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TRAKTRAIN TERMS OF SERVICE

Effective date: 06/23/2022

Thanks for choosing TRAKTRAIN (“TRAKTRAIN”, "Traktrain", “we”, “us”, “our”, "Platform"). By signing up or otherwise using the TRAKTRAIN service and website or Apps (together, the “TRAKTRAIN Service” or “Service”), or accessing any content or material that is made available by TRAKTRAIN through the Service (the “Content”) you are entering into a binding contract with TRAKTRAIN.

Set forth below are the terms and conditions governing the Service, which may expand or change from time to time. As used herein, the term "you" or "your" refers to an individual, representing yourself or, if applicable, acting as legal representative for a group, business entity or corporation.

In order to use the TRAKTRAIN Service and access the Content, you need to (1) be 18 or older, or be 13 or older and have your parent or guardian’s consent to the Agreements, (2) and have the power to enter a binding contract with us and not be barred from doing so under any applicable laws. You also promise that any registration information that you submit to TRAKTRAIN is true, accurate, and complete, and you agree to keep it that way at all times.

CHANGES

Occasionally we may, in our discretion, make changes to the Agreements. When we make material changes to the Agreements, we’ll provide you with prominent notice as appropriate under the circumstances, e.g., by sending you an email. In some cases, we will notify you in advance, and your continued use of the Service after the changes have been made will constitute your acceptance of the changes. Please therefore make sure you read any such notice carefully. If you do not wish to continue using the Service under the new version of the Agreements, you may terminate the Agreements by contacting us through the Customer Service contact form.

YOUR RIGHTS

The TRAKTRAIN Service and the Content are the property of TRAKTRAIN or TRAKTRAIN's licensors. We grant you a limited, non-exclusive, revocable license to make use of the TRAKTRAIN Service (the “License”). This License shall remain in effect until and unless terminated by you or TRAKTRAIN.

All TRAKTRAIN trademarks, service marks, trade names, logos, domain names, and any other features of the TRAKTRAIN brand (“TRAKTRAIN Brand Features”) are the sole property of TRAKTRAIN or its licensors. The Agreements do not grant you any rights to use any TRAKTRAIN Brand Features whether for commercial or non-commercial use.

You agree to abide by our User guidelines and not to use the TRAKTRAIN Service, the Content, or any part thereof in any manner not expressly permitted by the Agreements. Except for the rights expressly granted to you in these Agreements, TRAKTRAIN grants no right, title, or interest to you in the TRAKTRAIN Service or Content.

Third party software (for example, open source software libraries) included in the TRAKTRAIN Service are licensed to you either under the Agreements or under the relevant third party software library’s license terms as published in the help or settings section of our desktop and mobile client and/or on our website.

USER CONTENT

Subject to your strict compliance with these Terms of Service at any and all times during your use of the Platform, TRAKTRAIN grants you a limited, personal, non-exclusive, revocable, non-assignable and non-transferable right and license to use the Platform in order to view Content uploaded and posted to the Website, to listen to audio Content streamed from the Platform or offline and to share and download audio Content using the features of the Platform where the appropriate functionality has been enabled by the user who uploaded the relevant Content (the "Uploader").

In addition, if you register to use the Platform, and subject to your strict compliance with these Terms of Service at any and all times during your use of the Platform, TRAKTRAIN grants you a limited, personal, non-exclusive, revocable, non-assignable and non-transferable right and license to:

  • submit, upload or post Content to and keep such Content available on the Platform strictly as permitted in accordance with these Terms of Service and any other applicable terms posted on the Website from time to time;
  • participate in the community areas and communicate with other members of the TRAKTRAIN community strictly in accordance with these Terms of Service; and
  • use Services provided as part of the Platform strictly as permitted in accordance with these Terms of Service and any other terms applicable to those Apps or Services from time to time.

You promise that, with respect to any User Content you post on TRAKTRAIN, (1) you have the right to post such User Content, and (2) such User Content, or its use by TRAKTRAIN as contemplated by the Agreements, does not violate the Agreements, applicable law, or the intellectual property (including without limitation copyright), publicity, personality, or other rights of others or imply any affiliation with or endorsement of you or your User Content by TRAKTRAIN or any artist, band, label, entity or individual without express written consent from such individual or entity.

