location or segmentation of traffic or any other data of statistical nature necessary for proper operation of TrackingDesk or features thereof (hereinafter referred to as: “Processed Data”) are and shall remain the sole and exclusive ownership of TrackingDesk, including all applicable rights to patents, copyrights, trademarks, trade secrets, or other proprietary or intellectual property rights inherent therein. All rights not expressly granted to Customer herein are reserved to TrackingDesk.

6.2 Customer’s materials (i.e. creative, links, landing pages, campaigns, etc.) are and shall remain their exclusive property, including all applicable rights to patents, copyrights, trademarks, trade secrets, or other proprietary or intellectual property rights inherent therein or appurtenant thereto.

7. Support

7.1 TrackingDesk will provide Customer with technical support and guidance, but may elect to do so based on the support level allocated to the customer’s chosen plan. Technical support will be delivered in English (and if available in other languages) and during business hours, from Monday through Friday, from 10am gmt+2 to 6pm gmt +2. The support center and knowledge base can be found on the url: http://support.TrackingDesk.com and via the TrackingDesk’s application

8. Confidentiality

8.1 You agree that the platform, TrackingDesk, and Processed Data are TrackingDesk’s confidential and/or trade secret information (collectively, “Confidential Information”). Customer shall not sell, transfer, publish, disclose, display, or otherwise make available any portion of the Confidential Information to others except as expressly provided for herein. Customer agrees to secure and protect the Confidential Information in a manner consistent with the maintenance of TrackingDesk’s rights therein. Customer shall use its best efforts to assist TrackingDesk in identifying and preventing any unauthorized access, use, copying, or disclosure of the Confidential Information, or any component thereof, or any of the algorithms or logic contained therein. Without limitation of the foregoing, Customer shall advise TrackingDesk immediately in the event Customer learns or has reason to believe that any person to whom Customer has given access to Confidential Information has violated or intends to violate the confidentiality of the Confidential Information or any other the proprietary rights of TrackingDesk, and Customer will, at Customer’s expense, cooperate with TrackingDesk in seeking injunctive or other equitable relief in the name of Customer or TrackingDesk against any such person. Customer agrees to maintain the confidentiality of TrackingDesk’s Confidential Information using at least as great a degree of care as Customer uses to maintain the confidentiality of Customer’s own most confidential information (and in no event less than a reasonable degree of care). Customer acknowledges that the disclosure of any aspect of the Confidential Information, including without limitation TrackingDesk or any other Confidential Information referred to herein, or any information which, at law or equity ought to remain confidential, will immediately give rise to continuing irreparable injury to TrackingDesk inadequately compensable in damages at law, and TrackingDesk is entitled to seek and obtain immediate injunctive relief against the breach or threatened breach of any of the foregoing confidentiality undertakings, in addition to any other legal remedies which may be available. In addition, TrackingDesk may immediately terminate Customer’s account and all license rights granted herein, in the event Customer breaches any of its confidentiality obligations.

TrackingDesk’s Confidentiality Obligations. TrackingDesk will employ industry-standard security measures to ensure that your Data is not disclosed to third parties. Subject to the terms and conditions of TrackingDesk’s Privacy Policy, which you should review, TrackingDesk will not disclose Data to third parties or use your Data for any purpose other than providing you with the Services. Notwithstanding the foregoing, TrackingDesk may use statistical usage data derived from your Data as set forth in our Privacy Policy to improve the product and service. All of TrackingDesk employees that have access to the Data have executed written agreements that contain non-disclosure and non-use provisions substantially similar to those contained herein. TrackingDesk does not collect or use any information that personally identifies any of your ad campaigns visitors. If TrackingDesk does come into possession of such information, however, such information shall be subject to all of the non-use and non-disclosure provisions herein and in the Privacy Policy.

9. Indemnification

9.1 Customer shall indemnify, defend, and hold harmless TrackingDesk from and against all liability, demands, claims, costs, losses, damages, recoveries, settlements, and expenses (including interest, penalties, reasonable attorney fees, accounting fees, and expert witness fees) incurred by TrackingDesk, known or unknown, contingent or otherwise, directly or indirectly arising from Customer’s breach of any term or provision of these Terms and Conditions or any way related to the Customer’s use of TrackingDesk, including but not limited to any claim that Customer’s website is owned by someone other than Customer or that the website infringes on the intellectual property rights of a third party. TrackingDesk shall notify Customer of any such claim and shall cooperate with Customer, at Customer’s expense, in defending or settling such claim. User may not settle any such claim in a manner that imposes any non-indemnified costs or otherwise adversely affects TrackingDesk rights without TrackingDesk’s prior written consent. TrackingDesk may join in defense with counsel of its choice at its own expense. If Customer does not assume the defense of any such claim within thirty (30) days after the date notice of such claim is given, TrackingDesk may defend against such claim in such manner as it may deem appropriate at Customer’s expense, including, without limitation, settling such claim, after giving notice of the same to Customer.

