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TERMS OF SERVICE

Introduction

These terms of service (Terms of Service) together with all applicable Product Specific Terms (together, the Terms) govern your access and use of our Services and form a legally binding contract between you and us.

The Agreement between you and us is made up of all Order Form(s) entered into between you and us, the Terms and any amendments made to those documents from time to time in accordance with the Agreement. In the event of any conflict, the following order of priority applies: the Order Form(s) (with those entered into later in time taking precedence over those entered into earlier in time); the Product Specific Terms; then the Terms of Service.

‘Tracksuit’, ‘we’, ‘our’ and ‘us’ refers to Tracksuit Limited; New Zealand Company Number 8198071; 34-38 Drake Street, Freemans Bay, Auckland 1010, New Zealand; legal@gotracksuit.com.

‘Client’, ‘you’ or ‘your’ refers to you, the Client entity, set out in the Order Form.

1. Services
   1. Services: Tracksuit will provide you with the Services in accordance with and subject to the Agreement. As part of the Services, Tracksuit grants you and your Authorised Users a non-transferable, non-sublicensable right to access and use the Dashboard and the Tracksuit Data made available to you as part of the Services during the Term in accordance with the Agreement.
2. Restrictions and Responsibilities
   1. Restrictions: You will not, and you will ensure that your Authorised Users do not (nor attempt to), directly or indirectly:
      1. access or use the Services, Tracksuit Data or Dashboard, or make the Tracksuit Data available to any third party, other than for the Permitted Use (and provided that all such use otherwise remains subject to compliance with this clause 2.1 (Restrictions));
      2. sell, resell or otherwise commercialise (including by way of repackaging as part of any product or service) the Services, Dashboard or Tracksuit Data, or any derivatives of such data;
      3. input or use, or allow any third party to input or use, the Tracksuit Data in any Public AI Tool;
      4. reverse engineer, de-aggregate, decompile, disassemble, translate or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms forming part of, incorporated into or relevant to the Services or Dashboard;
      5. data mine, scrape, crawl, aggregate, copy, extract or attempt to harvest (whether by any automated process, ‘brute force attack’ or otherwise) the Dashboard, for any purpose;
      6. access or use the Services, Tracksuit Data or Dashboard in any way to build a product or service that competes in any way with our business;
      7. remove, alter or deface any copyright notices, disclaimers or other proprietary notice appearing on or in the Services, Tracksuit Data or Dashboard;
      8. attempt to undermine the security of any part of the Services or Dashboard or use them in a manner which may impair their functionality;
      9. make the Dashboard available to any third party, including by providing passwords, user credentials, or log-in information (other than to an Authorised User); or
      10. access or use the Services, Tracksuit Data or Dashboard in any way that constitutes a misuse, misappropriation or infringement of any person’s Confidential Information or rights (including Intellectual Property and privacy) or breaches Applicable Law.
   2. Unauthorised access: You will take reasonable steps to prevent unauthorised access to the Services, Tracksuit Data or Dashboard including without limitation, by protecting user credentials or log-in information. You must notify us immediately of any known or suspected unauthorised use of the Services or breach of its security and will use your best efforts to stop any such unauthorised use or breach and mitigate its impact.
   3. Authorised Users and responsibility for account: You are responsible and liable for any use of the Services, Tracksuit Data or Dashboard through or via your account and the accounts of your Authorised Users. This includes, without limitation, the acts, omissions, misconduct and/or breaches of the Agreement by your Authorised Users. You will ensure and procure that all Authorised Users comply with the Agreement and you will be directly liable to us for any failure to do so. Any breach of the Agreement by an Authorised User will be deemed to constitute a breach by you.
   4. Monitoring: Although we have no obligation to monitor your use of the Services, we may do so and may suspend access and any use of the Services if we become aware of, or reasonably suspect, a breach of the Agreement.
3. Fees and Payment
   1. Fees: You will pay us the Fees as set out in each Order Form. Payment obligations are non-cancellable and, except as set out in the Agreement, all Fees are non-refundable. Fees are exclusive of Taxes. You are responsible for Taxes associated with the purchase of the Services. All amounts due from you must be paid in full without any set-off, counterclaim, deduction or withholding other than any deduction or withholding of Taxes required by law, provided that if any such withholding or deduction is required by law, you will, when making the payment to which the withholding or deduction relates, pay us such additional amount as will ensure that we receive the same total amount that we would have received if no such withholding or deduction had been required. We may use an Affiliate acting as our payment collection agent to collect Fees on our behalf and in such case payment to the Affiliate will constitute payment to us.