TRAKTRAIN may, but has no obligation to, monitor, review, or edit User Content. In all cases, TRAKTRAIN reserves the right to remove or disable access to any User Content for any or no reason, including but not limited to, User Content that, in TRAKTRAIN’s sole discretion, violates the Agreements. TRAKTRAIN may take these actions without prior notification to you or any third party. Removal or disabling of access to User Content shall be at our sole discretion, and we do not promise to remove or disable access to any specific User Content.

You are solely responsible for all User Content that you post. TRAKTRAIN is not responsible for User Content nor does it endorse any opinion contained in any User Content. YOU AGREE THAT IF ANYONE BRINGS A CLAIM AGAINST TRAKTRAIN RELATED TO USER CONTENT THAT YOU POST, THEN, TO THE EXTENT PERMISSIBLE UNDER LOCAL LAW, YOU WILL INDEMNIFY AND HOLD TRAKTRAIN HARMLESS FROM AND AGAINST ALL DAMAGES, LOSSES, AND EXPENSES OF ANY KIND (INCLUDING REASONABLE ATTORNEY FEES AND COSTS) ARISING OUT OF SUCH A CLAIM.

GRANT OF LICENSE

By uploading or posting Your Content to the Platform, you initiate an automated process to transcode any audio Content and direct TRAKTRAIN to store Your Content on our servers, from where you may control and authorize the use, ways of reproduction, transmission, distribution, public display, public performance, making available (including whether users will be permitted to listen to your Content offline) and other communication to the public of Your Content on the Platform and elsewhere using the Services. To the extent it is necessary in order for TRAKTRAIN to provide you with any of the aforementioned hosting services, to undertake any of the tasks set forth in these Terms of Service, including the distribution of advertising or other promotional material on our Platform and/or to enable your use of the Platform, you hereby grant such licenses to TRAKTRAIN on a limited, worldwide, non-exclusive, royalty-free and fully paid basis.

By uploading Your Content to the Platform, you also grant a limited, worldwide, non-exclusive, royalty-free, fully paid up, license to other users of the Platform, and to operators and users of any other websites, apps and/or platforms to which Your Content has been shared or embedded using the Services ("Linked Services"), to use, copy, listen to offline, repost, transmit or otherwise distribute, publicly display, publicly perform, adapt, prepare derivative works of, compile, make available and otherwise communicate to the public, Your Content utilizing the features of the Platform from time to time, and within the parameters set by you using the Services. You can always limit and restrict the availability of certain of Your Content to other users of the Platform, and to users of Linked Services. Notwithstanding the foregoing, nothing in these Terms of Service grants any rights to any other user of the Platform with respect to any proprietary name, logo, trademark or service mark uploaded by you as part of Your Content (for example, your profile picture), other than the right to reproduce, publicly display, make available and otherwise communicate to the public, automatically and without alteration, as part of the act of reposting sounds with which you have associated.

The licenses granted in this section are granted separately with respect to each item of Your Content that you upload to the Platform. Licenses with respect to audio Content, and any images or text within your account, will (subject to the following paragraph of these Terms of Service) terminate automatically when you remove such Content from your account. Licenses with respect to comments or other contributions that you make on the Platform will be perpetual and irrevocable, and will continue notwithstanding any termination of your account.

Removal of audio Content from your account will automatically result in the deletion of the relevant files from TRAKTRAIN's systems and servers. However, notwithstanding the foregoing, you hereby acknowledge and agree that once Your Content is distributed to a Linked Service, TRAKTRAIN is not obligated to ensure the deletion of Your Content from any servers or systems operated by the operators of any Linked Service, or to require that any user of the Platform or any Linked Service deletes any item of Your Content. Furthermore, if you authorize any of Your Content to be available for offline listening, after deletion of an item of Your Content or removal from the ability for other users to listen to the applicable Content offline, the applicable Content may still be temporarily available to other users of the Platform who saved the applicable Content for offline listening on their devices, but no longer than 30 days from the time of deletion.

Any Content other than Your Content is the property of the relevant Uploader, and is or may be subject to copyright, trademark rights or other intellectual property or proprietary rights. Such Content may not be downloaded, reproduced, distributed, transmitted, re-uploaded, republished, displayed, sold, licensed, made available or otherwise communicated to the public or exploited for any purposes except via the features of the Platform from time to time and within the parameters set by the Uploader on the Platform or with the express written consent of the Uploader. Where you repost another user’s Content, or include another user’s Content in a playlist or station or where you listen to another user’s Content offline, you acquire no ownership rights whatsoever in that Content. Subject to the rights expressly granted in this section, all rights in Content are reserved to the relevant Uploader.

