Effective Date: 28/05/2025IMPORTANT - PLEASE READ CAREFULLY:
THESE BUSINESS TERMS OF SERVICE (THE “BTOS”) CONSTITUTE A
LEGAL DOCUMENT BETWEEN DATACIE LTD, CHE-231.706.060, CHEMIN
ERNA HAMBURGER 1C, EPFL INNOVATION PARK, 1015 LAUSANNE,
SWITZERLAND (“TRACENABLE”, “WE”, “US”, OR “OUR”) AND THE
LEGAL ENTITY ON WHOSE BEHALF THE SERVICE IS ACCESSED OR USED
(“CLIENT”). REFERENCES TO “YOU” OR “YOUR” IN THE CONTEXT OF
ACCEPTANCE MEAN THE INDIVIDUAL ACCEPTING THIS BTOS.
THIS BTOS, TOGETHER WITH ANY REFERENCED DOCUMENTATION
(INCLUDING THE PRICING INFORMATION AND PRIVACY POLICY),
GOVERNS CLIENT’S SUBSCRIPTION TO AND USE OF TRACENABLE’S
COMMERCIAL PLAN FOR THE TRACENABLE SERVICE (THE “SERVICE”).
THE COMMERCIAL PLAN IS INTENDED SOLELY FOR
BUSINESS-TO-BUSINESS (B2B) USE AND IS EXPRESSLY EXCLUDED
FROM USE BY CONSUMERS OR FOR PERSONAL OR HOUSEHOLD PURPOSES.
BY (I) ACCESSING OR USING THE SERVICE OR (II) YOU, AS AN
INDIVIDUAL, CLICKING “I AGREE,” CHECKING A BOX INDICATING
ACCEPTANCE, OR OTHERWISE ACCEPTING THIS BTOS (VIA
CLICK-THROUGH, SIGNATURE, OR OTHERWISE) ON BEHALF OF A
COMPANY OR OTHER LEGAL ENTITY (THE "CLIENT"), YOU THEREBY
INDICATE CLIENT’S ACCEPTANCE OF THIS BTOS AND YOU REPRESENT
AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO BIND SUCH
CLIENT TO THIS BTOS. IF YOU LACK SUCH AUTHORITY, OR IF THE
CLIENT DOES NOT AGREE WITH THIS BTOS, NEITHER YOU NOR THE
CLIENT MUST ACCESS OR USE THE SERVICE.
THE "EFFECTIVE DATE" OF THIS BTOS IS THE DATE OF CLIENT’S
ACCEPTANCE. CAPITALIZED TERMS HAVE THE MEANINGS GIVEN IN
THIS BTOS.
1. Definitions
"Account" means Client’s Tracenable account for accessing
the Service.
"Affiliate" means any entity that directly or indirectly
controls, is controlled by, or is under common control with a
party, where “control” means ownership of more than fifty percent
(50%) of the voting securities or other ownership interest of
an entity, or the power to direct its management.
"Authorized End-Users" means the individuals or legal
entities that are Client’s own bona fide end-users and whom Client
authorizes, in accordance with this BTOS, to access Licensed
Data or Derived Data solely through a Client’s Authorized Product,
subject to a Client Agreement.
"Client Agreement" means a written or electronic agreement
between the Client and an Authorized End-User, binding the Authorized
End-User to terms for using the Client’s Authorized Product,
clearly outlining the terms and conditions under which the Authorized
End-User is licensed to use the relevant Client’s Authorized
Product.
"Client Data" means any data, information, identifiers
(e.g., company/security identifiers), or material of any type
that are uploaded by or on behalf of Client or its Client Recipients
to the Platform or otherwise provided by Client to Tracenable
in connection with Client's use of the Service, excluding Feedback
and Telemetry Data.
"Client Recipient(s)" means the individual employees or
authorized contractors of the Client, up to the maximum number
permitted under the Client’s subscribed plan tier (as specified
in the Pricing Information), who are authorized by the Client
to access and use the Service and Licensed Data under this BTOS.
"Client’s Authorized Product" means any specific software
application, website, or dashboard that Client develops, owns,
and controls, including any associated source code written by
Client, through which Client may display Licensed Data or Derived
Data to Authorized End-Users in accordance with Section 6 of this BTOS.
"Claim" means any action, suit, proceeding, demand, investigation,
or cause of action, including those arising from negligence.
"Confidential Information" (or "CI") has the meaning set
forth in Section 14.1.
"Data Request" means a query made by a Client Recipient
through the Platform to retrieve specific data points by specifying
parameters such as Metric(s), Company(ies), and Time Period(s).
"Data Request Fees" means the one-time fees payable by
Client for each Data Request made through the Platform. The cost
for each Data Request is variable, depending on the Metric(s)
selected, and is specified in the Pricing Information (specifically,
the data catalog found at https://tracenable.com/catalog or its
successor site) at the time the Data Request is made.
"Derived Data" means Licensed Data or any portion thereof
that has been modified by or on behalf of the Client, in accordance
with the license rights granted herein, to such a degree that
it: (a) cannot be recognized by Tracenable as originating from
or being substantially identical to the Licensed Data; (b) cannot
be reverse engineered or decompiled by Tracenable or a third
party to recreate the original Licensed Data; and (c) represents
a substantial independent creation that adds significant value
beyond the original Licensed Data. Tracenable retains the right
to determine, in its reasonable discretion, whether any material
qualifies as Derived Data.
"Derived Material" means any content, output, or material—whether
in digital, printed, or other form—that incorporates, references,
or is created by or on behalf of the Client or its Authorized
End-Users (as permitted herein) using any portion of the Licensed
Data or Derived Data, including but not limited to webpages,
documents, spreadsheets, presentations, charts, graphs, business
reports, research papers, compliance disclosures, marketing content,
blog posts, and social media materials.
"Documentation" means Tracenable’s then-current explanatory
materials for the Service (e.g., user guides, FAQs, the Pricing
Information, and Privacy Policy) made available on Tracenable’s
website or through the Platform, as updated from time to time.
"Feedback" means ideas, suggestions, enhancement or feature
requests, comments, recommendations, corrections, or other feedback
about the Service provided to Tracenable by Client, Client Recipients,
or Authorized End-Users.
"Fees" means the applicable Subscription Fees and Data
Request Fees for the Service and any applicable Taxes, as set
forth in the Pricing Information.
"Initial Subscription Term" means the initial period (e.g.,
monthly or yearly) for which the Client subscribes to the Service,
as selected by Client at the time of subscription and detailed
in the Pricing Information.
"Insubstantial Portion" means a minimal and incidental
amount of the Licensed Data that: (a) has no independent commercial
value as a standalone dataset; (b) cannot be used as a substitute
for the Licensed Data or any part thereof; and (c) whose use
does not diminish the commercial value of the Licensed Data in
Tracenable's reasonable assessment.
"Intellectual Property Rights" or "IPR" means any
and all registered and unregistered rights granted, applied for,
or otherwise now or hereafter in existence under or related to
any patent, copyright, trademark, trade secret, database protection,
or other intellectual property rights laws, and all similar or
equivalent rights or forms of protection, in any part of the
world.
"Licensed Data" means the specific datasets, data points,
information, and content owned or licensed by Tracenable and
made available to the Client through the Platform via Data Requests
pursuant to this BTOS.
"Metric" means a specific ESG (Environmental, Social,
Governance) or other corporate data indicator available for query
via a Data Request, as listed in the Pricing Information.
"Platform" means Tracenable’s proprietary web-based software
platform, including its tools, features, and APIs (if applicable),
accessible via login, through which Client Recipients can make
Data Requests and access Licensed Data.
