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1. Definitions

1.1. In these Terms of Service the following terms, indicated with a capital, whether single or plural, will have the following meaning.

Affiliate

the party who hosts the products and services of an advertiser and who is entering into an Agreement with We Can Tack for the use of the Service;

Affiliate Network

an intermediary platform for both advertisers and Affiliate, allowing them to connect and provide the opportunity to implement and provide available ads;

Affiliate Data

all information, data or material, including Personal Data, Session and Click data, and Sales Data,

(i) submitted by Affiliate to We Can track;
(ii) received from the Data Subject’s browser; and/or
(iii) collected by We Can Track (on behalf of Affiliate); from the Affiliate’s website, the Affiliate Network and other Sources;

Affiliate Link

a link which contains a code for the tracking of a Data Subject who is sent by an Affiliate. Each link contains an Affiliate’s identity in order to record the Affiliate Data;

Agreement

the order form, quote or any other agreement between Affiliate and We Can Track;

Data Subject

an identified or identifiable natural person, within the meaning of Article 4(1) of the General Data Protection Regulation;

Intellectual Property Rights

all intellectual property rights and associated rights, including copyrights, trademark rights, patent rights, design rights, trade name rights, database rights, and neighbouring rights, as well as rights to knowhow;

Personal Data

any information relating to an identified or identifiable natural person, as defined by the General Data Protection Regulation;

Results

all information, data or material in the form of images, tables, text, graphs and audio-visual material or any other content submitted by We can Track through the Service and/or generated through the Service, as stated in the Agreement;

Sales Data

data collected by We Can Track through of the Service;

Service

the service provided by We Can Track to Affiliate consisting of the collection, processing and matching of Affiliate Data in order to generate the Results, provide Affiliate access to the Results through the Website and integrate the Results in third party services for the benefit of Affiliate;

Session and Click Data

data received from the Data Subject’s browser and collected by We Can Track through a JavaScript tag placed by Affiliate on the Affiliate’s website or through an API connection with the Affiliate;

Sources

third party services and product of which Affiliate makes use of and to which We Can Track may integrate the Results as requested by Affiliate, and agreed upon in the Agreement;

Terms of Service

these terms of conditions which form an integral part of the Agreement;

Website

the website of We Can Track, including all underlying web pages, with which Affiliate can access the Results generated through the Service;

We Can Track

We Can Track B.V., a private company with limited liability, established and existing under the laws of the Netherlands, having its registered office in (1323 ME) Almere, the Netherlands, at Purcellstraat 92, registered with the Chamber of Commerce under 73567493;

We Can Track ID

an ID included in the Affiliate Link by We Can Track with which We Can Track is able to match Sales Data with already collected Session and Click Data;

2. General

2.1. These Terms of Service form part of all Agreements and govern any use made of the Service by Affiliate. If Affiliate has been granted a trial to test the Service, these Terms of Service will also govern that trial.

2.2. We Can Track may at any time amend or supplement these terms and conditions. In that case the amended terms and conditions will be sent to Affiliate. If Affiliate continues the use of the Service after receiving the amended or supplemented terms and conditions, Affiliate thereby irrevocably accepts those conditions.

2.3. If at any time any provision of these terms and conditions is or becomes illegal, void or invalid for any reason whatsoever, such invalidity shall not affect the validity of the remainder of these Terms of Use and such invalid provision shall be replaced by We Can Track by another provision which, being valid in all respects, shall have an effect as close as possible to that of the replaced provision.

 

3. The Service

3.1. Subject to the conditions in the Agreement. We Can Track grants Affiliate a limited, personal, irrevocable, nonexclusive, non­sublicensable, non­transferable right to use the Service for Affiliate’s internal business operations.

3.2. To the best of its ability, We Can Track will make efforts to provide the Service with due care. Affiliate accepts that the Service, only contains the functionalities and other characteristics as it contains at the moment of use (“as is” and “as available”). Each and every use of the Service is for Affiliate’s own risk and responsibility.

3.3. We Can Track does not warrant that the Service will be accessible at all times and without interruptions or failures. Failures of the Service may be caused in part, but not exclusively, by failures in the internet connection or by viruses or errors/defects. We Can Track will not be liable to Affiliate in any way for damage ensuing from or caused by the unavailability of the Service for reasons outside the control of We Can Track.