GUIDELINES
DESCRIPTION OF THE PLATFORM

The Platform is a hosting service. Registered users of the Platform may submit, upload and post audio, text, photos, pictures, graphics, comments, and other content, data or information ("Content"), which will be stored by TRAKTRAIN at the direction of such registered users, and may be shared and distributed by such registered users, and other users of the Platform, using the tools and features provided as part of the Platform and accessible via the Website, Apps and elsewhere. The Platform also enables registered users to interact with one another and to contribute to discussions, and enables any user of the Website, Apps or certain Services (who may or may not be registered users of the Platform) to view, listen to and share Content uploaded and made available by registered users.

The Platform also includes social and interactive features that enable users to engage with and learn from the TRAKTRAIN community in order to build a following and ensure you get the content that interests you most. For example, users who upload content to TRAKTRAIN will gain access to our creator stats feature, which provides creators with insights into how the content they upload fares among users.

Some features of our Platform are only available to registered users who subscribe to a certain Service (MEMBERSHIP). TRAKTRAIN however remains free for users that choose not to subscribe to such Services. In order to make the Platform available for free and provide you with personally relevant features, we serve tailored ads on the Platform.

We may, from time to time, release new tools and resources on the Website, release new versions of our Apps, or introduce other services and/or features for the Platform. Any new services and features will be subject to these Terms of Service as well as any additional terms and conditions that we may release for those specific services or features.

TRAKTRAIN respects intellectual property rights and expects you to do the same. Please follow these rules and encourage other users to do the same.

The above licenses are conditional upon your strict compliance with these Terms of Service at any and all times during your use of the Platform, including, without limitation, the following:

  • You must not copy, rip or capture, or attempt to copy, rip or capture, any audio Content from the Platform or any part of the Platform, other than by means of download or store for offline listening in circumstances where the relevant Uploader has elected to permit downloads or offline listening of the relevant item of Content.
  • You must not adapt, copy, republish, make available or otherwise communicate to the public, display, perform, transfer, share, distribute or otherwise use or exploit any Content on or from the Platform at any and all times, except (i) where such Content is Your Content at any and all times during your use of the applicable Content, or (ii) as permitted under these Terms of Service, and within the parameters set by the Uploader (for example, under the terms of Creative Commons licenses selected by the Uploader).
  • You must not use any Content (other than Your Content) in any way that is designed to create a separate content service or that replicates any part of the Platform offering.
  • You must not employ scraping or similar techniques to aggregate, repurpose, republish or otherwise make use of any Content.
  • You must not employ any techniques or make use of any services, automated or otherwise, designed to misrepresent the popularity of Your Content on the Platform, or to misrepresent your activity on the Platform, including without limitation by the use of bots, botnets, scripts, apps, plugins, extensions or other automated means to register accounts, log in, add followers to your account, play Content, follow or unfollow other users, send messages, post comments, or otherwise to act on your behalf, particularly where such activity occurs in a multiple or repetitive fashion. You must not offer or promote the availability of any such techniques or services to any other users of the Platform.
  • You must not alter or remove, or attempt to alter or remove, any trademark, copyright or other proprietary or legal notices contained in, or appearing on, the Platform or any Content appearing on the Platform (other than Your Content).
  • You must not, and must not permit any third party to, copy or adapt the object code of the Website or any of the Apps or Services, or reverse engineer, reverse assemble, decompile, modify or attempt to discover any source or object code of any part of the Platform, or circumvent or attempt to circumvent or copy any copy protection mechanism or territorial restrictions or access any rights management information pertaining to Content other than Your Content.
  • You must not use the Platform to upload, post, store, transmit, display, copy, distribute, promote, make available, continue to make available or otherwise communicate to the public. Please respect TRAKTRAIN, the owners of the Content, and other users of the TRAKTRAIN Service. Don’t engage in any activity, post any User Content, or register and/or use a username, which is or includes material that:
    • any Content that is abusive, libellous, defamatory, pornographic or obscene, that promotes or incites violence, terrorism, illegal acts, or hatred on the grounds of race, ethnicity, cultural identity, religious belief, disability, gender, identity or sexual orientation, or is otherwise objectionable in TRAKTRAIN's reasonable discretion;
    • any information, Content or other material that violates, plagiarizes, misappropriates or infringes the rights of third parties including, without limitation, copyright, trademark rights, rights of privacy or publicity, confidential information or any other right; or
    • any Content that violates, breaches or is contrary to any law, rule, regulation, court order or is otherwise is illegal or unlawful in TRAKTRAIN’s reasonable opinion;
    • any material of any kind that contains any virus, Trojan horse, spyware, adware, malware, bot, time bomb, worm, or other harmful or malicious component, which or might overburden, impair or disrupt the Platform or servers or networks forming part of, or connected to, the Platform, or which does or might restrict or inhibit any other user's use and enjoyment of the Platform; or
    • any unsolicited or unauthorized advertising, promotional messages, spam or any other form of solicitation.
  • You must not commit or engage in, or encourage, induce, solicit or promote, any conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law or regulation.
  • You must not rent, sell or lease access to the Platform, or any Content on the Platform, although this shall not prevent you from including links from Your Content to any legitimate online download store from where any item of Your Content may be purchased.
  • You must not deliberately impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity, for example, by registering an account in the name of another person or company, or sending messages or making comments using the name of another person.
  • You must not stalk, exploit, threaten, abuse or otherwise harass another user, or any TRAKTRAIN Team members.
  • You must not use or attempt to use another person's account, password, or other information, unless you have express permission from that other person.
  • You must not sell or transfer, or offer to sell or transfer, any TRAKTRAIN account to any third party without the prior written approval of TRAKTRAIN.
  • You must not collect or attempt to collect personal data, or any other kind of information about other users, including without limitation, through spidering or any form of scraping.
  • You must not violate, circumvent or attempt to violate or circumvent any data security measures employed by TRAKTRAIN or any Uploader; access or attempt to access data or materials which are not intended for your use; log into, or attempt to log into, a server or account which you are not authorized to access; attempt to scan or test the vulnerability of TRAKTRAIN's servers, system or network or attempt to breach TRAKTRAIN's data security or authentication procedures; attempt to interfere with the Website or the Services by any means including, without limitation, hacking TRAKTRAIN's servers or systems, submitting a virus, overloading, mail-bombing or crashing. Without limitation to any other rights or remedies of TRAKTRAIN under these Terms of Service, TRAKTRAIN reserves the right to investigate any situation that appears to involve any of the above, and may report such matters to, and co-operate with, appropriate law enforcement authorities in prosecuting any users who have participated in any such violations.
  • You agree to comply with the above conditions at any and all times during your use of the Platform, and acknowledge and agree that TRAKTRAIN has the right, in its sole discretion, to terminate your account or take such other action as we see fit if you breach any of the above conditions or any of the other terms of these Terms of Service. This may include taking court action and/or reporting offending users to the relevant authorities.
YOUR TRAKTRAIN PROFILE

You are not obliged to register to use the Platform. However, access to certain Services is only available to registered users.

In order for you to engage with other TRAKTRAIN listeners and creators, we enable you to create and personalize a public profile on TRAKTRAIN. To enable you to do that, you must provide us with the information you want to display on such profile.

In order to help you to navigate and discover content on the Platform that interests you, as a registered user you will also receive auto-generated personalized recommendations of other content that might appeal to you, based on your listening habits.

When you register to use the Platform, you will provide us with your email address, and will choose a username and password for your account. You must ensure that the email address that you provide is, and remains, valid. Your email address and any other information you chose to provide about yourself will be treated in accordance with our Privacy Policy.

You are solely responsible for maintaining the confidentiality and security of your username and password, and you will remain responsible for all use of your username and password, and all activity emanating from your account, whether or not such activity was authorized by you.

If your username or password is lost or stolen, or if you believe that your account has been accessed by unauthorized third parties, you are advised to notify TRAKTRAIN in writing, and should change your password at the earliest possible opportunity.

We reserve the right to disallow, cancel, remove or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your account if activities occur on that account which, in our sole discretion, would or might constitute a violation of these Terms of Service or an infringement or violation of the rights of any third party, or of any applicable laws or regulations.