"Pricing Information" means the information available
on Tracenable’s pricing page (https://tracenable.com/pricing
or its successor site), which outlines Subscription Fees and
plan tiers, and Tracenable’s data catalog page (https://tracenable.com/catalog
or its successor site), which outlines Data Request Fees for
each Metric. This Pricing Information, as updated by Tracenable
from time to time, is incorporated by reference into this BTOS.
"Privacy Policy" means Tracenable’s privacy policy, as
may be amended from time to time and made available on Tracenable’s
website, which describes how Tracenable collects, uses, and shares
personal data.
"Security Incident" means any actual, attempted, or reasonably
suspected unauthorized access, acquisition, use, disclosure,
modification, loss, or destruction of, or any other action that
compromises the confidentiality, integrity, or availability of,
Licensed Data, Derived Data, Client Data (when processed by Tracenable
or Client in connection with this BTOS), or Confidential Information
of either party.
"Service" means the subscription to Tracenable’s Commercial
Plan, which includes access to the Platform, the ability to make
Data Requests, download or otherwise access Licensed Data, the
Support Services as described in Section 2.5, and the license rights granted in this BTOS, all as may
be updated by Tracenable from time to time.
"Subscription Fee" means the recurring fee (monthly or
yearly) payable by the Client for access to the Service, as set
forth in the Pricing Information.
"Subscription Term" means the Initial Subscription Term
together with all Renewal Subscription Terms.
"Support Services" means the standard email support provided
by Tracenable in connection with the Service, as more fully described
in Section 2.5 of this BTOS.
"Taxes" means any duties, customs fees, or taxes (other
than Tracenable’s net income tax) associated with the purchase
of a subscription to the Service, including any related penalties
or interest.
"Telemetry Data" means usage, operations, and technical
data related to Client’s and its Client Recipients’ access to
and use of the Service, including but not limited to query patterns,
API call logs and metadata (if applicable), Data Request volumes,
feature usage patterns, and other Service performance metrics.
2. Service Access and Use
2.1 Service Access: Subject to Client’s compliance with
this BTOS, including timely payment of all applicable Fees, Tracenable
grants Client a non-exclusive, non-transferable, worldwide right
for its Client Recipients to access and use the Service during
the Subscription Term. The access to and use of the Service,
and any Licensed Data obtained thereby, shall be in accordance
with the Documentation and the specific license rights, permitted
uses, and restrictions set forth in this BTOS, particularly those
detailed in Section 4 (License Grant and Scope of Use for Licensed Data) and Section 7 (Restrictions on Use).
2.2 Account Management and Security: Client must have
an Account to access and use the Service. Client shall be solely
responsible for:
the accuracy of information it provides to create
and manage its Account;
maintaining the confidentiality and security of its
Account and access credentials (e.g., passwords) for
Client Recipients; and
all activities that occur under its Account, whether
authorized by Client or not. Client will notify
Tracenable immediately if it becomes aware of any
unauthorized use of its Account or credentials.
2.3 Client Recipients: Client may authorize up to the
number of Client Recipients permitted under its subscribed plan
(as specified in the Pricing Information) to access and use the
Service on Client's behalf. Client is responsible for ensuring
that its Client Recipients are aware of and comply with all terms
of this BTOS applicable to such use. Client shall be fully liable
for any breach of this BTOS by its Client Recipients as if such
breach were by Client itself.
2.4 Client Responsibilities: Client shall:
use commercially reasonable efforts to prevent
unauthorized access to or use of the Service and
notify Tracenable promptly of any such unauthorized
access or use it becomes aware of;
use the Service and Licensed Data only in accordance
with this BTOS, the Documentation, and all
applicable laws, rules, and government regulations;
and
not interfere with or disrupt the integrity or
performance of the Service or third-party data
contained therein.
2.5 Support Services: Tracenable will provide standard
email Support Services for the Service. Tracenable will use commercially
reasonable efforts to acknowledge receipt of each support query
submitted by Client to Tracenable's designated support email
address within two (2) Business Days (meaning Monday to Friday,
excluding Swiss public holidays). Resolution timelines, if applicable,
will be communicated after Tracenable’s initial assessment of
the issue. Support Services are generally available during Tracenable’s
standard business hours. Tracenable has no obligation under this
BTOS to provide custom development, on-site assistance, or any
support beyond these standard email Support Services, unless
separately agreed in writing, which may be subject to additional
fees. Client is solely responsible for providing all support
for its Client’s Authorized Product.
2.6 Telemetry and Monitoring: Client acknowledges and
agrees that Tracenable may collect, use, and analyze Telemetry
Data to:
provide, manage, measure, develop, improve, support,
and operate its Service and other offerings;
detect and prevent potential abuse, fraud, or
breaches of this BTOS, usage limits, or entitlements
under the Pricing Information or Documentation;
enforce its rights under this BTOS; and
generate aggregated and anonymized statistics for
its business purposes, including for sharing with
third parties or publicly, provided such statistics
do not identify Client, Client Recipients,
Authorized End-Users, or Client’s Confidential
Information. Tracenable’s collection and use of
Telemetry Data that may constitute personal data
will be in accordance with its Privacy Policy.
3. Client Data
3.1 Intellectual Property Rights in Client Data: As between
Tracenable and Client, Client and its licensors shall retain
all right, title, and interest (including any and all Intellectual
Property Rights) in and to Client Data.
3.2 License to Tracenable: Client hereby grants to Tracenable
and its Affiliates a non-exclusive, worldwide, royalty-free,
sublicensable (to its service providers acting on its behalf)
license to access, process, store, transmit, display, and otherwise
use Client Data solely to the extent necessary to:
provide, maintain, and improve the Service for
Client and its Client Recipients;
prevent or address service, security, or technical
problems associated therewith;
comply with applicable law, rule, or regulation, or
as otherwise compelled by legal process as set forth
in Section 14.3 (Compelled Disclosure); or
as expressly permitted in writing by Client.
3.3 Client Representations and Warranties for Client
Data: Client represents, warrants, and covenants to Tracenable that:
Client or its licensors own and control all rights,
title, and interest in Client Data, or Client has
otherwise secured all necessary rights, licenses,
consents, and permissions to provide the Client Data
to Tracenable and grant the licenses herein for its
intended use with the Service;
the provision and use of Client Data by Tracenable
as contemplated herein, and Client's use of Client
Data with the Service, will not violate any
applicable laws or the rights of any third party
(including Intellectual Property Rights or privacy
rights); and
all Client Data provided is accurate, reliable, and
lawful, and does not include any information or
material that is defamatory, obscene, or otherwise
objectionable. Client shall be solely responsible
and liable for the accuracy, quality, integrity,
legality, reliability, and appropriateness of all
Client Data.
Tracenable is not responsible for any Client Data that is lost,
altered, intercepted, or stored across networks not owned or
operated by Tracenable.
4. License Grant and Scope of Use for Licensed Data
4.1 License Grant: Subject to Client’s compliance with
this BTOS, including timely payment of all applicable Fees and
continued active subscription to the Service, Tracenable grants
Client a limited, worldwide, non-transferable, non-exclusive
license for its Client Recipients to:
access, view, use, and download the Licensed Data
obtained via Data Requests through the Platform;
use the Licensed Data to create Derived Data, and to
use such Derived Data strictly in accordance with
the terms and conditions of this BTOS;
internally distribute the Licensed Data and Derived
Data among its authorized Client Recipients;
use the Licensed Data and any Derived Data for
Client's internal business activities, such as
internal analysis, research, planning, strategy
development, or decision-making;
create Derived Material using Licensed Data and
Derived Data, provided that any such Derived
Material (whether intended for internal or external
use) contains only Insubstantial Portions of the
Licensed Data or Derived Data (or both). Such
Derived Material may then be shared internally
within Client’s organization and externally, subject
to all other applicable terms of this BTOS; and
display Licensed Data and any Derived Data on a
Client’s Authorized Product, solely for access by
Authorized End-Users, strictly in accordance with
the terms and conditions set forth in Section 6 (Terms for Client's Authorized Product and Authorized
End-Users).
