Effective date: June 5, 2013
ExpeData, LLC Terms and Conditions (Installation Version)
IMPORTANT - READ BEFORE USING. Do not use or load this Software and any associated materials (collectively, the "Software") until you have carefully read the following terms and conditions. By clicking on the appropriate button below, or by downloading, installing, activating or using the Software, you agree to the terms of this Agreement. If you do not agree, do not use the Software.
WARNING: This computer program is protected by copyright law and international treatises. Unauthorized reproduction or distribution of this program, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.
IF, PRIOR TO DOWNLOADING, INSTALLING, ACTIVATING OR USING THE SOFTWARE, YOU DECIDE YOU ARE UNWILLING TO AGREE TO THE TERMS OF THIS AGREEMENT, YOU HAVE NO RIGHT TO USE THIS SOFTWARE AND YOU SHOULD PROMPTLY RETURN THE SOFTWARE TO EXPEDATA, OR DISABLE IT.
By accepting these Terms and Conditions, either by clicking a box indicating your acceptance or by executing an order form that references these Terms and Conditions, you agree to the terms set forth herein. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these Terms and Conditions, in which case the terms “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with these Terms and Conditions, you must not accept these Terms and Conditions and may not use the Software (as defined below).
"ExpeData" shall mean ExpeData, LLC, an Ohio limited liability company.
“Software” or “Software Products” shall mean the products, computer programs, widgets, services and related documentation made available by ExpeData, which you may use for capturing, searching, storing, synchronizing, recognizing, and transmitting any number of forms, templates, documents, images, audio files and other data elements on multiple computer and network platforms, now known or hereafter developed.
“you" or "your" as used herein means the person or company who is being licensed to use the Software Product, as defined herein.
Subject to the Terms and Conditions, ExpeData grants you a limited, non-transferable, non-exclusive license to utilize the Software so long as (i) you are of legal age to form a binding contract and (ii) you are not barred from accessing or using the Software under applicable law. You may not sublicense, assign or transfer any license without the prior written consent of ExpeData. Any attempt otherwise to sublicense, assign or transfer any of your rights, duties or obligations hereunder is void.
You are solely responsible for obtaining the equipment and telecommunication services necessary to utilize the Software, and all fees associated therewith (such as costs of computing devices, internet service provider charges and airtime charges).
Title and ownership rights to the Software Products, including copyrights, mask work rights, patents, trademarks, trade secrets, and other intellectual property rights, as well as all copies thereof reside and shall remain in ExpeData and ExpeData's licensors, as applicable (the "ExpeData Licensors"). The Software Product embodies the proprietary and trade secret information of ExpeData and/or the ExpeData Licensors, who owns the copyrights therein. You acknowledge that the Software Products are composed of confidential data and trade secrets that are the sole and exclusive property of ExpeData and/or the ExpeData Licensors. The Software Products shall be used exclusively by you only in compliance with the terms hereof. You shall be bound by all copyright notices and additional legal terms and conditions found in any "ReadMe" file, release note or leaflet that accompanies the Software or is otherwise embodied in the Software Products.
If you receive a claim that the Software Products infringe patent, copyright or other intellectual property of a third party, you shall notify ExpeData promptly in writing and give ExpeData information, assistance and exclusive authority to evaluate, defend and settle such claim. ExpeData shall then, at its own expense and option: (i) settle such claim; (ii) procure for you the right to use the Software or Service; (iii) replace or modify the Software or Service to avoid infringement; (iv) terminate the license granted herein and provide a refund of fees, less a reasonable amount for usage, subject to the limitations contained herein; or (v) defend against the infringing claim.
5. MISUSE OF SOFTWARE PRODUCTS
You shall not, at any time (i) reverse engineer, disassemble the source or object code used in, or in any other fashion attempt to exploit the Software Product in any way or for any purpose except as is necessary to make an archival copy of the Software Products, (ii) insert or make use of any type of disabling device including, but not limited to, viruses, worms, Trojan horses, time bombs, cancelbots or any similar device that may impair, damage or interfere with the proper working order of the Software Product, (iii) work around the technical limitations in the Software Products, (iv) publish the Software Products for others to copy, (v) rent, lease, license, lend or otherwise transfer the Software Products; (vi) disclose the results of any benchmark tests of the Software Products to any third party without ExpeData's approval, and (vi) permit any party to do any of the foregoing. All permitted copies of the Software Products made by You shall bear the proprietary markings (be they patent, copyright or trade secret) of ExpeData and/or the ExpeData Licensors borne by the copies transmitted by ExpeData and in the same form and location as the original.
Each of us shall maintain all right, title and interest in and to all our respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to you to use the Software under these terms do not convey any additional rights in the Software, or in any intellectual property rights associated therewith. ExpeData shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Software or otherwise use any suggestions, enhancement requests, recommendations or other feedback we receive from you. ExpeData®, and ExpeData’s other product and service names, and logos used or displayed on the Software are registered or unregistered trademarks of ExpeData (collectively, “Marks”), and you may only use such Marks to identify yourself as a customer and user of the Software; provided you do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent ExpeData, its services or products.
You agree to indemnify and hold ExpeData, its subsidiaries, affiliates, officers, agents, employees, advertisers and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including legal and other professional fees) arising from or in any way related to any third party claims relating to your use of any of the Software Products, any violation of these Terms and Conditions or any other actions connected with your use of the Software (including all actions taken under your account). In the event of such claim, we will provide notice of the claim, suit or action to the contact information we have for the account, provided that any failure to deliver such notice to you shall not eliminate or reduce your indemnification obligation hereunder.
