Terms & Conditions
Daubert Tracker provides the Service to its customers ("Customers") and their employees, agents, and consultants ("Authorized UsersÓ) only if Customer pays the fees for access to the Service for the desired number of Authorized Users and accepts and complies with all terms, conditions, notices and disclaimers set out below ("Terms"). If you agree with what you read below, double-click the "ACCEPT" button below. We will then have an Agreement in place as of the date you accept ("Effective Date") governing your rights and our obligations with respect to the Service. If you do not agree with what you read below, then click the "I DO NOT ACCEPT" button and do not proceed any further. As consideration for use of the Service, as well as other good and valuable consideration, the receipt of which you acknowledge, you agree to the following terms and conditions:
To agree to these Terms, it is necessary that you have the authority to enter into agreements on Customer's behalf and to bind the Customer to these Terms. BY CLICKING ON THE "ACCEPT" BUTTON, YOU ARE REPRESENTING THAT YOU ARE AUTHORIZED TO AND DO ACCEPT AND AGREE TO THESE TERMS.
1. RIGHT TO ACCESS AND USE TO SERVICE
a. Access. Daubert Tracker grants Customer and its Authorized Users the right to access the Service and use the programs ("Applications") and other materials ("Content") embodied in the Service for the term set forth in the Registration Form. Daubert Tracker will provide the number of user i.d.s ("User I.D.s") and passwords ("Passwords") requested in the Registration Form so that Customer may provide access to the same number of Authorized Users.
2. CUSTOMER OBLIGATIONS
a. Use of Password. Customer will receive only the number of Passwords for which it pays. Customer may assign only one Password to each Authorized User. Customer will provide Passwords only to Authorized Users, and only Authorized Users will access and use the Service. Authorized Users will not share Passwords with or provide access to others. Customer will keep the Passwords confidential, and is responsible for any use of the Passwords and all resulting charges and liabilities.
b. Use of Service Only for Benefit of Customer. Customer's rights in the Service are non-exclusive and non-transferable. Customer will use the Service for its own internal business purposes only (which may include advising its clients or customers). Customer will not use the Service to operate a service bureau or otherwise sell, lend, rent, transmit, or redistribute the Service to third parties or customers, or to create a product for resale.
c. Access Rights. Customer's subscription to the Service entitles it to access and use the Applications, Content, and Service only through Daubert Tracker's web site and the user interface embodied therein. Nothing in these Terms permits or entitles Customer, and Customer will not attempt, to download, possess, own, or install the Applications or Content or any copies thereof (except as expressly permitted by Section 3 of these Terms), or to access, view, copy, or reverse engineer the code embodied in the Applications. Customer will not enter any information or perform any act in connection with its use of the Service that violates any applicable law or regulation.
d. Account Management. Daubert Tracker may require Customer to change its Passwords from time to time, and may otherwise change its account management procedures from time to time by providing notice to the Customer and posting notice on this web site. Customer will immediately notify Daubert Tracker if it knows or has reason to believe that the confidentiality of a Password has been breached, if unauthorized third parties are using its Passwords to access the Service, or if an Authorized User leaves employment or engagement with Customer or otherwise should have access rights terminated. Daubert Tracker will use commercially efforts to terminate such cancelled Passwords promptly, but Customer will, in any event, be responsible for any use of the Passwords and all resulting charges and liabilities until such termination occurs.
e. Modifications and Enhancements to the Service. Daubert Tracker may modify the Service or alter or replace the Applications and Content at any time to improve efficiency or enhance performance.
a. Downloading. Authorized Users may download portions of the Content for fixed storage in memory or to make a printout, provided that the amount constitutes less than a substantial part of the whole of the Content (ÒLimited AmountÓ). Such stored and/or printed Content (i) will be used primarily by the Authorized User; (ii) will not cumulatively amount to more than a Limited Amount; and (iii) will not be stored in an archival or other searchable database. Customer will not engage in or permit the automated, regular, and/or systematic collection or accumulation of Content, or access, copy, store, transmit, or use the Content to create a product for resale or assist a third party to create a product for resale.
b. Redistribution of Content. Customer may quote, on an occasional and irregular basis, Limited Amounts of the Content in internal and external documents, provided that: (1) such uses do not cumulatively amount to more than a Limited Amount; (2) such uses (whether external or internal to Customer) do not have the purpose or effect of eliminating the recipient's need to subscribe to the Service; (3) the Content is attributed to Daubert Tracker; and (4) if the Content is distributed externally, Customer will provide Daubert Tracker with a copy and the attribution to Daubert Tracker will, whenever practicable, be accompanied by a notice that substantially states Ò© Daubert Tracker Inc. [Date], www.Daubert Tracker.comÓ.
