Terms of Service
TERMS OF SERVICE between Scraffic, LLC (“we” or “Scraffic”) and the customer who any orders Services (“you” or “Customer”).
These Terms of Service (“Terms of Service”) are between Scraffic, LLC a Texas limited liability company (“Scraffic,” “we,” “us” or similar terms), and the customer who orders any Services (“Customer,” “you” or similar terms).
THE AGREEMENT. Your use of the Services is governed by these Terms of Service, the terms of your Order, and any documents incorporated by reference in any of these. When we use the term “Agreement” in any Order or these Terms of Service, we are referring collectively to all of them, and to any other documents that may be incorporated by reference in any of them. If the individual who accepts these Terms of Service or submits an Order does so on behalf of a company or other legal entity, the individual represents that he or she has authority to bind that entity to the Agreement. This Agreement is the complete and exclusive agreement between you and Scraffic regarding its subject matter and supersedes and replaces any prior agreement, understanding or communication, written or oral.
1. DEFINED TERMS. Some words used in the Agreement have particular meanings:
“Confidential Information” means all information disclosed by one of us to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential, including: (i) for Scraffic, unpublished prices and other terms of service, audit and security reports, product development plans, operations, technology, know-how, trade secrets, customers, vendors, contractors, suppliers and personnel and other proprietary information or technology, and (ii) for Customer, Personal Information, and (iii) for both of us, information that is marked or otherwise conspicuously designated as confidential. Information that is developed by one of us on our own, without reference to the other’s Confidential Information, or that becomes available to one of us other than through violation of the Agreement or applicable law, shall not be “Confidential Information” of the other party. “Confidential Information” excludes Counter Data except to the extent that any Counter Data is determined to be Personal Information.
“Counter Data” means data collected from the Equipment. We do not intentionally collect any Personal Information as part of the Counter Data.
“Equipment” means: (i) the traffic counter equipment that you have leased from Scraffic under the terms of the Equipment Lease Agreement (or similar agreement) between you and Scraffic or an authorized Scraffic reseller and (ii) any other hardware, equipment, equipment components, supplies, parts, materials, and other tangible items that we or an authorized Scraffic reseller may provide to you as part of the Services.
“Order” means either: (i) the online purchase order for the Services that you submit to Scraffic via Scraffic’s online ordering process and that is accepted by Scraffic or (ii) any other written order (either in electronic or paper form) provided to you by Scraffic for signature that describes the Services you are purchasing, and that is signed by you (either manually or electronically) and that is accepted by Scraffic.
“Personal Information” means information that you provide to Scraffic or that Scraffic creates on your behalf while performing this Agreement that identifies or can be used to identify an individual (including, without limitation, names, addresses, telephone numbers, email addresses, photos, and other unique identifiers). Your business contact information is not by itself deemed to be Personal Information.
2. SERVICES. Contingent on Scraffic’s acceptance of your Order, and subject to the terms of the Agreement, you may use the Services described in an Order for the term of the Order. The Services are made available to you for use on a limited license or access basis, and, notwithstanding the use of terms such as “purchase” or “sale”, you will not acquire ownership of any right, title or interest in or to the Services or any portion thereof.
3. WHO MAY USE THE SERVICES. Only you and/or your employees or other agents may use the Services. You may not resell the Services unless you have been approved as a Scraffic reseller and have executed a separate reseller agreement with Scraffic. There are no third party beneficiaries to the Agreement, meaning that third parties do not have any rights against either of us under the Agreement.
4. COUNTER DATA. As between you and us, we will own the Counter Data. We hereby grant to you a non-exclusive, sub-licensable, royalty-free license to publish, reproduce, distribute, modify, prepare derivative works of and otherwise use the Counter Data for your business purposes and performing your obligations under this Agreement. Scraffic will use the Counter Data to provide the Services, otherwise perform our obligations under this Agreement, and for our business purposes. Furthermore, we will use the Counter Data to (i) internally use and modify (but not disclose) your Counter Data for the purposes of generating Aggregated Anonymous Data, and (ii) freely use and make available Aggregated Anonymous Data for our business purposes. “Aggregated Anonymous Data” means Counter Data and other data submitted to, collected by, or generated by us in connection with your use of the Service, but only in aggregate, anonymized form which can in no way be linked specifically to you.
5. YOUR OBLIGATIONS. You agree to do each of the following: (i) comply with applicable law and written instructions from Scraffic, (ii) pay when due the fees for the Services, (iii) keep your billing contact and other account information accurate and up to date; (iv) immediately notify Scraffic of any unauthorized use of your account or any other breach of security; and (v) maintain in effect all the licenses, permissions, authorizations, consents and permits that you need to carry out your obligations under this Agreement.
