Trackunit ApS, Cvr-nr. 20750170, Gasværksvej 24, 4. Sal, 9000 Aalborg, Denmark (“Trackunit”) has developed and is operating an online marketplace (the “Marketplace”) for software applications (the “Apps”), where the users of Trackunit’s platform and services can download the Apps, that can be used in connection with Trackunit’s platform and services.

These Terms and Conditions (the “T&C”) are the legal terms regulating the entity or person (“you”, “your”, or “Developer”), who has created an App through a registered Trackunit account. The T&C describes the terms and conditions that apply to your use of the Marketplace for publishing and distributing your App. You also agree to be bound by Trackunit’s App Developer Agreement as updated from time to time.

You cannot access or list your App on the Marketplace unless you agree to abide by all of these T&C.

These T&C sets forth the terms and conditions for Developers who wish to publish and list an App on the Marketplace for download by users of the Marketplace – usually Developers and/or Trackunit’s customers acting for their businesses (“Users”). This Agreement is applicable to Apps distributed for free and to Apps where Users are charged a fee to use the App and/or your service. You agree to use the Marketplace only for purposes permitted by these T&C or as otherwise allowed by applicable law. As between you and Trackunit, you are solely responsible for your App submitted for download on the Marketplace.

1. License Grants

By uploading the Developer’s App to the Marketplace, the Developer grants a non-exclusive, worldwide, royalty-free license to Trackunit to (a) host, link to, reproduce, publicly perform, publicly display, distribute, and make available for download the Developer’s App on the Marketplace ; (b) reproduce, perform, display, use, test and access the App for administration and demonstration purposes in connection with the operation and marketing of the Marketplace; and (c) reproduce, display, distribute and otherwise use the Developer’s trademark, App description and other brand features furnished by Developer to Trackunit under these T&C for use in connection with the Marketplace, displaying and making the Developer’s App available for download and in order to fulfill Trackunit’s obligations under these T&C.

2. The Developer’s Responsibilities

In order to use and access the Marketplace, you must have or create a Trackunit Marketplace account. You will keep all credentials secure and shall use the credentials as your sole means of accessing the Marketplace. You may not share your account credentials with third parties.

You agree to protect the privacy and related legal rights of all Users of the Marketplace. You must draft your own end-user-license terms (the “EULA”) applicable for your App. You must make sure that this EULA is accepted by the Users, and that the EULA is transparent and compliant with relevant applicable laws and inform of any data accessed by your App and provide a privacy policy which governs your usage of the Users’ data. Your App may only use the information for the limited purpose for which you have obtained permission from Users. If your App accesses personal information, you agree that you will securely transmit and store all data in transit and at rest.

You acknowledge and agree that you will not engage in any activity within the Marketplace, including the distribution of your App(s), that violates Marketplace policies or that:

A. Violates any applicable laws or regulations or promotes unlawful activities;

B. Contains or installs active malware or exploits, or uses the Marketplace for exploit delivery;

C. Interferes with, disrupts, damages, harms, or accesses in an unauthorized manner the ma-chines, systems, hardware, servers, networks, devices, data or other property or services of Trackunit or any other third party;

D. Includes false or misleading content;

E. Processes payments triggered by functionalities of your App outside of the Marketplace with-out express written prior permission or consent from the Users;

F. Infringes on any proprietary right of any party, including patent, trademark, trade secret, copyright, right of publicity, or other rights;

G. Is libelous, defamatory, or fraudulent;

I. Is discriminatory or abusive toward any individual or group;

J. Diverts Users or provides links to any other site that mimics the Marketplace or passes itself off as the Marketplace.

K. States or indicates that your business or your App in any way is approved or endorsed by Trackunit or part of Trackunit’s products or services.

When you submit your App to the Marketplace, you upload your App to a server in Denmark or another EU country, and by this accepting to comply to local and EU-regulations.

You may not repackage or resell the Marketplace, Trackunit’s APIs or any Users’ data derived from using the Marketplace. You are not permitted to use the Marketplace or upload Apps in any manner that does or could potentially undermine the security of the Marketplace, Trackunit’s APIs, Users’ data or any other data or information stored or transmitted using the Marketplace. Also, you may not interfere with, modify or disable any features, functionality or security controls of the Marketplace or Trackunit’s APIs, defeat, avoid, by-pass, remove, deactivate or otherwise circumvent any protection mechanisms for the Market-place or Trackunit’s APIs, or reverse engineer, decompile, disassemble or derive source code, underlying ideas, algorithms, structure or organizational form from the Marketplace.

