Terms & Conditions
The following terms and conditions govern the products, subscriptions, and/or services to you.
Trace Advisors, LLC, together with its subsidiaries and affiliates (collectively, “Trace”), offered to provide you with Products and/or Services by means of a written or electronic document issued by Trace and designated as a “Statement of Work” and/or by means of Trace’s online store. Unless a different period of time is specified, prices in a Statement of Work expire thirty days from the date of the Statement of Work or sooner if Trace notifies you before your acceptance. These Terms and Conditions and the Quote accepted by you will collectively constitute the “Contract Documents” (and in the event of any conflict, these Terms and Conditions will prevail) governing the sale, lease, or license of Products and/or Services. You will be deemed to have accepted the provisions of the Contract Documents, including these Terms and Conditions, by manifesting your acceptance by any of the following: (a) by acknowledging electronically by clicking that you accept these Terms and Conditions and/or the Statement of Work; (b) sending to Trace a written acknowledgment of the Statement of Work (which may be via email); (c) placing a purchase order or giving instructions to Trace with respect to the sale, license or lease of the Products and/or Services described in the Statement of Work; or (d) payment for the Products and/or Services. You will be deemed to have received these Terms and Conditions if we have notified you where they can be accessed via the Internet or other reasonable means. If you attempt to accept a Statement of Work after it has expired, Trace may accept your offer to be bound by the Statement of Work by commencing the provision of the Products and/or Services or other reasonable means, but any acceptance by Trace is expressly conditioned upon these Terms and Conditions forming a part of the Contract Documents. These Terms and Conditions may be modified or amended by Trace from time to time without your consent by providing you with written notice of any modification or amendment. The Statement of Work may only be modified or amended by an agreement signed by both you and Trace. Any terms contained in any purchase order or other document issued by you are expressly rejected.
“Products” means Hardware, Software, or a subscription to Microsoft Online Services described in the Statement of Work. Unless expressly set forth in the Statement of Work, you are responsible for providing adequate Hardware, Software, and Network Services for use of the Products. Trace makes no warranties or representations that the Products are compatible with your Hardware, Software, or Network Services.
“Hardware” means computer hardware, related devices, and other accessories, including embedded components other than Software.
“Software” means any software, library, utility, tool or other computer or program code in binary form. Software and/or subscriptions to Microsoft Online Services provided by Trace or third parties is licensed (and not sold) to you, and subject to the provisions of the license agreement with the owner of such Software or subscription services. Software and/or subscription service licenses based on the number of users may be increased or decreased by you, but will be subject to additional fees, including cancelation fees if you decrease the number. You will be responsible for installing any updates to Software unless you have agreed to pay for a Service from Trace that provides for the installation of updates.
“Services” means the services set forth in the Statement of Work. The scope of a Service and our obligations related to a Service are as set forth in the Statement of Work, or if not in a Statement of Work, as set forth on Trace’s website from time to time. The “Services” will not include security forensics, remediation services, or Trace serving in an officer position (such as chief technology officer or otherwise) or owing any fiduciary duty to you or any other excluded services described in the Statement of Work.
“Statement of Work” means the Statement of Work together with the price quote or similarly worded document from Trace describing the Products and/or Services and the fees and charges related to them and/or any Products or Services offered to you through Trace’s online store. If you authorize us to add any additional Products or Services over the telephone or otherwise, those additional Products or Services will be considered part of the Statement of Work and subject to these Terms and Conditions.
“Network Services” means (i) the internal computer network for your company, which may include VPN based services for multiple office locations and may also include wired and/or wireless services, and (ii) services provided by your Internet Service Provider to include internet service and/or phone and/or fax services.
