Last updated: April 1, 2025 

This PSA is entered into between Customer (“Customer”) and Tracker Group, LLC, (“Tracker”), with its headquarters located at 1807 Western Ave Albany, NY 12203, as of the date of Customer’s first use of the Services, the Order Effective Date as set out in an Order, or the date Customer’s Platform Subscription is activated by Tracker (“Effective Date”).

This PSA supplements and incorporates Tracker’s online Terms of Use (“Terms of Use”) which govern Customer’s use of our Services and the Tracker Platform, defined below. Undefined capitalized terms used herein shall have the meaning set forth in the Terms of Use. The PSA and the Terms of Use together constitute a binding agreement between Customer and Tracker.

1. Definitions and Interpretation

Capitalized definitions used herein are defined in the Appendix. Any capitalized terms used but not defined in this PSA shall have the meanings set forth in the Terms of Use or any other applicable terms or Documentation applicable to the services.

2. Provision of Services

2.1. Commencement of Platform Services. Customer’s Platform Subscription shall, unless specified otherwise in the relevant Order, commence on the earlier of (i) the date of Customer’s first use of the Services or Platform,(ii) the effective date specified in an Order with Tracker, or (iii) the date of any upgrades pursuant to an Order (such date being the “Platform Subscription Commencement Date”)

2.2 License to Platform Subscription Services. Subject to the payment of all Platform Subscription Fees that are due and payable as of Platform Subscription Commencement Date, and Tracker’s rights to suspend and terminate services as set out in the Terms of Use and in Paragraph 11 below, Tracker hereby grants to Customer, a non-exclusive, revocable, worldwide, non-transferable (except as expressly permitted in the Terms of Use), non-sublicensable, limited right to use and access the Platform Subscription Services during the Subscription Period, solely for Customer’s internal business operations and in each case in accordance with the relevant Documentation.

2.3 NOTICE OF AUTOMATIC RENEWAL. Customer’s Platform Subscription shall remain in place, unless terminated earlier in accordance with its terms. Either Party may terminate the Platform Subscription for convenience by providing the other with written notice of not less than thirty (30) days prior to the termination date.  Customer’s Platform Subscription may be cancelled at any time by accessing the account settings on Customer’s Tracker Platform Account at https://my.Tracker.com/. Customer agrees that the credit card or other designated payment method in Customer’s account settings will be billed the applicable Platform Subscription Fee for Customer’s Platform Subscription Plan then in effect at the time.

2.4 Platform Subscription Plans. Customer may have the ability to select from several Platform Subscription Plans. Tracker reserves the right to modify the features of any Subscription Plan at any time, subject to any Subscription Plan features agreed in an Order for the Subscription Period of such Order.

2.5 Affiliates.

2.5.1. The Parties each acknowledge and agree that Customer’s Affiliates shall be entitled to place Orders with Tracker pursuant the terms of this PSA, subject to:

2.5.2. the compliance by each such Affiliate with the terms of this PSA (it being acknowledged that, save to the extent expressly stated otherwise (including, without limitation, in Clause 12.3), the terms of this PSA shall apply to such Affiliate in the same manner and to the same extent as such terms apply to Customer); and

2.5.3. Customer shall remain liable for the acts and omissions of any such Affiliate; and

2.5.4. In the event that Customer or its Affiliate wishes to enter into a new Order, it shall notify Tracker and Tracker shall prepare a new Order. Following the execution of the order form by both Tracker and Customer (or its Affiliate, as applicable), the order form shall constitute a valid and binding Order for the purposes of this PSA.

2.6. Trials

Tracker may, in its sole discretion, offer Customer a free of charge trial in order to enable Customer to test and experience the Platform Subscription Services (a “Trial”). Where applicable, Customer’s Trial will commence on the date notified to Customer in writing by Tracker, immediately prior to which Customer shall be provided with access to the Platform. For the avoidance of doubt, the terms of Paragraph 5 of this PSA (Fees and Payment) shall not apply to any free Trial (provided, however, that if Customer places an Order for a Platform Subscription following the end of a Trial, Customer’s continued use and access to the Platform Subscription Services will be subject to the payment of all relevant Fees due pursuant to such Order to Tracker or an Authorized Reseller).

2.7 Additional Services and AI Features.

2.7.1 From time to time, Tracker may make available through the Platform or otherwise, certain additional services, features, or optional features pursuant to an Order (the “Additional Services”), and their related assets or output generated pursuant to the provision of such Additional Services (“Tracker Digital Assets”). Additional Services are not Platform Subscription Services and may require the payment of Additional Fees as set forth in an Order or may be offered through the Platform as part of your Subscription without an Additional Fee. AI Features. “AI Features” include, but are not limited to, (a) the additional processing of a Tracker Space using AI Data Processing to remove fixtures, furnishings and other decorative objects (“Defurnished Digital Twin”); (b) auto-generated summaries created by AI Data Processing of a Tracker Space such as its area, rooms, location, highlights and key features (“Property Description”); and (c) the ability to use voice or text commands to ask, find, navigate, and perform functions within a Tracker Space. “Tracker Generated Content” means the specific Tracker Digital Assets produced by the AI Features.