You may terminate your account at any time as described in the Termination section below.

INFRINGEMENT AND REPORTING

TRAKTRAIN respects the rights of intellectual property owners. If you believe that any Content infringes your intellectual property rights or other rights.

A notice of alleged copyright infringement may be sent to TRAKTRAIN's designated copyright agent at the following address:

TRAKTRAIN USA Inc.
Copyright Agent
c/o Hallett & Perrin
1445 Ross Avenue
Dallas, Texas 75202

A notification of alleged copyright infringement must be addressed to TRAKTRAIN's copyright agent as listed above. Please include as much detail as possible to allow us to identify the facts or circumstances, including, where possible:

  • A physical or electronic signature of the owner (or person authorized to act on behalf of the owner) of the copyright that is allegedly infringed;
  • Specific identification of each copyrighted work claimed to have been infringed;
  • A description of where the material believed to be infringing is located on TRAKTRAIN Service or the TRAKTRAIN Websites (please be as detailed as possible and provide a URL to help us locate the material you are reporting);
  • Contact information for the complaining party, such as a complete name, address, telephone number, and email address;
  • A statement that the complaining party has a good faith belief that use of the work(s) in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
  • A statement that the information in the notification is accurate, and that the complaining party is the owner of the right that is allegedly infringed, or agent for the owner.

We should also let you know that TRAKTRAIN has a policy to terminate in appropriate circumstances the accounts of subscribers who are repeat infringers.

If TRAKTRAIN is notified by a copyright holder that any Content infringes a copyright, TRAKTRAIN may in its absolute discretion take actions without prior notification to the provider of that Content. If the provider believes that the content is not infringing, the provider may submit a counter-notification to TRAKTRAIN with a request to restore the removed content.

If you believe that any Content does not comply with the User guidelines, please fill out our notice form.

SERVICE LIMITATIONS AND MODIFICATIONS

TRAKTRAIN will make reasonable efforts to keep the TRAKTRAIN Service operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. To the extent permissible under applicable law, TRAKTRAIN reserves the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of the TRAKTRAIN Service, with or without notice, all without liability to you, except where prohibited by law, for any interruption, modification, or discontinuation of the TRAKTRAIN Service or any function or feature thereof. Notwithstanding the foregoing, if you have prepaid fees for Paid Subscriptions that TRAKTRAIN permanently discontinues prior to the end of the Pre-Paid Period (defined in the Payments and cancellations section), TRAKTRAIN will refund you the prepaid fees for the Pre-Paid Period after such discontinuation. You understand, agree, and accept that TRAKTRAIN has no obligation to maintain, support, upgrade, or update the Service, or to provide all or any specific content through the Service. This section will be enforced to the extent permissible by applicable law. TRAKTRAIN and/or the owners of any Content may, from time to time, remove any such Content without notice to the extent permitted by applicable law.

EXPORT CONTROL

TRAKTRAIN’s products may be subject to U.S. export and re-export control laws and regulations or similar laws applicable in other jurisdictions, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. You warrant that you are (1) not located in Cuba, Iran, North Korea, Sudan, or Syria; and (2) are not a denied party as specified in the regulations listed above.

You agree to comply with all applicable export and reexport control laws and regulations, including the EAR, trade and economic sanctions maintained by OFAC, and the ITAR. Specifically, you agree that you shall not – directly or indirectly – sell, export, reexport, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from TRAKTRAIN under the Agreements to any destination, entity, or person prohibited by any applicable laws or regulations of the United States or any other jurisdiction without obtaining prior authorization from the competent government authorities as required by those laws and regulations. This export control clause shall survive termination or cancellation of the Agreements.

PAYMENTS AND CANCELLATIONS

Paid Subscriptions can be purchased directly from TRAKTRAIN by paying a monthly subscription fee.

Your payment to TRAKTRAIN will automatically renew at the end of the subscription period, unless you cancel your Paid Subscription through your subscription page before the end of the current subscription period. The cancellation will take effect the day after the last day of the current subscription period, and you will be downgraded to the Free Service. However, if you cancel your payment or Paid Subscription and/or terminate any of the Agreements before the end of the current subscription period, we will not refund any subscription fees already paid to us. The refund method will depend upon the payment method.

