PLEASE READ THE FOLLOWING LICENSE AGREEMENT CAREFULLY PRIOR TO COPYING, INSTALLING, OR USING ALL OR ANY PORTION OF THIS SOFTWARE. THIS AGREEMENT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU.
YOU (HEREINAFTER “CUSTOMER”) ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE PROVISIONS ON LICENSE RESTRICTIONS IN SECTION 2.2, THE LIMITED WARRANTY IN SECTION 5.1 AND DISCLAIMER IN SECTIONS 5.3 THROUGH 5.3.5, LIMITATION OF LIABILITY IN SECTION 6.1, AND SPECIFIC PROVISIONS AND EXCEPTIONS. CUSTOMER AGREES THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY CUSTOMER. THIS AGREEMENT IS ENFORCEABLE AGAINST CUSTOMER. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, CUSTOMER MAY NOT USE THE SOFTWARE.
IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, LEAVE THE WEBSITE.
Please contact us at info@DataTrace.com for any queries.
NOW, THEREFORE, THIS AGREEMENT WITNESSETH that, in consideration of the mutual covenants contained herein, and for good and valuable consideration which is acknowledged as passing between the Parties, the Parties hereto agree as follows:
1.1 Definitions. Capitalized terms in this Agreement will have the following meanings:
1.1.1 “You” or “Your” or “Customer” means the person or company who is being licensed (“Licensee”) to use the Licensor’s software in association with the License Agreement (“Usage Agreement”). “We,” “Our,” “Us” and “Licensor” means Licensor, Data Trace Publishing Company;
1.1.2 “Agreement” means this Software License Agreement between Us and You;
1.1.3 “Licensed Software” means certain commercial software products being provided to You under this Agreement, including executable program modules thereof, as well as related documentation and computer readable media;
1.1.4 “Sublicensed Software” means certain third party owned software components being provided under this Agreement, that are required to properly enable or operate the
Other capitalized terms have the meanings defined in the License Agreement.
2. SOFTWARE LICENSE, RIGHTS & RESTRICTIONS
2.1 Software License and Rights. In consideration of the mutual covenants, and subject to the provisions contained in this Agreement, We hereby grant to You a revocable, non-exclusive License to use the Licensed Software (“Software”) solely in order to utilize the Products and Services as provided under the Usage Agreement.
2.1.1 License Grant. Subject to Customer’s continuous compliance with this Agreement and payment of the applicable license fees, DATA TRACE PUBLISHING COMPANY grants Customer a non-exclusive and limited license to install and use the Software (a) in the territory or region where Customer obtains the Software from DATA TRACE PUBLISHING COMPANY or DATA TRACE PUBLISHING COMPANY’S authorized reseller or as otherwise stated in the Documentation (“Territory”), (b) during the term of such license (“License Term”), (c) within the scope of the License Type and on the Permitted Number of Customer’s Compatible Computers (“Computers”) as specified in the Documentation, and (d) in a manner consistent with the terms of this Agreement and applicable Documentation. Unless otherwise defined in this Agreement, in the applicable Documentation, or at the time of purchase, the License Term shall be one (1) year. Upon the expiration or termination of the License Term, some or all of the Software may cease to operate without prior notice. Upon expiration or termination of the License Term, Customer may not use the Software unless Customer has renewed the license.
2.1.2 Subscription. The Software is available on a subscription-basis. Customer may install and use the Subscription only on the Permitted Number of Compatible Computers as set forth in 2.1.4 during the License Term. Subject to the Permitted Number of Computers for the Subscription, DATA TRACE PUBLISHING COMPANY may allow Customer to install and use the most recent prior version of the Subscription and the current version of the Subscription on the same Computer during the License Term. Customer agrees that DATA TRACE PUBLISHING COMPANY may change the type of Software (such as specific components, versions, platforms, languages, etc.) included in the Subscription at any time and shall not be liable to Customer whatsoever for such change. Ongoing access to a Subscription requires: (a) a recurring Internet connection to activate, renew, and validate the license, (b) DATA TRACE PUBLISHING COMPANY or its authorized reseller’s receipt of subscription payments, and (c) Customer’s agreement to subscription terms and other additional terms and conditions that are available at http://www.dtdoctorcoder.com or at the time of purchase. If DATA TRACE PUBLISHING COMPANY does not receive the subscription payment or cannot validate the license periodically, then the Software may become inactive without additional notice until DATA TRACE
PUBLISHING COMPANY receives the payment or validates the user license.
