Terms of Service Agreement

Revision Date: November 16, 2018

Thank you for choosing Smart Trakker! We value the trust you place in our platform to provide an intuitive and secure system to track events, members and charitable contributions.

If you do not understand any of part of the Terms of Service Agreement, please contact us before accessing Smart Trakker at: legal@smarttrakker.com

You may not use the Smart Trakker Web App unless you agree to abide by all of the terms and conditions in this Agreement.

 

1.  DEFINITIONS

1.1   Roles

(a)  Smart Trakker™ – Smart Trakker LLC providing Web App and Admin Services to Customer and Consumer (hereinafter referred to as “ST”)

(b)  Customer – Organizations and Individuals providing service to Consumers  (hereinafter also referred to as “you” and “your”)

(c)  Consumers –  End-Users of the Web App (Registrants, Members, Individuals)

(d)  Stripe, Inc. – Smart Trakker Integrates with Stripe’s Payment Processor which is governed by the Customer’s Stripe Account  (hereinafter referred to as “Stripe”)

1.2  Terms of Service Agreement

The Terms of Service Agreement (hereinafter referred to as “Terms”) is a legally binding agreement between the Customer and Smart Trakker LLC. This agreement is subject to change identified by the “Revision Date” at the top of this page. By using the Smart Trakker Web App, you are agreeing to these Terms. If you will be using the Web App on behalf of an entity (such as your employer), you agree to these Terms on behalf of that entity and its affiliates and you represent that you have the authority to do so. In such case, “you” and “your” will refer to that entity as well as yourself.

1.3  Smart Trakker Web App

The Smart Trakker Web App (hereinafter referred to as “Web App”) provides a way for organizations and group administrators to: manage member information and activities, create and send invoices and collect dues, store documents, communicate via email, create forms for event registration, raise funds for charities and personal causes, and report on all transactions.

1.4  Customer Content

The Web App provides the ability for Customers to input Customer Content in the form of text, HTML, images, field labels and inquiries to collect data from the Consumer. In response to Customer requests, the Web App allows Consumers to input Consumer Content in the form of text, images and photos. Customer Content and Consumer Content are hereinafter referred to “Content”. (See Section 12 for more information)

1.5  Web App Integrated Gateway

The Web App does not record or retain any Credit Card Information (number, date, security code, name, company, address, zip code). Utilizing Stripe’s token-based API, the Integrated Gateway allows ST to provide back-end management and a seamless user experience without ever coming in contact with sensitive Credit Card Information. The Integrated Gateway achieves this by passing the Credit Card Information from the payer’s computer or mobile device directly to the Stripe processor. Therefore, the Policy does not apply to Customer or Consumer Credit Card Information collected through the Web App Integrated Gateway.

2.  NOTICES

2.1  Stripe: Customer must maintain a valid Stripe account to process credit card payments through the Web App. ST cannot guarantee you will be approved by Stripe.

(a)  ST does not accept any responsibility for any and all payment arrangements between Customer and Consumer.

(b)  Customers and Consumers should review the Stripe Service Agreement here: https://stripe.com/us/ssa

2.2 Additional Stripe Processor: Customer may access a separate processor to connect to an additional Stripe account. This arrangement is strictly defined as a single ST Customer with ownership of two separate legal entities requiring two separate payment processors.

(a) Additional Stripe Processor may only be used as a second connection dedicated to activities in support of the Smart Trakker Customer.

(b) Additional Stripe Processor may not be accessed by any entity other than the ST Customer who has purchased an annual ST subscription and agreed to the terms of this agreement.

(c) Ownership of the Customer Stripe Account is required. Appropriate proof may be requested by Smart Trakker. Customers unable to comply with request of proof of Stripe Account ownership may result in Customer ST Account closure.

2.3  Customer Refund Policies: ST provides a platform where Consumers must be provided full disclosure of the terms of their purchase by the Customer and where those terms meet certain minimum requirements. Customer Refund Policies are the sole responsibility of the Customer. The below is a suggested guideline only and in no way implies any responsibility by ST.

