TotalAttorneys.com Platform End User License Agreement
Last Update: October 28, 2013
1. License. TA grants Licensee a non-transferable, non-exclusive, revocable, limited license to access and use the Software during the Term solely for use in Licensee’s law practice. TA may update or modify, release new versions of, or create new modules for the Software, each of which may be included within the license described above. Only users for whom Licensee has purchased a license may access the Software.
2. Certain Restrictions. Licensee shall not directly or indirectly copy or reproduce all or any part of the Software or the Website, whether electronically, mechanically or otherwise, in any form including, but not limited to, the copying of presentation, style or organization. Licensee shall use the Software solely for its intended purposes and shall not use the Software for the benefit of any third party except as specifically contemplated under this Agreement. For the avoidance of doubt, all rights in the Software not expressly granted herein are reserved by TA. Licensee will not use the Software to post, transmit, convey, submit, distribute, store or destroy any information: (a) in violation of any applicable law, statute, ordinance or regulation; (b) in a manner that will infringe the intellectual property rights of others; (c) that is defamatory, obscene or trade libelous; (d) that contains any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (e) that is false, misleading or inaccurate in any way; (f) to target for solicitation any TA customers for purposes of providing any competitive product; or (g) in violation of the any acceptable use policy or other policy posted at the Website or otherwise made available to Licensee from time to time. Licensee shall not violate or attempt to violate the security of the Software. Licensee shall not reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the Software, including, without limitation, any of the software comprising or in any way making up a part of the Software. Licensee shall defend and indemnify TA, its affiliates, subsidiaries and each of their respective equity holders, officers, managers and directors, at Licensee’s sole cost and expense, from and against any claims, damages, liabilities and/or expenses arising out of Licensee’s breach of any of its obligations or representations set forth in this Section 2.
3. Fees; Payments. (a) License Fees. Licensee agrees to pay the monthly agreed upon fee based upon the number of licenses utilized in Licensee’s account. (b) Extra Services; Payment Processing. TA shall charge additional fees for additional features and add-ons as selected by Licensee. Licensee may add payment processing as an extra service for $35 per month.
Licensee authorizes TA to charge Licensee’s credit card or debit Licensee’s bank account, as provided by Licensee, at the start of each Term for the Fees due and owing. All Fees are subject to change upon notice. Any changes to Fees shall be posted by TA at the Website, in which case such changes shall be binding on both parties 30 days from the date of posting. Licensee may terminate this Agreement by providing notice to TA in accordance with the Agreement within 10 days of the posting of any modification, in which case Licensee shall remain subject to the version of this Agreement prior to modification.
4. Term and Termination. This Agreement shall begin on the Effective Date and continue until either (i) the last day of the first full calendar month following written notice of termination from either party or (ii) either party’s bankruptcy/insolvency. TA shall also be entitled to immediately terminate/suspend Licensee’s access to the Software at any time in the event Licensee fails to pay any fees due or otherwise breaches/threatens breach of any its obligations. Upon termination, Licensee’s access to/ use of the Software and the return of Licensee’s data shall be governed by the terms of this Agreement.
5. Confidentiality; Non-Solicitation. Each party agrees to treat all information as confidential and not to use or disclose such confidential information except as necessary to perform under this Agreement. All of Licensee’s data entered into the Software is confidential and shall not be used or released for any purpose other than as contemplated hereunder or required by law. Licensee hereby agrees that it shall not, during and for 1 year following the Term, hire or engage any of TA’s (or any affiliate’s) employees or independent contractors or otherwise interfere with TA’s relationship with any of its employees or independent contractors.
6. Return of Data. TA shall be entitled to immediately terminate/suspend Licensee’s access to the Software at any time in the event Licensee fails to pay any fees due or otherwise breaches/threatens breach of any its obligations. Upon termination and Licensee’s payment of all fees due and owing, Licensee can submit a request to TA for return of Licensee’s data at any time during the 6 months following the termination date and TA shall return Licensee’s data within 10 business days of such request. All data shall be returned in Excel format and any documents shall be returned in their original format. In the event of Licensee’s death, incapacity, or other unavailability, Licensee’s data shall be returned to a successor designated in writing by Licensee to TA. If Licensee has not designated a successor for return of Licensee’s data, TA shall contact Licensee’s state bar(s) and TA shall provide 30 days’ notice to Licensee and Licensee’s state bar(s) before deletion of Licensee’s data.
7. Data Breaches.
TA hereby notifies Licensee that TA carries insurance coverage in excess of $1 million for data breaches.