Payment. Fees for Products and/or Services set forth in the Statement of Work may not include applicable sales, use, or other similar taxes and you are responsible for paying such taxes. Payment for Products and/or Services is due no later than 15 days after the date of the Statement of Work, or if no Statement of Work was issued, payment is due 15 days after date of our invoice. For any recurring fees for Products and/or Services, payment is due in advance on the first day of each calendar month with any partial month prorated based on the actual number of days in such month. You must pay all such recurring amounts via pre-authorized automatic ACH payments. Fees are not refundable unless Trace agrees otherwise in writing, and any returns may be subject to a reasonable restocking/administrative charge in Trace’s sole discretion. You acknowledge and agree that if you do not timely pay amounts due for recurring fees, Trace or its licensor or lessor (or their respective distributors) may terminate your access to (or right to use) Products, Software and Trace’s provision of Services, without prior notice. You understand that access to and use of Products, Software and Trace’s provision of Services are contingent upon timely payment. In such event of non-payment, neither Trace, Microsoft, or Trace’s other licensors or lessors, nor their respective distributors shall be liable to you for any consequential or other damages, including any loss of use, loss of business or loss of profits. Without limiting the foregoing, you acknowledge and agree that you have 60 days after receipt of an invoice to dispute any payment or fee due thereunder. Any invoice or fee not disputed within 60 calendar days of receipt of invoice shall be deemed accepted and you shall be deemed to have waived any claim related thereto. If not otherwise stated in the Statement of Work, all recurring fees are subject to increase from time to time upon Trace providing 30 days written notice (Microsoft subscriptions shall be subject to the terms of the Statement of Work and the subscription shall automatically renew at the prevailing rates established by Trace unless otherwise agreed.). Any sums not paid by you when due will bear interest at the rate of 1.5% per month (or such lesser amount as required by applicable law). If Trace has to engage an attorney, collection agency or other third party to collect sums past due, you will also be liable for all such reasonable costs incurred by Trace.
Term of Contract Documents; Termination. Unless otherwise described in the Statement of Work or a subscription to online services, and subject to the other provisions of these Terms and Conditions, the Contract Documents shall be in effect for a one-year period commencing on the date of the Statement of Work, and shall renew automatically for additional one-year terms until cancelled by either party. Notwithstanding this term, either you or Trace may terminate the Contract Documents upon 30 days written notice to the other party; provided, however, if a Product or Service is subject to a minimum initial or minimum renewal term, your obligation to pay for such Product or Service shall include the full duration of such initial or renewal term.. Any transfer of Microsoft Cloud or other online services, including without limitation to another provider of services the same as or similar to Trace’s services, shall be considered a termination under the Contract Documents and requires 30 days written notice to Trace. You will be responsible to pay Trace for all charges due for any such transferred services for the full duration of the then-current initial term or renewal term. Notwithstanding the foregoing, either party may terminate the Contract Documents if the other party commits a material breach and such breach is not cured within 30 days. In addition, Trace may terminate the Contract Documents immediately if (i) you fail to make any payment when due, (ii) you declare bankruptcy or are adjudicated bankrupt, or (iii) a receiver or trustee is appointed for you or substantially all of your assets. Upon termination of the Contract Documents, all rights and obligations under the Contract Documents will automatically terminate except for rights of action accruing prior to termination, payment obligations, and any obligations that expressly or by implication are intended to survive termination.
Transition; Deletion of Data. In the event that you request our assistance to transition away from our Services, we will provide such assistance if (i) all fees due and owing to us are paid to us in full prior to Trace providing its assistance to you, and (ii) you agree to pay our then-current hourly rate for such assistance, with up-front amounts to be paid to us as we may require. For the purposes of clarity, it is understood and agreed that the retrieval and provision of passwords, log files, administrative server information, or conversion of data are transition services, and are subject to the preceding requirements. You also understand and agree that any software configurations that we custom create or program for you are our proprietary information and shall not be disclosed to you under any circumstances. You acknowledge and agree that Trace will have no obligation to store or maintain your data in our possession or control beyond ten (10) calendar days following the termination of the applicable Services. You will hold Trace harmless for, and indemnify Trace against, any and all claims, costs, fees, or expenses incurred by either party that arise from, or are related to, Trace’s deletion of your data beyond the time frames described in this section.