4.2 Condition of Active Subscription: The license rights
granted in Section 4.1 to access and use the Service, Licensed Data, create and use
Derived Data, and create and use Derived Material are all contingent
upon the Client maintaining an active, fully paid-up subscription
to the Service. Upon termination or expiration of this BTOS,
Client's rights are governed by Section 10.4 (Effect of Termination).
5. Data Attribution
5.1 General Attribution to Tracenable: Client shall ensure
that all uses, displays, or distributions of Licensed Data or
Derived Data (or both) by Client or its Authorized End-Users
(where permitted under this BTOS) include a clear and visible
attribution to Tracenable as the source of the underlying Licensed
Data. Unless otherwise specified by Tracenable in writing or
in the Documentation for specific Licensed Data, the attribution
must follow the format: "Source: Tracenable" and include a hyperlink
to https://tracenable.com.
5.2 No Misleading Third-Party Attribution: Client must
not, and must ensure its Authorized End-Users do not, display
the name, logo, trademark, or other identifier of any entity
(other than the Client or Tracenable) in such a manner as to
give the viewer the impression that such other entity is a publisher,
originator, or primary distributor of the Licensed Data or Derived
Data.
5.3 Third-Party Data Source Attribution: Licensed Data
may incorporate data from third-party sources. If Licensed Data
provided to Client includes data for which Tracenable’s licensors
require attribution, Tracenable will notify Client of such requirement,
typically by including an attribution notice with the Licensed
Data or in the Documentation. Client agrees to reproduce and
prominently display any such required attribution notices in
any use of such Licensed Data or Derived Data where the Licensed
Data is displayed or distributed in accordance with the rights
granted herein (including on Client's Authorized Product per
Section 6), in the manner specified by Tracenable. Client's failure
to comply with such third-party attribution requirements
shall be deemed a material breach of this BTOS.
6. Terms for Client's Authorized Product and Authorized
End-Users
6.1 License for Authorized End-Users: Subject to the terms
and conditions of this BTOS, Tracenable grants the Client a limited,
worldwide, non-transferable, non-exclusive license to enable
its Authorized End-Users to view and interact with Licensed Data
and any Derived Data solely within the Client’s Authorized Product,
strictly for the Authorized End-Users' use for:
their internal business activities, such as internal
analysis, research, planning, strategy development,
or decision-making; or
creating Derived Material provided that any such
Derived Material (whether intended for internal or
external use) contains only Insubstantial Portions
of the Licensed Data or Derived Data (or both).
6.2 Restrictions on Authorized End-Users: The restrictions
set forth in Section 7 (Restrictions on Use) of this BTOS shall apply to all Authorized
End-Users as if they were the Client. In addition, Authorized
End-Users are expressly prohibited from:
extracting, integrating, incorporating, or using any
Licensed Data or Derived Data accessed through or
obtained from the Client’s Authorized Product into
any other separate software application, website,
platform, dashboard, database, source code, or any
other information repository or system (with the
sole exception being the creation and use of Derived
Material containing only Insubstantial Portions of
Licensed Data or Derived Data, as expressly
permitted for Authorized End-Users under Section 6.1(b));
Downloading, scraping, or copying any substantial
portion of the Licensed Data or Derived Data from
the Client’s Authorized Product. Authorized
End-Users may only copy and paste Insubstantial
Portions of the Licensed Data or Derived Data
displayed on Client’s Authorized Product in a
Non-Systematic (i.e., manual, non-automated, and
occasional) manner for their permitted uses under Section 6.1.
6.3 Requirements for Client’s Authorized Product: The
Client’s Authorized Product, when used to display Licensed Data
or Derived Data, must at all times:
Remain under the ownership and effective control of
the Client;
Predominantly feature the Client’s own branding,
such that it is clearly identifiable as a product of
the Client;
Not be accessible through, embedded within, hosted
on, or “micro-sited” within any third-party
platforms, websites, or properties not under
Client's direct control;
Implement robust user authentication mechanisms,
such as password protection or equivalent secure
methods, to ensure that only specifically authorized
and identifiable Authorized End-Users can access the
portions of the Client’s Authorized Product
containing Licensed Data or Derived Data; and
Be provided to Authorized End-Users on terms where
such Authorized End-Users (or an entity acting on
their behalf) make a monetary payment to the Client
for access to the Client service or product that
includes or displays the Licensed Data or Derived
Data (i.e., access to Licensed Data or Derived Data
displayed via the Client’s Authorized Product must
be part of a service for which Authorized End-Users
make a monetary payment to Client). Client shall not
offer free or unpaid access to Licensed Data or
Derived Data through the Client’s Authorized
Product.
6.4 Hyperlinking and Framing: Client shall use commercially
reasonable efforts to prevent unauthorized deep-linking to Licensed
Data or Derived Data on, or framing of, Client’s Authorized Product.
Client shall cooperate with Tracenable to stop such activities
if discovered.
6.5 Security Measures for Authorized Product: Client shall
implement reasonable technical/organizational security for Client’s
Authorized Product (e.g., anti-scraping, user authentication)
to prevent unauthorized data extraction or misuse.
6.6 Client Agreements with Authorized End-Users: Client
shall ensure that each Client Agreement with an Authorized End-User
is legally binding and incorporates either (i) the "Notices and
Disclaimers for Inclusion in Client Agreements" set forth in
Annex 1 of this BTOS verbatim, or (ii) alternative disclaimers and
limitations of liability that are demonstrably no less protective
of Tracenable's and its licensors' rights and interests than
those in Annex 1.
6.7 Authorized End-User Non-Compliance:
Client Responsibility: Client is responsible for
monitoring and enforcing compliance by its Authorized
End-Users with the terms applicable to Authorized End-Users
under this BTOS.
Notification and Client Action: If Tracenable
notifies Client of, or if Client otherwise becomes aware
of, Authorized End-User non-compliance, Client shall
promptly investigate, take corrective action (e.g., stop
non-compliance, suspend/terminate Authorized End-User
access), and inform Tracenable within ten (10) business
days.
Material Breach by Client: Deemed a material breach
by Client if:
Authorized End-User non-compliance is severe
(including, but not limited to, unauthorized
bulk extraction, public redistribution of
substantial Licensed Data or Derived Data,
or use for illegal purposes) or repeated.
Tracenable’s Remedies: For Client's material breach
under Section 6.7(c), or for severe/repeated Authorized End-User
non-compliance, Tracenable may exercise all remedies
(e.g., require Client to suspend/terminate
Authorized End-User, suspend/terminate Service per Section 11 (Suspension of Service), seek indemnity per Section 17 (Indemnification), seek injunctions per Section 18 (Governing Law, Dispute Resolution, and Equitable Relief)).
6.8 Cessation and Deletion upon Tracenable Notice: Client
Agreements must require Authorized End-Users to cease use and
delete Licensed Data/Derived Data if Tracenable withdraws rights
(e.g., due to a third-party Claim or the reasonable likelihood
of such a Claim), upon Tracenable’s notice to Client. Client
is solely responsible for enforcing this requirement with its
Authorized End-Users. Tracenable shall bear no direct responsibility
for ensuring such cessation or deletion by Authorized End-Users,
although Tracenable reserves the right to take action against
Client for failure to enforce.