10. Disclaimer of Warranty

10.1 TRACKINGDESK AND ITS RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, EMPLOYEES, ADVISORS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS, VENDORS, USERS AND AGENTS (COLLECTIVELY “THE TRACKINGDESK PARTIES”) ARE NOT RESPONSIBLE FOR ANY CONTENT PROVIDED BY THIRD PARTIES (INCLUDING CUSTOMER’S). EXCEPT AS EXPRESSLY SET FORTH HEREIN, NONE OF THE TRACKINGDESK PARTIES MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, NONINFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. THE ENTIRE RISK ARISING OUT OF THE USE OF TRACKINGDESK OR PERFORMANCE OF THE CUSTOMER’S WEBSITES REMAINS WITH CUSTOMER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE TRACKINGDESK PARTIES SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY REGARDING (A) THE SUCCESS OF TRACKINGDESK, (B) THE NUMBER OF END USERS, IF ANY, WHO MAY SEE ADVERTISEMENTS THROUGH THE PLATFORM, AND (C) THE ERROR-FREE, DISRUPTION-FREE OR INTERRUPTION-FREE NATURE OF TRACKINGDESK. THE PLATFORM IS PROVIDED “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” WITHOUT WARRANTY, OF ANY KIND, AND ANY USE BY YOU SHALL BE AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TRACKINGDESK PARTIES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE OR THE USE OF OR INABILITY TO USE TRACKINGDESK, EVEN IF TRACKINGDESK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL, CUMULATIVE LIABILITY OF THE TRACKINGDESK PARTIES FOR ANY DIRECT DAMAGES INCURRED HEREUNDER SHALL NOT EXCEED FIFTY DOLLARS ($100.00).

11. Term

11.1 This Terms and Conditions are effective as long as Customer is registered as a TrackingDesk user. The services are provided by TrackingDesk to Customer on a monthly subscription basis.

12. Termination

12.1 Either Party may terminate this agreement at any time by providing notice to the other Party. Regardless of the circumstances, such termination shall not give rise to liability.

12.2 In the event of any termination Customer will not be entitled to any refunds of any fees. Any outstanding balance for TrackingDesk use rendered through the date of termination, and other unpaid payment obligations during the remainder of the billing period will be immediately due and payable in full. All data, files or other information stored in Customer’s account will no longer available to Customer.

12.3 The termination of this agreement shall automatically, and without further action by TrackingDesk, terminate and extinguish Customer’s right to use TrackingDesk.

12.4 Customer agrees that TrackingDesk has the right to delete all data, files, or other information that is stored in Customer’s account subsequent to termination. Customer agrees that TrackingDesk may retain chosen Processed Data related to Customer’s use of TrackingDesk, except for any personal data.

12.5 TrackingDesk may suspend or terminate Customer’s access to TrackingDesk at any time, without advance notice, for any reason that TrackingDesk finds valid in its sole discretion until cured, including but not limited to where TrackingDesk believes that: (A) Customer is in any way in breach of the Terms and Conditions; (B) Customer, at any time, is conducting activities that do not fully comply with all applicable local, state, federal and foreign laws, rules and regulations, (C) Customer is late with any payment for the usage of TrackingDesk for the period 7 days from date of payment.

12.6 Account suspension: An account will be deemed suspended for (a) payment default, (b) system fraud, (c) account’s duplication or (d) any breach of those terms. Upon account suspension, TrackingDesk will be free to block any traffic related to the customer account.

13. Modifications

13.1 TrackingDesk may modify Terms and Conditions or billing plans. TrackingDesk will post notice of modifications hereto at TrackingDesk.com. Changes will not apply retroactively and will become effective immediately after they are posted. Modifications to billing plans come into force at the beginning of next billing period.

13.2 All amendments or modifications will be binding if Customer continues to use TrackingDesk after modifications to these Terms and Conditions came into force.

14.Billing

14.1 Pricing is based on Customer’s chosen plan, and reflects the offering shown on the pricing page: http://trackingdesk.com/pricing.html

14.2 All plans relate to the usage structure which is defined as a “visit”’ A Visit is defined when a TrackingDesk campaign URL is called or when the TrackingDesk tracking script is called.

14.3 Customers shall be prompted to enter credit card information during the registration of their account.

14.4 At the beginning of each billing period Customer’s credit card shall be charged with a subscription fee corresponding to Customer’s selected plan and any overage fees as defined by the chosen plan

14.6 Upon termination of the Free trial: At the end of the free trial, the  Customer payment method will be charged according to the subscription plan selected by customer during the registration.

14.6.1 Billing Cycle:The billing cycle is thirty (30) days and starts when the customer's free trial ends.

14.6.2 Overage fees: Overage fees are calculated according to the customer usage, subscription's plan and for the previous billing cycle.

14.6.3 Overage fees collection: Overage fees are collected at the beginning of the billing cycle.

14.7 If the payment cannot be collected, TrackingDesk may suspend or terminate Customer’s account and Customer shall be responsible for all reasonable expenses (including attorneys’ fees) incurred by TrackingDesk in collecting due amounts plus a 10% penalty fee.

14.7.1 In case of account suspension, customer will be required to pay past invoices and will be charged an administrative fee of USD50.