   2. Late payments: If Fees are not paid when due, we may, no less than 14 days after written notice to you of the late payment suspend your access to and use of the Services, until the overdue amount is received in full (and without prejudice to any other rights or remedies available to us).
4. Term and Termination
   1. Term:
      1. The Agreement starts when the first Order Form is entered into by both parties and, unless terminated earlier in accordance with the Agreement, will continue until all Order Forms executed under the Agreement have either expired in accordance with their terms or been terminated in accordance with the Agreement (Term).
      2. Each Order Form starts when that Order Form is entered into by both parties and, unless terminated earlier in accordance with the Agreement, will continue until the applicable End Date.
   2. Termination for cause: Either party may terminate the Agreement (including, for the avoidance of doubt, all Order Forms entered into by the parties) immediately by notice in writing to the other party if the other party: (a) commits any material breach of the Agreement which is not capable of remedy; (b) commits any material breach of the Agreement which is capable of remedy (which includes your failure to make any payment due under the Agreement) and fails to remedy such breach within 30 days of receipt of written notice requiring it to do so; or (c) becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason.
   3. Refund or payment upon termination: If the Agreement is terminated by you under clause 4.2 (Termination for Cause) or by us under clause 9.3(c) (Indemnification remedy), we will refund you the pro-rata amount of the Fees prepaid by you in relation to the period following termination (if any) and you are released from any obligation to pay Fees due in relation to the period after termination. If the Agreement is terminated by us under clause 4.2 (Termination for Cause), you will not be entitled to a refund of any prepaid Fees and must pay any unpaid Fees in relation to the remainder of the Term to the extent permitted by Applicable Law. Termination will not relieve you of your obligation to pay any Fees payable to us for the period up to termination.
   4. Effect of termination or expiry: On termination or expiry of the Agreement: (a) your right to access and use the Services ends; (b) each party will delete, destroy, or return the other party’s Confidential Information in its possession or control unless Applicable Law requires retention or where a party retains one archival copy of any Confidential Information solely for any internal record-keeping, tax, legal or regulatory compliance obligations (provided that such retained Confidential Information must be securely stored and remains subject to the confidentiality restrictions in clause 6 (Confidential Information)); (c) the rights and liabilities of the parties accrued at any time up to the termination date are not affected; and (d) all clauses and sections of the Agreement which by their nature should survive termination will survive, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
5. Privacy and Security
   1. Personal information: To the extent either party collects, uses, accesses or processes any Personal Information in connection with the Agreement each party warrants and agrees that it will comply with applicable Privacy Laws. In addition to applicable Privacy Laws, our Privacy Policy sets out how we process any Personal Information disclosed by you, or on your behalf, to us in connection with the Agreement. The Privacy Policy applies only to the Services and does not apply to any third party website or service linked to the Services or recommended or referred to through the Services or by our personnel. To the extent that we do collect, use, access or process any Personal Information in connection with the Agreement, without limiting the obligations under this clause we will ensure that all Personal Information is protected from unauthorised access, modification, use or disclosure caused by our act or omission (a Data Security Breach) and will promptly notify you if we become aware of an actual or suspected Data Security Breach.
   2. Security: We will use commercially reasonable efforts to maintain the security and integrity of the Dashboard and maintain appropriate administrative, physical, and technical safeguards designed to protect the security, confidentiality, and integrity of Confidential Information and any Client Data.
6. Confidential Information
   1. Confidentiality: Each party (the Receiving Party) agrees and acknowledges that the other party (the Disclosing Party) has disclosed, or may disclose, Confidential Information under or in connection with the Agreement. Where the Receiving Party receives Confidential Information from the Disclosing Party under or in connection with the Agreement, the Receiving Party will: (a) use, modify, reproduce or exploit the Confidential Information solely as is necessary to exercise its rights or perform its obligations under this Agreement; and (b) subject to clause 6.3 (Exclusions), not disclose Confidential Information to any person other than its representatives whose access is necessary to enable it to exercise its rights or perform its obligations under the Agreement and who are under obligations of confidentiality substantially similar to those in this clause 6 (Confidential Information) or otherwise as is permitted under the Agreement. Other than as expressly stated, the Agreement does not transfer ownership of Confidential Information or grant a licence thereto. The Disclosing Party retains all right, title, and interest in and to all relevant Confidential Information.