2.7.2. All use of Additional Services shall require Customer to designate and make available to Tracker the Tracker Space(s) in respect of which Customer is requesting the Additional Services. Unless otherwise specified in an Order, Customer will be invoiced for all Additional Services at the end of each calendar month. Subject to the payment of all applicable Additional Fees to Tracker, Customer shall have the right to download the associated Tracker Digital Assets an unrestricted number of times during the Subscription Period. Tracker reserves the right to terminate the Additional Services at any time in its sole discretion, provided however that in such circumstances, Tracker will provide Customer with a refund in respect of any amounts paid to Tracker in advance which relate to Additional Services which have not, as at the date of termination of the relevant Additional Service, been provided to Customer. Once the Additional Services terminate, Tracker will have no further obligation to create or provide any further Additional Services ordered or requested after the date of termination. 

2.7.3. NOTICE OF AUTOMATIC RENEWAL. Customer’s subscription in respect of each Additional Service shall, unless specified otherwise in the relevant Order, commence on effective date specified in the relevant Order and remain in place for the duration of the specified subscription period (the “AS Subscription Period”), following the expiry of which it shall automatically renew for successive periods of equivalent length to the AS Subscription Period (each such period being a “AS Renewal Period”), unless terminated earlier in accordance with its terms. Customer may terminate an Additional Service Subscription for convenience by providing Tracker with written notice of not less than thirty (30) days prior to the expiration of the AS Subscription Period.

2.9Third-Party Services. From time to time, Tracker may make Third-Party Services available through the Platform, the use of which may (in each case) be subject to: (a) the payment of Additional Fees; and (b) Customer’s acceptance of the terms and conditions of the relevant Third-Party Contract (which shall be presented to Customer for acceptance in accordance with the terms set out in Paragraph 7 of this PSA (Third-Party Services)). If Customer does not agree to abide by the applicable Third-Party Contract, then Customer should not install, access, or use such Third-Party Services. 

3. Customer’s Use of and Access to the Platform and Services

3.1. Provision of Access. Upon the commencement of Customer’s Subscription Period, Customer shall be provided with User Credentials (or otherwise provided with the means to generate User Credentials), following which Customer may allow its Authorized Users to use the Platform Subscription Services (and, where relevant, Additional Services) for the purposes set out in this PSA, and Customer is responsible for their compliance with the terms set out herein.

3.2. Use Restrictions. Without prejudice to the terms set out in paragraph 2 of the Terms of Use, Customer shall further not (and shall not permit any Authorized Users to), either directly or indirectly, in whole or in part to use the Platform, the Additional Services or the Additional Functionality, for any purpose other than as set out in or as otherwise permitted by the Terms of Use or this PSA. In particular, Customer shall not (and shall not permit any Authorized Users to), directly or indirectly, in full or in part:

3.2.1. allow any third-party to access any Customer Image Data stored on the Platform (except to the extent permitted through: (i) the use of available end-user functionality in the Platform; (ii) an authorized link to the Platform; or (iii) a Tracker API); or

3.2.2. use any deep-link, page-scrape, spider, robot, crawl, index, or other automatic device, program, algorithm, or technology to use, access, copy, acquire information from, generate impressions on, input information to, store information on, search on, generate searches on or monitor any portion of the Platform, other than as explicitly permitted by Customer’s Platform Subscription and/or any Tracker API.

4. Customer’s Responsibilities

4.1. Acceptable Use. Customer will not (and shall ensure that each Authorized User does not) use the Platform Services or the Additional Functionality for any unlawful, fraudulent, offensive, or obscene activity in violation of Tracker’s Terms of Use and shall ensure that all usage of the Platform Services and, where relevant, the Additional Functionality, by Customer and its Authorized Users is at all times in compliance with the terms of this PSA, including all Schedules, and the Terms of Use.

4.2. Responsibility for Customer Image Data. Customer is solely responsible for the development, content, operation, maintenance, accuracy, legality, integrity and use of Customer Image Data and shall ensure that Customer Image Data does not comprise: (a) any content which Customer does not own or otherwise have an appropriate license, consent or permission in respect of; (b) any content that is or is otherwise reasonably considered by Tracker to be harmful, threatening, unlawful, defamatory, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, hateful, or otherwise objectionable; or (c) any content that infringes or misappropriates any third-party right (including Intellectual Property Rights), or is invasive of any privacy or publicity right. For the avoidance of doubt, Customer shall obtain in advance all consents, approvals, licenses, and permissions necessary to capture and use imagery of any Subject Property. Tracker shall have the right (but not the obligation) in its sole discretion and at any time to remove from the Platform any Customer Image Data that violates this PSA, the Documentation, or that is otherwise objectionable.