(a)  Refund policies must be posted on the applicable event page;

(b)  “No refund” policies are permissible, but must be clearly identified as such and must otherwise comply with these minimum requirements;

(c)  Refund policies (including “no refund” policies) must provide for a refund or other make good for failure to provide the advertised services (e.g., event or activity cancellation);

(d)  Refund policies must include specific instructions on how to obtain a refund, including how, when and where to direct a refund request;

(e)  Refund policies must set out a specific time frame within which refund requests will be responded to, which should not exceed five (5) business days for a first response;

(f)   Refund policies must be in accordance with all applicable local, state, provincial, national and other laws, rules and regulations;

(g)  Refund policies may not be changed with respect to purchases made prior to the date of such change and its posting to the applicable event page;

(h)  Refund policies must otherwise be fair and reasonable.

2.4  No Insurance or Guarantee: Refund Policy Requirements are not intended to be and do not constitute an offer to insure the performance of or to guarantee the performance of any Customer and not a guarantee by ST that refunds will be issued in any given situation.

3.  PRIVACY POLICY

3.1  Customer and Consumer information is governed by our Privacy Policy. Please review here: https://smarttrakker.com/privacy-policy

4.  EFFECTIVE DATE AND TERMINATION OF THE TERMS

4.1  You agree to the Terms upon your first access to the Web App. (Effective Date of the Terms)

4.2  ST may terminate your right to use the Web App at any time if you breach the terms of this agreement or use the Web App in any way that would violate any applicable local, state, provincial, national and other laws, rules and regulations or would expose Smart Trakker LLC to ANY legal liability.

4.3  ST may choose to stop allowing access to the Web App, or any particular portion of the Web App, or modify or replace any aspect of the Web App, at any time. We will use reasonable efforts to provide you with notice of our termination of your access to the Web App, where, in ST’s sole discretion, failure to do so would materially prejudice you. You agree that ST will not be liable to you or any third-party as a result of its termination of your right to use or otherwise access the Web App.

4.4  Customers may terminate the terms of this service agreement by requesting the deletion of your ST account.

4.5  Consumers may terminate the terms of this service agreement by ceasing to access the Web App indefinitely. Removal of Personally Identifiable Information (PII) is solely the responsibility of the Consumer by requesting PII be purged by the Customer. ST provides Customers assistance in removing PII that may be charged at an hourly rate upon request by the Customer.

4.6  All provisions of the terms of this service agreement that by their meaning should survive termination will survive (including, without limitation, all limitations on liability, releases, indemnification obligations, disclaimers of warranties, agreements to arbitrate, choices of law and judicial forum and intellectual property protections and licenses).

5.  RELEASE AND INDEMNIFICATION

Customer shall indemnify and hold harmless Smart Trakker LLC, its directors, officers, employees, agents and affiliates from and against any and all claims, losses, liabilities, damages and expenses, including reasonable attorneys’ fees, (collectively “Claims”) to the extent that any such Claim is caused by or arises out of:

5.1  any failure of Customer to comply with any law, regulation or card association rules applicable to the ST Web App;

5.2  any dispute between (i) Customer and any event registrant, bank or card issuer, or (ii) between any card issuer and any Consumer, including, without limitation, any dispute regarding the goods and services purchased with the event or activity fees, dues payments or the payment of any amounts owed or alleged to be owed by one or more such persons to any other such persons; and

5.3  any instructions or procedures that Customer may provide to ST in connection with the Web App or Admin Services rendered by Smart Trakker under these Terms and Smart Trakker’s compliance therewith.

6.  DISCLAIMER OF WARRANTIES AND ASSUMPTION OF RISK BY CUSTOMER

Smart Trakker’s goal is to provide a secure and effective platform to serve Consumers, however we cannot promise the following:

6.1  To the extent permitted by applicable laws, the Web App and Admin Services are provided on an “as is” and “as available” basis. ST expressly disclaims all warranties of any kind, express or implied, including, but not limited to, implied warranties of merchantability, title, non-infringement and fitness for a particular purpose. For example, ST makes no warranty that (a) the Web App (or any portion of the Web App) will meet your requirements or expectations; (b) the Web App will be uninterrupted, timely, secure, or error-free; or (c) the results that may be obtained from the use of the Web App will be accurate or reliable.

6.2  You acknowledge that ST has no control over and does not guarantee the quality, safety, accuracy or legality of any event or Content associated with an event, the truth or accuracy of any information provided by Consumers (including the Consumer’s personal information shared with Customer) or the ability of any Consumer to perform or actually complete a transaction.