   2. Permitted disclosures: Notwithstanding clause 6.1 (Confidentiality), the Receiving Party may disclose Confidential Information: (a) to its professional advisors, to obtain legal or other professional advice in relation to matters arising under or in connection with the Agreement; and (b) to the extent required to comply with Applicable Law, binding directive of a regulator or a court order, in which case the Recipient must use reasonable endeavours to give the Disclosing Party prior notice of such disclosure (to the extent permitted by Applicable Law) and disclose only that portion of the Confidential Information necessary to satisfy the relevant requirement.
   3. Exclusions: The Disclosing Party agrees that clause 6.1 (Confidentiality) will not apply in relation to any information that: (a) is or becomes generally available to the public through no act or fault of the Receiving Party; (b) was in the possession of the Receiving Party or known by the Receiving Party prior to receipt from the Disclosing Party; (c) was rightfully disclosed to the Receiving Party without restriction by a third party; (d) was independently developed without use of any Confidential Information of the Disclosing Party; or (e) is disclosed by the Receiving Party if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that the Receiving Party enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 6 (Confidential Information).
   4. Remedies: Each party agrees that breach of this clause 6 (Confidential Information) may cause irreparable injury to the other party, for which monetary damages may not provide adequate compensation, and that, in addition to any other remedy, the other party will be entitled to seek injunctive relief against any breach or threatened breach, without proving actual damage or to the extent required by law, posting a bond or other security.
7. Intellectual Property and Data
   1. Ownership of Intellectual Property: You acknowledge and agree that we own and/or retain all Intellectual Property: (a) in or arising out of the Services (including the Dashboard, Tracksuit Data and all graphics, user interfaces, logos, data, and trademarks reproduced through the Services or Dashboard); (b) in any software, applications, inventions or other technology developed in connection with the Services; and (c) all improvements, enhancements or modifications to the foregoing in (a) and (b). The Agreement does not grant you any rights, title or licence to the Intellectual Property in or to the Services or any of its components, except as expressly set out in the Agreement.
   2. Feedback and analytics: If you provide us with any feedback about the Services, we may use that feedback to improve the Services without any restriction or compensation to you provided that any feedback we use will not publicly identify you. We acknowledge all feedback you provide is provided as-is without warranties of any kind and that use of the feedback by us is at our own risk. We also reserve the right to gather analytics in relation to your activity on, and use of, the Services (Usage Data) and to use the Usage Data for our internal purposes, such as identifying usage patterns, research and development and to maintain, improve, and enhance our products or services, and you agree that such Usage Data is not Client Data for the purposes of the Agreement.
   3. Client Data: We acknowledge and agree that you (or your licensors, as applicable) are and remain the sole and exclusive owner of all Intellectual Property in the Client Data. You acknowledge and agree that we are entitled to rely on the accuracy and completeness of the Client Data and, unless expressly required otherwise, we have no obligation to verify the accuracy or completeness of the Client Data. You grant us a non-transferable licence to use Client Data during the Term for the limited purpose of providing the Services to you. We will not use Client Data for any other purpose without your prior approval. You represent and warrant that: (a) our use of the Client Data in accordance with the Agreement will not infringe Applicable Law or the Intellectual Property, privacy or any rights of any third party; and (b) you hold and will continue to hold all necessary licences, consents and authorisations required for us to use the Client Data in accordance with the Agreement.
8. Warranties and Disclaimers
   1. Mutual warranties: Each party warrants to the other:
      1. on a continuing basis that it will comply with all Applicable Law relating to (i) in our case, providing the Services; and (ii) in your case, the Client Data and your use of the Services; and
      2. it has the full right and power to enter into and perform its obligations under the Agreement.
   2. Tracksuit Warranties: We warrant that:
      1. we will provide the Services in accordance with Good Industry Practice; and
      2. the Services will materially comply with the Specifications.