2.1.3 Number of Users. As permitted in a separate purchasing document or Documentation and subject to license restrictions stated in this Agreement, Customer may install the Software on a Server only for the purpose of allowing an individual within the same Internal Network (“Network User”) to access and use the Software. The Network User who has access to such Software on the Server is referred to as “Server Software User.” The total number of Server Software Users (not the concurrent number of users) may not exceed the Permitted Number of one (1). By way of example, if Customer has purchased two (2) licenses of Software (Permitted Number is two (2)) and Customer elects to install the Software on a Server, then Customer can only allow up to two (2) Server Software Users the access to the Software.
2.1.4 Portable or Home Computer Use. Subject to the restrictions set forth in Section 2.1.2, the primary user of the primary Computer on which the entry Software is installed under Section 2.1.1 (“Primary User”) may install a copy of the entry Software for his or her exclusive use on not more than three (3) portable Computers and a Computer located at his or her home or in his or her possession, provided that the Software on the portable or home Computer is not used at the same time as the Software on the primary Computer.
2.1.5 Non-permitted Software Installations. For clarification and without limitation, the foregoing does not permit Customer to install or access (either directly or through commands, data, or instructions) the Software: (a) from or to a Computer not part of Customer’s Internal Network; (b) for enabling web hosted workgroups or web hosted services available to the public; (c) by any individual or entity to use, download, copy, or otherwise benefit from the functionality of the Software unless licensed to do so by DATA TRACE PUBLISHING COMPANY; (d) as a component of a system, workflow or service accessible by more than the Permitted Number of users; or (e) for operations not initiated by an individual user (e.g., automated server processing).
2.1.6 Term of License. The term of this License shall be one (1) year from the date of this agreement. The license may be renewed for additional one (1) year periods after the expiration
of the previous License Agreement by payment of the License Fee.
2.1.7 License Fee. The License Fee for the agreement for the term set forth in 2.1.6 above shall be for $399.00 U.S. Dollars for year one and $299.00 U.S. Dollars for subsequent renewal years,
which is subject to change.
2.2 Restrictions. Without limiting the generality of the foregoing, You will use the Licensed Software only for purposes set forth herein, and, further, You expressly agree that You DO NOT have rights to:
(a) own title, or transfer title to the Licensed Software to another party;
(b) the Software and any authorized copies that You make are the intellectual property of and are owned by DATA TRACE PUBLISHING COMPANY and its suppliers. The structure, organization, and source code of the Software are the valuable trade secrets and confidential information of DATA TRACE PUBLISHING COMPANY and its suppliers. The Software is protected by law, including, but not limited to, the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly stated herein, this agreement does not grant You any intellectual property rights in the Software. All rights not expressly granted are reserved by DATA TRACE PUBLISHING COMPANY and its suppliers;
(c) distribute, or sublicense or otherwise provide copies or any rights in relation to the Licensed Software to any third party;
(d) pledge, hypothecate, alienate or otherwise encumber the Licensed Software to any third party;
(e) use the Licensed Software to rent, lease or otherwise provide location-enabled telecommunication or information services to Your customers, including, without limitation, data processing, hosting, outsourcing, service bureau or online application services (ASP) offerings;
(f) modify, enhance, reverse-engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software or create substantially derived forms of the Licensed Software;
(g) unbundle component parts of the Software. The Software may include various applications and components, may support multiple platforms and languages, and may be provided to Customer on multiple media or in multiple copies. Nonetheless, the Software is designed and provided to You as a single product to be used as a single product on Computers as permitted herein. Unless otherwise permitted in the Documentation, You are not required to install all component parts of the Software, but You may not unbundle the component parts of the Software for use on different Computers;
(h) use the Software other than as permitted by this agreement and You will not use the Software in a manner inconsistent with its design or Documentation;
(i) delete proprietary notices. Any permitted copy of the Software (including without limitation Documentation) that You make must contain the same copyright and other proprietary notices that appear on or in the Software;
(j) modify, port, adapt, or translate the Software;
(k) RENT, LEASE, SELL, SUBLICENSE, ASSIGN, OR TRANSFER ITS RIGHTS IN THE SOFTWARE (INCLUDING WITHOUT LIMITATION, SOFTWARE OBTAINED THROUGH A WEB DOWNLOAD), OR AUTHORIZE ANY PORTION OF THE SOFTWARE TO BE COPIED ONTO ANOTHER INDIVIDUAL OR LEGAL ENTITY’S COMPUTER EXCEPT AS MAY BE EXPRESSLY PERMITTED HEREIN;
(l) use or offer the Software on a service bureau basis.