If you believe you are entitled to receive a refund of any monies paid to TRAKTRAIN, please contact TRAKTRAIN.

TRAKTRAIN may change the price for the Paid Subscriptions from time to time, and will communicate any price changes to you in advance and, if applicable, how to accept those changes. Price changes for Paid Subscriptions will take effect at the start of the next subscription period following the date of the price change. As permitted by local law, you accept the new price by continuing to use the TRAKTRAIN Service after the price change takes effect. If you do not agree with the price changes, you have the right to reject the change by unsubscribing from the TRAKTRAIN Service prior to the price change going into effect. Please therefore make sure you read any such notification of price changes carefully.

TERM AND TERMINATION

The Agreements will continue to apply to you until terminated by either you or TRAKTRAIN. However, you acknowledge and agree that the perpetual license granted by you in relation to User Content, including Feedback, is irrevocable and will therefore continue after expiry or termination of any of the Agreements for any reason. TRAKTRAIN may terminate the Agreements or suspend your access to the TRAKTRAIN Service at any time, including in the event of your actual or suspected unauthorized use of the TRAKTRAIN Service and/or Content, or non-compliance with the Agreements. If you or TRAKTRAIN terminate the Agreements, or if TRAKTRAIN suspends your access to the TRAKTRAIN Service, you agree that TRAKTRAIN shall have no liability or responsibility to you, and TRAKTRAIN will not refund any amounts that you have already paid, to the fullest extent permitted under applicable law. To learn how to terminate your TRAKTRAIN account, please contact Customer Service. This section will be enforced to the extent permissible by applicable law. You may terminate the Agreements at any time.

WARRANTY AND DISCLAIMER

WE ENDEAVOR TO PROVIDE THE BEST SERVICE WE CAN, BUT YOU UNDERSTAND AND AGREE THAT THE TRAKTRAIN SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. YOU USE THE TRAKTRAIN SERVICE AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TRAKTRAIN AND ALL OWNERS OF THE CONTENT MAKE NO REPRESENTATIONS AND DISCLAIM ANY WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NEITHER TRAKTRAIN NOR ANY OWNER OF CONTENT WARRANTS THAT THE TRAKTRAIN SERVICE IS FREE OF MALWARE OR OTHER HARMFUL COMPONENTS. IN ADDITION, TRAKTRAIN MAKES NO REPRESENTATION NOR DOES IT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY APPLICATIONS (OR THE CONTENT THEREOF), USER CONTENT, OR ANY OTHER PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY ON OR THROUGH THE TRAKTRAIN SERVICE OR ANY HYPERLINKED WEBSITE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING. YOU UNDERSTAND AND AGREE THAT TRAKTRAIN IS NOT RESPONSIBLE OR LIABLE FOR ANY TRANSACTION BETWEEN YOU AND THIRD PARTY PROVIDERS OF THIRD PARTY APPLICATIONS OR PRODUCTS OR SERVICES ADVERTISED ON OR THROUGH THE TRAKTRAIN SERVICE. AS WITH ANY PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. NO ADVICE OR INFORMATION WHETHER ORAL OR IN WRITING OBTAINED BY YOU FROM TRAKTRAIN SHALL CREATE ANY WARRANTY ON BEHALF OF TRAKTRAIN IN THIS REGARD. SOME ASPECTS OF THIS SECTION MAY NOT APPLY IN SOME JURISDICTIONS IF PROHIBITED BY APPLICABLE LAW.

THIS DOES NOT AFFECT YOUR STATUTORY RIGHTS AS A CONSUMER.

LIMITATION AND TIME FOR FILING

YOU AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE TRAKTRAIN SERVICE IS TO UNINSTALL ANY TRAKTRAIN SOFTWARE AND TO STOP USING THE TRAKTRAIN SERVICE. WHILE TRAKTRAIN ACCEPTS NO RESPONSIBILITY FOR THIRD PARTY APPLICATIONS OR THE CONTENT THEREOF, AND WHILE YOUR RELATIONSHIP WITH SUCH THIRD PARTY APPLICATIONS MAY BE GOVERNED BY SEPARATE AGREEMENTS WITH SUCH THIRD PARTIES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE AND EXCLUSIVE REMEDY, AS WITH RESPECT TO TRAKTRAIN, FOR ANY PROBLEMS OR DISSATISFACTION WITH THIRD PARTY APPLICATIONS OR THE CONTENT THEREOF, IS TO UNINSTALL AND/OR STOP USING ANY SUCH THIRD PARTY APPLICATIONS.