   3. Dashboard availability: You acknowledge that the Dashboard may be temporarily unavailable for scheduled maintenance, updates or changes, or for unscheduled emergency maintenance, either by us or by our third party providers, or because of other causes beyond our reasonable control. We will use reasonable efforts to provide advance notice in writing of any scheduled disruption and to schedule any maintenance, updates or changes to occur outside of business hours.
   4. Other services: The Services may include links, integrations, or connections to third party websites, applications, or other services. Such connections do not imply review or endorsement by us. You proceed at your own risk to a third party website, application, or service.
   5. DISCLAIMER: EXCEPT AS EXPRESSLY SET OUT IN THE AGREEMENT AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES (INCLUDING THE DASHBOARD AND THE TRACKSUIT DATA) ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS AND ALL TERMS, WARRANTIES, REPRESENTATIONS AND CONDITIONS ARE EXPRESSLY EXCLUDED AND DISCLAIMED BY US (WHETHER EXPRESS OR IMPLIED, BY LAW OR OTHERWISE) IN RESPECT OF THE SERVICES (INCLUDING THE DASHBOARD AND THE TRACKSUIT DATA), INCLUDING THAT THE SERVICES (INCLUDING THE DASHBOARD AND THE TRACKSUIT DATA) WILL BE MERCHANTABLE; WILL MEET YOUR REQUIREMENTS; ARE FIT OR SUITABLE FOR YOUR INTENDED PURPOSE OR USE; OR WILL BE UNINTERRUPTED, ERROR-FREE, CORRECT, ACCURATE, COMPLETE, CURRENT OR UP-TO-DATE. TRACKSUIT DOES NOT GUARANTEE ANY OUTCOMES OR RESULTS BASED ON THE USE OF THE SERVICES (INCLUDING THE DASHBOARD AND THE TRACKSUIT DATA) AND YOU ARE SOLELY RESPONSIBLE FOR ANY BUSINESS DECISION MADE BASED ON THE INFORMATION (INCLUDING THE TRACKSUIT DATA) DERIVED FROM USING THE SERVICES. YOU ALSO ACKNOWLEDGE THAT THE DASHBOARD DATA IS BASED ON ESTIMATES DERIVED FROM SAMPLE SURVEY AND SUBJECT TO THE LIMITS OF STATISTICAL ERRORS AND ROUNDING UP OR DOWN.
9. Indemnity
   1. Indemnification: The first party (Indemnifying Party) will defend the other party (Indemnified Party) against any third party claim against the other party and indemnify and keep indemnified the other party from and against any liabilities, losses, damages, costs and expenses including reasonable legal costs (on a solicitor-client basis) associated with such third party claim, to the extent such third party claim is caused by (a) where we are the Indemnifying Party, your use of the Services infringing upon such third party’s Intellectual Property; and (b) where you are the Indemnifying Party, our use of the Client Data infringing upon any third party rights (each a Third Party Claim). The indemnifying Party’s obligations under this clause will not apply to the extent that the Third Party Claim results from the Indemnified Party’s breach of the Agreement.
   2. Indemnification procedure: If either party becomes aware of or receives a Third Party Claim for which it seeks or may seek indemnification under clause 9.1 (Indemnification):
      1. the Indemnified Party will promptly notify the Indemnifying Party in writing of the Third Party Claim;
      2. if the Indemnifying Party requests, the Indemnified Party will afford the Indemnifying Party sole control (at the Indemnifying Party’s cost) over the conduct of the defence of the Third Party Claim and all negotiations for its settlement, in which case:
         1. the Indemnifying Party must consult with and keep the Indemnified Party informed regarding the settlement and/or defence of the Third Party Claim and obtain the Indemnified Party’s prior written approval to any settlement or compromise (not to be unreasonably withheld); and
         2. the Indemnified Party will provide the Indemnifying Party with reasonable information and assistance in relation to the settlement and/or defence of the Third Party Claim.
   3. Indemnification remedy: Where we are the Indemnifying Party and the Services are held by a court of competent jurisdiction to be or are believed by us to be potentially infringing a third party’s Intellectual Property, we may, at our option and expense:
      1. replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality;
      2. obtain for you a licence to continue using the Services; or
      3. if neither of the foregoing options are commercially practicable, terminate the Agreement and provide a refund of prepaid Fees in accordance with clause 4.4 (Refund or payment upon termination).
10. Limitation of Liability
    1. Limitation of liability: EXCEPT IN RESPECT OF EXCLUDED CLAIMS:
       1. EACH PARTY’S MAXIMUM AGGREGATE LIABILITY TO THE OTHER PARTY UNDER OR IN CONNECTION WITH THE AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID AND PAYABLE BY YOU TO US UNDER THE AGREEMENT DURING THE 12 MONTHS PRIOR TO THE DATE OF THE FIRST EVENT GIVING RISE TO LIABILITY (GENERAL CAP), EXCEPT THAT FOR BREACHES OF CLAUSE 5 (PRIVACY AND SECURITY) BY US OUR MAXIMUM AGGREGATE LIABILITY TO YOU UNDER OR IN CONNECTION WITH THE AGREEMENT WILL NOT EXCEED THREE TIMES (3X) THE GENERAL CAP; AND
       2. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY (I) SPECIAL, INDIRECT, CONSEQUENTIAL LOSS; (II) LOSS OF USE; (III) LOSS OF REVENUE; (IV) LOSS OF PROFIT; (V) LOSS OF SAVINGS; (VI) LOSS OF OPPORTUNITY; (VII) LOSS OR DAMAGE TO OR CORRUPTION OF DATA; (VIII) LOSS OF BUSINESS; (IX) LOSS OF GOODWILL; OR (X) LOSS OF REPUTATION. THE FOREGOING APPLIES IN EACH CASE WHETHER ARISING IN EQUITY, FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, INDEMNITY OR OTHERWISE, AND IN EACH CASE REGARDLESS OF WHETHER SUCH LOSS WAS FORESEEABLE, AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, IN EACH CASE ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT.