8. Support; Service Levels. (a) Customer Support. TA shall, so long as Licensee is not in breach of this Agreement, provide to Licensee its standard and customary customer support via a toll-free telephone number and/or online support to answer questions regarding use of the Software. TA will use commercially reasonable efforts to answer questions regarding the Software during normal business hours. Should TA need to access Licensee’s data to provide support services, TA shall only access such account data once Licensee has given TA authorization to do so, provided however, Licensee authorizes TA’s account managers to access the administrative settings in Licensee’s account solely for the purpose of configuring Licensee’s account settings. TA shall have no obligation to support: (i) errors caused by Licensee’s website, negligence, hardware malfunction or other causes beyond TA’s reasonable control; or (ii) third party software or ASP services not licensed through TA. (b) Service Level Agreement. In the event the Software is available for less than 98% of any calendar month during the term of this Agreement, as measured beginning on Monday at 12:01 a.m. and ending on Sunday at midnight, so long as Licensee notifies TA of such downtime within 10 days from the end of the applicable calendar month, and, upon Licensee’s request, TA will provide a service credit to Licensee against future fees due and owing hereunder. If availability for Licensee’s account is below 98% but more than 96% in any calendar month, then, upon request, TA will credit Licensee against future fees an amount equal to 25% of the amount that would otherwise be due from Licensee for the affected service account for such calendar month. If availability is at or below 96% in any calendar month, then TA will, upon request, credit Licensee against future fees an amount equal to the entire amount that would otherwise be due from Licensee for the affected calendar month. Aside from any data breach obligations contained herein, the credits earned under this section will be the limit of TA’s liability for amounts owed for the non-availability of the Software or any other failures of the Software. TA shall have sole authority to make any final determination regarding downtime in a given calendar month by measuring such downtime using tools it reasonably deems appropriate. Downtime shall not, for purposes of this Section (b), include previously or regularly scheduled maintenance or the events described in the Force Majeure section of this Agreement. (c) Certain Limitations. Except as explicitly set forth above, TA does not offer any guarantee regarding the Software, and TA shall not be liable for any delays in responding to Licensee’s inquiries. Licensee hereby acknowledges that TA may release or license new versions or upgrades of the Software. Licensee’s license applies to any such upgrades and/or new versions to the extent such upgrades and/or new versions are generally made available by TA and do not constitute additional features and/or functionality for which an additional fee is charged. Nothing herein shall obligate TA to upgrade and/or improve the Software at any time.
9. Certain Responsibilities. Information Sharing. Licensee shall be solely responsible for inputting and maintaining all data regarding Licensee’s practice into the Software. Upon receiving a legal request to turn over data related to Licensee’s account, TA will make every effort to contact Licensee first to provide notice of the request and deadline for delivery. TA will comply as required by all current federal and state laws while also keeping our client abreast of any information that directly affects access and confidentiality of their law office data.
10. Intellectual Property. All trademarks, patents, copyrights and other intellectual property rights owned by either party on the date hereof shall continue to be owned solely by such party. Licensee shall be the sole owner of its name and all data it enters into the Software. TA is the sole owner of all intellectual property rights associated with the name “Total Attorneys,” the Website and the Software. All suggestions, recommendations, fixes or other communications from Licensee to TA regarding the Software or the Website shall, upon submission to TA, be owned solely by TA. Any applicable supplier(s) of any third party software included in the Software shall own all intellectual property rights to such third party software as agreed upon between such third party and TA.
11. Disclaimers. (a) No Warranties. TA is not responsible for any (i) electronic communications and/or Licensee data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by TA, including, but not limited to, the Internet and Licensee’s local network, (ii) loss or deletion of any of Licensee’s data within the Software, or (iii) any damages, loss of data or security breaches which occur as a result of or in connection with any e-mail or other communications initiated within the Software. (b) Unavailability of the Website or Software. Licensee is solely responsible, at its sole cost and expense, for providing and maintaining all equipment and connections necessary to access the Internet, the Website and/or the Software. While it is TA’s objective to make the Software accessible at all times, the Website and/or Software may be unavailable from time to time for any reason including, without limitation, routine maintenance. In addition, various portions of the Website or Software may operate slowly from time to time. Licensee understands and acknowledges that access to the Website and/or the Software may be interrupted, suspended or terminated from time to time. In particular, and not in limitation of the foregoing, TA shall not be liable in any way for any delay in responding to an inquiry or question forwarded by Licensee or the effects any delay or unavailability may have on Licensee. LICENSEE AGREES THAT TA SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM ANY SUCH INTERRUPTION, SUSPENSION OR TERMINATION OF THE WEBSITE AND/OR SOFTWARE AND THAT LICENSEE SHALL PUT IN PLACE CONTINGENCY PLANS TO ACCOUNT FOR SUCH PERIODIC INTERRUPTIONS OR SUSPENSIONS OF THE WEBSITE AND/OR SOFTWARE.