7. Restrictions on Use
Client shall not, and shall not permit Client Recipients or
Authorized End-Users to:
reproduce, copy, or duplicate Licensed Data, except
as strictly necessary to exercise rights granted in Section 4 and Section 6;
publicly display Licensed Data or Derived Data,
except Insubstantial Portions in Derived Material
(per Section 4.1(e)) or as permitted for display on Client's
Authorized Product under Section 6;
make any Licensed Data or Derived Data available, in
whole or in part, to any third party in any manner
whatsoever, including but not limited to by way of
sale, resale, license, sublicense, lease, rental,
loan, as a service bureau, as a data feed, via any
API (except an API internal to Client’s Authorized
Product used strictly for its operation as permitted
under Section 6), or by any other form of distribution,
transmission, or transfer (collectively,
"Redistribute"). For the avoidance of doubt, Client
shall not incorporate Licensed Data or Derived Data
into any product or service offered by Client to
third parties if such Licensed Data or Derived Data
constitutes a material part or the primary value of
such product or service, or if such incorporation
allows third parties to access, extract, or
otherwise use the Licensed Data or Derived Data as
if it were a standalone dataset or data service. The
foregoing prohibition on Redistribution is absolute,
with the sole and exclusive exceptions being only:
the sharing of Derived Material strictly in
accordance with Section 4.1(e) (which permits external sharing only if such
Derived Material contains Insubstantial Portions
of Licensed Data or Derived Data); and
the display of Licensed Data or Derived Data
to Authorized End-Users exclusively through
a Client's Authorized Product, strictly in
accordance with all terms and conditions set
forth in Section 6;
use Licensed Data or Derived Data for unlawful,
unethical, discriminatory, or harmful purposes;
reverse engineer, deconstruct, disassemble, or
otherwise attempt to derive the underlying
structure, logic, or source of the Licensed Data or
the methods used by Tracenable to compile or
generate the Licensed Data (except to the extent
such restriction is prohibited by applicable law);
misrepresent, alter, or manipulate the Licensed Data
in a way that is misleading or likely to harm the
reputation or interests of Tracenable or its data
sources;
use Licensed Data or Derived Data in violation of
any applicable laws or regulations (including
applicable data privacy laws);
use the Licensed Data or Derived Data to develop,
support, or enhance any products or services that
compete directly or indirectly with those offered by
Tracenable;
remove, obscure, or alter any copyright notices,
trademarks, proprietary marks, disclaimers, or
watermarks embedded in or accompanying the Licensed
Data or Documentation;
use Licensed Data or Derived Data to train machine
learning models, large language models (LLMs), or
other AI systems without Tracenable’s prior written
consent (subject to added fees/terms); or
create, issue, sponsor, calculate, or promote any
financial product—including but not limited to
indexes, funds, swaps, futures, options, or other
structured instruments—that references, is based on,
or tracks the performance of the Licensed Data or
any Derived Data, without Tracenable’s express prior
written consent.
8. Data Security
8.1 Client Data Security Obligations:
General Obligation: Client shall implement and
maintain commercially reasonable administrative, physical,
and technical security measures for Licensed Data and
Derived Data in its control to protect against Security
Incidents.
Standard of Care: Client's measures shall be no
less than for its own sensitive data, and at least reasonable
care per industry best practices and applicable laws.
Liability for Breach: Client is liable for Security
Incidents on its systems from its failure to meet these
obligations.
Security Incident Notification: If Client becomes
aware of a Security Incident on its systems involving
Licensed/Derived Data, Client shall notify Tracenable
without undue delay (within 48 hours of discovery), detailing
the incident and corrective actions, and cooperate fully
with Tracenable.
8.2 Tracenable Security Obligations: Tracenable shall
implement and maintain commercially reasonable administrative,
physical, and technical safeguards for the security, confidentiality,
and integrity of the Service and Client Data processed by Tracenable
on the Platform. These include preventing unauthorized access/use/disclosure
by Tracenable personnel except to:
Tracenable does not guarantee its systems will be free from Security
Incidents.
9. Fees, Payment, and Taxes
9.1 Fees: Client shall pay Fees per the Pricing Information,
consisting of: (a) recurring Subscription Fee (monthly or yearly,
as selected by Client and detailed in the Pricing Information),
paid in advance; and (b) one-time Data Request Fees (per Pricing
Information, charged at time of request).
9.2 Payment: Fees are in USD unless Pricing Information
states otherwise. Client authorizes Tracenable to charge its
payment method for due Fees. Client must maintain accurate billing
information.
9.3 Non-Payment: If payment fails, Tracenable may, at
its discretion, suspend Service (per Section 12) until paid.
9.4 Taxes: Fees exclude Taxes. Client pays all Taxes on
its purchases (except taxes on Tracenable’s net income). Tracenable
will invoice applicable Taxes unless Client provides a valid
exemption certificate.
9.5 Withholding Taxes: If law requires Client to withhold
Taxes from payments to Tracenable, Client shall gross up payment
so Tracenable receives the full invoiced amount, and provide
Tracenable with official payment evidence for such withheld Taxes.
9.6 Invoicing: If invoiced, payment is due net thirty
(30) days from invoice date, unless otherwise stated.
10. Subscription Term, Renewal, and Termination
10.1 Subscription Term and Renewal: Service is subscribed
for an Initial Subscription Term (e.g., monthly or yearly) as
selected by Client and specified in the Pricing Information.
Upon expiration of the Initial Subscription Term, the subscription
shall automatically renew for successive periods equal in duration
to the expiring Subscription Term (each a “Renewal Subscription
Term”), at Tracenable’s then-current Fees as per the Pricing
Information, unless terminated earlier pursuant to this BTOS.
10.2 Termination by Client: Client may terminate its subscription
anytime (via Platform or notice to Tracenable). Such termination
will be effective at the end of the then-current Subscription
Term (whether monthly or yearly). No refunds or credits for Subscription
Fees will be provided for any pre-paid portion of the Subscription
Term, except as may be expressly set forth in this BTOS.
10.3 Termination by Tracenable: Tracenable may terminate
this BTOS and Service access:
For Convenience: By providing Client with at least
ninety (90) days prior written notice for yearly Subscription
Terms or at least thirty (30) days prior written notice
for monthly Subscription Terms, with such termination
being effective at the end of Client’s then-current Subscription
Term. Tracenable shall not be liable to Client for such
termination for convenience, provided that if Client
has prepaid Fees for a period extending beyond the effective
date of termination, Tracenable shall refund a pro-rata
portion of such prepaid, unused Subscription Fees.
For Non-Payment: Immediately on written notice
if undisputed Fees are ten (10) or more days overdue
after Tracenable has provided notice of such non-payment.
For Material Breach: Immediately on written notice
if Client materially breaches this BTOS (including its
obligations under Sections 4 (License Grant), 6 (Terms for Client's Authorized Product), 7 (Restrictions on Use), or 8 (Data Security)) and fails to cure such breach within
ten (10) days of Tracenable’s notice (or immediately
if the breach is of a nature that Tracenable, in its
reasonable discretion, deems incurable or poses an immediate
threat). If terminated for Client's material breach,
the post-termination usage rights for Derived Data and
Derived Material set forth in Section 10.4(c) shall not apply, and Client must cease all use and
delete such Derived Data and Derived Material in its
possession.
For Insolvency: Immediately on written notice
if Client becomes the subject of a petition in bankruptcy
or any other proceeding relating to insolvency, receivership,
liquidation, or assignment for the benefit of creditors,
or ceases to do business in the ordinary course. If terminated
for Client's insolvency, the post-termination usage rights
for Derived Data and Derived Material set forth in Section 10.4(c) shall not apply, and Client must cease all use and
delete such Derived Data and Derived Material in its
possession.