    2. Contributory liability: Each party’s liability to the other party in connection with the Agreement will be reduced proportionately by the extent to which the acts or omissions of the other party caused or contributed to the relevant liability, losses or damage suffered or incurred by the other party.
    3. Mitigation of liability: Each party must take reasonable steps to mitigate any liabilities, losses or damages it may suffer or incur arising out of anything done or not done by the other party under or in connection with the Agreement (including any amount sought under the indemnity at clause 9 (Indemnity).
11. Disputes
    1. For any dispute between the parties, both parties agree to first contact the other party in writing and refer such dispute to a senior executive officer of each party who will use all reasonable endeavours to resolve the dispute informally and in good faith. If the dispute is not resolved within 30 days of the written notice of dispute, then either party may commence proceedings in any court or tribunal of competent jurisdiction. Nothing in this clause prevents either party from seeking urgent interim or interlocutory or equitable relief from a court of competent jurisdiction as necessary to prevent an actual or threatened infringement of the Agreement, to preserve property or to prevent irreparable harm.
12. Miscellaneous
    1. Waivers and Severability: Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of the Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary so that the applicable provision (where possible) and the rest of the Agreement remains in effect.
    2. Force majeure: No delay, failure, or default, other than a failure to pay Fees when due, will constitute a breach of the Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labour disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
    3. Assignment: Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld), provided that either party may assign the Agreement in its entirety, with notice to the other party but without the other party’s consent, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment in violation of this clause will be null and void. The terms of the Agreement will be binding upon the parties and their respective successors and permitted assigns.
    4. Entire agreement: The Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, representations, proposals, communications and other understandings relating to the subject matter of the Agreement. Each party acknowledges that in entering into the Agreement it does not rely on, and will have no remedies in respect of, any warranty or representation that is not set out in the Agreement. The Agreement applies to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
    5. No agency: No agency, partnership, joint venture, or employment is created as a result of the Agreement and neither party has any power or authority to act for or to assume any obligation or responsibility on behalf of the other party or to bind the other party to any agreement.
    6. Delivery of notices: All notices under the Agreement will be in writing and will be deemed to have been duly given: (a) when received, if personally delivered; (b) if sent by e-mail, when sent provided that the sending party does not receive a bounce-back or error message; (c) the day after it is sent, if sent for next day delivery by a recognised overnight delivery service; and (d) upon receipt, if sent by certified or registered mail, return receipt requested.
    7. Contracting entity and governing law: The laws by which the Agreement will be governed and interpreted (and that will apply in any dispute or lawsuit arising out of or in connection with the Agreement) and the courts that have non-exclusive jurisdiction over any dispute or lawsuit concerning matters involving the Agreement is set out in the table in the Schedule.
    8. Amendments: Subject to clause 12.9 (Permitted Updates), no variation to the terms of the Agreement will be of any force or effect unless it is in writing and agreed by the parties.
    9. Permitted updates: We may update the Terms (including, for the avoidance of doubt, the Product Specific Terms) at any time by posting a revised version at www.gotracksuit.com/terms-of-service. Any such updated Terms will not apply during the then-current term of an Order Form. The updated Terms will only apply to: (a) new Order Forms entered into after the update; and (b) existing Order Forms that automatically renew, from the start of the next applicable Renewal Period. For any such Order Forms that automatically renew, we will notify you by email of any material updates to the Terms. If the update occurs during any Renewal Notice Period, you may terminate the applicable Order Form at any time during that Renewal Notice Period, in which case the Order Form will expire at the end of the then-current Order Form term.
    10. Counterparts: An Order Form may be executed in counterparts, including by electronic copies or electronic acceptance mechanism. Each copy will be deemed an original and all copies, when taken together, will form the same agreement.
13. Definitions