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL TRAKTRAIN, ITS OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, DIRECTORS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, SUPPLIERS, OR LICENSORS BE LIABLE FOR (1) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES; (2) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS (WHETHER DIRECT OR INDIRECT), IN ALL CASES ARISING OUT OF THE USE OR INABILITY TO USE THE TRAKTRAIN SERVICE REGARDLESS OF LEGAL THEORY, WITHOUT REGARD TO WHETHER TRAKTRAIN HAS BEEN WARNED OF THE POSSIBILITY OF THOSE DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE; OR (3) AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE TRAKTRAIN SERVICE MORE THAN THE AMOUNTS PAID BY YOU TO TRAKTRAIN DURING THE PRIOR TWELVE MONTHS IN QUESTION, TO THE EXTENT PERMISSIBLE BY APPLICABLE LAW.

Nothing in the Agreements removes or limits TRAKTRAIN’s liability for fraud, fraudulent misrepresentation, death or personal injury caused by its negligence, and, if required by applicable law, gross negligence. Some aspects of this section may not apply in some jurisdictions if prohibited by applicable law.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT ANY CLAIM AGAINST TRAKTRAIN MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE DATE THE PARTY ASSERTING THE CLAIM FIRST KNOWS OR REASONABLY SHOULD KNOW OF THE ACT, OMISSION, OR DEFAULT GIVING RISE TO THE CLAIM; AND THERE SHALL BE NO RIGHT TO ANY REMEDY FOR ANY CLAIM NOT ASSERTED WITHIN THAT TIME PERIOD.

ENTIRE AGREEMENT

Other than as stated in this section or as explicitly agreed upon in writing between you and TRAKTRAIN, the Agreements constitute all the terms and conditions agreed upon between you and TRAKTRAIN and supersede any prior agreements in relation to the subject matter of these Agreements, whether written or oral.

Please note, however, that other aspects of your use of the TRAKTRAIN Service may be governed by additional agreements. That could include, for example, access to the TRAKTRAIN Service as a result of a gift card or free or discounted Trials. When you are presented with an offer for such aspects of your use, you will be presented with any related additional agreement, and you may have an opportunity to agree to additional terms. Some of those additional terms are listed on TRAKTRAIN’s website. To the extent that there is any irreconcilable conflict between any additional terms and these Terms, the additional terms shall prevail.

SEVERABILITY AND WAIVER

Unless as otherwise stated in the Agreements, should any provision of the Agreements be held invalid or unenforceable for any reason or to any extent, such invalidity or enforceability shall not in any manner affect or render invalid or unenforceable the remaining provisions of the Agreements, and the application of that provision shall be enforced to the extent permitted by law.

Any failure by TRAKTRAIN or any third party beneficiary to enforce the Agreements or any provision thereof shall not waive TRAKTRAIN’s or the applicable third party beneficiary’s right to do so.

ASSIGNMENT

TRAKTRAIN may assign the Agreements or any part of them, and TRAKTRAIN may delegate any of its obligations under the Agreements. You may not assign the Agreements or any part of them, nor transfer or sub-license your rights under the Agreements, to any third party.

INDEMNIFICATION

To the fullest extent permitted by applicable law, you agree to indemnify and hold TRAKTRAIN harmless from and against all damages, losses, and expenses of any kind (including reasonable attorney fees and costs) arising out of: (1) your breach of this Agreement; (2) any User Content; (3) any activity in which you engage on or through the TRAKTRAIN Service; and (4) your violation of any law or the rights of a third party.

GOVERNING LAW / JURISDICTION

The Agreements (and any non-contractual disputes/claims arising out of or in connection with them) are subject to the laws of the state of Texas, United States of America, without regard to choice or conflicts of law principles.

Further, you and TRAKTRAIN agree to the jurisdiction of the Northern District of Texas, Dallas Division to resolve any dispute, claim, or controversy that relates to or arises in connection with the Agreements (and any non-contractual disputes/claims relating to or arising in connection with them) and is not subject to mandatory arbitration.

TRAKTRAIN does not accept any codes of conduct as mandatory in connection with the services provided under this agreement.

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