4.3. Responsibility For Appropriate Designation. 

4.3.1. Generally. Customer has the ability to designate any Tracker Space or Customer Image Data hosted on the Platform as “private” (i.e., only accessible by Customer and Tracker via the Platform), “restricted” (i.e., accessible by anyone that possesses the related password or link), or “public” (i.e., accessible by anyone on the internet and publicly available and discoverable on the Platform). Customer acknowledges this is a feature which is a part of, and cannot be removed from the Platform, and Customer is solely responsible for ensuring the appropriate designation of its Spaces.  

4.3.2. Third-Party Interaction. In the event that Customer designates a Tracker Space or Customer Image Data as “private,” “public” or “restricted” access, Customer acknowledges that third parties may interact with such Tracker Space or Customer Image Data (which shall include being permitted to take measurements, adding annotations or comments, saving and sharing links to such Tracker Space or Customer Image Data), and any rights (including Intellectual Property Rights) that arise as a result of such third-party interactions shall be solely owned by Tracker.  

4.3.3. Public Links. In the event Customer designates any Tracker Space or Customer Image Data as “public” and publicly shares, or otherwise makes available on the internet a link to any Tracker Space, Tracker shall not be responsible for the resulting discoverability or accessibility of the Tracker Space or Customer Image Data on the Platform, and Tracker will have the same right to share such link as any other internet user

4.4. Responsibility for Digital Assets. Customer is solely responsible for the creation, content, use, and distribution of all Tracker Digital Assets created from Customer’s Tracker Spaces and shall ensure that (a) such Tracker Digital Assets do not comprise  any content which Customer does not own or otherwise have an appropriate license, consent or permission in respect of; and (b) such  Tracker Digital Asset do not infringe or misappropriate any third-party right (including Intellectual Property Rights), or violate  any privacy or publicity right. For the avoidance of doubt, Customer shall obtain in advance all consents, approvals, licenses, and permissions necessary to create Tracker Digital Assets from any Subject Property. Tracker shall have the right (but not the obligation) in its sole discretion and at any time to refuse to create any Tracker Digital Asset that violates this PSA, the Documentation, or that is otherwise objectionable.

4.5. User Credentials. Customer is responsible for keeping its User Credentials secure and confidential and shall, where applicable, take steps to ensure that all Authorized Users do the same. Customer is (and, where applicable, each Authorized User is) prohibited from selling or transferring (or seeking to sell or transfer) any User Credentials to any other person or entity. Customer will promptly notify Tracker if Customer becomes aware of any unauthorized access to User Credentials. Customer is responsible for maintaining and managing its User Credentials and authorized account administrators.

4.6. Account Data. Customer shall provide Tracker with complete and accurate information for Customer’s Platform account, including Customer’s billing and payment information, and shall ensure that such information remains up to date throughout Customer’s Subscription Period. From time to time, Tracker may require certain additional information from Customer in order to maintain Customer’s account, or to satisfy certain government and regulatory requirements. Customer agrees to provide such information in a timely fashion.

5. Fees and Payments

5.1. Fee Increases. Tracker reserves the right to increase or otherwise modify any applicable Platform Fees at any time by posting details of the revised Platform Fees the Tracker Website, provided that the revised amount of such Platform Fees shall not apply to Customer until: (a) with respect to Platform Subscription Fees, the commencement of the next Renewal Period; b) with respect to Services subject to Additional Fees, the commencement of the next AS Renewal Period; and (c) with respect to any other Additional Fees, at such time as the relevant Service in respect of which the relevant Additional Fees are payable is consumed or renewed in a subsequent Order.

5.2. Fees. Tracker shall invoice Customer in respect of: (a) Platform Subscription Fees, either monthly or upon the Subscription Commencement Date and at the commencement of each Renewal Period; and (b) any Additional Fees which are payable pursuant to an Order, in accordance with the terms set out therein or as otherwise detailed on the Tracker Website.

6. Service Levels and Support

6.1. Service Levels. Subject to the terms and conditions of this PSA, Tracker shall use commercially reasonable efforts to make the Platform available, exclusive of downtime necessary for scheduled and emergency maintenance.  Provided that Tracker uses commercially reasonable efforts to restore service, Customer shall not be entitled to any credits or refunds associated with any service outages.

6.2. Support. During the Subscription Period, Tracker shall provide reasonable technical support (including clarification of the functions and features of Platform Subscription Services and guidance regarding their operation but excluding any form of specific consulting). 