a. Terms. Customer will pay to Daubert Tracker the fees set forth in the Payment Section <LINK> of the Registration Form. Unless otherwise agreed by Daubert Tracker, payment will be by credit card. If payment is other than by credit card, payment will be made within thirty (30) days of the date of invoice. All amounts specified in the Registration Form and Daubert Tracker's invoice are exclusive of any applicable value added, sales, use, excise, withholding, property or other such taxes, penalties or interest, which Customer will pay in addition to the amount due and payable. Any amount not paid when due will accrue interest at the lesser rate of the U.S. Prime Rate of interest plus 3% per month, and the maximum interest allowable under applicable law. Customer will pay any late payment charge upon remitting the principal amount to Daubert Tracker. Prices are subject to change from time to time without prior notice, effective upon expiration of the current Term.
5. WARRANTY AND RELEASE
a. Limited Warranty. Daubert Tracker warrants that it will perform its services under these Terms in a professional and workmanlike manner.
b. Remedies. In case of breach of warranty or any other duty related to the quality of the Service, Daubert Tracker's sole liability and Customer's exclusive remedy under this limited warranty will be to make commercially reasonable efforts to correct any non-functioning portion of the Service due to errors on the part of Daubert Tracker and to thereafter re-perform the affected portion of the Service. In case of breach of warranty or any other duty related to the quality, accuracy, or availability of the Content, Daubert Tracker will, at its option, correct the Content or replace the deficient Content with Content that fulfills substantially the same function. If Daubert Tracker is unable to correct the defective portion of the Service or correct or replace the defective Content within a reasonable period of time or on commercially reasonable terms, then Daubert Tracker may, at its option, terminate the Terms and provide a pro rata refund of its fees. Customer acknowledges that this Section sets forth Daubert Tracker's sole liability and Customer's exclusive remedy for breach of warranty or any other duty related to the quality of the Service or the quality, accuracy, or availability of the Content.
c. Limitation. Customer acknowledges that (i) the Service and Applications may not satisfy all of Customer's requirements; (ii) access to and use of the Service may not be uninterrupted or error-free; and (iii) the Content and Applications may not be error-free. Customer further acknowledges that (i) the prices and other charges contemplated under these Terms are based on the limited remedies, warranty, disclaimer and limitation of liability specified in Sections 5, 6, 7, and 8 and (ii) such charges would be substantially higher if any of these provisions were unenforceable. The warranties and remedies specified in this Section will not apply if the deficiencies in the Content or Service are due to extrinsic causes, such as (i) factors outside of Daubert Tracker's reasonable control; (ii) any actions or inaction of Customer or any third parties; or (iii) Customer's equipment or software and/or third party equipment (not within the sole control of Daubert Tracker). At times, actions or inaction of third parties can impair or disrupt Customer's connections to the Service or the availability of portions of the Applications or Content. Although Daubert Tracker will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, Daubert Tracker cannot guarantee that such events will not occur. Accordingly, Daubert Tracker disclaims any and all liability resulting from or related to such events. The Service may be unavailable from time to time so that Daubert Tracker may perform routine maintenance. Daubert Tracker will use commercially reasonable efforts to ensure that such maintenance causes a minimum of disruption and inconvenience to customers.
d. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 5, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE APPLICATIONS, CONTENT OR SERVICE AND THE OPERATION, CAPACITY, SPEED, FUNCTIONALITY, TIMELINESS, ACCURACY, QUALIFICATIONS, CAPABILITIES OF, OR RESULTS OBTAINED FROM THE APPLICATIONS, CONTENT, SERVICE, SYSTEM, GOODS, SERVICES, OR PERSONNEL RESOURCES PROVIDED HEREUNDER, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY Daubert Tracker, OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT) ARE, TO THE MAXIMUM EXTENT ALLOWED BY LAW, HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED.
6. TRANSACTION RISK
a. Independent Judgment. The use of the Service, and the Content and Applications embodied in the Service, should not be considered a substitute for independent investigation or sound technical and business judgment. The information provided on the Service should not be construed to constitute legal advice or provide a substitute for reviewing cases or the qualifications of experts independently. In particular, Customer should not consider information obtained from the Service to be a substitute for consultation with legal or other professional advisors. Although Daubert Tracker uses commercially reasonable efforts to review cases and accurately summarize and report the information set forth in those cases, you acknowledge that: (i) Daubert Tracker does independently verify the information contained in the case reports it reviews and the reports or Daubert Tracker's summaries thereof may contain errors; (ii) Daubert Tracker cannot be and is not responsible for and does not warrant the quality, accuracy, qualifications, skills, or effectiveness of any expert you retain or for the acts or omissions of such experts; (iii) You are best qualified to determine the qualifications of experts and whether it is appropriate to engage such persons in your case or matter; and (iv) You are exercising your independent judgment in engaging such persons and in managing their work and are not relying on any statements made by Daubert Tracker in reaching such determinations.