2.2.2 Additional Restrictions. Customer agrees to the following additional terms and restrictions related to the Subscription: (a) DATA TRACE PUBLISHING COMPANY may change the type of Software (such as specific products, components, versions, platforms, languages, etc.) included in the Subscription at any time and shall not be liable to Customer whatsoever for such change; (b) Customer may be required to connect to the Internet and log in at any time during the Subscription Term; (c) Software may automatically connect to the Internet to verify Customer’s Subscription without notice at any time; and (d) Customer may not enable or allow others to use the Software as Customer.
2.3 Enforcement of Restrictions. We will have the right to inspect and enforce the restrictions and covenants contained in this Agreement at Your sole expense, and You hereby agree to promptly notify Us of any known violations of such restrictions.
2.4 Our Obligations. Upon execution of this Agreement, We will:
(a) permit You to use the most current version of the Licensed Software under this Agreement; and
(b) provide You with ongoing updates to the Licensed Software as We consider needed. In each such case, We will automatically provide and install the necessary updates and will notify You when the update has been installed.
3. COPYRIGHT AND TRADEMARKS
3.1 Copyright. The Licensed Software, including any documentation, media, packaging and illustrations, is copyrighted and constitutes Our valuable property. You agree that all physical manifestations of the Licensed Software will display Our copyright notice in a conspicuous manner. The Licensed Software is protected under United States copyright laws and international treaty provisions. You will have a right to copy the materials, provided copyright notices and acknowledgement of trademarks are included, pursuant to the covenants herein. You will include the following notice on any printed, electronic, online or packaged version of the Licensed Software, in any form whatsoever:
“Copyright © 2015 Data Trace Publishing Company. All rights reserved.”
3.2 Trademarks. Certain logos, product names and trademarks owned by Us may be contained within the printed materials and electronic manifestations of the Licensed Software. You will have no right to use such marks in its end-user applications.
4.1 Title. You acknowledge that the Licensed Software, including any associated written materials and other documentation provided under this Agreement, belongs exclusively to Us. Unencumbered title to the Licensed Software will, at all times, remain with Us. You agree to protect the Licensed Software from unauthorized use, reproduction, distribution or publication in electronic or physical form.
5. WARRANTY AND INDEMNITY
5.1 Warranty. We warrant that We are the owner of the Licensed Software, and have the right and authority to grant the License to the Licensed Software. We do not warrant, guarantee, accept any condition or make any representation that the Licensed Software will meet Your requirements or that the use of the Licensed Software will be uninterrupted or error-free. No other verbal or written information provided by Us will create a warranty or in any way increase Our liability, and You will not rely on such information.
5.2 Indemnity. You shall indemnify and hold harmless Us and Our respective officers, directors, employees, members, agents, successors and assigns, of, from and against any and all actions, suits, proceedings, liabilities, damages, interest, fines, penalties, losses, costs and expenses (including court costs, costs of investigation, reasonable attorneys’, paralegals’ and experts’ fees and court costs at all levels from trial court through all appellate courts) (collectively, “Defense Costs”). Your covenant to pay all Defense Costs shall survive any final judgment rendered in favor of Us and shall continue in full force and effect and remain valid and enforceable, and none of the Defense Costs shall be merged with or into any final judgment rendered in favor of Us, the intent of the parties being that We shall be entitled to all Defense Costs if, as and when paid or incurred in connection with any of such enforcement and
collection efforts on the part of Us after having obtained any final judgment rendered in its or their favor and against You.
5.3 DISCLAIMER. THERE ARE NO WARRANTIES FOR SERVICES. WE MAKE NO EXPRESS REPRESENTATIONS OR WARRANTIES, OR ACCEPT ANY CONDITIONS EXCEPT THOSE EXPRESSLY STATED IN SECTIONS 5.1 AND 5.2 ABOVE. WE DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES DO NOT PERMIT THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR CONDITIONS. THEREFORE, THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU.