8. Privacy, Data Security & Confidentiality

8.1. Privacy. Customer shall not via any means provide or make available to Tracker any special category data (as such term is defined in the UK GDPR or other applicable privacy laws). 

8.1.1. Without prejudice to the foregoing, Customer agrees that neither Customer nor any Authorized User shall intentionally upload any Personal Data (as such term is defined in the UK GDPR or other applicable privacy laws) to the Platform. Customer shall take all steps reasonably necessary to ensure the risk of the unintentional capture of Personal Data by the Platform (howsoever arising) is minimized.  

8.1.2. Without prejudice to Paragraph 8.1 of this PSA, to the extent that any Personal Data is captured in or is otherwise evident from Customer Image Data, Customer shall ensure that it has obtained (or are otherwise in possession of) all necessary rights, permission or consents necessary to enable the upload of such Customer Image Data to the Platform. All such Personal Data shall be processed by Tracker in accordance with Tracker’s Privacy Policy and, where relevant, Tracker’s Data Processing Addendum. Customer acknowledges that, if Customer purchases Platform Services or other Tracker services from an Authorized Reseller, in order to permit Tracker to provision such services, such Authorized Reseller may share Customer Personal Data with Tracker, or Tracker may share Customer Personal Data with such Authorized Reseller. Customer hereby expressly consents to such disclosure and use of Customer Personal Data.

8.2. Data Security. Tracker shall implement and maintain appropriate security measures (including, among other things, technical, physical, and organizational measures) for the purposes of securing the Services. 

8.3. Confidentiality.

8.3.1. In the event Customer discloses any  information to Tracker designated by Customer in writing as confidential, Tracker will maintain the confidentiality of Customer’s confidential information and use it only for purposes related to the performance of this PSA. Tracker further agrees to protect Customer’s confidential information with at least the same degree of care as it uses to protect its own confidential information of a similar nature, and to disclose such information only to those of its employees and agents who have a need to know such information and who are bound by confidentiality obligations at least as restrictive as those set forth herein.

8.3.2. None of the obligations or restrictions set forth in this Paragraph 8 shall apply to Tracker’s use and disclosure of Customer Image Data, Aggregated Data, or to Tracker’s distribution to third parties or public display of any Tracker Space or Customer Image Data to the extent such distribution or publication was directed by Customer or any Authorized User via the Services or otherwise.  

9. Intellectual Property Rights

9.1. General Ownership. As between Customer and Tracker, (a) Tracker owns all right, title, and interest, including all Intellectual Property Rights, in and to the Tracker Technology; and (b) Customer owns all right, title, and interest, including all Intellectual Property Rights, in and to the Customer Data.

9.2. Ownership of Tracker Spaces. Without prejudice to Paragraph 9.1, but subject to Paragraphs 4.3 and 9.3 of this PSA, Customer shall own all rights (including Intellectual Property Rights) in and to each Tracker Space and Tracker hereby assigns to Customer, by way of a present assignment of a future right, all its right, title, and interest in and to each Tracker Space.

9.3. Right to Use Tracker Spaces. Tracker shall, both during the term of this PSA and thereafter, have the right to otherwise use each Tracker Space for such purposes and in such ways as Tracker may require in connection with the operation of its business (the “Purpose”) and Customer hereby grants to Tracker a non-exclusive, irrevocable, perpetual, royalty-free, sub-licensable license to otherwise use each Tracker Space for the Purpose.

9.4. License of Customer Data. Subject to the terms and conditions of this PSA, Customer hereby grants to Tracker a non-exclusive, irrevocable, non-transferable (except as expressly permitted under this PSA), non-sublicensable (except as expressly permitted under this PSA), worldwide, royalty-free right and license to Customer Data: (a) during the Subscription Period, to host, reproduce, modify, process, publicly display, distribute, use and prepare derivative works from the Customer Data for the purpose of providing the Platform Services; and (b) during the Subscription Period and thereafter (ii) to create Tracker Data and (ii) for internal development purposes and to conduct internal quality assurance testing.

9.5. Tracker Digital Assets. As between Tracker and Customer, all right, title and interest in and to the Tracker Digital Assets created by Tracker (and Tracker’s subcontractors) on behalf of Customer (and all Intellectual Property Rights therein) are and shall be owned by Tracker. Subject to the payment of all relevant Additional Fees that are due to Tracker or an Authorized Reseller in respect of the applicable Additional Services, Tracker hereby grants to Customer an irrevocable, sublicensable, non-exclusive, perpetual, worldwide license to use, evaluate, reproduce, display, and distribute each Tracker Digital Asset that is produced from the performance of the Additional Services; provided however that Customer shall ensure all such sub-licensees utilize such Tracker Digital Assets in accordance with the Terms of Use. Notwithstanding the foregoing, Customer acknowledges that Tracker Digital Assets can only be generated through the Platform (and that there are therefore technical limitations on the extent to which Tracker Digital Assets may be accessed or otherwise viewed by third parties), however, pursuant to the license herein, Customer will be free to host, reproduce and distribute any Tracker Digital Assets that Customer downloads. Customer acknowledges that it will not have the right to (a) to resell any Tracker Digital Assets; or (b) access any of the Tracker Digital Assets stored on the Platform following the expiration or termination of the Subscription Period. All rights not expressly granted herein are reserved by Tracker, and Customer may use the Tracker Digital Assets only as expressly permitted by this Paragraph 9.5. For clarity, while Customer Data remains the property of the Customer, any Customer Data that is incorporated into Tracker Digital Assets is licensed to Tracker for use within these assets pursuant to Paragraph 9.4 of this PSA.