Except when expressly provided otherwise, the definitions in this clause apply in the Agreement.

Affiliate means an entity that, directly or indirectly, controls, is under the control of, or is under common control with a party, where control means having more than fifty percent (50%) of the voting stock or other ownership interest.

Agreement means all Order Forms entered into between you and us and the Terms (and any amendments made to those documents from time to time).

AI Tools means any artificial intelligence, machine learning, large language model, neural network, statistical or algorithmic model, or any similar technology, (including APIs, software, or tools that make use of the foregoing).

Applicable Law means all laws, regulations, rules, court orders or other binding requirements of a government authority that apply to a party.

Authorised User means: (a) the personnel of you and your Affiliates; (b) any third parties who are approved as Authorised Users in the Order Form; and (c) any third parties who are otherwise approved as Authorised Users in writing by us.

Category means a consumer / product category.

Client has the meaning set out in the Introduction to the Terms.

Client Data means any data, information, text, content or other materials which you provide or make available to us in connection with the Agreement but, for clarity, does not include any metadata generated by us and the Services in connection with your use of the Services, any Tracksuit Data or our Confidential Information.

Confidential Information means the Agreement and any information that is not public knowledge that is directly or indirectly obtained from the other party in the course of, or in connection with, the Agreement and the provision and use of the Services (regardless of whether identified as such or not), and includes:

(a) the Proprietary Information of each party.

(b) the terms of the Agreement and the commercial arrangements between the parties;

(c) any information that the other party knows, or ought to know, is confidential; and

(d) trade secrets, know-how, specifications, inventions, processes or initiatives which are of a confidential nature,

but excludes Personal Information, which is governed exclusively by clause 5 (Privacy and Security).