5.3.1 ANY STATUTORY WARRANTY AND REMEDY THAT CANNOT BE EXCLUDED OR LIMITED UNDER LAW ARE THE ONLY WARRANTIES AND EXCLUSIVE REMEDIES APPLICABLE TO THE SOFTWARE. OTHER THAN THOSE WARRANTIES OFFERED AND STATUTORY WARRANTIES AND REMEDIES, DATA TRACE PUBLISHING COMPANY, ITS AFFILIATES AND SUPPLIERS, DISCLAIM ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE, OR OTHERWISE AS TO ANY MATTER, INCLUDING, BUT NOT LIMITED TO, PERFORMANCE, SECURITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY QUALITY, AND FITNESS FOR ANY PARTICULAR PURPOSE. OTHER THAN SUCH OFFERED AND STATUTORY WARRANTIES AND REMEDIES, THE SOFTWARE AND ACCESS TO ANY WEBSITES, DATA TRACE PUBLISHING COMPANY OR THIRD PARTY ONLINE SERVICES, AND CERTIFICATE AUTHORITY SERVICES ARE PROVIDED AS-IS AND WITH ALL FAULTS. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS. CUSTOMER MAY HAVE ADDITIONAL WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. DATA TRACE PUBLISHING COMPANY DOES NOT SEEK TO LIMIT CUSTOMER’S WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW. THE PROVISIONS OF SECTIONS 5.1 AND SECTION 6.1 WILL SURVIVE THE TERMINATION OF THIS AGREEMENT, HOWSOEVER CAUSED, BUT THIS WILL NOT IMPLY OR CREATE ANY CONTINUED RIGHT TO USE THE SOFTWARE AFTER TERMINATION OF THIS AGREEMENT.
5.3.2 YOUR USE OF THE SOFTWARE AND CONTENT ACCESSIBLE THROUGH THE SOFTWARE IS ENTIRELY AT YOUR OWN RISK. EXCEPT AS DESCRIBED IN THIS AGREEMENT, THE SOFTWARE IS PROVIDED “AS-IS.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DATA TRACE PUBLISHING COMPANY, ITS AFFILIATES, AND ITS THIRD PARTY SERVICE OR DATA PROVIDERS, LICENSORS, DISTRIBUTORS OR SUPPLIERS (COLLECTIVELY REFERRED TO AS, “SUPPLIERS”) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT THE SOFTWARE IS FIT FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, DATA LOSS, LOSS OF USE, NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, OR THE ACCURACY, RELIABILITY, PERFORMANCE, QUALITY OR CONTENT IN OR LINKED TO THE SOFTWARE. DATA TRACE PUBLISHING COMPANY AND ITS AFFILIATES AND SUPPLIERS DO NOT WARRANT THAT THE SOFTWARE IS SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION. FURTHER, DATA TRACE PUBLISHING COMPANY DOES NOT WARRANT ACCESS TO THE INTERNET OR TO ANY OTHER SERVICE, CONTENT OR DATA TRANSMITTED THROUGH THE SOFTWARE. IF THE EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU, ANY IMPLIED WARRANTIES ARE LIMITED TO 60 DAYS FROM THE DATE OF PURCHASE OF THE SOFTWARE OR DELIVERY OF THE SERVICES, WHICHEVER IS SOONER. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME STATES. YOU MAY HAVE WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. DATA TRACE PUBLISHING COMPANY DOES NOT SEEK TO LIMIT YOUR WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW.
5.3.3 WITHOUT LIMITING THE FOREGOING, DATA TRACE PUBLISHING COMPANY MAKES NO WARRANTY THAT:
THE SOFTWARE WILL MEET YOUR REQUIREMENTS; THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE WILL BE EFFECTIVE, ACCURATE OR RELIABLE; THE QUALITY OF THE SOFTWARE WILL MEET YOUR EXPECTATIONS; AND ANY ERRORS IN THE SOFTWARE OBTAINED FROM THE DATA TRACE PUBLISHING COMPANY WEBSITE WILL BE CORRECTED.
SOFTWARE AND ITS DOCUMENTATION, FIXES AND REVISIONS TO THE SOFTWARE AND DOCUMENTATION MADE AVAILABLE ON THE DATA TRACE PUBLISHING COMPANY WEBSITE COULD INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS; MAY BE OUT OF DATE; AND DATA TRACE PUBLISHING COMPANY AND ITS CONTRIBUTORS MAKE NO COMMITMENT TO CORRECT AND/OR UPDATE SUCH MATERIALS.