9.6. Tracker Data. Customer acknowledges and agrees that Tracker may throughout the Subscription Period: (a) monitor Customer’s use of the Platform Services to create Usage Data; and (b) develop LPI Data and Generic Space Data. Customer further acknowledges that Tracker may (a) make Tracker Data publicly available in compliance with applicable law, and (b) use Tracker Data to the extent and in any manner permitted under applicable law (it being acknowledged, for the avoidance of doubt, that Tracker Data does not identify the Customer or Customer’s confidential information). For the avoidance of doubt, the Parties acknowledge and agree that Tracker shall be entitled to (i) combine Tracker Data obtained in connection with this PSA with similar data held by Tracker (whether obtained by Tracker from other customers of Tracker or from third parties); and (ii) use such combined/aggregated data to the extent and in any manner permitted by applicable law.

9.7. Digital Millennium Copyright Act. Tracker will respond to notices of alleged infringement in compliance with the Digital Millennium Copyright Act (“DMCA”). If Customer is a copyright owner or an agent thereof, and Customer believes that any content hosted on the Platform infringes Customer’s copyrights, then Customer may submit a notification to legal@Tracker.com.

9.8. Marks. The Marks displayed on or in the Platform, the Services and the Documentation are the property of Tracker. Customer shall not: (a) use or allow the use of any Mark without the prior written consent of Tracker; or (b) take steps to alter, cover or otherwise obscure from view any Mark that is displayed on the Documentation or the Platform Services or any Tracker Space, Tracker Digital Asset or other Tracker property. In the event Customer displays any trademark, logo, service mark, trade name or other branding on any page on which Customer displays any Tracker Space or Tracker Digital Asset or in any other place where Customer promotes the use of a Tracker Space or Tracker Digital Asset, Customer shall not do so in a manner that implies, or reasonably could imply, that the whole or any portion of the Tracker Technology used to generate or provide any Tracker Space or Tracker Digital Asset is owned by Customer or any third-party. In the event that Tracker becomes aware that Customer’s use of the Marks does not comply with the terms of this PSA (as determined by Tracker in its sole discretion), Tracker shall notify Customer of this, and Customer shall remedy the relevant non-compliance in accordance with the requirements set out in such notice. Any failure to fully comply with such notice shall constitute a material breach of this PSA. 

10. Representations, Limited Warranty and Disclaimer

10.1. Tracker Limited Warranty. Notwithstanding Paragraph 10 of the Terms of Use, Tracker warrants that it (a) provides the Platform Subscription Services using commercially reasonable efforts in accordance with standards generally accepted in Tracker’s industry; and (b) uses industry-standard methods designed to ensure that the Platform Subscription Services do not contain software viruses or other unauthorized or malicious code. FOR THE AVOIDANCE OF DOUBT, THE FOREGOING WARRANTY IN THIS PARAGRAPH AND PARAGARPH 10 OF THE TERMS OF USE DOES NOT APPLY TO, AND TRACKER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY SERVICES.

10.2. Customer Warranty. Customer warrants that: (a) Customer owns all right, title, and interest, including all Intellectual Property Rights, in and to Customer Data and has all rights, consents and/or permissions necessary to grant Tracker the licenses of Customer Data set out in this PSA; and (b) that both the Customer Data and Customer’s use of the Platform are and shall throughout the Subscription Period be in compliance with the Terms of Use and shall not infringe the rights (including Intellectual Property Rights) of any third-party.

10.3. Tracker does not warrant that: (a) use of the Platform Services will be uninterrupted or error free; or (b) any measurements, including without limitation square footage measurements, in any Tracker Digital Assets will be accurate or complete or that they will comply with any local or international professional or regulatory standard.

11. Suspension and Termination 

11.1. Suspension. Notwithstanding any provision to the contrary within Paragraph 9 of the Terms of Use, Tracker reserves the right to suspend the Customer’s access to the Platform Subscription Services and/or any Additional Services forthwith upon providing notice to the Customer, should there be a violation or breach of any term or condition of any agreement executed between the Customer and Tracker. Such notice of suspension shall be communicated to the Customer either through the Platform or via email by Tracker, and the suspension may take effect immediately upon issuance of said notice.