6.3  Consumers understand and agree that some events may carry inherent risk, and by participating in those events, Consumers choose to assume those risks voluntarily. For example, some events may carry risk of illness, bodily injury, disability, or death, and Consumers freely and willfully assume those risks by choosing to participate in those events.

6.4  The foregoing disclaimers apply to the maximum extent permitted by law. You may have other statutory rights. However, the duration of statutorily required warranties, if any, will be limited to the maximum extent permitted by law.

7.  LIMITATION OF LIABILITY

7.1  To the extent permitted by applicable laws, or as otherwise set forth herein, ST and any person or entity associated with ST’s Web App (e.g., an affiliate, vendor, strategic partner or employee) (“Associated Parties”), will not be liable to you or any third party, for: (a) any indirect, incidental, special, consequential, punitive or exemplary damages, including, but not limited to, damages for loss of profits, goodwill, use, data, opportunity costs, intangible losses, or the cost of substitute services (even if ST has been advised of the possibility of such damages); or (b) Content.

7.2  Nothing in these Terms is intended to exclude or limit any condition, warranty, right or liability which may not be lawfully excluded or limited. Some jurisdictions do not allow the exclusion of certain warranties or conditions or the limitation or exclusion of liability for loss or damage caused by willful acts, negligence, breach of contract or breach of implied terms, or incidental or consequential damages. Accordingly, only those liability and other limitations which are lawful in your jurisdiction (if any) will apply to you and our liability is limited to the maximum extent permitted by law.

8.  SMART TRAKKER LICENSE TO CUSTOMER

8.1  ST License: We grant the Customer a limited, non-exclusive, non-transferable, non-sub licensable, revocable right to use the Web App solely to list, view, and create event registration forms; create dues invoice forms; create fundraising forms; create email communications to advise, promote, market, manage, track, and collect sales proceeds for an event activity, dues payment or fundraising payment from Consumers. Your use of the Web App must be in compliance with these Terms and in compliance with all applicable local, state, provincial, national and other laws, rules and regulations.

8.2  License Restrictions: Without limitations on other restrictions, limitations and prohibitions that we impose (in these Terms or elsewhere), you agree you will not directly or indirectly (a) copy, modify, reproduce, translate, localize, port or otherwise create derivatives of any part of the Web App; (b) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of all or any part of the Web App; (c) rent, lease, resell, distribute, use the Web App for other commercial purposes not contemplated or otherwise exploit the Web App in any unauthorized manner; (d) remove or alter any proprietary notices on the Web App; or (e) engage in any activity that interferes with or disrupts the Web App.

9.  FEES, REBATES AND REFUNDS

9.1  Fees: A Subscription Fee is charged to the Customer to access all features of the Web App and an Integrated Gateway fee is charged to the Customer when a Consumer completes a transaction. These fees may vary based on individual agreements between ST and certain Customers. ST does not control Customer fees levied by Stripe. Be sure to check with Stripe prior to engaging in a transaction to understand all applicable fees, credit card surcharges and currency conversion rates.

9.2 Rebates: ST Rebates to Customer are made available when a specific Web App package transaction level is reached by the Customer account during the annual subscription period. At the time the transaction level is reached, a notice is generated and displayed to the Customer in the Web App admin providing instructions to arrange payment for the package level Rebate. It is the sole responsibility of the Customer to complete the instructions to request the Rebate. ST is not required to issue this payment if the Customer does not complete the request prior to (30) days after the termination of the annual subscription period.

9.3  Refunds: Because all transactions are between the Customer and its respective Consumers, ST requests all Consumers contact the applicable Customer with any and all refund requests.

9.4  Consumers acknowledge that if you receive a refund for your transaction, you will discard any receipt that we or any Customer has delivered, and will not use it (or any copy of it) to attend an event, proclaim membership, or advertise a donation to a charity cause. Violation of the foregoing constitutes fraud. You acknowledge that the applicable procedure to check the validity of the receipt must always be followed. ST will not be held liable under any circumstances for any costs arisen from non-compliance by Customers with applicable procedures that must be implemented by Customers to check validity of receipts. ST will not be held liable under any circumstances for costs and/or damage associated with receipts arisen from situations with fraud and/or for damage associated with the purchase of the registration through non-official means, such as third parties.