6. TERM. The initial term for each Order begins on the date we make the Services described in the Order available for your use and continues for the period stated in the Order. If no period is stated in the Order, then the initial term shall be one month. Upon expiration of the initial term, the Order will automatically renew for successive renewal terms of one month, unless either of us provides a written notice of non-renewal, which requires at least thirty (30) days prior notice to the expiration of the initial term, or then-current renewal term, as applicable.
7. FEES. You agree to pay Scraffic the recurring and non-recurring fees described in your Order. Unless otherwise agreed in the Order, Scraffic will charge your credit card without invoice in advance on or around the first day of each billing cycle. Unless otherwise agreed in the Order, your billing cycle will be monthly, beginning on the date that Scraffic first makes the Services available to you. Scraffic may suspend all any or all Services (including services provided pursuant to any unrelated Order or other agreement we may have with you) if charges to your credit card are rejected or charged back for any reason. Scraffic may charge interest on overdue amounts at 5% per month or the highest rate permitted by law, whichever is less. If any amount is overdue by more than thirty (30) days and Scraffic brings a legal action to collect, you must also pay Scraffic’s reasonable costs of collection, including attorney fees and court costs. All fees are stated and will be charged in US Dollars. Charges that are not disputed within sixty (60) days of the date charged are conclusively deemed accurate. You must provide Scraffic with accurate factual information to help us determine if any tax is due with respect to the provision of the Services and if we are required by law to collect taxes on the provision of the Services, you must pay the amount of the tax that is due or provide satisfactory evidence of your exemption from the tax.
8. FEE INCREASES. Unless otherwise agreed in the Order, we may increase fees for the Services at any time by posting the new fees on our website or giving you notice of the increase at least thirty (30) days in advance of the fee increase.
9. TERMINATION FOR CONVENIENCE. You may terminate the Agreement for convenience at any time by sending an email to email@example.com. We will not refund any prepaid portion of the fees for the Services if you terminate for convenience, and we will charge the usage fees through the effective date of termination. We may terminate this Agreement for convenience at any time on at least thirty (30) days advance written notice.
10. TERMINATION FOR BREACH. We may terminate the Agreement for breach on written notice if: (i) we discover that the information you provided to us about yourself or your proposed use of the Services was materially inaccurate or incomplete, or we determine, in our reasonable discretion, that there is evidence of fraud in connection with your use of the Services, (ii) if you are an individual, you were not at least 18 years old or otherwise did not have the legal capacity to enter into the Agreement at the time you submitted the Order for Services, or if you are an entity or fiduciary, the individual submitting the Order for Services did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer, (iii) your payment of any invoiced amount is overdue and you do not pay the overdue amount within three (3) days of our written notice, or (iv) you fail to comply with any provision of the Agreement and do not remedy the failure within fifteen (15) days of our notice to you describing the failure. If we fail to provide the Services in breach of this Agreement, then we will refund you the fees for those Services for the period that we were in breach, provided that the refund will not exceed one month of fees for the Services.
You may terminate the Agreement for breach on written notice if: (i) we materially fail to provide the Services as agreed and do not remedy that failure within fifteen (15) days of your written notice describing the failure, or (ii) we materially fail to meet any other obligation stated in the Agreement and do not remedy that failure within thirty (30) days of your written notice describing the failure.
11. ACCESS TO DATA. You will not have access to the Counter Data following termination. You agree to maintain any copies of the Counter Data that you may need.
12. RESPONSIBLIITY FOR USE OF THE SERVICES. You are responsible to Scraffic for the violation of the Agreement by any employee or agent of yours, any other person to whom you have given access to the Services, and any person who gains access to your Counter Data or the Services as a result of your failure to use reasonable security precautions, to the same extent as if you had committed the violation yourself, even if such violation was not authorized by you. You are responsible to Scraffic for any fees arising from the use of the Services by any of these persons, even if that use was not authorized by you.
13. WARRANTY DISCLAIMERS. WE (INCLUDING, FOR PURPOSES OF THIS SECTION, OUR SERVICE PROVIDERS AND LICENSORS) DO NOT MAKE ANY, AND HEREBY EXPRESSLY DISCLAIM ALL, WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE SERVICES, THE COUNTER DATA, AND ANY OTHER PRODUCTS, SERVICES, OFFERINGS, INFORMATION OR ITEMS PROVIDED, OR TO BE PROVIDED, TO CUSTOMER UNDER THIS AGREEMENT (COLLECTIVELY, THE “OFFERINGS”), INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, QUIET ENJOYMENT OR ANY OTHER WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING. WITHOUT LIMITING THE FOREGOING, WE DO NOT MAKE, AND HEREBY EXPRESSLY DISCLAIM, ANY REPRESENTATIONS, WARRANTIES AND/OR GUARANTEES REGARDING (I) THE USE OF OR THE RESULTS OF THE USE OF THE OFFERINGS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS, AVAILABILITY, SECURITY OR OTHERWISE; (II) THE CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS, OR AVAILABILITY OF THE COUNTER DATA; OR (III) WHETHER THE OFFERINGS WILL MEET YOUR REQUIREMENTS.