b. Outside Information. The Service relies on third party reports of case and certain other third party data and reporting ("Third Party Inputs"). Daubert Tracker does not independently verify, and is not responsible for, the accuracy or effectiveness of the Third Party Inputs or any information Customer inputs into the Service. Although Daubert Tracker exercises commercially reasonable efforts to gather complete and accurate information, Daubert Tracker cannot guarantee that it has obtained all available information or exhausted every potential source of a judicial decision with respect to an expert. Customer acknowledges that any case with respect to which it consults the Service will also be affected by the specific facts involved, the application and impact of laws and regulations, and the risks and uncertainty inherent in any case, and that Daubert Tracker has no control over or responsibility for such factors and risks.
c. Release. In the event of any dispute regarding any case with respect to which Customer consults the Service (including between Customer and any third party), Customer releases Daubert Tracker, its agents and employees from any claims and damages of every nature (including, without limitation, actual, special, incidental and consequential), known and unknown, disclosed and undisclosed, arising out of or in any way connected with such dispute. If Customer is a California resident, then Customer waives California Civil Code S.1542 which says: ÒA general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtorÓ.
Customer will indemnify Daubert Tracker against any damage, loss, liability or expense (including reasonable attorneys' fees) that Daubert Tracker may incur (i) with respect to any negligent act or omission by, or willful misconduct of, Customer's employees, agents, or contractors (including, but not limited to, Authorized Users); (ii) as a result of any breach by Customer or its employees, agents, or contractors of these Terms; or (iii) as a result of any action by Customer that violates any law or regulation. This Section will not be construed to limit or exclude any other claims or remedies which Daubert Tracker may assert under these Terms or by law.
a. Equitable Relief. Each party acknowledges that its or any of its officers', employees', consultants' or other agents' breach of Sections 2, 3, 9, or 10 would irreparably injure the other party. Accordingly, each party agrees that, in the event of such breach, the other party will be entitled, without the necessity of proving damages or posting a bond or security, and notwithstanding its election to claim damages, to obtain a temporary and/or permanent injunction to restrain any such breach or threatened breach or to obtain specific performance of any such provisions, all without prejudice to any and all other remedies which the other party may have at law or in equity.
b. No Consequential Damages. UNDER NO CIRCUMSTANCES WILL Daubert Tracker BE LIABLE FOR CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS OF CUSTOMER, ITS APPOINTEES OR ITS OR THEIR CUSTOMERS (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF GOODWILL, CLAIMS FOR LOSS OF DATA, USE OF OR RELIANCE ON THE CONTENT, APPLICATIONS, OR THE SERVICE, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. IN NO EVENT WILL THE AGGREGATE LIABILITY THAT Daubert Tracker MAY INCUR IN ANY ACTION OR PROCEEDING EXCEED THE GREATER OF THE TOTAL AMOUNT ACTUALLY PAID TO Daubert Tracker BY CUSTOMER DURING THE PRECEDING THREE (3) MONTHS OR US$1,000. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS SECTION 8 WILL NOT APPLY ONLY IF AND TO THE EXTENT THAT THE LAW OR A COURT OF COMPETENT JURISDICTION REQUIRES LIABILITY UNDER APPLICABLE LAW BEYOND AND DESPITE THESE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS.
a. Ownership. All intellectual property rights (including patents, copyrights, trade secrets, trademarks, moral rights, and similar rights of any type under the laws of any governmental authority, or unfair competition law domestic or foreign) in or related to the Content, Applications, and Service ("Daubert Tracker Intellectual Property") are and will remain the exclusive property of Daubert Tracker or its suppliers, whether or not specifically recognized or perfected under applicable law. Customer will not take any action that jeopardizes Daubert Tracker's proprietary rights, or acquire any right in the Daubert Tracker Intellectual Property, except the limited rights specified in these Terms. Daubert Tracker will own all rights in any copy, translation, modification, adaptation or derivation of the Daubert Tracker Intellectual Property. At Daubert Tracker's request, Customer will obtain the execution of any instrument (including from its employees, agents, contractors, consultants or representatives) that may be appropriate to assign these rights to Daubert Tracker or perfect these rights in Daubert Tracker's name.