9.5  Customers acknowledge that the applicable procedure to check the validity of the receipt must always be followed. ST will not be held liable under any circumstances for any costs arisen from non-compliance by Customers with applicable procedures that must be implemented by Customers to check validity of receipt. ST will not be held liable under any circumstances for costs and/or damage associated with tickets arisen from situations with fraud and/or for damage associated with the purchase of a registration through non-official means, such as third parties.

10.  PAYMENTS

10.1  Customer agrees to pay all ST Subscription fees, Admin Service fees, Transaction fees and any other charges in accordance with this Agreement.

10.2  ST Subscription and Admin Service fees are due net thirty (30) days from invoice date. If you do not pay the fees or other charges when they are due, then a finance charge of two percent (2%) per month or the maximum rate allowed by law will be assessed.

10.3  Payment shall be by check or credit card.

(a)  Except where prohibited by applicable law, if you pay ST Subscription and Admin Service fees due hereunder via credit or debit card, then ST reserves the right to charge you an additional fee equal to three percent (3%) of the amount charged, and you hereby consent to such charge being made against the credit or debit card.

10.4  Customer is responsible for all taxes, charges or duties including, without limitation, sales, use, value added, royalty or withholding taxes imposed by a federal, state, provincial, local or other government entity on Services provided under this Agreement, excluding taxes based on ST’s net income.

10.5  ST reserves the right to increase recurring fees payable hereunder at any time upon sixty (60) days prior written notice provided to Customer.

11.  SMART TRAKKER ACCOUNT REQUIREMENTS

Customers agree to follow certain rules when creating an ST account in the Web App including the following:

11.1  You must be at least 18 years of age to create an account.

11.2  You agree to provide true, accurate, current and complete information about yourself, or if you are using the Web App on behalf of an entity, the entity. You also agree to update this information if and when it changes.

11.3  If there is a dispute between two or more persons or entities as to account ownership, ST reserves the right to arbitrate the dispute and may choose to terminate or suspend the account which would also terminate any agreements related to subscription rebates not yet earned.

11.4  If you are using the Web App on behalf of a company or other entity, you represent and warrant that you have the authority to legally bind that entity and grant ST all permissions and licenses provided in these Terms.

11.5  ST provides you the ability to implement permission within your account to third parties including, Consumers or other credentialed account users. You agree that you are solely responsible for all activity that occurs under your account (including actions by sub-users), so you must maintain the confidentiality of your password and account details. You likewise agree that all rules applicable to your account will apply to all third parties to whom you grant access to your account.

11.6  You agree to immediately notify ST of any unauthorized use of your password or account or any other breach of security. You are responsible for (and we will hold you responsible for) any activities that occur under your account.

12. CUSTOMER CONTENT

12.1  ST does not make any claim to Customer Content. Customer is solely responsible for Customer Content. You hereby grant ST a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable, sub licensable right and license to access, use, reproduce, transmit, adapt, modify, perform, display, distribute, translate, publish and create derivative works based on Customer Content, in whole or in part, in any media, for the purpose of operating the Web App (including ST’s promotional and marketing services, which may include without limitation, promotion of your event on a third party website), and you hereby waive any and all moral right to use the name you submit with Customer Content. Notwithstanding the foregoing, ST does not claim, and you do not transfer, any ownership rights in any of Customer Content and nothing in these Terms will restrict any rights that you may have to use and exploit Customer Content outside of the Web App.

12.2  Customer represents and warrants that you have all the rights, power and authority necessary to grant the foregoing license, and that all Customer Content (a) does not infringe, violate, misappropriate or otherwise conflict with the rights of any third party; (b) complies with all applicable local, state, provincial, national and other laws, rules and regulations; and (c) does not violate these Terms.

12.3  Customer Content must be accurate and truthful. ST reserves the right to remove Customer Content from the Web App if ST believes in its sole discretion that it violates these Terms or for any other reason.