5.3.4 DATA TRACE PUBLISHING COMPANY AND ITS AFFILIATES AND SUPPLIERS DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SOFTWARE WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS. THIS DISCLAIMER APPLIES TO, BUT IS NOT LIMITED TO, THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (“HIPAA”), THE GRAMM-LEACH-BLILEY ACT OF 1999, THE SARBANES-OXLEY ACT OF 2002, OR OTHER FEDERAL OR STATE STATUTES OR REGULATIONS. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THE SOFTWARE IS IN ACCORDANCE WITH APPLICABLE LAW.
5.3.5 YOU ACKNOWLEDGE AND AGREE THAT: DATA TRACE PUBLISHING COMPANY AND ITS AFFILIATES AND SUPPLIERS HAVE NO EXPRESS OR IMPLIED OBLIGATION TO CONTINUE TO MAKE THE SOFTWARE OR ANY FEATURE THEREOF AVAILABLE NOR INTRODUCE ANY PRODUCTS OR SERVICES COMPATIBLE WITH THE SOFTWARE.
6. LIMITATION OF LIABILITY AND REMEDIES
6.1.1. LIMITATION OF LIABILITY. IN NO EVENT WILL DATA TRACE PUBLISHING COMPANY BE LIABLE FOR ANY LOSSES OR DAMAGES INCURRED BY YOU, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL, INCLUDING LOST OR ANTICIPATED PROFITS, SAVINGS, INTERRUPTION TO BUSINESS, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF BUSINESS INFORMATION, THE COST OF RECOVERING SUCH LOST INFORMATION, THE COST OF SUBSTITUTE INTELLECTUAL PROPERTY OR ANY OTHER PECUNIARY LOSS ARISING FROM THE USE OF, OR THE INABILITY TO USE, THE LICENSED SOFTWARE REGARDLESS OF WHETHER YOU HAVE ADVISED US OR WE HAVE ADVISED YOU OF THE POSSIBILITY OF SUCH DAMAGES.
THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN CUSTOMER’S JURISDICTION. THIS LIMITATION OF LIABILITY MAY NOT BE VALID IN SOME JURISDICTIONS. CUSTOMER MAY HAVE RIGHTS THAT CANNOT BE WAIVED UNDER CONSUMER PROTECTION AND OTHER LAWS. DATA TRACE PUBLISHING COMPANY DOES NOT SEEK TO LIMIT ITS WARRANTY OR REMEDIES TO ANY EXTENT NOT PERMITTED BY LAW.
NEITHER YOU NOR WE MAY INSTITUTE ANY ACTION IN ANY FORM ARISING OUT OF THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ARISEN. SOME STATES DO NOT ALLOW THE EXCLUSION OF LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE EXCLUSIONS MAY NOT APPLY.
6.1.2 LIMITATION OF LIABILITY AND INDEMNITY. EXCEPT FOR ANY REMEDIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER LAW, DATA TRACE PUBLISHING COMPANY, AND ITS AFFILIATES AND SUPPLIERS WILL NOT BE LIABLE TO YOU FOR ANY LOSS, LOSS OR THEFT OF DATA, ELECTRONIC COMMUNICATIONS, SECURITY, DAMAGES, CLAIMS OR COSTS INCLUDING ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, ANY LOST PROFITS OR LOST SAVINGS, LOSS OF BUSINESS, REVENUE OR INVESTMENT, ANY DAMAGES RESULTING FROM BUSINESS INTERRUPTION, PERSONAL INJURY OR FAILURE TO MEET ANY DUTY OF CARE, OR CLAIMS BY A THIRD PARTY, EVEN IF A DATA TRACE PUBLISHING COMPANY REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. IN ANY EVENT, DATA TRACE PUBLISHING COMPANY’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES AND SUPPLIERS IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE, IF ANY, DURING THE TWELVE (12) MONTHS PRIOR TO SUCH CLAIM. THIS LIMITATION WILL APPLY EVEN IN THE EVENT OF A FUNDAMENTAL OR MATERIAL BREACH OR A BREACH OF THE FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT. DATA TRACE PUBLISHING COMPANY IS ACTING ON BEHALF OF ITS AFFILIATES AND SUPPLIERS FOR THE PURPOSE OF DISCLAIMING, EXCLUDING AND LIMITING OBLIGATIONS, WARRANTIES AND LIABILITY, BUT IN NO OTHER RESPECTS AND FOR NO OTHER PURPOSE.
THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. THIS LIMITATION OF LIABILITY MAY NOT BE VALID IN SOME STATES. YOU MAY HAVE RIGHTS THAT CANNOT BE WAIVED UNDER CONSUMER PROTECTION AND OTHER LAWS. DATA TRACE PUBLISHING COMPANY DOES NOT SEEK TO LIMIT YOUR WARRANTY OR REMEDIES TO ANY EXTENT NOT PERMITTED BY LAW.
7. SUCCESSORS AND ASSIGNS
7.1 Successors and Assigns. You may not assign Your rights and duties under this Agreement to any party at any time. This Agreement will inure to the benefit of and will be binding on Us and Our respective successors and permitted assigns. In the event of corporate merger, amalgamation, divestiture or asset sale, We will have the right to transfer and assign Our rights and obligations hereunder to any third party (the “Assignee”), upon written notice to You, provided that We cause the Assignee to agree in writing to all the terms contained in this Agreement.
8.1 Upgrades. Other than Our obligation under Section 2.4(b), We shall have no other obligations to provide updates or support services to You. Obligations or expectations with regard to product upgrades, enhancements, support or remedies for errors, defects or deficiencies will be limited to those expressly set forth in a separate agreement between Us and You. In the absence of such an agreement between Us and You, We will use reasonable efforts to provide ongoing support and remedies to identified errors and defects, on a time and material basis, at Our then current commercial rates.
8.1.1 Any obligations that DATA TRACE PUBLISHING COMPANY may have to support Prior Versions of the Software during the License Term may end upon the availability of this Upgrade. No other use of the Upgrade is permitted. Additional Updates may be licensed to Customer by DATA TRACE PUBLISHING COMPANY with additional or different terms.
9.1 Confidentiality. You acknowledge that the existence of this Agreement, the terms and conditions hereof, the transactions contemplated hereby and other information, including, without limitation, customer, technical and financial information that You have received or will receive in connection with this Agreement, is considered private and confidential (the “Confidential Information”). You will use reasonable diligence and in no event less than the degree of care which We use in respect to Our own confidential and proprietary information of like nature, to prevent the unauthorized disclosure, reproduction or distribution of such Confidential Information to any other individual, corporation or entity. Such Confidential Information will exclude:
(a) information that is already in the public domain;
(b) information already known to the receiving party, as of the date of the disclosure, unless the receiving party agreed to keep such information in confidence at the time of its original receipt;
(c) information hereafter obtained by the receiving party, from a source not otherwise under an obligation of confidentiality with the disclosing party;
(d) information that the receiving party is obligated to produce under order of a court of competent jurisdiction, provided that the receiving party promptly notifies the disclosing party of such an event so that the disclosing party may seek an appropriate protective order.
10.1 Term. The term of this Agreement will commence on the date of Your acceptance to these terms and shall continue for one (1) year from the date of the acceptance.
10.2 Renewal. The terms of this Agreement may be extended for one (1) year periods at the express acceptance of such extension by Licensor. Each renewal extension period requires payment in the amount set forth by Licensor for such extension period.
11.1 The Territory shall consist of the fifty (50) States of the United States and its territories such as Puerto Rico, American Samoa and Guam and those territories governed by the United States.
12. INTERNET CONNECTIVITY AND PRIVACY
12.1 Automatic Connections to the Internet. The Software may cause Customer’s Computer, without notice, to automatically connect to the Internet and to communicate with a DATA TRACE PUBLISHING COMPANY website or DATA TRACE PUBLISHING COMPANY domain for purposes such as license validation and providing Customer with additional information, features, or functionality.
12.3 Data Transmission and Storage. If Customer accesses a DATA TRACE PUBLISHING COMPANY Online Service, such as DT DoctorCoder, or activates or registers the Software, then additional information such as Customer’s user name and password may be transmitted to and
12.4 Messages and Marketing. As permitted by applicable law or as consented to by Customer, DATA TRACE PUBLISHING COMPANY may (a) send Customer transactional messages to facilitate the DATA TRACE PUBLISHING COMPANY Online Service or the activation or registration of the Software or Online Service or (b) deliver in-product marketing to provide information about the Software and other DATA TRACE PUBLISHING COMPANY products and Services using information including but not limited to platform version, version of the Software, license status, and language.
