EFFECTIVE DATE: APRIL 26, 2012
BY CLICKING THE “I AGREE” BUTTON, OR DOWNLOADING, INSTALLING, ACCESSING OR USING THE SOFTWARE, YOU (HEREINAFTER “AUTHORIZED USER”) ARE EXPRESSLY AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS ARE CONSIDERED AN OFFER BY TRACELYTICS, INC. (“TRACELYTICS”), ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. TRACELYTICS IS WILLING TO MAKE THE SOFTWARE AVAILABLE TO AUTHORIZED USER ONLY UPON THE CONDITION THAT AUTHORIZED USER ACCEPTS THESE TERMS.
April 26, 2012
TERMS AND CONDITIONS. These Terms of Service (these “Terms”) are between Authorized User and Tracelytics. These Terms govern Authorized User’s use of the Software downloaded or accessed by Authorized User, including any Updates (as defined below) to the Software that are made available to Authorized User, together with any related manuals, materials and documentation generally furnished or made available by Tracelytics (the “Documentation”) and any Third Party Software (as defined below). For purposes of these Terms, the term “Software” shall mean the object code version of the software that Authorized User has selected from the particular plans made available by Tracelytics and paid for, downloaded, accessed and used, and shall include all Updates and Documentation made available by Tracelytics to Authorized User hereunder and any services provided by Tracelytics as result of Authorized User’s access to and use of such software.
- Grant of License. 1.1 Subject to the terms and conditions set forth herein, Tracelytics grants to Authorized User a limited, nonexclusive, nontransferable, nonsublicensable and royalty-free right and license to download, install, access and use the Evaluation Version of the Software solely for the purposes of internal testing and evaluation of such software and solely for a period of fourteen (14) days following Authorized User’s download of the Evaluation Version of the Software (“Evaluation Period”). Following the Evaluation Period, Authorized User may obtain a commercial license to the Software in accordance with Section 1.2 below and following payment of any fees in accordance with terms hereof. If Authorized User does not elect to obtain a commercial license for the Software, these Terms and the license to the Evaluation Version of the Software shall immediately terminate pursuant to the terms of Section 9 below. For purposes of these Terms, “Evaluation Version” means a version of the Software, so identified, to be used only to review, demonstrate and evaluate the Software for the Evaluation Period. 1.2 In the event that Authorized User elects to obtain a commercial license to the Software, upon payment of the fees in accordance with Section 5 herein and, subject to the terms and conditions set forth herein, Tracelytics grants Authorized User a limited, nonexclusive, nontransferable, nonsublicenseable right and license to download, install, access and use the Software solely in accordance with the Documentation and solely for Authorized User’s own internal business purposes. Authorized User may make one (1) copy of the Software solely for backup and archival purposes. Unless otherwise agreed to in writing by Tracelytics, Authorized User may install and use one (1) copy of the Software on a single computer which shall be located at Authorized User’s primary address and which is of a type for which the Software was designed for use by a single user.
- Use Restrictions. Except as otherwise expressly permitted under these Terms, Authorized User shall not, and shall not allow any third party to (a) download, copy, access or use the Software; (b) disassemble, decompile or otherwise reverse engineer the Software; (c) merge or embed the Software with any other computer program; (d) distribute, sell, rent, lease, or otherwise provide or disseminate all or any part of the Software to any third party or grant any security interest in the Software or Authorized User’s rights with respect thereto; (e) use the Software for time-sharing, rental, or service bureau use or grant any rights in or access to the Software in any form to any third party; (f) transfer the Software or any right to use the Software to any third party; (g) remove or alter any product identification, proprietary, confidentiality, copyright or other notices placed upon or in the Software; (h) disclose the Software or any Tracelytics proprietary or confidential information to any third party; (i) modify, alter or create a derivative work of any part of the Software; (j) exercise any rights with respect to the Software other than those expressly granted herein; (k) modify or use the Software in a way inconsistent with the particular plan for the Software downloaded, accessed and paid for; or (l) export the Software outside of the United States.
- Copyright and Ownership. These Terms confer only the right to use the Software while these Terms are in effect. It does not convey any rights of ownership in or to the Software. All right, title, and interest in the Software or any portion thereof, including, without limitation, all patent rights, copyrights, trademarks, service marks, related goodwill, and confidential or proprietary information and all enhancements and modifications (including all ideas and know how) to and derivative works based upon the Software constitutes and will remain the property of Tracelytics and its licensors. Authorized User shall not take any action to jeopardize, limit or interfere with Tracelytics’ ownership of and rights with respect to the Software. Authorized User agrees to maintain accurate records of the number and location of all copies or partial copies of the Software in Authorized User’s possession or control (including archival and backup copies). Tracelytics shall have the right, during Authorized User’s normal business hours, to verify Authorized User’s use of the Software in accordance with the terms set forth herein upon providing Authorized User with reasonable notice thereof. If the verification reveals that the Software is being used in violation of these Terms, Authorized User shall reimburse Tracelytics for the expense of such verification in addition to all other rights and remedies available to Tracelytics, including the payment of applicable license fees.