Dashboard means the Software and Dashboard Data presented in an online dashboard hosted by us and which may be accessed by you and your Authorised Users and is currently located at app.gotracksuit.com.

Dashboard Data means (a) the aggregated data and brand health insights that we make available to you as part of the Services, including as derived from the Survey Data; and (b) any other data we make available to you as part of the Services, in each case excluding the Survey Data itself.

End Date has the meaning given to it in the Product Specific Terms.

Excluded Claims means: (a) claims arising from the gross negligence or wilful misconduct of a party; (b) claims arising from the death or personal injury caused by a party; (c) claims arising from fraudulent acts or fraudulent misrepresentations by a party; (d) the indemnification obligations under clause 9 (Indemnity); (e) breaches of clause 6 (Confidential Information); (f) your failure to pay us any Fees due; and (g) any liability to the extent such liability cannot be limited or excluded by Applicable Law.

Fees means the fees payable by you for the Services as set out in an Order Form (as varied from time to time in accordance with the Agreement).

Good Industry Practice means exercising the degree of skill, diligence, prudence, foresight, and care which would reasonably and ordinarily be expected from a skilled and experienced provider of services or software products similar to those contemplated under the Agreement, operating in similar circumstances, and using commonly accepted survey methodologies and practices.

Intellectual Property means all present and future industrial and intellectual property rights whether conferred by statute, at common law or in equity, including all patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights (whether registrable or unregistrable), including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.

Order Form means an ordering document entered into between the parties for Services, whether: (a) executed in writing (including electronic signature); or (b) completed through an online or electronic ordering process (such as a checkout page) that records the ordering party’s acceptance of the Agreement and submission of the applicable order.

Permitted Use has the meaning given to it in the applicable Product Specific Terms.

Personal Information means: (a) any information that relates to a natural living person that either directly identifies them, such as their name or image, or allows them to be identified when combined with other reasonably available information; and (b) any information as defined by similar terms under any applicable Privacy Laws.

Privacy Laws means any privacy or data protection laws or regulations in any jurisdiction (as amended from time to time) applicable to the Services performed by us under the Agreement including, without limitation, any applicable U.S. federal and state laws (e.g. the California Consumer Privacy Act), any applicable European laws (e.g. the General Data Protection Regulation (EU) 2016/679), any applicable UK law (e.g. the Data Protection Act 2018), any applicable Australian law (e.g., the Privacy Act 1988) and any applicable New Zealand law (e.g., the Privacy Act 2020).

Privacy Policy means the privacy policy posted at www.gotracksuit.com/privacy-policy, as updated from time to time.

Private AI Tool means an AI Tool that either (a) meets the following requirements, or (b) has been approved as a Private AI Tool by Tracksuit in writing. The requirements are that the AI Tool: (i) uses Tracksuit Data only to generate outputs for you; (ii) does not permit Tracksuit Data, or any data created in the course of the AI Tool’s operation or training to be accessed or used by any third party, except as necessary to operate the AI Tool on your behalf under appropriate confidentiality obligations and security safeguards; and (iii) if trained or fine-tuned on, or otherwise incorporating, Tracksuit Data, is not incorporated into, or made available through, any product or service provided to third parties. For clarity, Private AI Tools include enterprise-grade third party AI Tools that meet these requirements.

Product Specific Terms means the Product Specific Terms below (at the end of these Terms of Service).

Proprietary Information means business, technical or financial information relating to the relevant party’s business. Our Proprietary Information includes non-public information regarding features, functionality and performance of the Services and Software.

Public AI Tool means an AI Tool that is not a Private AI Tool.

Renewal Period has the meaning given to it in the Product Specific Terms (as applicable).

Renewal Notice Period has the meaning given to it in the Product Specific Terms (as applicable).

Required Incidence Rate means the minimum percentage of the survey sample that must qualify for the Category in order for us to perform the relevant Services.