3.4. We Can Track does not guarantee that the Service shall be effective, the use of the Service shall lead to certain results, or that the Results shall be accurate, up to date and complete.

3.5. We Can Track is not responsible for the purchase and/or the proper operation of Affiliate’s infrastructure; transmission errors, malfunctions or non-availability of computer, data or telecom facilities, including the internet; or any unauthorized use or attempted use of the Service.

3.6. We Can Track is at all times, without in any way becoming liable, entitled to make procedural and technical alterations and/or improvements to the Service.

 

4. Trial

4.1. If Affiliate has been granted a trial of the Service, We Can Track will make one or more Services available to Affiliate on a trial basis until the earlier of (a) the end of the trial period for which Affiliate registered or are registering to use the applicable Service or (b) the start date of any purchased Services ordered by Affiliate. Any additional terms and conditions relating to a trial are incorporated into this Agreement by reference and are legally binding.

4.2. Any Data and Results will be permanently lost unless Affiliate purchases the same Services as those covered by the trial. During the trial the Service is provided “as-is” without any warranty.

4.3. For the duration of the trial period, Affiliate has the nonexclusive, non-transferable, non-assignable, limited right to use the Service, subject to the terms of this Agreement, and solely for its internal business purposes to evaluate the Service and not for any production or commercial purposes.

4.4. Affiliate is solely entitled to make a one-time use of the trial period. In the event Affiliate registers for a second trial period (whether or not through different contact details), Affiliate will pay We Can Track the then applicable rates for the Service.

 

5. Affiliate Data and Results

5.1. On the request of Affiliate, We Can Track can collect Affiliate Data through an API connection with the Affiliate Network of which Affiliate makes use of. Affiliate guarantees that We Can Track is allowed to make use of the API connection on behalf and for the benefit of Affiliate and that the use of and access to the API connection, including the login credentials thereto, by We Can Track does not infringe any terms or agreements between Affiliate and the Affiliate Network.

5.2. Affiliate may choose to integrate Sales Data to its Sources. Thereto, Affiliate agrees that We Can Track will include a We Can Track ID for Data Subjects in the Affiliate Link on the Affiliate Website. We Can Track is not responsible or liable for the use of these Sources, including the use of Affiliate’s login credentials thereto, and Affiliate guarantees that the integration of the Sales Data is permitted under terms and agreements between Affiliate and the Source.

5.3. We Can Track grants Affiliate a limited, personal, irrevocable, nonexclusive, non­sublicensable, non­transferable right to use the Results for its internal business operations. Affiliate is responsible for the use of the Results by Affiliate. We Can Track accepts no responsibility whatsoever for any decisions or choices made by Affiliate based on the Results.

5.4. We Can Track is not responsible for loss, damage, inaccuracy and/or incompleteness of any Affiliate Data, the Affiliate Link or Results provided through the Service or making backup copies of any Affiliate Data or Results.

 

6. Privacy

6.1. Affiliate ensures that the provision of the Service to Affiliate and the use and processing of Affiliate Data is compliant with the applicable data privacy and data security laws and regulations, including but not limited to the General Data Protection Regulation (“GDPR”). Affiliate guarantees that it will comply with all legal obligations regarding the processing of Personal Data of Data Subjects, including the obligation to inform Data Subjects about the processing of their Personal Data, and indemnifies and holds We Can Track harmless against any claims of third parties relating to or following from the processing of Personal Data by We Can Track.

6.2. Parties agree that Affiliate solely determines the purposes and means of the processing of the Personal Data. We Can Track processes Personal Data only on behalf of Affiliate and therefore qualifies as a data processor within the meaning of Article 4(8) GDPR. Parties agree to conclude a data processing agreement as described by Article 28(3) GDPR.

 

7. Intellectual Property Rights

7.1. All Intellectual Property Rights relating to Service and the Results are owned by We Can Track and/or its licensors. Nothing in the Agreement constitutes the transfer of any Intellectual Property Rights from We Can Track to Affiliate. Affiliate is solely granted a license as described in these Terms of Use.

7.2. Affiliate is not permitted to remove, render illegible, conceal or change any notifications or statements regarding Intellectual Property Rights.