14. CONFIDENTIAL INFORMATION. Each of us agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. Each of us agrees not to disclose the other’s Confidential Information to any third person except as follows:
(i) to our respective service providers, agents and representatives, provided that such service providers, agents or representatives agree to confidentiality measures that are at least as stringent as those stated in these Terms of Service.
(ii) to law enforcement or government agency if required by a subpoena or other compulsory legal process, or if either of us believes, in good faith, that the Confidential Information reflects conduct that may violate applicable law;
(iii) as required by law; or
(iv) in response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law forbids such notice.
For the avoidance of doubt, our use of Counter Data is governed by the terms and conditions set forth in Section 4 of these Terms and the provisions of this Section 14 do not operate as a warranty with respect to any Services.
15. LIMITATION ON DAMAGES.
IN NO EVENT SHALL SCRAFFIC (OR OUR SERVICE PROVIDERS OR LICENSORS) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOSS OF REVENUE OR PROFIT, LOSS OF DATA, OR LOSS OF TIME OR BUSINESS, ARISING OUT OF OR RELATING TO THE SERVICES OR THIS AGREEMENT, WHETHER LIABILITY IS ASSERTED IN CONTRACT OR IN TORT (INCLUDING STRICT LIABILITY OR NEGLIGENCE) OR OTHERWISE, AND REGARDLESS OF SCRAFFIC (OR ANY OF OUR SERVICE PROVIDERS OR LICENSORS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE TOTAL MAXIMUM LIABILITY OF SCRAFFIC (INCLUDING OUR SERVICE PROVIDERS AND LICENSORS) FOR ANY AND ALL CLAIMS, DAMAGES AND LIABILITIES ARISING OUT OF OR RELATING TO THE SERVICES OR THIS AGREEMENT, WHETHER LIABILITY IS ASSERTED IN CONTRACT OR IN TORT (INCLUDING STRICT LIABILITY OR NEGLIGENCE) OR OTHERWISE, WILL IN NO EVENT EXCEED THE LESSER OF (i) FIVE HUNDRED DOLLARS ($500.00) OR (ii) THE TOTAL AMOUNT OF FEES PAID TO SCRAFFIC BY CUSTOMER FOR THE EQUIPMENT THAT IS THE SUBJECT OF THE CLAIM DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE OCCURRENCE OF SUCH CLAIM, DAMAGE OR LIABILITY, LESS THE AMOUNT OF ALL CLAIMS, DAMAGES OR LIABILITIES PREVIOUSLY PAID BY SCRAFFIC DURING SUCH PERIOD.
16. INDEMNIFICATION. If we, our affiliates, or any of our or their respective officers, directors, employees, agents, suppliers, successors, or permitted assigns (the “Scraffic Indemnitees”) is faced with either: (i) a legal claim by a third party arising out of your actual or alleged negligence, willful misconduct, violation of law, breach of any representation, warranty or covenant contained in the Agreement or (ii) any legal claim by your agent, representative, or employee, then you will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine or other amount that is imposed on the Scraffic Indemnitees as a result of the claim. Your obligations under this subsection include claims arising out of the acts or omissions of your employees, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you. We will choose legal counsel to make decisions regarding the defense of the claim, provided that these decisions must be reasonable and must be promptly communicated to you. We may not settle the claim without your consent, although such consent may not be unreasonably withheld. You must pay expenses due under this Section as we incur them.
17. NOTICES. Your routine communications regarding the Services should be sent to your Scraffic account team identified on your Order. If you want to give us a notice regarding termination of the Agreement for breach or other non-routine legal matter, you must give such notice in writing and send it by electronic mail and first class United States mail to:
Electronic Mail Address: firstname.lastname@example.org
Postal mail address: Scraffic, LLC Attention: Legal Notice, 27314 Park Loop Road, New Braunfels, TX 78132
Scraffic’s routine communications regarding the Services and legal notices will be sent to the individual(s) you designate as your contact(s) on your account either by electronic mail, United States mail, or overnight courier. Notices are deemed received as of the time delivered, or if that time does not fall within a business day, as defined below, as of the beginning of the first business day following the time delivered. For purposes of counting days for notice periods, the business day on which the notice is deemed received counts as the first day. Notices must be given in the English language.