10.4 Effect of Termination: Upon termination or expiration
of this BTOS for any reason:
Cessation of Service/New Creations: Client’s right
to access the Service and Platform, display Licensed
Data on its Client’s Authorized Products, make new Data
Requests, and create new Derived Data or new Derived
Material from Licensed Data shall immediately terminate.
Access to the Platform will be disabled.
Deletion of Licensed Data: Client shall, within
fifteen (15) days of termination, permanently delete
or destroy all copies of original Licensed Data in its
possession or control and, upon Tracenable’s request,
provide written certification of such deletion or destruction.
Client shall ensure its Authorized End-Users stop using
the Licensed Data, and return, delete, or destroy all
copies of the Licensed Data in their possession or control,
as required by the Client Agreement mandated under Section 6.8.
Post-Termination Use of Pre-Existing Derived
Data/Material: Provided this BTOS was not terminated by Tracenable
due to Client’s material breach (pursuant to Section 10.3(c) or Section 10.3(d)), Client is granted a limited, perpetual,
non-exclusive, non-transferable, worldwide license
to retain and continue to use any Derived Data and
Derived Material that was lawfully created by Client
prior to the effective date of termination, strictly
in accordance with the use rights and restrictions
applicable to Derived Data and Derived Material as
set forth in this BTOS (including those in Section 4.1 and Section 7), which shall survive termination for this
purpose.
Ongoing Attribution: Client’s continued use of
any pre-existing Derived Data or Derived Material post-termination
pursuant to Section 10.4(c) is conditional upon Client continuing to attribute
Tracenable as the source of the underlying Licensed Data
in accordance with Section 5.
Payment of Accrued Fees: Termination does not
relieve Client of its obligation to pay any Fees accrued
or payable to Tracenable prior to the effective date
of termination.
10.5 Survival: The following sections, and any other provisions
of this BTOS which by their nature should survive, shall survive
any termination or expiration of this BTOS: Sections 1 (Definitions), 3 (Client Data), 5 (Data Attribution), 6 (Terms for Client's Authorized Product and Authorized End-Users,
as applicable to permitted post-termination use), 7 (Restrictions on Use, as applicable to retained data), 8 (Data Security, as applicable to retained data), 9 (Fees, Payment, and Taxes, regarding accrued payment obligations),
10 (Subscription Term, Renewal, and Termination, regarding effects
of termination and post-termination rights and obligations),
13 (Intellectual Property Rights), 14 (Confidentiality), 15 (Warranties and Disclaimers), 16 (Limitation of Liability), 17 (Indemnification), 18 (Governing Law, Dispute Resolution, and Equitable Relief),
19 (General Provisions), and Annex 1.
11. Modifications
11.1 Modifications to BTOS: Tracenable may change this
BTOS (including Documentation such as the Pricing Information)
from time to time in its sole discretion with notice (website,
Platform, or email). Changes are effective immediately or as
stated (unless law requires longer). Tracenable will use commercially
reasonable efforts for at least fifteen (15) days’ notice for
material adverse changes or significant pricing changes directly
impacting existing subscriptions, where practicable. If Client
disagrees with material adverse changes, its sole remedy is to
terminate its subscription in accordance with Section 9.2 before changes take effect. Continued Service use after changes
means Client acceptance.
11.2 Modifications to the Service: Tracenable may update
or change Service or Platform features in its sole discretion.
Tracenable will use commercially reasonable efforts so changes
don’t materially decrease core subscribed Service functionality
during Client's then-current Subscription Term without reasonable
notice and, in the event of such material decrease, providing
Client an option to terminate for convenience with a pro-rata
refund of any prepaid unused Subscription Fees for the remainder
of the term.
11.3 Deprecation Policy: Tracenable will use commercially
reasonable efforts for at least six (6) months' prior written
notice for Deprecation (discontinuance or backwards-incompatible
change to material API/Service part), unless Tracenable reasonably
determines that: (i) it is prohibited from doing so by lay; (ii)
continuing to provide the feature or Service could create a security
risk or a significant technical or economic burden; or (iii)
the feature or Service is being replaced with a substantially
equivalent offering. This Deprecation Policy does not apply to
beta features, or minor adjustments to the Service.
12. Suspension of Service
12.1 Right to Suspend: Tracenable may suspend, disable,
or otherwise limit all or part of Client’s (including its Client
Recipients' or Authorized End-Users') access to or use of the
Service without prior notice if Tracenable reasonably determines,
in its sole discretion, that: (a) Client or any Client Recipient
or Authorized End-User violates this BTOS or the Documentation;
(b) such use adversely impacts Service security, integrity, availability,
or other clients; (c) there is unauthorized third-party Account
access; (d) Tracenable is required to do so by law or governmental
request; (e) Client is in breach of its payment obligations under
Section 9; or (f) Client's usage patterns indicate abuse or attempts
to circumvent usage limits or entitlements (per Pricing
Information or Documentation).
12.2 Notice and Reinstatement: Where practicable and legally
permissible, Tracenable will endeavor to provide Client with
notice of suspension. Tracenable may, in its sole discretion,
lift a suspension if Client demonstrates to Tracenable’s satisfaction
that the underlying cause has been rectified and preventative
measures implemented. Suspension shall not relieve Client of
its payment obligations under this BTOS, nor will it extend the
Subscription Term.
13. Intellectual Property Rights
13.1 Tracenable’s IP: As between Tracenable and Client,
Tracenable (and its licensors, where applicable) owns all right,
title, and interest, including all related intellectual property
rights (IPR), in and to the Service, the Platform, the Licensed
Data, the Documentation, and any underlying technology, software,
databases, methodologies, know-how, and processes associated
with the Service. This BTOS is not a sale and does not convey
to Client any rights of ownership in or related to the Service,
Licensed Data, or Tracenable's intellectual property except for
the limited licenses expressly granted herein. The Tracenable
name, logos, and product names associated with the Service are
trademarks of Tracenable or third parties, and no right or license
is granted to use them except as necessary to exercise the rights
granted herein. For clarity, Tracenable retains all IPR in Licensed
Data even when such data is incorporated into Client-owned Derived
Material.
13.2 Client’s IP in Derived Data: As between Tracenable
and Client, and subject to Tracenable’s retained ownership of
the underlying Licensed Data, Client shall own all IPR in and
to any Derived Data lawfully created by Client in accordance
with this BTOS. Client’s ownership of such Derived Data is perpetually
subject to the condition that Client may only use such Derived
Data in strict accordance with all applicable use rights, restrictions
(including those in Section 7), and obligations (including attribution under Section 5) set forth in this BTOS, which shall survive any
termination or expiration of this BTOS with respect to
Derived Data permitted to be retained post-termination.
13.3 Client IP in Derived Material: Subject to Tracenable’s
overriding ownership of the Licensed Data (as set forth in Section 13.1) and any Tracenable IPR that might be otherwise
implicated, Client shall own the IPR in the specific
original expression and compilation of any Derived Material
created by Client. Client’s use of any Licensed Data or
Derived Data incorporated within such Client-owned Derived
Material remains subject at all times to the license rights,
use restrictions, and obligations set forth in this BTOS,
both during the Subscription Term and (if applicable)
post-termination as per Section 10.4(c).
13.4 Client Feedback: Client grants Tracenable a perpetual,
irrevocable, worldwide, non-exclusive, royalty-free, fully paid,
transferable, sublicensable license to use Feedback for any purpose
(including Service improvement and promotion) without obligation
or compensation to Client. Client warrants it has all rights
necessary to grant this license and that Feedback does not infringe
any third-party rights.