- Updates. For the term of these Terms, Tracelytics agrees to provide maintenance releases, improvements, and enhancements to the Software when and if available and which are generally provided by Tracelytics to customers receiving maintenance, (“Update(s)”), but such Updates do not include releases or enhancements for which Tracelytics customarily charges a separate or additional fee to all of its customers. Except as expressly set forth herein or in a separate agreement signed by the parties hereto, the license granted hereunder does not entitle Authorized User to receive any support from Tracelytics.
- Payments. 5.1 Authorized User agrees to pay Tracelytics the fees indicated on its website for the applicable plan chosen by Authorized User for the right to download, access and use the commercial version of the Software for the term identified in Section 9 below. Tracelytics reserves the right to change the fees for any renewal terms and to offer different price plans to different users. 5.2 All fees due hereunder will be payable on monthly basis by credit card, as identified by Authorized User during the registration process. Authorized User authorizes Tracelytics to withdraw payment for the applicable monthly fee from such credit card and Authorized User represents and warrants that it is an authorized user of such credit card. Tracelytics is authorized to charge payment equal only to the amount of the monthly fee for the Software plan selected by Authorized User during the registration process. The monthly fee will be charged to such credit card on the same day of the month as the original charge. Authorized User has the right to have the amount of any erroneous charge credited as soon as reasonably practicable and upon proper notification to Tracelytics. To change the credit card used for payment of the fees due hereunder (e.g., upon the expiry of an existing credit card or a change to a new credit card), Authorized User is obligated to notify Tracelytics promptly in writing. 5.3 Authorized User shall have the option to pay the fees for an entire one-year term in one lump-sum payment at the beginning of each term upon receipt of Tracelytics’ prior written approval. If Tracelytics so permits Authorized User to pay the fees for an entire one-year term upfront, Authorized User shall submit a purchase order to Tracelytics and Tracelytics will invoice Authorized User for the fees for such one-year term based on the monthly fee for the applicable plan chosen by Authorized User during the registration process. Invoices are due and payable thirty (30) days from date of the invoice. Any invoice that is not paid on or before the date such payments are due, shall bear interest at the lower of (a) one and a half percent (1½ %) per month and (b) the maximum rate allowed by law. Notwithstanding the foregoing, Authorized User acknowledges and agrees that it will not be provided access to and use of the Software until such time as the invoice is paid in full. 5.4 Except as expressly outlined herein, all fees are non-refundable. All payments shall be made in U.S. dollars. Authorized User shall be responsible for all taxes, withholdings, duties, charges and levies arising from these Terms (excluding taxes based on the net income of Tracelytics). If Tracelytics is required to pay any sales, use, GST, withholding, value-added, or other taxes or levies, such taxes will be charge to the credit card provided by Authorized User hereunder.
- Warranty and Disclaimer of Warranty. 6.1 Tracelytics represents and warrants to Authorized User that: (a) as of the Effective Date, Tracelytics has the right to grant the rights described in these Terms; and (b) for a period of fourteen (14) days from the date of Authorized User’s download of the Software, the Software will operate substantially in accordance with the functional requirements set forth in the Documentation. Except as otherwise set forth in these Terms, Tracelytics does not warrant that use of the Software will be uninterrupted, that the operation of the Software will be error-free, or that the Software will sufficiently meet Authorized User’s requirements. 6.2 AUTHORIZED USER ACKNOWLEDGES THAT: (A) THE EVALUATION VERSION OF THE SOFTWARE MAY NOT BE IN FINAL FORM OR FULLY FUNCTIONAL AND MAY CONTAIN ERRORS, DESIGN FLAWS OR OTHER PROBLEMS; AND (B) USE OF THE SOFTWARE MAY RESULT IN UNEXPECTED RESULTS, LOSS OF DATA OR OTHER UNPREDICTABLE DAMAGE OR LOSS TO AUTHORIZED USER. 6.3 THE FOREGOING WARRANTIES ARE LIMITED, AND THEY ARE THE ONLY WARRANTIES MADE BY TRACELYTICS OR ITS LICENSORS. THESE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES. TRACELYTICS AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGMENT. NO DEALER, AGENT, OR EMPLOYEE OF TRACELYTICS IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS LIMITED WARRANTY. THE SOFTWARE IS PROVIDED “AS IS”.