12.4  ST may use your name and logo (whether or not you have made it available through the Web App) for the purpose of identifying you as an existing or past customer of ST both on the Web App and in marketing, advertising and promotional materials. We likewise may preserve Customer Content and account information and may also disclose Customer Content and account information if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to (a) comply with legal process; (b) respond to claims that any Customer Content violates the rights of third parties; (c) enforce or administer the Terms of Service, including without limitation, these Terms of Service; and/or (d) protect the rights, property and/or personal safety of ST, its users and/or the public, including fraud prevention. You understand that the technical processing and transmission of the Web App, including Customer Content, may involve transmissions over various networks and/or changes to conform and adapt to technical requirements of connecting networks or devices.

13.  SMART TRAKKER EMAIL FEATURES

13.1  The Web App provides a Customer configurable SMTP email capability that allows Customers to contact Consumers, other users of the Web App, or third parties via email (hereinafter referred to as “Email Features”). If you use Email Features, you represent and agree that:

(a)  You have the right and authority to send emails to the addresses on your recipient list and such addresses were gathered in accordance with email marketing regulations in the recipient’s country of residence;

(b)  Your emails are not sent in violation of any privacy policy under which the recipient emails were gathered;

(c)  You will use the Email Features in compliance with all applicable local, state, provincial, national and other laws, rules and regulations, including those relating to spam and email, and including without limitation, the U.S. CAN-SPAM Act, the Canadian CASL, and the EU GDPR and e-privacy directive.

13.2  If you violate any of these Email Features rules or if your emails cause disruption to the Web App, ST may (without limitation of any other legal or contractual remedies it has) limit or suspend your access to the Web App and/or the Email Features.

13.3  You acknowledge and agree that use of the ST Web App to transmit, process or store Sensitive Personal Information (as defined in Section 13.4) is unnecessary for use of the Web App and therefore you shall be solely responsible for any such use of the Web App by yourself or your employees, agents or subcontractors and ST shall bear no risk or liability for same.

13.4  PII shall be defined as:

(a)  social security numbers;

(b)  passport numbers or other government issued id numbers, date of birth and/or gender, except solely to the extent required by applicable regulations of the Department of Homeland Security or other government regulatory body;

(c)  health or medical information (other than food allergies or medical contact information);

(d)  financial account information (other than payment information entered securely using ST’s online payments); and

(e)  other information which a reasonable person would recognize as being highly sensitive (but excluding, for avoidance of doubt, contact information such as name, mailing address, email address, and phone number).

14.  WEBSITE, BLOGS, CUSTOMER LIST

14.1  Customer agrees that ST may use Customer’s name and logo to identify Customer as a customer of ST on ST’s website and blogs, in investor documents (whether or not filed with the Securities and Exchange Commission), and as a part of a general list of ST’s customers for use and reference in ST’s corporate and marketing literature.

15.  EXTERNAL WEBSITES

15.1  The Web App may provide, or Users may provide, links to other Internet websites or resources. Because ST has no control over such websites and resources, you acknowledge and agree that ST is not responsible for the availability of such websites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, services or other materials on or available from such websites or resources, or any damages or losses related thereto, even if such websites or resources are connected with ST partners or third party service providers.

16.  CUSTOMER NOTICES

16.1  ST may send notices to you via email or regular mail to the address in ST’s records. The Web App may also provide notices of changes to these Terms or other matters by displaying notices or links to notices to you generally on the Web App. If you wish to contact ST, you can do so at Smart Trakker LLC, Attn: Legal Department PO BOX 543, WARRINGTON, PA 18976 or via email at legal@smarttrakker.com

17.  ADDITIONAL TERMS

17.1  Passwords: ST will assign you one or more user IDs and passwords that will enable you to access the Web App. You shall take reasonable precautions to protect against theft, loss or fraudulent use of such IDs and passwords, and Customer is solely responsible for any losses arising from another party’s use of such IDs and passwords, either with or without your knowledge. Each user ID is unique to the assigned individual and may not be shared with others, including other personnel reporting to Customer or Customer Entity.

17.2  Failure to Enforce: ST failure to enforce any part of these Terms will not constitute a waiver of our right to later enforce that or any other part of these Terms. No oral waiver, amendment or modification of these Terms will be effective. If any provision of these Terms is found to be unenforceable, that part will be limited to the minimum extent necessary the other provisions of these Terms remain in full force and effect. Section titles in these Terms are for convenience and have no legal or contractual effect. No independent contractor, agency, partnership, joint venture or other such relationship is created by these Terms. We may freely assign any of our rights and obligations under these Terms.