13.5 Use of Client Name and Logo: Client grants Tracenable
the right to use Client's company name and logo as a reference
for marketing or promotional purposes on Tracenable's website
and in other public or private communications with existing or
potential Tracenable customers, subject to Client’s standard
trademark usage guidelines if provided to Tracenable. Client
may revoke this right at any time by submitting a written request
to Tracenable, and Tracenable will cease such use within a reasonable
period.
14. Confidentiality
14.1 Definition: “Confidential Information” (or "CI")
is non-public information designated confidential or reasonably
understood as such under the circumstances. Tracenable’s CI includes
non-public aspects of the Service, Platform, Licensed Data (its
structure, compilation methodologies, non-public elements), Documentation,
unreleased features, non-public pricing, and business strategies.
Client’s CI includes Client Data (subject to Tracenable's permitted
uses under Section 3.2) and Client’s non-public business information disclosed to
Tracenable. This BTOS's negotiated commercial terms (if any
beyond standard pricing) are CI of both parties. CI excludes
information that:
is or becomes public without breach of this BTOS;
was known to the recipient before disclosure without
a confidentiality breach;
is lawfully received from a third party without a
known confidentiality breach; or
is independently developed by the recipient without
using the Disclosing Party’s CI.
Feedback is not Client’s CI once provided to Tracenable.
14.2 Protection: Each party (as Receiving Party) will
use the same degree of care as for its own similar CI (at least
reasonable care) to:
use the Disclosing Party’s CI only for BTOS
purposes; and
limit access to its and its Affiliates’ personnel,
contractors, and legal/financial advisors who need
access for BTOS purposes and are bound by
confidentiality obligations no less protective than
herein.
Each party is liable for its representatives' breaches of this
Section 14.
14.3 Compelled Disclosure: A Receiving Party may disclose
the Disclosing Party’s CI if legally compelled by law, regulation,
court order, or other valid legal process, provided the Receiving
Party (if legally permitted and practicable) gives the Disclosing
Party prior notice and reasonable assistance (at Disclosing Party's
cost) to contest or limit such disclosure.
15. Warranties and Disclaimers
15.1 Mutual Representations and Warranties:
Authority: Each party represents and warrants
that it has the legal power and authority to enter into
this BTOS and to perform its obligations hereunder.
Accuracy of Information Provided: Each party represents
and warrants that all information and statements provided
by it to the other party specifically for the purpose
of entering into or performing its obligations under
this BTOS are, to the best of its knowledge and belief
at the time provided, true, accurate, and not misleading
in any material respect. Client specifically warrants
the accuracy of all information provided during the Account
setup process and for billing purposes.
15.2 General Disclaimer of Warranties: TO THE MAXIMUM
EXTENT PERMISSIBLE UNDER APPLICABLE SWISS LAW, AND EXCEPT AS
EXPRESSLY PROVIDED IN SECTION 15.1, THE SERVICE, THE PLATFORM, THE LICENSED DATA, ANY DERIVED
DATA (WHETHER IP IS OWNED BY CLIENT OR TRACENABLE), AND THE
DOCUMENTATION ARE PROVIDED “AS IS” AND “AS AVAILABLE”
WITHOUT WARRANTIES, CONDITIONS, OR OTHER TERMS OF ANY KIND,
EITHER EXPRESS OR IMPLIED. TRACENABLE, ITS AFFILIATES, AND
ITS LICENSORS (COLLECTIVELY, THE “TRACENABLE PARTIES”) MAKE
NO WARRANTY THAT THE SERVICE OR THE DATA PROVIDED THEREWITH
WILL
MEET CLIENT’S REQUIREMENTS;
BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR
ERROR-FREE BASIS; OR
BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE TRACENABLE PARTIES
HEREBY DISCLAIM ALL WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER
EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT
LIMITED TO ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, AND NON-INFRINGEMENT,
WHETHER ARISING OUT OF A COURSE OF DEALING, USAGE OR TRADE PRACTICE,
OR COURSE OF PERFORMANCE. THE TRACENABLE PARTIES WILL NOT BE
LIABLE FOR ANY LOSS OF ANY KIND FROM ANY CLAIM MADE OR ACTION
TAKEN IN RELIANCE ON MATERIAL AND/OR INFORMATION CONTAINED IN
OR INCLUDED AS PART OF THE SERVICE. THE TRACENABLE PARTIES DO
NOT REPRESENT, WARRANT, OR COVENANT THAT MATERIAL AND CONTENT
CONTAINED IN OR INCLUDED AS PART OF THE SERVICE IS ACCURATE,
COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE.
15.3 WHILE THE TRACENABLE PARTIES ATTEMPT TO MAKE SERVICE
ACCESS SAFE AND SECURE IN ACCORDANCE WITH SECTION 8.2, THEY DO NOT REPRESENT, WARRANT, OR COVENANT THAT THE
SERVICE OR DATA PROVIDED THEREWITH ARE OR WILL BE FREE OF
VIRUSES, MALWARE, OR OTHER HARMFUL COMPONENTS AT ALL TIMES,
OR THAT SECURITY INCIDENTS WILL NOT OCCUR.
15.4 No Guarantee of Uninterrupted Use or Defect
Correction: TRACENABLE DOES NOT WARRANT THAT ACCESS TO OR PROVISION OF
THE SERVICE OR LICENSED DATA WILL BE UNINTERRUPTED, ERROR-FREE,
SECURE, OR THAT DEFECTS WILL BE CORRECTED. CLIENT ACKNOWLEDGES
THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, UNAVAILABILITY,
AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC
COMMUNICATIONS. TRACENABLE IS NOT RESPONSIBLE AND DISCLAIMS ALL
LIABILITY FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE,
LOSS, OR LIABILITY RESULTING FROM SUCH PROBLEMS OR FROM TEMPORARY
UNAVAILABILITY, INTERRUPTION, DELAY, OR DOWNTIME OF CLIENT'S
ACCESS TO THE SERVICE OR LICENSED DATA.
15.5 Client Responsibility for Data Validation,
Suitability, and Use: Client is solely responsible for:
independently validating Licensed Data and Derived
Data (including accuracy, reliability, completeness,
timeliness, and suitability for Client's intended
purposes) before any use or reliance;
all results, decisions, actions, and omissions
arising from its (and its Client Recipients' and
Authorized End-Users') use of or reliance on
Licensed Data, Derived Data, or Derived Material;
and
ensuring its use of such data and any derived
outputs complies with all applicable laws,
regulations, and ethical standards.
15.6 No Advisory Role: Client acknowledges that Tracenable
supplies Licensed Data and the Service for informational purposes
only and does not offer or provide financial, investment, legal,
tax, accounting, medical, or other professional advice or services.
The Licensed Data, Derived Data, Derived Material, or any other
output from the Service should not be construed as such advice
or as a recommendation or endorsement by Tracenable of any particular
course of action, investment strategy, entity, or security. Client
shall not represent or imply to any third party that Tracenable’s
outputs constitute professional advice or guidance of any kind.
Client and its Authorized End-Users use the Licensed Data, Derived
Data, and Derived Material entirely at their own risk. Tracenable
shall not be liable for any decisions made or actions taken (or
not taken) in reliance on such data or materials, including but
not limited to financial, investment, legal, or compliance-related
actions.
15.7 Disclaimer for Third-Party Content and Links: The
Service or Licensed Data may contain links to third-party websites
or resources, or include data sourced from third parties (beyond
forming an integral part of Tracenable's proprietary compilation).