11.2. Access. Upon the termination or expiry of Customer’s Platform Subscription, Customer’s access to the Platform Services (and the access of every Authorized User) will be deactivated and Customer will cease to have any ability to export any previously purchased Tracker Digital Assets or Customer Image Data in Customer’s Platform account in file formats available through functionality in Customer’s Platform account. Tracker will cease to have any obligation following the termination or expiry of Customer’s Platform Subscription to provide to Customer: (a) any Tracker Technology (including, without limitation, any technology used to display any Tracker Space); or (b) access to the Platform for the purpose of exporting Tracker Digital Assets.

11.3. Licenses Granted to Tracker. Save to the extent expressly stated to expire upon the termination or expiry of Customer’s Platform Subscription, no license granted to Tracker by Customer shall terminate as a result of the termination or expiry of Customer’s Platform Subscription and Tracker shall be entitled to continue to utilize all such licensed rights.

11.4. Deletion of Confidential Information and Personal Data. To the extent legally permissible, at termination or expiration of Customers Platform Subscription, and upon receipt of a written demand from Customer sent to Tracker pursuant to the Notice provision of the Terms of Use, Tracker, will delete all copies of Customer’s confidential information in its possession or under its control. All Customer Personal Data shall be deleted by Tracker in accordance with Tracker’s Privacy Policy and, where relevant, Tracker’s Data Processing Addendum.

12. Limitation of Liability

12.1. Generally. Notwithstanding Paragraph 11 of the Terms of Use, in no event will the total cumulative liability of either Party (whether such liability arises in contract, tort (including negligence) or otherwise) to the other Party in respect of Losses arising out of, or in connection with this PSA, exceed the total Fees paid to Tracker or an Authorized Reseller, as applicable, during the twelve (12) month period immediately prior to the date the cause of action arose. Neither Party shall be liable to the other Party (whether such liability arises in contract, tort (including negligence) or otherwise), even if such Party was notified or was otherwise aware of the possibility of such Loss, for: (a) any loss of profit, loss of or damage to data, loss of anticipated savings or interest, loss of use, loss of or damage to reputation or goodwill, the cost of procurement of substitute goods or services; or (b) any indirect, special, consequential, exemplary or reliance damages, loss, costs, claims or expenses of any kind. Tracker shall not be liable to Customer in respect of any Loss incurred by Customer as a result of: (a) the unauthorized redistribution or display of the Services (or portion thereof) by any third-party, including without limitation through any unauthorized embedded links or code on a third-party website or app; (b) any Loss arising from a failure or delay in the performance of its obligations under this PSA to the extent that such failure or delay was caused or contributed to by an act or omission of Customer or its employees, or any third-party; (c) any disruption to Services, including downtime, outages; or (d) inaccurate information received by Customer as a result of Tracker performing maintenance of the Services.

12.2. Exclusions. The exclusions and limitations of liability in this PSA shall not apply in respect of: (a) any liability of Customer to pay any Fees; (b) any violation by Customer of the Terms of Use or this PSA; (c) any Loss suffered by any person arising out of the fraud and/or fraudulent misrepresentation of the Party seeking to rely on the exclusion or limitation; (d) death or personal injury resulting from negligence on the part of the Party seeking to rely on the exclusion or limitation; or (e) any liability of either Party that cannot otherwise be excluded or limited under applicable law.

12.3. Applicability to Affiliates. If applicable, and notwithstanding any other Clauses of this PSA, Customer acknowledges and agrees that in the event that a Customer Affiliate enters into an Order with Tracker: (a) any Losses incurred by such Customer Affiliate pursuant to or in connection with such Order will be treated as a Loss suffered by Customer and, to the extent that pursuant to the terms of this PSA such Loss would be recoverable by Customer from Tracker had such Loss been suffered by Customer, such Loss shall only be recoverable by Customer against Tracker; and (b) any Losses incurred by Tracker pursuant to or in connection with such Order due to an act or omission of Customer’s Affiliate (or an Authorized User of such Customer Affiliate) will be treated as if such Loss had been caused by or contributed to by Customer and shall be recoverable by Tracker against Customer to the same extent that Customer would be liable to Tracker pursuant to the terms of this PSA had the relevant act or omission been committed by Customer.  

14. Publicity Rights

Unless Customer notifies Tracker in writing that Customer does not wish for Tracker to list Customer’s name and logo, Tracker will have the right to include Customer’s name and Customer’s logo (if any) in any lists that identifies customers of Tracker, including but not limited to on the Tracker Website, sales collateral, and marketing materials.