You agree that you are solely responsible for the content, development, operation, support or maintenance of your App. Additionally, you agree you will be solely responsible for: (i) The technical installation and operation of your App; (i) creating and displaying information and content on, through or within the App; (iii) and
ensuring that your App is not designed to or utilized for the purpose of sending commercial electronic messages to any Users without their consent.

You will respect and comply with the technical and policy-implemented limitations of Apps and the Marketplace and the restrictions of these T&C in designing and implementing the App. Without limiting the foregoing, you agree not to violate any explicit rate limitations on calling or otherwise utilizing Trackunit’s APIs.

Trackunit reserves the right to terminate your Trackunit Marketplace account and remove your Apps im-mediately, if Trackunit determines, in its sole discretion, that you have breached any requirement or obligation of this Section.

Nothing in these T&C shall prevent either party from developing, promoting and/or publishing applications, products or services that are similar or otherwise compete with the other party’s applications.

3. Test and Takedowns

Developer Takedown

In order to reduce interruption to Users, that install your App, you must provide Trackunit with 30 days’ written notice to [email protected], if you decide to remove your App from the Marketplace. You must comply with these T&C for any App installed via the Marketplace, including but not limited to refund requirements. Removing your App from the Marketplace does not (a) affect the license rights of Users who have previously downloaded your App; or (b) change your obligation to deliver or support the App that previously has been purchased or installed by Users.

Trackunit will not maintain any portion of any App that you have removed from Marketplace, if you have pro-vided written notice to us that such removal was due to:

A. an allegation of infringement, or actual infringement, of any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person;

B. an allegation of defamation or actual defamation;

C. an allegation of violation, or actual violation, of any third party’s right of publicity or privacy; or

D. an allegation or determination that such listing of the App does not comply with applicable law.

Trackunit Tests

Trackunit expects that the Developer has properly tested the App meticulously before listing the App on the Marketplace and making it available for download. However, Trackunit reserves the right to perform any kind of test of the App at any time and to require technical information from the Developer as a condition for listing the App on the Marketplace. Trackunit is not obligated to monitor your App or its content, but we may at any time review or test your App for compliance with these T&C, any Developer Agreement or API terms etc. from Trackunit, the Marketplace program policies, and any other applicable terms, obligations, laws, or regulations.

Trackunit Takedowns

We reserve the right to refuse an App on the Marketplace at our sole discretion. You may be required to provide information about yourself (such as identification or contact details) as a part of your App’s submission to the Marketplace, or as part of your continued use of Marketplace. You agree that any information you give to us always will be accurate, correct and up to date. As part of the specification for your listing of the App, we may ask that you include information such as your name, address, company/VAT number, telephone number and email address. Marketplace may use this information for listing the App on the Marketplace or for other uses, including providing such information to Users or third parties claiming the App is unlawful, infringing third party rights etc.

If Trackunit is notified by you, Users or third parties or otherwise becomes aware and determines at its sole discretion that any portion of your App:

A. violates the intellectual property rights or any other rights of any third party;

B. violates any applicable law or is subject to an injunction;

C. violates user policies or other terms of service as may be updated by Trackunit from time to time in its sole discretion;

D. is being distributed by you improperly;

E. may create risk of liability for Trackunit or any third party;

F. is deemed by Trackunit to be malicious or defective;

G. violates these T&C or the Marketplace program policies;

H. the display of the App is impacting the integrity of Trackunit’s servers (for example Users are unable to access such content or otherwise experience difficulty);

I. is deemed by Trackunit to add undue risk to Marketplace, Users’ data or impair the user experience of the Marketplace or other Apps;

J. contains or installs any active malware, viruses, worms, harmful code, “back-doors” or exploits, or uses the App for exploit delivery of such;

K. otherwise violates the Terms or this Agreement:

Trackunit may to take one or more of the following actions, if one or more of the above conditions in Section A-K occur:

• prevent the App from being made available on the Marketplace;
• remove the App from the Marketplace;
• flag, filter, or modify related materials (including but not limited to descriptions, screenshots, or metadata);
• reclassify the listing of the App;
• disable the App on Users’ accounts, which have installed the App;

Trackunit reserves the right to suspend or ban any listing of Apps from the Marketplace at its sole discretion, without any liability.