Removal of Software Agent Upon Termination. Unless we expressly direct you to do so, you will not remove or disable, or attempt to remove or disable, any software agents that we installed as part of the Services. Doing so without our guidance may make it difficult or impracticable to remove the software agents, which could result in network vulnerabilities and/or the continuation of license fees for the software agents for which you will be responsible, and/or the requirement that we remediate the situation at our then-current hourly rates, for which you will also be responsible. Depending on the particular software agent and the costs of removal, we may elect to keep the software agent in the Environment but in a dormant and/or unused state. You will remain responsible for the fees and expenses of any software agents that remain in place in an active state.
Termination Fee; Liquidated Damages. You acknowledge and agree that the prices and rates for services and the length of the license terms provided under the Statement of Work were determined by mutual agreement between the parties. You also acknowledge that Trace has incurred obligations on your behalf with respect to services being licensed by Microsoft and/or other third-party providers, and would not have done so without the certainty of revenues during the license term stated in the Statement of Work. Accordingly, in the event of any early termination of the Contract Documents (including by transfer of licenses to a different service provider), you agree to pay a termination fee to Trace, as liquidated damages (the “Liquidated Damages”), in an amount equal to the remaining Contract Value. The Contract Value is calculated as the sum of any unpaid amounts due for the remaining duration of any fixed license term under the applicable Statement of Work plus any additional unpaid non-recurring charges (other than time and expense amounts which the parties have agreed to bill in arrears as incurred) under the State of Work. Trace reserves the right, in its sole discretion, to reduce the amount of Liquidated Damages due to Trace on a case-by-case basis, but is under no obligation to do so.
Non-Solicitation. You acknowledge and agree that during the term of this Agreement and for a period of one (1) year following the termination of this Agreement, you will not, individually or in conjunction with others, directly or indirectly solicit, induce or influence any of Trace’s employees with whom you have worked to discontinue or reduce the scope of their business relationship with Trace, or recruit, solicit or otherwise influence any employee of Trace with whom you have worked to discontinue his/her employment or agency relationship with Trace. In the event of a violation of the terms of the restrictive covenants in this section, you acknowledge and agree that the damages to the other party would be difficult or impracticable to determine, and in such event, you will pay Trace as liquidated damages and not as a penalty an amount equal to one hundred thousand dollars ($100,000) or the amount that Trace paid to that employee in the one (1) year period immediately preceding the date on which you violated the foregoing restriction, whichever is greater. In addition to and without limitation of the foregoing, any solicitation or attempted solicitation for employment directed to Trace’s employees by you will be deemed to be a material breach, in which event the affected party shall have the right, but not the obligation, to terminate the Statement of Work or any other agreement between the parties.
Limited Warranty; Limitation of Liability. Trace will pass through any manufacturer’s, licensor’s or lessor’s warranties to the extent permitted by the manufacturer, licensor or lessor. Except as provided in the next sentence for Services, Trace does not provide any warranty, and any descriptions in a Statement of Work or other material of Trace shall not be construed as a warranty. To the extent Trace is providing Services, Trace warrants that the Services will be performed by qualified personnel and in a manner consistent with good industry standards. EXCEPT AS EXPRESSLY STATED ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, TRACE, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND LICENSORS MAKES NO EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO ANY OF THE PRODUCTS OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY (i) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, INTEROPERABILITY, SUITABILITY, OR NON-INFRINGEMENT; (ii) FOR ANY THIRD-PARTY PRODUCTS OR SERVICES;(iii) FOR THE PERFORMANCE OF OR RESULTS TO BE OBTAINED FROM ANY PRODUCTS OR SERVICES; (iv) THAT THE PRODUCTS OR SERVICES WILL OPERATE OR BE PROVIDED WITHOUT INTERRUPTION OR ERROR; OR (v) THAT DATA WILL BE RECOVERABLE OR UNCORRUPTED. The Products and Services are not fault-tolerant and are not designed or intended for use in hazardous environments requiring fail-safe performance, such as any application in which the failure of the Products or Services could lead directly to death, personal injury, or severe physical or property damage (collectively, “High-Risk Activities”). Trace expressly disclaims any express or implied warranty of fitness for High-Risk Activities. If you purchase any Products or Services that provide for data storage, backup, recovery or security, there is no guarantee that you will be able to retrieve data or that it will be uncorrupted or that your data or systems will not be compromised by third parties.