15. Force Majeure

Neither Party shall be considered in breach of, or have any liability under this Agreement for any delay or failure in performance under this Agreement arising as a result of any occurrence of a Force Majeure. The delayed Party shall send written notice of the delay and the reason thereof to the other Party as soon as possible, and the time for performance of the relevant Party’s obligations hereunder shall automatically be extended for a period equal to the duration of any such delay. The delayed Party shall (a) use commercially reasonable endeavors to avoid or minimize the consequences of the event of Force Majeure; (b) carry out its obligation in such other way as may be reasonably and commercially practicable; and (c) use commercially reasonable endeavors to bring the Force Majeure in question to an end as soon as reasonably practicable. This Paragraph 15 shall not be construed as relieving either Party from its obligation to pay any sums due to the other Party. 

1. Definitions Appendix

In this PSA, the following words and expressions shall have the following meanings, unless the context requires otherwise:

“Additional Fees” means, if applicable, Additional Functionality Subscription Fees, as well as any fees payable to Tracker or an Authorized Reseller in respect of: (a) Platform Subscription Services provided in excess of those within the scope of Customer’s Platform Subscription Plan; (b) Additional Services (as defined herein); (c) if applicable, Third-Party Services.

“Additional Functionality” means the Tracker SDK and Tracker API functionality made available by Tracker via the Platform, or offered as part of a third party integration where applicable (to the extent the subject of an Order), subject to the payment of the applicable Additional Fees to Tracker or an Authorized Reseller. 

“Additional Services” has the meaning given in Paragraph 2.7.1 of this PSA.

“Affiliate” means any current or future entity that directly or indirectly controls or is controlled directly or indirectly by or is under common control with, a Party. For the purposes of the foregoing “control” shall be understood as direct or indirect ownership of at least 50% of the share capital or the voting rights of an entity, or of the right to direct the management of an entity.

“AI Data Processing” means the collection, analysis, and manipulation of input data by the Tracker Processing System within the Platform, including processes necessary for the creation of Digital Twins and the Reconstruction, Understanding, and Synthesis of Digital Twins from user-provided inputs, including Customer Image Data, and/or Sensor-Generated Data. For the purposes of AI Data Processing, “Reconstruction” means the process by which two-dimensional images or videos are converted into three-dimensional models using the Tracker Processing System, including computer vision and deep learning techniques to analyze visual data and construct accurate spatial representations of physical environments; “Understanding” means the capability, using the Tracker Processing System, to interpret and extract meaningful information from three-dimensional models, such as identifying structural elements, fixtures, and spatial layouts, that allow Customers to use certain features including automated tagging, measurements, and feature recognition within a Tracker Space; “Synthesis” means the capability, using the Tracker Processing System, to generate predictive models and simulate potential modifications within a Tracker Space, including the creation of virtual objects, alteration of existing structures, and visualization of potential renovations or redecorations based on input data and historical data.

“Anonymized Data” means any data extracted from Customer Data, from which all Personal Data has been removed, such that the Customer is no longer identifiable from such data (or may otherwise be associated with such data).

“Authorized Reseller” means any third-party reseller who has a reseller agreement with Tracker to resell Tracker services, including but not limited to, Platform Services. 

“Authorized Users” means each of Customer’s employees, consultants, contractors, agents, and third-party collaborators who are authorized by Customer to access and use the Platform and the Platform Services and, where applicable, Additional Functionality, pursuant to this PSA (whether via the provision of a username and password combination via which the Platform is made accessible by Tracker (“User Credentials”) or otherwise).

“Chat Function” means the Tracker Support chat function.

“Customer Data” means any and all information, data, and other content, in whatever form or medium, that is submitted, posted, or otherwise transmitted to Tracker in connection with the use of the Platform by Customer (or its Authorized Users), including (without limitation) Customer Image Data, Customer Prompts (as defined in the Tracker PSA Schedule 3), and Customer Personal Data, but excluding Tracker Data.

“Customer Image Data” means any Customer Data that is uploaded, submitted, or otherwise posted to the Platform by or on behalf of Customer or an Authorized User in the form of images (whether 2D or 3D), and including (without limitation) all associated Trackertags that may be uploaded by Customer or an Authorized User to a Tracker Space.

“Customer Personal Data” means any Customer Data which would be considered Personal Data, as such term may be defined in any privacy and data protection laws applicable to the Platform Services.  

“Digital Twin” means a dynamic and virtual representation of a physical space or asset, created, and continuously updated and maintained, through the integration of static and dynamic input with the Tracker Processing System. 

Documentation” means any user manuals, help guides, technical documentation, specifications, and other materials, made available by to Customer, on the Tracker Website or otherwise, in connection with the use of the Platform Services including, but not limited to, the Subscription Plans, and price list, and any updates, modifications, or enhancements to such materials that may be provided from time to time. 

“Force Majeure” means any event or circumstance which is beyond the reasonable control of the affected Party.