4. Intellectual Property Rights

Trackunit’s Rights

As between you and Trackunit, Trackunit owns all rights, title, and interest, including all intellectual property rights, in and to the Marketplace, Trackunit API, products, services and brands/trademarks and all related technology, websites and content, and any modifications or derivative works of the foregoing (collectively, the “Trackunit Materials”). Trackunit does not assign or grant you any right, title, or interest in the Trackunit Materials.

Developer’s Rights

You retain full ownership of any intellectual property rights in your App, subject to Trackunit’s rights in any underlying Trackunit Materials e.g. the Trackunit API. Except as otherwise stated in these T&C, you are not assigning or granting Trackunit any right, title or interest in your App or your other intellectual property rights e.g. trademarks or patents. You must also respect other Developer’s intellectual property rights to their Apps.

No Exclusivity or Restrictions

You understand and acknowledge that Trackunit or other Developers may be independently creating (or may receive from third parties including other Developers) Apps, features, applications, content, or other products or services that may be similar to or competitive with your App, and nothing in these T&C will be construed as restricting or preventing Trackunit or other Developers from doing so.

5. Payment

The Developer’s payment for using the Marketplace
Trackunit is entitled to charge you for your use of the Marketplace. The charges can be monthly, quarterly or yearly and/or a provision per App downloaded or as a percentage of the Developer’s license fee for the App. Trackunit charges are not refundable by your termination of the use of the Marketplace, unless the termination is caused by a material breach by Trackunit. The fees will be stated when creating a Market-place account, and/or can be changed or introduced later on with a written notice of thirty (30) days.
You shall pay all amounts due within thirty (30) days of the date of Trackunit’s invoice by way of electronic funds to the account number designated in writing by Trackunit or as available on the Marketplace. Payment obligations hereunder are not subject to any set-off or withholding rights whatsoever, any and all of which are hereby expressly waived by you.
Any failure to make a payment of any fees entitles Trackunit (in addition to all other rights and remedies available to Trackunit) to terminate or suspend your use of the Marketplace. Additionally, Trackunit can demand interest of 2% per month. Furthermore, upon any such failure all outstanding amounts shall be-come due and payable without further delay.

Payment for Apps

You are free to set any license fees or other fees in connection with the Users’ downloading and/or using your App and services. Such license fees are of no concern of Trackunit, and Trackunit can never be liable for any such fees or payments or involved in any recovery attempts regardless of the Users’ download of the App on the Marketplace, and it is strictly a matter between the Developer and the Users.
Trackunit will not without prior agreement with you charge the Users for downloading your App, or charge the Users for any license fees etc. in relation to your App.

6. Representations, Warranties and Covenants

You are obliged to remedy any material defects in the App(s) listed on the Marketplace without undue delay and if not Trackunit can suspend the access to or remove the App from the Marketplace.

If your App includes the export/import of the Users’ data, you represent and warrant that your App notifies all Users how their account data will be accessed and transmitted and your EULA and/or Data Processing Agreement (DPA) will control the privacy, security or integrity of such data. You further represent and warrant that to the extent your App stores, processes or transmits data, you or your App will not, without the Users’ express prior consent or except to the extent required by applicable law:

• modify the content of the Users’ account data in a manner that adversely affects the integrity of the Users’ account data;
• perform calculations that are inaccurate or untrustworthy;
• display data or visualizations that are inaccurate or incomplete;
• disclose account data to any third party; or
• use Users’ data for any purpose other than providing your App’s functionality to the Users.

7. Indemnification

You will indemnify and hold harmless Trackunit from and against any third-party claims, losses, costs, expenses (including reasonable attorneys’ fees), damages or liabilities based on or arising from: (i) your use of the Marketplace, (ii) your Apps; or (iii) your breach or alleged breach of these T&C. At Trackunit’s request, you also agree to defend Trackunit against any such claims related to your business and App, but Trackunit may participate in any claim through counsel of its own choosing, and the parties will reasonably cooperate on any defense and settlement. You may not settle a claim without Trackunit’s prior written consent (not to be unreasonably withheld).