- Limitation of Liability and Exclusivity of Remedies. 7.1 For any breach of the warranties in these Terms, Authorized User’s exclusive remedy and Tracelytics' entire liability is limited to the correction or replacement, as soon as practicable, of the Software. 7.2 TRACELYTICS AND ITS LICENSORS SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST REVENUE, LOSSES FROM BUSINESS DISRUPTION, TRADING OR EXECUTION LOSSES, COMPLIANCE FAILURES OR DAMAGE TO SYSTEMS OR DATA (INCLUDING THE COST OF RECOVERING SUCH SYSTEMS OR DATA), WHETHER IN AN ACTION FOR CONTRACT OR TORT, STATUTORY OR OTHERWISE, EVEN IF TRACELYTICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TRACELYTICS’ AGGREGATE LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNTS RECEIVED FROM AUTHORIZED USER BY TRACELYTICS AS LICENSE FEES FOR THE APPLICABLE SOFTWARE OVER THE TWELVE MONTH PERIOD IMMEDIATELY PRECEEDING THE OCCURANCE THAT GIVES RISE TO THE CLAIM. THE FOREGOING LIMITATION OF LIABILITY PROVISIONS AND EXCLUSIVTY OF REMEDY PROVISIONS IN THESE TERMS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF A LIMITED REMEDY HEREIN. This Section allocates the risks under these Terms between Tracelytics and Authorized User. Authorized User acknowledges that Tracelytics' pricing reflects this allocation of risk and the limitations specified herein.
- Third Party Software. 8.1. Notwithstanding anything to the contrary contained in these Terms, the following additional provisions apply to Third Party Software. “Third Party Software” means the proprietary software of certain third parties that Tracelytics embeds within the Software, including, without limitation, Open Source Software (defined as the proprietary software of certain third parties that Tracelytics delivers with the Software that is licensed pursuant to certain open source license terms). Authorized User understands and acknowledges that Tracelytics is not the owner of the Third Party Software. 8.2. TRACELYTICS’ AND ITS LICENSORS ARE PROVIDING THIRD PARTY SOFTWARE ON AN “AS IS” BASIS. TRACELYTICS AND ITS LICENSORS DO NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS WITH RESPECT TO THIRD PARTY SOFTWARE, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. 8.3. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER TRACELYTICS NOR ITS LICENSORS SHALL HAVE ANY LIABILITY FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING FROM OR IN CONNECTION WITH THE USE OR PERFORMANCE OF ANY THIRD PARTY SOFTWARE, INCLUDING, WITHOUT LIMITATION, PENALTIES IMPOSED BY GOVERNMENT. THIS LIMITATION WILL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Term and Termination. 9.1 The term of these Terms is effective as of the date Authorized User agrees to these Terms by clicking the “I Agree” button (“Effective Date”). These Terms shall continue unless terminated in accordance with the provisions of Section 9.2, provided that if Authorized User obtains a license to an Evaluation Version of the Software, these Terms will immediately terminate without notice upon completion of the Evaluation Period, unless Authorized User elects to obtain a commercial version of the Software. If Authorized User obtains a commercial version of the Software, these Terms shall continue for one (1) year thereafter, unless terminated sooner in accordance with this Section 9. These Terms shall thereafter automatically renew for successive one (1) year periods unless either party delivers written notice to the other party of its intent not to renew these Terms at least thirty (30) days prior to the end of the then-current term. 9.2 Either party may terminate these Terms if the other party fails to perform any obligation under these Terms and has not cured such failure within fifteen (15) days of notice and, in the event of a termination for Authorized User’s breach hereunder, all remaining fees due for the remainder of the Initial Term or the then-current Renewal Term shall become immediately due and payable. 9.3 Upon termination, Authorized User shall cease all use of the Software, and destroy or return to Tracelytics all copies of the Software (including copies in storage media), and provide Tracelytics with written certification thereof. Termination is not an exclusive remedy and all other remedies (including, without limitation, equitable relief) will be available whether or not these Terms are terminated. The following sections shall survive termination or expiration of these Terms: Sections 2, 3, 6, 7, 8, 9.3, 10, 11, 12, 13, and 14.
- Indemnification. Authorized User will defend, indemnify, and hold Tracelytics and its respective officers, directors, employees, agents, licensors, successors and assigns harmless from and against any and all claims, demands, liabilities, actions, suits or proceedings asserted or claimed by any third party that arise out of any breach of these Terms by Authorized User. Tracelytics will notify Authorized of any claim made hereunder and will provide Authorized User with reasonable assistance to perform Authorized User’s obligations hereunder.