 

8. Price and Payment

8.1. Affiliate shall pay the prices as stated in the Agreement and/or the Website. Unless otherwise expressly provided, all the prices stated are in euro and exclusive of VAT, other charges imposed by the authorities and administrative charges.

8.2. Affiliate is entitled to adjust the applicable prices and rates in writing subject to advance notice of at least one month.

8.3. Amounts due shall be paid by Affiliate in accordance with the payment terms that have been agreed or that are stated on the invoice. Affiliate shall not be entitled to suspend any payments or to offset any amounts due.

 

9. Term and Termination

9.1. This Agreement shall enter into force upon acceptance by Affiliate and shall remain in force for an indefinite period of time. Either Party may terminate the Agreement by written notice of termination, taking into account a notice period of no less than one (1) months.

9.2. Upon termination of the Agreement, for whatever reason, any and all rights granted to Affiliate under this Agreement will automatically terminate, and Affiliate will immediately cease any and all use of the Service and the Intellectual Property Rights.

9.3. In the event of termination (“ontbinding”), any performance already delivered and the payment obligations related to it will not be the subject of reversal. Amounts invoiced by Affiliate before the termination in connection with anything that it has already performed or delivered in executing the Agreement will continue to be owed and will become immediately due and payable at the time of the termination.

 

10. Liability

10.1. Unless otherwise stipulated in this Agreement, We Can Track’s total, aggregate liability for attributably failing (in Dutch “toerekenbare tekortkoming”) to perform the Agreement, any unlawful act (in Dutch “onrechtmatige daad”) or otherwise is limited to direct damages only and to the total amounts paid to We Can Track for the Service in the twelve (12) preceding months of that particular calendar year.

10.2. Direct damage shall solely mean:

10.2.1. reasonable expenses that Affiliate would have to incur to make We Can Track’s performance conform to the Agreement, unless the Agreement is rescinded (In Dutch “ontbonden”);

10.2.2. reasonable expenses incurred by Affiliate to determine the cause and scope of the damage, insofar as the determination relates to direct damages; and

10.2.3. reasonable expenses incurred to prevent or mitigate damages, insofar as they relate to direct damages.

10.3. We Can Track’s liability for damages other than direct damages, arising out of, or in connection with the Agreement, such as, but not limited to indirect loss, consequential loss, loss and/or damage of Affiliate Data/Results, loss of profit and loss of revenue, loss of business, loss of anticipated savings, or any other similar financial loss or loss of goodwill or reputation, damage as a result of claims from third parties or other incidental, indirect, punitive or exemplary damages of any kind, is excluded.

10.4. No right to damages shall exist unless Affiliate notifies We Can Track in writing of the damage promptly after it has arisen. Any claim for damages against We Can Track shall become extinguished by the mere lapse of three (3) months after the claim has come into being.

10.5. Affiliate indemnifies We Can Track against all damage and costs, including – but not limited to – claims by third parties, collection costs, the statutory commercial interest, loss of profits, penalties incurred and legal fees, which We Can Track incurs or which result from (i) a breach of the Agreement by Affiliate, (ii) any use of the Service and/or Results by Affiliate or (iii) an unlawful act by Affiliate.

11. Force Majeure

11.1. In the event of force majeure, there will be no attributable failure in the performance of the Agreement by We Can Track.

11.2. Force majeure includes, among other things, employees on sick leave and/or absence of employees who are crucial to the supply of the Solution, interruptions in the supply of electricity, strikes, riots, government measures, fire, natural disasters, floods, failure on the part of We Can Track’s suppliers, failure on the part of third parties engaged by We Can Track, interruptions in the connection to the internet (whether or not due to a DDoS attack), hardware malfunctions, malfunctions in networks, including telecommunication networks, and other unforeseen circumstances.

11.3. If the force majeure continues for at least thirty (30) days, We Can Track is entitled to terminate the Agreement without being obliged to pay any compensation for this termination.

 

12. Governing Law and Jurisdiction

12.1. This Agreement shall be exclusively governed by and construed in accordance with the laws of the Netherlands.

12.2. All controversies, disputes or claims arising out of or relating to the Agreement or the breach thereof which shall not have been amicably settled by the parties shall be exclusively and finally settled by the competent civil court in Amsterdam, the Netherlands.

 

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