7. DISCLAIMER OF WARRANTIES/LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(A) YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK. THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXPEDATA EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(B) EXPEDATA DOES NOT WARRANT THAT (I) THE SOFTWARE WILL MEET ALL OF YOUR REQUIREMENTS; (II) THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (III) ERRORS IN THE SOFTWARE WILL BE CORRECTED.
(C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
(D) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM EXPEDATA OR THROUGH OR FROM THE SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS AND CONDITIONS.
(E) UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THESE TERMS, OR SUCH PARTY’S AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY IN CONNECTION WITH THESE TERMS OR THE SOFTWARE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
(F) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, EXPEDATA’S (INCLUDING ANY OF ITS AFFILIATES) AGGREGATE LIABILITY, FOR DAMAGES (MONETARY OR OTHERWISE) CLAIMED BY YOU OR ANY THIRD PARTY ARISING FROM OUR SOFTWARE, SHALL BE LIMITED TO THE LESSER OF (I) ACTUAL DAMAGES INCURRED, OR (II) PAYMENTS MADE BY YOU FOR THE SOFTWARE DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF EXPEDATA WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
(G) SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN THESE STATES, EXPEDATA’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
ExpeData may terminate this Agreement and the license granted hereunder in the event you breach this Agreement or fail to pay any amounts payable to ExpeData and have not cured such breach to the satisfaction of ExpeData within ten days after receipt of written or email notification describing the breach. In addition, this Agreement shall terminate immediately without notice if you (i) shall generally not pay, or shall be unable to pay, or shall admit in writing your inability to pay your debts as such debts become due; (ii) make an assignment for the benefit of creditors or petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for you or for a substantial part of your assets; (iii) commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction; or (iv) have any bankruptcy proceeding commenced against it in which an order of relief is entered or an adjudication or appointment is made and which remains undismissed for a period of 60 days or more. These rights of termination shall not preclude ExpeData from recovering against you and damages ExpeData may suffer as a result of such breach or from any legal and/or equitable remedies. Upon termination of this Agreement, you shall have no further rights to use the Software Products and must destroy or return to ExpeData all copies of the Software Products and related documentation.
9. GOVERNMENT RIGHTS
If used or acquired by the United States Government, the Government acknowledges that (a) the Software product constitutes “commercial computer software” or “commercial computer software documentation” for purposes of 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-3, as applicable, and (b) the Government’s rights are limited to those specifically granted pursuant to this EULA. The contractor/manufacturer is ExpeData, LLC, 3131 Newmark Drive, Suite 300, Miamisburg, Ohio 45342
You acknowledge that the export, and use of certain software and technical data provided hereunder is regulated by the United States and other governments and agree to comply with all applicable laws and regulations. You agree not to export or re-export directly or indirectly any software, software releases or related technical data or information without first obtaining any required licenses(s) or governmental approvals.
11. COMPLIANCE WITH LAWS
You shall, at your own expense, use the Software Product in a careful and proper manner and shall comply with and conform to all laws, ordinances and regulations in any way relating to the possession, use and/or maintenance of the System and Electronic Data, including but not limited to the applicable standards of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) as published by the Department of Health and Human Services and those related to data privacy, international communications, consumer transactions and communications decency. You shall comply in all respects with the European Union Member State Data Protection Act (the "DPA"), if applicable, and all subordinate legislation made pursuant thereto including all applicable amendments, revisions and re-enactments when processing all personal data (as defined in the DPA). Use of the Software Product is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this Section.
12. OTHER AGREEMENTS
This Agreement shall not be deemed in any manner to alter, modify or amend in any manner whatsoever the terms and conditions of any agreement between the end-user and any solution provider providing the Software Products individually or as part of a package or providing financing for the Software Products (the "Solution Provider"). All of the rights and obligations of End Users under such agreements shall continue in full force and effect notwithstanding any termination, cancellation, waiver or claim arising under this agreement. In the event of default by you under any such agreement, the Solution Provider may, in addition to any other remedies it may have, have the right to elect to terminate your license and/or remove any or all licensed products and equipment.
13. GENERAL TERMS
(a) These Terms and Conditions constitute the entire agreement between you and ExpeData and governs your use of the Software, except, and then only to the extent that you have entered into a Separate Agreement. These Terms and Conditions, as in effect from time to time, supersede any prior agreements or earlier versions of these Terms and Conditions between you and ExpeData for the use of the Software. If, through accessing or using the Software, you utilize or obtain any product or service from a third party, you may additionally be subject to such third party’s terms and conditions applicable thereto, and these Terms and Conditions shall not affect your legal relationship with such third party.
(b) You acknowledge and agree that each affiliate of ExpeData shall be a third party beneficiary to these Terms and Conditions and that such other companies shall be entitled to directly enforce, and rely upon, any provision of these Terms and Conditions which confers a benefit on (or provides rights in favor of) them. Other than this, no other person or company shall be a third party beneficiary to these Terms and Conditions.
(c) These Terms and Conditions and the relationship between you and ExpeData shall be governed by, and construed and enforced in accordance with, the laws of the state of Ohio without regard to its conflict of law provisions. You and ExpeData agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Montgomery, Ohio. Notwithstanding this, you agree that ExpeData shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any applicable jurisdiction.
(d) The failure or delay by ExpeData to exercise or enforce any right or provision of these Terms and Conditions or rights under applicable law shall not constitute a waiver of any such provisions or rights. If any provision of these Terms and Conditions is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the agreement remain in full force and effect.
(e) You agree that regardless of any statute or law to the contrary, any claim or cause of action you may have arising out of or related to use of the Software or otherwise under these Terms and Conditions must be filed within one (1) year after such claim or cause of action arose or you hereby agree to be forever barred from bringing such claim.
(f) The section headings in these Terms and Conditions are for convenience only and have no legal or contractual effect.