17.3  Third Party Integration: ST provides optional configurable integrations with various external applications, including but not limited to Stripe and SMTP. ST is not responsible for any misconfiguration, data corruption or data loss in any external application resulting from the use of such integrations.

17.4  Proprietary Rights: Customer agrees to use the Web App only for lawful purposes and in accordance with these Terms. You shall not reverse engineer, disassemble or decompile the Web App or cause or permit the reverse engineering, disassembly or decompilation of the Web App. ST and Customer will each comply with applicable laws and regulations including applicable security breach notifications laws, provided that ST is not responsible for compliance with laws or regulations applicable to Customer or Customer’s industry that are not also generally applicable to information technology service providers.

a.  Customer acknowledges that ST or its licensors retain all copyright, trademark, trade secret, patent and other proprietary and intellectual property rights to the Web App, and any or all modifications to the Web App, related documentation and marketing materials regardless of:

i.  Whether such intellectual property notices appear on the materials; or whether such intellectual property notices have been filed with governmental agencies.

b.  Nothing in this Agreement will directly or indirectly be construed to assign or grant you any right of ownership, title or interest in the Web App, or any intellectual property rights relating thereto.

c.  Customer agrees that you shall not disclose to anyone any proprietary or confidential information of ST which you may receive through the Web App, and that you will not use any such information to compete against ST or reverse engineer our product offerings.

d.  No competitors or future competitors are permitted access to the Web App, and any such access by third parties is unauthorized.

e.  Customer agrees that you will not copy, record, publish, compile, reproduce, republish, use or resell for any competing commercial purpose any information available on our website (smarttakker.com and secure.smarttrakker.com) which you receive through the Web App. In addition, you agree to pay all reasonable attorney’s fees and costs incurred in enforcing these provisions.

17.5  US State Department Trade Agreements: Customer represents and warrants that it is not and will not provide the Web App to any entity incorporated in or resident in a country subject to economic or trade sanctions by the U.S. State Department and/or OFAC or are listed as a “Specially Designated National,” a “Specially Designated Global Terrorist,” a “Blocked Person,” or similar designation under the OFAC sanctions regime. Any breach of this Section shall be deemed a material breach of this Agreement and ST may immediately terminate this Agreement.

18.  LEGAL FEES

18.1  ST shall be entitled to recover reasonable attorney’s fees in the event ST is the prevailing party in any legal action to enforce or interpret this Agreement.

19.  JURISDICTION

19.1  These Terms are governed by the laws of the Commonwealth of Pennsylvania, without regard to its conflict of laws rules. These laws will apply no matter where in the world you do business. But if you do business outside of the United States, you may be entitled to the protection of the mandatory consumer protection provisions of your local consumer protection law. ST is based in Warrington, Pennsylvania, and any legal action against ST related to the Web App and that is not precluded by the arbitration provisions in these Terms must be filed and take place in Pennsylvania. Thus, for any actions not subject to arbitration, you and ST agree to submit to the personal jurisdiction of the federal or state courts (as applicable) located in Bucks County, Pennsylvania.

20.  TERMS OF SERVICE AGREEMENT UPDATES

20.1  ST reserves the right to modify these Terms from time to time (collectively, “Modifications”). If we believe the Modifications are material, we will inform you about them by doing one (or more) of the following (a) posting the changes through the Web App; (b) updating the “Revision Date” at the top of this page; or (c) sending you an email or message about the Modifications. Modifications that are material will be effective thirty (30) days following the “Updated” date or such other date as communicated in any other notice to you. Modifications that are simply addressing new functions we add to the Services or which do not impose any additional burdens or obligations on you will be effective immediately. You are responsible for reviewing and becoming familiar with any Modifications. Your continued use of the Web App following Modifications constitutes your acceptance of those Modifications and the updated Terms. In certain circumstances, ST may seek a Modification to these Terms that will only apply to you. This type of Modification must be accomplished by way of a written or electronic document signed by you and an authorized officer of ST. ST is constantly evolving our products and services to better meet the needs of our Users. Because of this, we cannot guarantee the availability of certain product features or functionality. ST reserves the right to modify, replace or discontinue any part of the Web App.