“Generic Space Data” means Anonymized Data relating to the structure, measurements, materials and fixtures of a Subject Property generated using the Tracker Processing System including (a) digital objects and spatial data identified and indexed within Tracker Spaces; (b) auto-generated labels, object segmentation data, and space indexing information; or (c) any other data that supports the generic characteristics of Tracker Spaces without revealing personal or specific details about the property owners or users.

“Initial Subscription Period” means the period from the Platform Subscription Commencement Date through (i) for a monthly Platform Subscription, the last day of the current monthly term; or (ii) for an annual Platform Subscription, the date which is twelve (12) calendar months from and including the Platform Subscription Commencement Date, or as otherwise specified in an Order.

“Learning and Process Improvement (LPI) Data” means the ongoing collection, analysis and application of Anonymized Data, derived from the Tracker Processing System, and such other materials that result from the Tracker Processing System, for the purpose of providing or improving the Platform and Tracker Technology, including but not limited to: (a) improvements in algorithms based on operational feedback and machine learning processes; (b) refinements in computer vision techniques and depth-perception accuracy; (c) enhancements in digital object recognition and spatial data processing; and (d) development of new functionalities and efficiencies within the Tracker Platform.

“Marks” means any trademarks, logos, service marks, trade names or other branding of Tracker whether registered or not.

“Tracker Processing System” means Tracker’s proprietary combination of machine learning models, large language models, computer vision and other algorithms that process input to generate or modify digital content used in AI Data Processing within the Tracker Platform. 

“Tracker Data” means Anonymized Data that is collected, generated, processed, or derived from the use of Tracker Technology, including without limitation: (a) Generic Space Data, (b) Usage Data, (c) LPI Data; (d) Sensor-Generated Data; (e) any other data generated by Additional Services, AI Features or Additional Functionalities provided through Tracker Technology; and (f) improvements and derivatives of any of the aforementioned data.

“Tracker Space” or “Space” means a Digital Twin of a Subject Property created by Tracker using Customer Image Data and Tracker Technology (a) via the Tracker Processing System and (b) displayed and accessible only via a visual instance and available solely via a URL link to the Platform.

“Tracker Technology” means all technology and data created by Tracker, including without limitation: (a) the Platform; (b) embedded or external technology in any camera equipment developed by or on behalf of Tracker from time to time and made available for use by customers including LIDAR sensors and other depth-perception technologies (a “Tracker Cameras”); (c) the Tracker Processing System and any artificial intelligence, machine learning, depth-perception or other algorithms therein; (d) the Positional Technology; (e) the AI Features; (f) Tracker Data; (g) Tracker Digital Assets; (h) system performance data, workflows, know-how, object segmentation, auto-generated labels, space indexing, computer vision created by Tracker; (i) the Additional Functionality; and (j) any subsequent improvements to any of the foregoing.

“Trackertags” means all text, notes, tags, annotations, hyperlinks, images, videos, and any other rich media content that may be uploaded by Customer (or an Authorized User) to a Tracker Space.

“Order” means a written, click to accept or electronic document entered into between Customer and Tracker for ordering the Services. 

“Platform” means Tracker’s proprietary cloud-based application platform, via which the Platform Services are made available by Tracker.

“Platform Fees” means the Platform Subscription Fees and any applicable Additional Fees

“Platform Services” means the Platform Subscription Services and any Additional Services that are the subject of an Order.

“Platform Subscription” means Customer’s right (and the right of its Authorized Users) to access and use the Platform Subscription Services in accordance with the terms set out in this PSA for the duration of the Subscription Period, at the Platform Subscription Plan and in respect of the number of Authorized Users, in each case, as may be specified in an Order.

“Platform Subscription Plans” means the various plans for Platform Services which are set out on the Tracker Website or in an Order, and as updated from time to time.

“Platform Subscription Services” means the services that are provided by Tracker as part of a Platform Subscription, including, without limitation, the Platform, and the creation of Tracker Spaces. 

“Platform Subscription Fees” means the fees payable to Tracker or an Authorized Reseller in respect of a Platform Subscription, as set out in the Order.

“Positional Technology” means Tracker’s proprietary technology that specifies the location of digital objects within a Tracker Space.

“Sensor-Generated Data” means all data generated by any Tracker Camera, or Third-Party Camera or technology, including measurements and spatial information captured by LIDAR and other sensors integrated within such Cameras or technology, but excludes Customer Image Data.

“Subject Property” means the structure, location, or premises in respect of which: (a) a Tracker Space is created; or(b)  Capture Services are provided pursuant to an Order. 

“Subscription Period” means the Initial Subscription Period and each subsequent Renewal Period.

“Usage Data” means Anonymized Data collected by Tracker through and relating to Customer’s (and Authorized Users) use of the Platform Services.