TRACE WILL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE CONTRACT DOCUMENTS OR THE PRODUCTS OR SERVICES. EXCEPT FOR YOUR BREACH OF YOUR PAYMENT OBLIGATIONS, NEITHER PARTY SHALL HAVE LIABILITY FOR THE FOLLOWING: (i) LOSS OF REVENUE, INCOME, PROFIT, OR SAVINGS; (ii) LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF A SYSTEM OR NETWORK OR THE RECOVERY OF SUCH; (iii) LOSS OF BUSINESS OPPORTUNITY; (iv) BUSINESS INTERRUPTION OR DOWNTIME; (v) THE PRODUCTS, SERVICES OR THIRD-PARTY PRODUCTS OR SERVICES NOT BEING AVAILABLE FOR USE; OR (vi) THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES.
TRACE’S TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE CONTRACT DOCUMENTS (INCLUDING PRODUCTS AND SERVICES) SHALL NOT EXCEED THE TOTAL AMOUNT RECEIVED BY TRACE DURING THE PRIOR 3 MONTHS UNDER THE CONTRACT DOCUMENTS FOR THE SPECIFIC PRODUCT OR SERVICE GIVING RISE TO SUCH CLAIM(S).
Trace shall not be responsible for any interruptions in Services caused by (a) any services, hardware, software, network services or the like over which Trace has no control; (b) your software, services, computers, and facilities; (c) power failures; (d) third party integrations, including modifications made by you or another third party to your applications, the Services or any features or functionality thereof; (e) Internet connectivity issues or failures. It is agreed that Trace shall not be responsible for damages or otherwise for its failure to comply with the terms of this Agreement if its performance hereunder is necessitated, delayed or prevented by acts of God, acts of war, government action, fire, flood, water damage, earthquakes, riots, work stoppage, strikes, transportation difficulties, injunctions or similar court orders, supply shortages, lightning, electrical malfunctions outside of the system, weather conditions, actions or inactions by you or your authorized agents, delays of suppliers, subcontractors, power company, or other carrier, breakdown of manufacturer’s equipment or hardware, or other causes beyond Trace’s reasonable control.
THESE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS APPLY TO ALL CLAIMS FOR DAMAGES, WHETHER BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT, OR OTHERWISE. THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR TRACE’S PROVISION OF PRODUCTS AND/OR SERVICES TO YOU, ARE A MATERIAL INDUCEMENT FOR TRACE TO ENTER INTO THE CONTRACT DOCUMENTS WITH YOU, AND WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES.
Confidential Information. Each party hereto shall use its commercially reasonable efforts to hold in confidence and not disclose confidential information of the other party, except as required by applicable law.
Notices. Any notice under the Contract Documents must be in writing and delivered to the respective addresses of the parties set forth in the Statement of Work or to such other address as either party may designate by written notice to the other in accordance with this provision. Notice must be provided in any manner reasonable under the circumstances and shall be deemed to be given on the date received; provided, however, any notice sent by nationally recognized overnight courier service shall be deemed to be received on the date delivery is first attempted.
Governing Law; Jurisdiction. The Contract Documents shall be governed by and construed in accordance with the laws of the state of South Carolina without regard to its conflict of laws principles. Each party hereby consents to service of process by, the jurisdiction of, and venue in the courts located in Greenville, South Carolina.