Tracenable disclaims any and all responsibility and liability
for the availability, accuracy, reliability, completeness, legality,
or appropriateness of such third-party websites, resources, or
data. Client acknowledges and agrees that Tracenable makes no
warranties with respect thereto and assumes all risks associated
with Client's access to or use of such third-party content. Tracenable
shall not be liable for any loss or damage arising from Client's
reliance on or interactions with such third-party websites, resources,
or data.
15.8 No Service Level Agreements (SLAs): CLIENT ACKNOWLEDGES
THAT TRACENABLE PROVIDES NO SERVICE LEVEL AGREEMENTS (SLAs) WITH
RESPECT TO UPTIME, AVAILABILITY, PERFORMANCE, DATA QUALITY, OR
SUPPORT RESPONSE TIMES, OTHER THAN AS MAY BE SEPARATELY AGREED
IN A WRITTEN SERVICE LEVEL AGREEMENT SIGNED BY TRACENABLE.
15.9 Data Updates Disclaimer: While Tracenable endeavors
to update Licensed Data (typically with a three to six-month
lag from source publication), Tracenable makes no commitment
or warranty regarding the frequency or timeliness of updates
for any specific Licensed Data.
16. Limitation of Liability
16.1 Exclusion of Indirect and Consequential Damages:
EXCEPT FOR LIABILITIES ARISING FROM MATTERS LISTED IN SECTION 16.3 (EXCEPTED MATTERS), AND TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE SWISS LAW, IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS
BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL,
EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY
TYPE OR KIND (INCLUDING BUT NOT LIMITED TO LOSS OF ACTUAL OR
ANTICIPATED PROFITS, REVENUE, SAVINGS, DATA, USE, GOODWILL, REPUTATION,
BUSINESS OPPORTUNITY, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT
OF, OR IN ANY WAY CONNECTED WITH, THIS BTOS, THE SERVICE, OR
THE LICENSED DATA, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT
(INCLUDING NEGLIGENCE), OR UNDER ANY OTHER THEORY OF LIABILITY,
EVEN IF THE PARTY FROM WHICH DAMAGES ARE SOUGHT OR ITS LICENSORS
HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16.2 Limitation of Aggregate Liability (Liability Cap): SUBJECT TO SECTION 16.3 (EXCEPTED MATTERS), AND TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE SWISS LAW, IN NO EVENT SHALL EITHER PARTY’S TOTAL
AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS BTOS (WHETHER
IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR UNDER ANY OTHER
THEORY OF LIABILITY) EXCEED THE GREATER OF (A) ONE HUNDRED U.S. DOLLARS (USD $100.00) OR (B) THE TOTAL FEES (INCLUDING SUBSCRIPTION FEES AND DATA REQUEST
FEES) ACTUALLY PAID BY CLIENT TO TRACENABLE HEREUNDER IN THE
TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE FIRST
INCIDENT GIVING RISE TO LIABILITY.
16.3 Excepted Matters from Limitations: Limitations in
Sections 16.1 and 16.2 do not apply to:
a party's indemnification obligations under Section 17 (Indemnification);
a party's breach of its confidentiality obligations
under Section 14 (Confidentiality);
damages from a party's unlawful intent (Absicht),
gross negligence (grobe Fahrlässigkeit), or fraud or
fraudulent misrepresentation;
liability for death or personal injury caused by a
party's fault;
Client's obligations to pay all applicable Fees due
under Section 9 of this BTOS;
liability arising from Client's breach of the
license grants or restrictions set forth in Sections 4 (License Grant), 6 (Terms for Client's Authorized Product), or 7 (Restrictions on Use); or
any liability that cannot be limited or excluded
under mandatory applicable Swiss law.
16.4 Claims Period: To the fullest extent permitted by
applicable Swiss law, no legal action or Claim arising out of
or related to this BTOS, regardless of form, may be brought by
either party more than one (1) year after the cause of action
which gave rise to the Claim has first accrued. However, this
one-year limitation shall not apply to:
Claims by Tracenable for Client's failure to pay
applicable Fees as described in Section 16.3(e); or
Claims by Tracenable arising from or related to
matters described in Section 16.3(f) or Client's infringement or misappropriation of Tracenable's
Intellectual Property Rights as set forth in Section 13.
For all such Claims excepted from the one-year limitation period
as described in sub-sections (a) through (c) above, the applicable statutory limitation periods under Swiss
law shall govern.
16.5 Essential Basis: The disclaimers, exclusions, and
limitations of liability set forth in this BTOS form an essential
basis of the bargain between the parties, reflect a mutually
agreed-upon allocation of risk, and Tracenable would not be able
to provide the Service without such limitations. Fees for the
Service have been set taking these limitations into account.
17. Indemnification
17.1 Indemnification by Tracenable:
Tracenable shall defend Client, its officers,
directors, and employees against any third-party
Claim alleging that Client’s use of the Licensed
Data as provided by Tracenable as part of the
Service, and in full compliance with this BTOS,
directly infringes such third party’s Intellectual
Property Rights (excluding any patent infringement
claims based on Client's specific use case or
combination if the Licensed Data itself is not
infringing) enforceable in Switzerland or the
Client's country of habitual residence ("IP Claim").
Tracenable shall indemnify Client for any damages,
reasonable attorney fees, and reasonable costs
finally awarded against Client by a court of
competent jurisdiction as a result of, or for
amounts paid by Client under a settlement approved
in writing by Tracenable for, such an IP Claim.
Tracenable’s obligations under this Section 17.1 exclude IP Claims arising from or based upon:
Client’s or any Authorized End-User’s
creation, use, or access of Derived Data or
Derived Material;
the combination, operation, or use of the
Licensed Data with products, services, data,
or content not provided or expressly
approved in writing by Tracenable, if the IP
Claim would have been avoided but for such
combination;
any modification to the Licensed Data not
made by Tracenable or its authorized
subcontractors;
Client’s use of an outdated version of the
Licensed Data after Tracenable has notified
Client to discontinue such use;
Client’s breach of this BTOS, or any
unauthorized or unlawful use of the Licensed
Data by Client, its Client Recipients, or
its Authorized End-Users;
any Client Data or Client instructions
complied with by Tracenable in good faith;
or
use of the Service or Licensed Data not per
Documentation or intended design.
If an IP Claim is made or, in Tracenable’s
reasonable opinion, is likely to be made, Tracenable
may, at its sole opinion and expense:
procure Client's right to continue using the
allegedly infringing Licensed Data;
replace or modify said Licensed Data to be
non-infringing without materially
diminishing its core functionality/value; or
if Tracenable determines that options (i) and (ii) are not commercially reasonable, terminate
Client’s right to use the affected Licensed Data
or the Service upon written notice to Client,
and refund to Client a pro-rata portion of any
prepaid, unused Subscription Fees applicable
to the remainder of the Subscription Term for
the terminated portion of the Service.
This Section 17.1 states Tracenable’s sole liability and Client’s exclusive
remedy for any IP Claim covered hereunder.