- Confidential Information. By virtue of these Terms, either party may have access to the other party’s Confidential Information. “Confidential Information” means non-public information clearly identified as proprietary or confidential, or which given its nature and the circumstances surrounding its disclosure should reasonably be construed to be confidential, including, without limitation, the Software, information concerning business methods, business plans, portfolio holdings, customer and vendor information, methodologies, internal policies and procedures, pricing terms, and test results (including the results of any evaluation of the Software or of a pre-production release thereof), code, inventions, analysis, and any business, technical, and financial formation, and any Third Party Software or systems and related information maintained by Authorized User which Tracelytics may require in order to render Services hereunder. Authorized User hereby represents and warrants that it is authorized to provide such materials and information to Tracelytics under any applicable laws, regulations or obligations. Each party agrees to hold the other party’s Confidential Information in confidence during the term of these Terms and thereafter. Each party further agrees that, unless required by law, it will not disclose the other party’s Confidential Information, or otherwise make the other party’s Confidential Information available in any form to any third party or use such Confidential Information for any purpose provided that such party may disclose Confidential Information to its employees and third party agents or contractors as contemplated in Section 1, who each agree to comply with confidentiality obligations no less protective of the disclosing party as this Section 9. Notwithstanding the foregoing, Tracelytics may disclose Authorized User’s Confidential Information to fulfill its obligations hereunder provided that such Confidential Information is disclosed subject to obligations of confidentiality as restrictive as those set forth in this Section. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms set forth herein. Confidential Information does not include information that: (a) is or becomes publicly available through no act or omission of the receiving party; (b) the disclosing party discloses to a third party without restriction on disclosure; (c) is disclosed to the other party by a third party without restriction on disclosure and without breach of a nondisclosure obligation; (d) is independently developed by employees of the receiving party who had no access to such information; or (e) is already lawfully known to the receiving party without nondisclosure obligations before it received the Confidential Information from the disclosing party. All Confidential Information and all copies thereof are the property of the party disclosing such Confidential Information and shall be promptly returned to such disclosing party or destroyed (with a written certification of such destruction delivered promptly to such disclosing party following such destruction) upon written request or the termination of these Terms.
- Governing Law. These Terms shall be governed by and construed solely in accordance with the substantive laws of the Commonwealth of Massachusetts, USA, regardless of the conflict of laws provisions thereof. The exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the state and federal courts located in Boston, Massachusetts, and both parties hereby submit to the personal jurisdiction of such courts.
- General. These Terms constitute the complete agreement between the parties and supersede all prior or contemporaneous discussions, representations, and proposals, whether written or oral, with respect to the subject matters discussed herein. Authorized User may not assign or otherwise transfer these Terms or the licenses hereunder without Tracelytics’ prior written consent and any such attempted assignment or transfer shall be void. The parties to these Terms are independent contractors; no relationship of partnership, joint venture, employment or agency is created between the parties by these Terms. Any amendment, waiver, or consent required or permitted hereunder shall be made in writing and signed by the parties. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. Any notices to a party must be in writing delivered personally, by first class mail (return receipt requested), or by prepaid express courier and addressed to the attention of, in the case of Tracelytics, Tracelytics’ CEO, and in the case of Authorized User, Authorized User. Notices to Tracelytics must be delivered to Tracelytics’ headquarters address set forth on Tracelytics’ website. Notices to Authorized User shall be delivered to the address submitted by Authorized User in connection with its payment information. Both parties agree that any violation or threatened violation of Sections 2, 3 and/or 11 will cause irreparable injury to the other party for which monetary damages would not be an adequate remedy and that each party will be entitled to obtain injunctive relief and any other equitable relief for any breach of the above. If any provision of these Terms shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect. There are no third-party beneficiaries to these Terms.
- Export; Non-U.S. Residents. The portion of the Software that is hosted by or on behalf of Tracelytics is controlled and offered by Tracelytics from its facilities in the United States of America. Tracelytics makes no representations that the Software is appropriate or available for use in other jurisdictions. If Authorized User is a non-U.S. resident and accesses and uses the Software, Authorized User does so at its own risk and is responsible for compliance with local laws and regulations. Authorized User may not access, download, use or export the Software in violation of U.S. export laws or regulations, or in violation of any other applicable laws or regulations.
- Force Majeure. Tracelytics shall not be in default hereunder by reason of its delay in the performance of or failure to perform, in whole or in part, any of its obligations hereunder if such delay or failure resulted from acts of nature, fire, or other catastrophe; enemy, hostile governmental or terrorist action; electrical, power or mechanical failure or other communication failure; work stoppage; delays or failure to act of any carrier or agent; direction or effect of an order from a court or government agency or body; or any other such cause beyond Tracelytics’ reasonable control.