"TrackFive" refers to the business which owns this website i.e. Track5Media, LLC, our Site, or our Service, depending on the context of the usage;
"Customization Services" means work done to provide functionality / features to an existing product as requested by the client or development of a new product.
"Software" means the tangible, deliverable product to be developed whether as a whole product or the customization of an existing product/software installation or any alterations to any code and provided by TrackFive to the client in accordance with this policy, the Work Request and the Quotation.
"Work Request" means the specific details, specifications and parameters of the work required by the client for TrackFive to provide the Customization Services thereof.
"Quotation" means the formal document which details, but is not limited to, costs, payment milestones and timescales, and used in conjunction with the Work Request to provide the client with the Customization Service.
Customization Services will be provided in accordance with the terms of the Work Request and subject to the conditions set forth on the Quotation, including full payment of all fees and adherence to all time limits and scheduling restrictions.
Where expressly stated on the Work Request, the Software arising from the customization services shall be subject to acceptance by the client in accordance with the acceptance criteria set forth in the Work Request.
Where there is no acceptance criteria set forth on the Work Request, acceptance shall be deemed to occur upon the earliest of:
- completion of the acceptance criteria,
- TrackFive's completion of the Customization Services and written notification to the client of such completion
The client is solely responsible for providing TrackFive with credentials and/or appropriate access in order to implement and test customization request.
TrackFive will make reasonable efforts to accommodate your time and deadline requirements with respect to the performance of Customization Services; however, meeting such requirements is subject to availability of resources, both human and electronic at the time of your request and is dependent on your availability to provide input and to perform necessary actions. TrackFive shall not be liable in any way for any delay or damage arising from TrackFive's failure to meet such of your requirements or any deadlines.
Any changes to the Customization Services or Software requirements after execution of the Work Request will be subject to a fee reassessment of the request.
TrackFive shall be entitled to rely on all information provided, and decisions and approvals made, by the client in connection with TrackFive's work hereunder. You agree that TrackFive shall not be subject to any liability or costs relating to the Customization Services to the extent such liability and costs are attributable to any information provided by you that is not complete, accurate or current in all material respects.
Term and Termination
The term of the Customization Services, if any, shall be as set out on the Quotation.
Customization Services may be terminated by TrackFive immediately upon notice if:
the client materially breaches any agreement entered into with TrackFive, including TrackFive's License Agreement (or you consistently fail to properly perform and observe your obligations under such agreements), and you fail to rectify the situation within ten (10) calendar days of notice from TrackFive; or
the client becomes insolvent or a receiver is appointed, or the client makes an assignment, proposal or arrangement for the benefit of the clients creditors or the client files for bankruptcy, or any proceedings under any bankruptcy or insolvency laws are commenced against the client.
TrackFive shall have the right to terminate Customization Services immediately upon notice to the client, without penalty or refund, if any agreement relating to the Software is terminated for any reason.
Termination of the Customization Services or any agreement shall not affect the clients payment obligation for any Customization Services performed by TrackFive prior to the date of termination, regardless of whether you have had, as at the date of termination, any use of the Software or part thereof.
In the event that the Customization Services are terminated prior to the delivery of the software to the client, the Developer shall not be obligated to deliver any work-in-progress or any portion of the software to the client, unless otherwise expressly agreed by both parties in writing.
The client shall pay fees for the Customization Services and software license in accordance with the fee schedule set forth in the Quotation. TrackFive shall submit invoices to the client for all fees and payments due, including applicable expenses, as per the payment milestones set forth on the Quotation provided to the client. The client shall pay to TrackFive the full amount of each invoice within thirty (30) days of receipt of the invoice. All invoices shall detail the nature of the Customization Services performed, the fees payable, and the basis on which the calculation of the fees has been made.