Services means those services agreed to be provided to you in an Order Form.

Software means the Tracksuit brand tracking platform software application and any software, documentation or data related to the Services and/or made available to you, and includes any maintenance releases or updates to that software from time to time.

Specifications means the specifications set out in the relevant Order Form.

Survey Data means survey respondent level data comprising the individual questions and responses from participants in the surveys conducted by or on behalf of Tracksuit in order to provide aspects of the Services.

Taxes means taxes, levies, duties or other charges of any kind imposed by any governmental authority, including but not limited to sales, use, goods and services, value-added, excise and withholding taxes, as well as any interest, penalties, or additions thereto (excluding for the avoidance of doubt our income tax).

Term has the meaning set out in clause 4.1(a) (Term).

Terms has the meaning set out in the Introduction to this document, as amended from time to time (and, for the avoidance of doubt, includes the Product Specific Terms).

Tracksuit has the meaning set out in the Introduction to the Terms.

Tracksuit Data means:

(a) Dashboard Data; and

(b) Survey Data.

SCHEDULE

PRODUCT SPECIFIC TERMS

These Product Specific Terms set out the terms and conditions that apply to and govern your use of the applicable Services to which they relate, as identified below, in addition to, and supplementing, the Terms of Service (and are deemed to be incorporated into and constitute part of the Terms). If you do not agree with the applicable Product Specific Terms, you must not purchase or use applicable Services to which the Product Specific Terms relate.

Capitalised terms used but not defined in these Product Specific Terms have the meanings ascribed to them in Terms of Service.

Tracksuit Brand Tracking Product

1. End Date: The End Date of an Order Form for the Tracksuit Brand Tracking Product is the end date set out in the Order Form and the Initial Period of an Order Form ends on the End Date.
2. Automatic Renewal: Unless set out otherwise in the Order Form, on expiry of the Initial Period, an Order Form will renew automatically for successive renewal periods of the length set out in the Order Form (each a Renewal Period). Either party may terminate an Order Form by giving the other party not less than 60 days’ written notice to terminate in advance of the expiry of the Initial Period or the then-current Renewal Period of that Order Form (the Renewal Notice Period), in which case the Order Form ends on expiry of the Initial Period or the then-current Renewal Period (as applicable).
3. Payment: Except as set out otherwise in an Order Form, payment of Fees is due within 30 days of the applicable invoice date.
4. Changing Fees: We may change the Fees applicable to the next Renewal Period of an Order Form effective from the commencement of such Renewal Period. At least 90 days before the end of the Initial Period or then-current Renewal Period (as applicable), we will notify you by email with (a) a reminder of the upcoming renewal; and (b) notice of any changes to the Fees for the next Renewal Period.
5. Definition of Permitted Use
   1. Use of the Dashboard, the Survey Data and the Dashboard Data for your own internal business purposes (such as internal analysis, management and board reporting and decision making).
   2. Inclusion of excerpts of Dashboard Data in external reports, presentations and other materials (external materials) that are created and shared with third parties for your own business purposes. Tracksuit must be attributed as the source of the Dashboard Data used in the external materials.
   3. Any other use approved by us in writing.
6. Post termination right to Tracksuit Data: In addition to the matters set out in clause 4.4 of the Terms of Service, on termination or expiry of the Agreement, and provided that the Agreement was not terminated by us under clause 4.2 of the Terms of Service (Termination for Cause): (a) you will have up to 14 days following termination to download the Tracksuit Data that was available to you in the Dashboard; and (b) following termination or expiry you will continue to have a non-transferable, non-sublicensable right to use such downloaded Tracksuit Data for the Permitted Use conditional upon your continued compliance with clause 2.1 of the Terms of Service in relation to such use.
7. Additional termination right for failure to meet Required Incidence Rate: If a Category in a country or region does not meet the Required Incidence Rate, we may terminate the applicable part of the Services. If we do so, we will refund you the pro-rata share of any Fees you have prepaid for the period following termination for such terminated Services, and you will have no obligation to pay further Fees for the terminated Services.