8. Limitations of Liability

THE MARKETPLACE AND ALL TRACKUNIT’S SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”. TRACKUNIT AND ITS THIRD PARTY LICENSORS AND DEVELOPERS DISCLAIM ALL REPRESEN-TATIONS, WARRANTIES AND GUARANTEES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR ANY PUR-POSE. TRACKUNIT MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE (A) RELATED TO RELIABILITY, ACCURACY, PERFORMANCE OR COMPLETENESS OF THE MARKETPLACE OR RELATED SERVICES, (B) THAT USE OF MARKETPLACE OR RELATED SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED, ERROR-FREE OR MEET YOUR REQUIREMENTS OR EXPECTATIONS. TRACKUNIT DOES NOT WARRANT OR SUPPORT DEVEL-OPER’S APPS OR ANY RELATED CONTENT, DATA OR MATERIALS AND DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR THESE ITEMS AND THEIR ACCESS TO TRAKCUNIT’S SERVICES OR PRODUCTS, INCLUDING THEIR MODIFICATION, DELETION, DISCLOSURE OR COLLECTION OF DATA. THE DISCLAIMERS IN THIS SEC-TION 8 SHALL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, NOTWITHSTAND-ING ANYTHING TO THE CONTRARY HEREIN.
TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL TRACKUNIT BE LIA-BLE: (A) FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTER-RUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPE-CIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND OR (B) WITHOUT LIM-ITING THE FOREGOING, FOR ANY DAMAGES OR LIABILITIES EXCEEDING ONE HUNDRED EURO (EURO 100). THIS SECTION 8 WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THESE TERMS AND THE MARKETPLACE, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THESE TERMS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

You acknowledge and agree that this Section 8 reflects a reasonable allocation of risk and that Trackunit would not enter into an agreement with you without these liability limitations. The laws in some jurisdictions may not allow some of the limitations of liability in this Section 8. If any of these laws is found to apply to these T&C, this Section 8 shall apply to the maximum extent not prohibited by these laws.

9. Maintenance, Changes and Modifications

Trackunit may perform, at its own discretion, maintenance on the Marketplace, which can result in the Marketplace being fully or partly inaccessible or slow for a period of time and/or may modify the Market-place and its features. Trackunit typically performs maintenance or makes these changes as part of its overall maintenance and development program with same impact on all Developers and Users’ use of the Marketplace and is unable to provide notice of the changes to all Developers individually. Trackunit will have no liability resulting from the actions described above but will use reasonable endeavors to minimize any inconvenience to the Developers and Users.

Trackunit may modify these T&C and any Developer guidelines from time to time and will use reasonable efforts to notify you of modifications e.g., as general notices on the frontpages of the Marketplace. You may be required to click through the modified T&C to show your acceptance and in any event your continued use of the Marketplace after the modification constitutes your acceptance to the modifications. If you do not agree to the modified Terms, your sole remedy is to terminate your use of the Marketplace as described in Section 10.

10. Termination

The Developer’s Termination

The Developer may terminate the use of the Marketplace at any time by providing written notice to Trackunit and ceasing all use of and/or access to the Marketplace and deleting any relevant access keys and credentials. Section 3 must however be complied with.

Trackunit’s Termination

Trackunit may terminate your use of the Marketplace for no cause upon thirty (30) days’ notice to you. Upon any termination, your rights and licenses to use the Marketplace will immediately terminate and you must cease all such use, but all other provisions of these T&C will survive. Trackunit will have no obligation or liability resulting from termination.

Termination Due to Breach

A party may terminate the use of the Marketplace without further notice, if the other party is in material breach with these T&C.

11. Other Terms

Force Majeure

Trackunit will not be liable to you for any delay or failure to perform any obligation under this T&C or performance of the Marketplace due to force majeure situations, if the delay or failure is due to unforeseen events that are beyond Trackunit’s reasonable control.

No partnership

The parties are independent contractors and these T&C and use of the Marketplace do not create any kind of agency, partnership or joint venture.

Assignment

You may not assign, transfer or delegate any right or obligations under the T&C with Trackunit’s prior, written consent and any non-permitted assignment is void. Trackunit may assign these T&C and its rights and obligations to any of its affiliates or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of its assets or the Marketplace as such.

You agree to provide 30 days’ notice to Trackunit at [email protected], if your organization changes ownership control via sale, merger or acquisition or buyout.

12. Governing Law and Disputes

These T&C and the use of the Marketplace will be governed by and construed in accordance with the laws of Denmark, excluding conflicts of law rules and principles. Any dispute relating to or arising out of these T&C shall be subject to the exclusive jurisdiction of the District court of Aalborg, Denmark, as first instance.

15 March 2023
Trackunit ApS