Pricing is subject to TrackFive's understanding of the project requirements, the terms of this policy, and the Work Request. TrackFive reserves the right to invoice the client for additional Customization Services requested by the client or are required due to incomplete details or specifications provided by the client at the time of Quotation, that are not specified in the Work Request but are provided by TrackFive to the client, provided that TrackFive provides the client with written notice that such additional Customization Services are not included in the Quotation and are subject to TrackFive's then current fee schedule for such Customization Services. Invoices for such additional Customization Services shall be subject to payment in accordance with this Section.
Intellectual Property Rights
TrackFive shall own all intellectual property rights in and to the Software, and all work conceived, created, produced or designed by TrackFive as a result of or with respect to any and all Customization Services provided to the client. The clients rights and obligations relating to the use of the Software shall be governed by the terms of the applicable License Agreement regardless of whether the client may have contributed to the Software in any way. The foregoing shall not be deemed to transfer ownership to TrackFive of any preexisting intellectual property rights that the client may have in the materials provided to TrackFive in order to permit TrackFive to perform the Customization Services; however, to the extent that you have provided such materials to TrackFive, the client hereby grants TrackFive a non-exclusive, non-transferable, royalty-free license to use all such materials for the purposes of performing the Customization Services and providing you with the Software.
Limited Warranty and Limitation of Liability
Limited Warranty: TrackFive warrants that all services provided shall be provided in a competent, professional manner. TrackFive does not represent or warrant that the Customization Services or Software provided hereunder will be capable of achieving a particular result for the client, or that the operation of the Software will be error free or uninterrupted, or that all errors in the Software can be found or corrected. Without limiting the foregoing, this warranty is valid only for the six (6) months following the acceptance date as set forth in Section 3(b). The above warranty shall not apply to defects or non-conformities resulting from:
- improper or inadequate maintenance or installation of the Software;
- use of the Software in a manner different from the intended use;
- unauthorized or improper use or modification of the Software;
Limitation of Liability:
Except provided in a written agreement between the client and TrackFive, and to the maximum extent permitted by applicable law, TrackFive makes no warranty or condition, express or implied, statutory or otherwise, with respect to the Software or the Customization services, including, without limitation, the implied warranties or conditions of merchantability and fitness for a particular purpose.
in no event shall TrackFive be liable to the client or any other person for any indirect, special, punitive, exemplary, consequential or incidental damages including, but not limited to, damages for loss of revenues or profits, business interruption, loss of business information, and the like arising out of the use, inability to use or the performance or non-performance of, the software or the provision of the Customization services, even if TrackFive has been advised of the possibility of such damage or claim, or it is foreseeable.
in no event shall TrackFive maximum aggregate liability to you for direct damages exceed the total amount paid by you for the Customization services performed by TrackFive within the six (6) months preceding the date on which the claim arose.
TrackFive will not be liable for any delay or failure to perform any of its obligations under this Agreement by reasons, events or other matters beyond its reasonable control.
TrackFive may amend any of the terms and conditions contained in this Agreement at any time and solely at its discretion. Any changes will be effective upon the posting of such changes on TrackFive's website, and the client is responsible for reviewing these changes and informing itself of all applicable changes or notices. The continued use of a software by the client after posting of any changes by TrackFive will constitute the acceptance of such changes or modifications by the client.
General Terms and Conditions
TrackFive is primarily involved with an ongoing development and improvement of the extensions developed. As such, TrackFive retains the right to re-use or release the Software developed, or part thereof, as part of a Work Request, as a new Extension in future to be available to all TrackFive's customers.
The customization undertaken by TrackFive will be in accordance to the discussed requirements and does not include any form of additional changes or alterations. Any additional changes or alterations required will be details on a variation work request and a separate Quotation raised.
Customization Services will not include any free consulting beyond the scope of the Work Request.
TrackFive will not be responsible for any damages during the Customization Services. Although TrackFive keeps backup files and makes every effort to prevent any damage, it is a requirement that the client have a full and proper backup of their website, software and databases.