18. OWNERSHIP OF INTELLECTUAL PROPERTY. Each of us retains all right, title and interest in and to our respective trade secrets, inventions, copyrights, and other intellectual property. With the exception of Counter Data as specifically addressed in this Agreement, any intellectual property developed by Scraffic during the performance of the Services shall belong to Scraffic unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property. Anything to the contrary notwithstanding, you hereby grant to us a non-exclusive, royalty-free, perpetual, fully transferable and sub-licensable right and license to reproduce, distribute, use and otherwise exploit any suggestions, feedback or other information communicated by you to us relating to the design, specifications, features, functionality, use or operation of the Services and/or other of our offerings (whether current or proposed) (collectively, “Feedback”).
19. ASSIGNMENT/SUBCONTRACTORS. You may not assign the Agreement or sublicense the Equipment without Scraffic’s prior written consent. We may assign the Agreement in whole or in part as part of a corporate reorganization or a sale of our business, and we may transfer your Counter Data and Confidential Information as part of any such transaction. Scraffic may use third party service providers to perform all or any part of the Services, but Scraffic remains responsible to you under this Agreement for work performed by its third party service providers to the same extent as if Scraffic performed the Services itself.
20. FORCE MAJEURE. Neither of us will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
21. GOVERNING LAW, LAWSUITS. The Agreement is governed by the laws of the State of Texas, exclusive of any Texas choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Exclusive venue for all disputes arising out of the Agreement shall be in the state or federal courts in Bexar County, Texas, and we each agree not to bring an action in any other venue. You waive all objections to this venue and agree not to dispute personal jurisdiction or venue in these courts. You agree that you will not bring or participate in any class action lawsuit against Scraffic or any of its employees or affiliates. Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim accrued.
22. BETA SERVICES. If you elect to participate in any beta test of a Service (a “Beta Service”), then your use of the Beta Service is subject to the following additional terms:
you acknowledge that the Beta Service is a pre-release version and may not work properly;
you acknowledge that your use of the Beta Service may expose you to unusual risks of operational failures;
we may terminate the Beta Service at any time, in our sole discretion;
the commercially released version of the Beta Service may change substantially from the pre-release version and programs that use or run with the pre-release version may not work the commercial release or subsequent releases.
you agree to provide prompt Feedback regarding your experience with the Beta Service in a form reasonably requested by us, including information necessary to enable us to duplicate errors or problems you experience. At our request you will provide us with comments that we may use publicly for press materials and marketing collateral.
you agree that all information regarding your beta test, including your experience with and opinions regarding the Beta Service, is “Confidential Information” of Scraffic as defined in these Terms of Service and may not be disclosed to a third party or used for any purpose other than providing Feedback to Scraffic.
the Beta Service is provided “AS IS” with no warranty whatsoever.
23. SOME AGREEMENT MECHANICS. If these Terms of Service are incorporated in your Order by reference to a page on the Scraffic website and we revise the Terms of Service posted on that page, those revisions will not be effective as to an Order that we accepted prior to the date we posted the revision until the first day of the renewal period that follows the effective date of the amendment by at least thirty days. However, if over time you sign multiple Orders for a single account, then the Terms of Service posted on the effective date of the latest Order will govern the entire account. Any Terms of Service that you accept as part of the installation of a new version of or update to the Software shall supersede and replace these terms of service in their entirety. Scraffic may accept or reject any Order you submit in its sole discretion. Scraffic’s provisioning of the Services described in an Order shall constitute Scraffic’s acceptance of the Order.
An Order may be amended by a formal written agreement signed by both parties, or by an exchange of correspondence, including electronic mail that includes the express consent of an authorized individual for each of us. Any such correspondence that adds or modifies Services in connection with an account established by an Order shall be deemed to be an amendment to that Order, notwithstanding the fact that the correspondence does not expressly refer to the Order.
Other than as stated herein, the Agreement may be modified only by a formal document signed by both parties.
If there is a conflict between an Order and these Terms of Service, the Order shall control. If any part of the Agreement is found unenforceable by a court or other tribunal, the rest of the Agreement will nonetheless continue in effect and we agree that the tribunal may reform the unenforceable part if it is possible to do so consistent with the material economic incentives of the parties resulting in this Agreement. Each of us may enforce each of our respective rights under the Agreement even if we have waived the right or failed to enforce the same or other rights in the past. Our relationship is that of independent contractors and not business partners. Neither of us is the agent for the other, and neither of us has the right to bind the other on any agreement with a third party. The captions in the Agreement are for convenience only and are not part of the Agreement. The use of the word “including” in the Agreement shall be read to mean “including without limitation.” Sections 1, 12 – 18, 21, and 23 of these Terms of Service and all other provisions that by their nature are intended to survive expiration or termination of the Agreement shall survive expiration or termination of the Agreement.
If you have made any change to the Agreement documents that you did not bring to our attention in a way that is reasonably calculated to put us on notice of the change, the change shall not become part of the Agreement.
©2017 Scraffic, LLC