12. Third Party Applications. TA may feature third party products and services and/or provide access to other third party applications or services, such as synchronization with other applications and document management systems, through Total Apps and other third party applications. TA makes no representations with respect to, nor does it guarantee or endorse, the quality, non-infringement, accuracy, completeness, timeliness, or reliability of such third-party materials, programs, products, applications and services or any other materials, programs, products, applications and services which such third-party materials, products, applications and services may access. Licensee’s correspondence or any other dealings with third parties found through the Website are solely between Licensee and such third party. TA assumes no responsibility and expressly disclaims responsibility and liability for the operation or support of such third party applications, and those applications are governed by the terms and conditions for use as set by their respective providers. TA SHALL NOT BE LIABLE TO LICENSEE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNATIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DATA, ARISING OUT OF LICENSEE’S USE OF ANY THIRD-PARTY APPLICATIONS, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14. Miscellaneous. A) Venue: The rights and obligations of the parties shall be governed by the laws of the State of Illinois, without reference to conflict of law principles, and all disputes arising under or in connection with this Agreement shall be governed by the internal laws of the State of Illinois and shall be brought and tried in federal or state courts located within the County of Cook, State of Illinois, and the parties hereby consent to submit to the personal jurisdiction of such courts. B) Indemnification: The parties agree to defend, indemnify, and hold harmless the other party and its affiliates, from any and all claims, controversies, causes of action, demands, attorneys’ fees/costs and liabilities related to or arising out of any breach of this Agreement, and in the case of Licensee, Licensee’s access to and use of the Software and any actual or alleged malpractice or breach of duty in the course of its representation of its clients. C) Limitation of Liability: TA SHALL NOT BE LIABLE TO LICENSEE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNATIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DATA, ARISING OUT OF THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. ASIDE FROM A DATA BREACH CLAIM AS DESCRIBED IN THE TERMS, IN NO EVENT SHALL TA’S TOTAL LIABILITY TO LICENSEE FOR ANY CLAIM EXCEED $100. D) Amendment: No amendment to this Agreement shall be effective unless in writing and either (a) signed by both parties or (b) posted by TA at the Website (in which case such amendment shall be binding on both parties 10 days from the date of posting, unless such changes are addressing new functions for the Software or changes made for legal reasons, in which case such changes will be effective immediately). Licensee may terminate this Agreement by providing 30 days’ notice to TA within 10 days of the posting of any modification to this Agreement, in which case Licensee shall remain subject to the version of this Agreement prior to modification. E) Notice. All notices shall be in writing provided to customer and posted by TA on the Website. F) Assignment: TA may assign this Agreement, without the consent of Licensee, Licensee may not sell, transfer or otherwise assign its rights under this Agreement without TA’s written approval. G) Relationship: The relationship between the parties under this Agreement is that of independent contractors. H) Warranties: TA does not make any warranties regarding the Software or the Website, including, without limitation, warranties (a) of merchantability or fitness for a particular purpose, (b) that the Website or the Software will be error-free or available and/or functional at all times. I) Non-Solicitation. Licensee hereby agrees that it shall not, for 2 years following the term of this Agreement, hire or engage any of TA’s (or any affiliate’s) employees or independent contractors or otherwise interfere with TA’s relationship with any of its employees or independent contractors. J) Force Majeure. TA shall not be liable to Licensee for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, labor disturbance, interruption of or delay in transportation, unavailability of third party services, failure of third party software or inability to obtain raw materials, supplies or power used in or equipment needed for provision of the Software. K) Liquidated Damages. Licensee is permitted to use the Software to manage Licensee’s law practice (a “Permissible Use”). Licensee is not permitted to use the Software for any other reason other than a Permissible Use as described above. Impermissible Uses shall include, but are not limited to, (i) using the Software in order to solicit, hire, engage or otherwise work with the employees or affiliates of TA or the attorneys or law firms who are customers of TA, to interfere or attempt to interfere in the relationship between TA and such employees, affiliates, attorneys, or law firms, (ii) copying or reproducing the Software or the Website, or reverse engineering, decompiling, disassembling or otherwise attempting to derive source code or trade secrets from the Software, or (iii) for any other purpose other than described herein (each, an “Impermissible Use”). If you do engage in such conduct, the resulting damage will be hard to quantify as a dollar amount and thus you hereby agree to pay us liquidated damages in the amount of $10,000 for each Impermissible Use. You further agree that this liquidated damages provision reasonably approximates actual costs, losses, and expenses which would be incurred by TA due to any such Impermissible Use. You also agree that nothing in this section is intended to limit TA’s right to obtain injunctive and other relief as may be appropriate.