12.5 Updating. The Software may cause Customer’s Computer, without additional notice, to automatically connect to the Internet (intermittently or on a regular basis) to (a) check for Updates that are available for download to and installation on the Computer and (b) notify DATA TRACE PUBLISHING COMPANY of the results of installation attempts.
12.6 Activation. The Software may require Customer to (a) obtain a DATA TRACE PUBLISHING COMPANY ID, (b) activate or reactivate the Software, (c) register or (d) validate the Subscription. By accepting the terms of this Agreement, You submit approval for DATA TRACE PUBLISHING COMPANY to track usage via IP Address, which information may be used to detect or prevent fraudulent or unauthorized use not in accordance with a valid license or Subscription. Failure to validate the subscription or a determination by DATA TRACE PUBLISHING COMPANY of fraudulent or unauthorized use of the Software may result in reduced functionality, inoperability of the Software, or a termination or suspension of the Subscription. Customer may also receive information from DATA TRACE PUBLISHING COMPANY related to Customer’s license or Subscription.
13.1 Consents. Any consent required under this Agreement will not be unreasonably withheld.
13.2 Captions. The Article and paragraph headings used herein are for convenience only and are not a part of this Agreement and will not be used in construing it.
13.3 Entire Agreement. This Agreement constitutes the entire agreement of the Parties, and no amendment to the terms of this Agreement will be effective unless in writing and signed by both parties hereto.
13.4 Equitable Relief. You agree that any breach of this Agreement by You would cause irreparable damage, and that, in event of such breach, in addition to any and all remedies at law, We will have the right to an injunction, specific performance or other equitable relief to prevent the continuous violations of the terms of this Agreement.
13.5 Force Majeure. Notwithstanding anything herein to the contrary, We shall not be liable for any delay or failure in performance caused by circumstances beyond Our reasonable control.
13.6 Relationship of the Parties. This Agreement does not constitute a partnership or joint venture, and nothing herein contained is intended to constitute, nor will it be construed to constitute, such a partnership or joint venture. Except as expressly provided in this Agreement, neither We nor You will have any power or authority to act in the name or on behalf of the other party, or to bind the other party to any legal agreement.
13.7 Severability. The provisions of this Agreement are severable, and in the event that any provision of this Agreement shall be determined to be invalid or unenforceable under any controlling body of law, such invalidity or unenforceability will not in any way affect the validity or enforceability of the remaining provisions hereof.
13.8 Number and Gender. Where the context permits, the singular includes the plural, and the masculine includes the feminine and vice versa.
13.9 Notices. All notices and communications required or permitted under this Agreement will be in writing and will be sent by registered or certified mail, postage prepaid, return receipt requested, facsimile transmission (the “Fax”), with confirmed answer back, or electronic mail, with confirmation of receipt, to Us or You at the respective addresses we provide to each other or to such other address as We or You may from time to time specify by notice to the other given as provided in this paragraph. In Our case, Our address is:
Data Trace Publishing Company
P.O. Box 1239
Brooklandville, MD 21022
Phone: 1-800-342-0454 or
A notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
13.10 Jurisdiction. All actions, suits and proceedings relating to, arising out of, or in connection with this Agreement shall be submitted to the in personam jurisdiction of the United States District Court for the District of Maryland, Northern District (“Federal Court”) or to the Circuit Court for Baltimore County, if the Federal Court lacks jurisdiction to hear the matter, and venue for all such suits, proceedings and other actions shall be in Baltimore County, Maryland. Each party hereby waives any claim against or objection to such in personam jurisdiction and venue and further waives any claim that any such court is a forum non-conveniens. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY.
13.11 Governing Law. This Agreement and any sales thereunder shall be deemed to have been made in the state of Maryland and shall be construed, interpreted and enforced in accordance with the laws (including common law) of the State of Maryland, including, but not limited to, the statute of limitations of the State of Maryland and when a cause of action accrues under the laws (including common law) of the State of Maryland, other than any principle of conflicts of laws of the State of Maryland that would apply the law of another jurisdiction. We and You expressly exclude the United Nations Convention on Contracts for the International Sale of Goods, and the International Sale of Goods Act, as amended, replaced or re-enacted from time to time.
13.12 Revisions to this Agreement. We may at any time revise the terms of this Agreement by updating these terms and by providing notice to You of that change.