17.2 Indemnification by Client: Client shall defend, indemnify,
and hold harmless Tracenable, its Affiliates, its licensors,
and their respective officers, directors, employees, and agents
from and against any and all third-party Claims, and associated
damages, awards, judgments, losses, liabilities, obligations,
fines, penalties, interest, fees, expenses (including reasonable
attorneys’ fees and costs), and costs awarded against Tracenable
or agreed to in a settlement approved by Client (such approval
not to be unreasonably withheld), arising from or related to:
Client’s breach of any term of this BTOS, including
any unauthorized use of the Service, Licensed Data,
Derived Data, or Derived Material;
Client’s gross negligence, intentional misconduct,
or fraudulent acts or omissions, or that of its
Client Recipients or Authorized End-Users;
Claims that Client Data or Client's instructions to
Tracenable infringe/misappropriate third-party
rights or violate law (including data protection
laws);
Client’s breach of any of its representations or
warranties made in this BTOS;
the creation, use, access, display, or distribution
of Derived Data or Derived Material by Client, its
Client Recipients, or its Authorized End-Users,
including any Claim that such Derived Data or
Derived Material infringes third-party rights
(except to the extent such Claim is covered by
Tracenable's indemnification obligation in Section 17.1);
Any unauthorized access to, use of, disclosure of,
or exposure of Licensed Data or Derived Data by any
third party that obtains such data from or through
Client, its Client Recipients, its Authorized
End-Users, the Client’s Authorized Product, or
through mechanisms Client controls or is responsible
for (including but not limited to compromised access
credentials); or
Any aspect of Client’s Authorized Product, including
its functionality, content (excluding unaltered
Licensed Data or Derived Data properly displayed in
strict accordance with this BTOS for which an IP
Claim would fall under Section 17.1), or use by Authorized End-Users.
17.3 Indemnification Procedure: Indemnification obligations
are subject to the Indemnified Party:
promptly notifying the Indemnifying Party in writing
of the Claim (delay only relieves obligations to the
extent of actual material prejudice caused);
giving the Indemnifying Party sole control of the
Claim's defense and settlement (provided the
Indemnifying Party won't settle without Indemnified
Party's prior written consent if settlement involves
Indemnified Party's admission of liability/fault,
imposes ongoing material obligations/restrictions
(other than for Confidential Information or use
cessation), or doesn't unconditionally release
Indemnified Party from all liability; such consent
not unreasonably withheld);
providing reasonable
assistance/information/authority (at Indemnifying
Party’s reasonable out-of-pocket expense); and
the Indemnified Party may participate in defense
with its own counsel at its own expense.
18. Governing Law, Dispute Resolution, and Equitable Relief
18.1 Governing Law: This BTOS is governed by and construed
in accordance with the substantive laws of Switzerland, without
regard to its conflict of laws principles. The United Nations
Convention on Contracts for the International Sale of Goods (CISG)
shall not apply.
18.2 Dispute Resolution; Arbitration:
Good Faith Negotiation: The parties agree to first
attempt to resolve any dispute, controversy, or claim
arising out of or relating to this BTOS, including its
validity, invalidity, breach, or termination (a “Dispute”),
through good faith negotiations between authorized representatives
of each party for a period of at least thirty (30) days
from the date of written notice of the Dispute from one
party to the other.
Mandatory Arbitration: If the Dispute cannot be
resolved through negotiation pursuant to Section 18.2(a), such Dispute shall, subject to Section 18.3 (Equitable Relief), be finally and exclusively resolved
by binding arbitration administered by the Swiss Arbitration
Centre under the Swiss Rules of International Arbitration
("Swiss Rules") in force when the Notice of Arbitration
is submitted. One arbitrator shall be appointed per the
Swiss Rules. The seat of arbitration shall be Lausanne,
Switzerland. Proceedings shall be in English. The arbitral
award is final and binding and may be entered in any
court of competent jurisdiction.
Waiver of Class Action: To the fullest extent
permitted by law, each party waives any right to participate
in a class action lawsuit or class-wide arbitration regarding
any Dispute.
18.3 Equitable Relief: Notwithstanding the provisions
of Section 18.2(b), Client acknowledges that any breach of its obligations
with respect to Intellectual Property Rights or Confidential
Information may cause Tracenable irreparable harm for which
monetary damages would be an inadequate remedy. Accordingly,
Tracenable shall have the right to seek immediate injunctive
or other equitable relief in any court of competent
jurisdiction in Switzerland (or any other jurisdiction where
Client, its assets, or its infringing or breaching activity
may be found) to protect its Intellectual Property Rights,
enforce restrictions on use of the Service or Licensed Data,
or prevent or stop any actual or threatened breach of this
BTOS (including confidentiality obligations), without the
necessity of posting a bond or proving actual damages, and
without waiving any other rights or remedies available at
law or in equity.
18.4 Continued Performance: Unless this BTOS is terminated,
and except for obligations directly disputed, parties will continue
good faith performance during any dispute resolution process.
19. General Provisions
19.1 Entire Agreement and No Reliance: This BTOS (including
Annex 1 and Documentation expressly incorporated by reference, such
as the Pricing Information and Privacy Policy) is the entire
understanding and agreement between the parties regarding its
subject matter, superseding all prior and contemporaneous communications
(oral or written). Each party affirms it has not relied on any
representation, assurance, or inducement not expressly in this
BTOS.
19.2 Assignment: Neither party may assign its rights or
obligations under this BTOS without the other’s prior written
consent (not unreasonably withheld or delayed). However, Tracenable
may assign this BTOS fully without Client consent to an Affiliate
or in connection with a merger, acquisition, corporate reorganization,
or sale of all or substantially all of its assets or business
to which this BTOS relates. Any attempted assignment violating
this section is void. This BTOS binds successors and permitted
assigns.
19.3 Relationship of the Parties: Parties are independent
contractors. This BTOS creates no partnership, franchise, joint
venture, agency, fiduciary, or employment relationship. Neither
party can bind the other.
19.4 Notices: All notices under this BTOS must be in writing
and delivered by email. Notices to Tracenable shall be sent to
legal@tracenable.com (or such other email address as Tracenable may subsequently
designate by notice). Notices to Client shall be sent to the
primary email address Client provides and maintains in its Account,
which Client is responsible for keeping current. An email notice
is deemed received upon successful transmission, provided the
sender does not receive an automated delivery failure notification
within twenty-four (24) hours. Either party may update its email
address for notices by providing written notice to the other
party.
19.5 Severability: If a BTOS provision is held contrary
to law, it will be modified by the court and interpreted to best
achieve original objectives per law; remaining provisions remain
in effect. If not modifiable, it's deemed severed; remaining
provisions continue.
19.6 Waiver: No failure or delay by a party in exercising
any right under this BTOS constitutes a waiver of that or any
other right. A waiver of one default is not a waiver of subsequent
defaults. Waivers must be written and signed by an authorized
representative of the waiving party.
19.7 Force Majeure: Neither party is liable for performance
failure/delay (except Fee payment) from causes beyond reasonable
control without its fault/negligence (e.g., acts of God, government
actions, war, terror, labor disputes (not own employees), epidemics,
pandemics, internet/utility failures, DoS attacks) ("Force Majeure
Event"). The affected party will promptly notify the other and
use commercially reasonable efforts to mitigate effects.
19.8 Headings and Interpretation: Headings are for convenience
only and don’t affect interpretation. "Include," "includes,"
and "including" mean "without limitation." References to Sections/Annexes
are to this BTOS.
19.9 Language: This BTOS is in English. Translations are
for convenience; English prevails in conflict.
19.10 No Exclusivity: This BTOS is non-exclusive. Tracenable
is free to offer services to others (including Client competitors)
and develop similar/competing products.
19.11 Export Control and Economic Sanctions: The Service
and Licensed Data are subject to export/sanctions laws. Client
will comply strictly. Client shall not access, use, export, re-export,
or transfer Service/Licensed Data violating such laws (e.g.,
to embargoed countries, sanctioned parties, for prohibited end-uses)
without government authorization. Client warrants it is not on
prohibited/restricted party lists and not in/under control of
a sanctioned country national/resident. Client is solely responsible
for necessary licenses/authorizations.
19.12 No Third-Party Beneficiaries: This BTOS creates
no third-party beneficiary rights, except Tracenable’s licensors
are intended third-party beneficiaries of disclaimers, liability
limitations, and protections for Licensed Data they provide,
and as explicitly stated in Documentation.