14.7.2 In the case where the account suspended was on the Free Plan, the customer will only be able to reinstate its account to a higher plan level.

14.8 All payments are in United States Dollars.

14.9 TrackingDesk reserves the right to change its payment’s terms and policies any time in its sole discretion. Upon pricing changes, customers on a yearly plan will terminate their yearly billing cycle, while customers on a monthly billing cycle will receive discretionary discount for 2 monthly billing cycles.

14.10 TrackingDesk does not guarantee any refunds, and will only handle refunds on a case per case basis.

14.11 Free Plan special terms: Customers can select the Free Plan subscription and will be subject to the following terms.

14.11.1 Free Trial: The free plan does not have a free trial.

14.11.2 Setup fee: A $10 (ten United States Dollars), will be charged upon registration in order validate the payment method funding source, as well as to cover for future overages.

14.11.3 Setup fee refund: The setup fee will not be refunded.

14.11.3 Free Plan Restrictions: The free plan comes with a 2000 visits per billing cycle restrictions.

14.11.4 Free Plan Overage fees: As per the pricing page, the overage fees will be calculated according to the following formula {(Previous Billing cycle visit total - Allowed limit limit)*0.3/1000}.

Example: If during the billing cycle, customer generated 20000 visits, the overage cost will be calculated according to the following: ((18000-2000)*0.3/1000)

14.11.5 Free Plan minimum overage fees: A minimum of ten United States Dollars will be charged.

14.11.6 Free Plan fair Usage policy If customer consistently crosses the Free Plan's restrictions, TrackingDesk might elect to ask the customer to upgrade to a different plan.


15. General

15.1 Customer shall pay all applicable sales, use, transfer or other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the transaction contemplated hereby, excluding, however, income taxes on profits which may be levied against TrackingDesk. Customer shall reimburse TrackingDesk for the amount of any such taxes or duties paid or accrued directly by TrackingDesk as a result of this transaction.

15.2 All agreements between TrackingDesk and Customer shall be governed by, and construed in accordance with, the laws of the State of Israel except for its conflict of law provisions, without giving any effect to any choice of law provisions thereof that would cause the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms of Service.

15.3 Any litigation based here on, or arising out of, under, or in connection with these Terms of Service (and all agreements between TrackingDesk and Customer), shall be brought and maintained exclusively in the competent court in Tel Aviv.

15.4 These Terms and Conditions are made solely for the benefit of Customer and TrackingDesk and no other person or entity shall have or acquire any right by virtue of these Terms and Conditions.

15.5 Customer may not assign any of its rights or delegate any of its duties under these Terms and Conditions without the prior written consent of TrackingDesk. Despite such consent, no assignment shall release the assignor of any its obligations or alter any of its primary obligations to be performed under these Terms and Conditions.

15.6 Except as otherwise expressly provided in these Terms of Service, these Terms of Service shall bind and inure to the benefit of the successors, assigns, heirs, executors and administrators of TrackingDesk or Customer.

15.7 The relationship of Customer and TrackingDesk established by these Terms and Conditions is that of independent contractors, and neither party is an employee, agent, partner or joint venture of the other.

15.8 Neither party shall be deemed in default of this Terms and Conditions to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of fire, natural disaster, accident, terrorism, riot, act of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party.

15.9 No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of these Terms and Conditions shall be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No failure or delay by TrackingDesk in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.

15.10 Except as may be set forth in a written agreement signed between TrackingDesk and Customer, these Terms and Conditions constitute the final, complete, and exclusive statement of the terms of the use of the TrackingDesk between the Parties and supersedes all prior and contemporaneous understandings or agreements of the parties.

15.11 If any provision of these Terms and Conditions is found to be illegal, unenforceable, or invalid in whole or in part for any reason, the validity and enforceability of the remaining provisions, or portions of them, will not be affected. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable it shall be so narrowly drawn, without invalidating the remaining provisions of these Terms and Conditions or affecting the validity or enforceability of such provision.

15.12 If TrackingDesk prevails in any action, suit, or proceeding arising from or based upon these Terms and Conditions, TrackingDesk shall be entitled to recover from Customer TrackingDesk’s reasonable attorneys’ fees in connection therewith in addition to the costs of such action, suit, or proceeding.

15.13 The headings in these Terms and Conditions are included for convenience only and shall neither affect the construction or interpretation of any provision in these Terms and Conditions nor affect any of the rights or obligations of the parties these Terms and Conditions.

15.14 Any notice, communication or statement relating to these Terms and Conditions shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile or other confirmed electronic transmission; (iii) when delivered by certified mail or postage prepaid to the address of the respective party as indicated herein. Copies of all notices shall be sent to: TrackingDesk IB Ltd, Rothschild Boulevard, Tel Aviv, Israel. Attn: Legal Counsel.

15.15 Each party acknowledges and agrees that it has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and conditions of these Terms and Conditions. These Terms and Conditions shall not be construed against either party by reason of its drafting.

15.16 Any complaints that arise from this Terms and Conditions or use of the TrackingDesk service can be directed to service@trackingdesk.com. All complaints will be dealt with within a reasonable time-frame, not exceeding 7 days.