b. Infringement. Customer will immediately notify Daubert Tracker if Customer learns of any potential infringement of Daubert Tracker's proprietary rights in the Daubert Tracker Intellectual Property or disclosure of Confidential Information (defined below) by an employee, agent, contractor, or third party relating to use of or access to the Service provided under these Terms. Daubert Tracker will determine the steps to be taken under these circumstances and Customer will use its best efforts to provide Daubert Tracker with the assistance that Daubert Tracker may reasonably request.
a. Definition of Confidential Information. "Confidential Information" means nonpublic information that the disclosing party ("Disclosing Party") designates as being confidential or which, under the circumstances surrounding receipt, the party receiving the information ("Receiving Party") should know is treated as confidential by the Disclosing Party. Confidential Information includes, without limitation, proprietary information, trade secrets, and intellectual property embodied in the Applications; non-public information relating to released or unreleased Disclosing Party products, Disclosing Party's business policies or practices, technical information, Passwords and other information concerning how to access the Service; the terms of these Terms; and other documentation and information received from others that Disclosing Party is obligated to treat as confidential. Confidential Information disclosed to Customer by any Daubert Tracker affiliate, its related entities and/or agents is covered by these Terms.
b. Treatment of Confidential Information. Receiving Party will protect Disclosing Party's Confidential Information in the same manner as Receiving Party protects its own Confidential Information of substantially similar proprietary value, but in no case with less than reasonable care. Receiving Party will use the Confidential Information only for the purposes of these Terms and will not divulge, transfer, sell, license, lease, or otherwise disclose or release any such information or documents to third parties, with the exception of its employees or contractors who require access to such for purposes of carrying out its obligation hereunder.
c. Required Disclosure. If Receiving Party is required by a court or other government agency to disclose Confidential Information or to provide Content other than as permitted under these Terms, Receiving Party will only do so pursuant to a court order or official subpoena and only after providing Disclosing Party with prior notice reasonably sufficient to provide Disclosing Party an opportunity to contest the required disclosure.
d. No Other Confidential Information. Receiving Party will not have any obligation for information that Receiving Party can substantiate has been or is: (i) developed by Receiving Party independently and without the benefit of information disclosed hereunder by Disclosing Party; (ii) lawfully obtained by the Receiving Party from a third party without restriction and without breach of these Terms; (iii) publicly available without breach of an obligation to keep it confidential; (iv) disclosed without restriction by the Disclosing Party to a third party; or (v) known to the Receiving Party prior to receipt from Disclosing Party.
a. Term. These Terms will become effective upon the Effective Date, and will remain in effect for the term specified in the Registration Form, unless earlier terminated for cause pursuant to this Section 11. These Terms will automatically renew for additional Terms, unless either party provides five (5) days written notice of non-renewal before the end of the then-current Term.
b. Termination for Cause. Either party will have just cause to terminate these Terms, without judicial or administrative notice or resolution, immediately upon written notice to the other party, if the other party materially breaches any obligation under these Terms and fails to cure the breach within 30 days of receipt of written notice.
c. Suspension of Access. If Customer fails to make any payment or otherwise materially breaches the Terms, Daubert Tracker may at its sole discretion and option suspend Customer's access to the Service without notice until Customer remedies the breach. Any action taken pursuant to this paragraph will not limit or exclude any other claims or remedies that Daubert Tracker may assert under these Terms or by law or constitute a breach of any provision of these Terms.
d. Termination Consequences. Upon the termination of these Terms for any reason, all rights granted to Customer hereunder will immediately cease, and Customer will purge from its equipment and files and destroy all copies of the Content or any other item containing Daubert Tracker Intellectual Property, in whole or in part. Upon the termination of these Terms by Customer for Cause as set forth in this Section, Daubert Tracker will provide a pro rata refund of the Annual Fee for the remainder of the current term after the effective date of termination.
e. Survival. The provisions of Sections 4, 5, 6, 7, 8, 9, 10, and 12 will survive the expiration or termination of these Terms.
a. Independent Parties. Neither these Terms, nor any terms and conditions contained herein, will be construed as creating a partnership, joint venture, agency relationship or granting a franchise between the parties.
b. Notices. All notices and requests in connection with these Terms will be deemed given as of the day they are received either by receipted, nationwide overnight delivery service, or in the U.S. mails, postage prepaid, certified or registered, return receipt requested, to the addresses and attention of the representatives specified in the Registration Form, or as designated from time to time.
c. Assignment. Customer may not assign these Terms or any of its rights or obligations without Daubert Tracker's prior written approval. Any attempt to do so without Daubert Tracker's approval will be void. Daubert Tracker may assign these Terms or any of its rights or obligations, upon notice to Customer, to (i) an affiliated company or (ii) any other company or entity pursuant to a merger, acquisition, sale, corporate reorganization or other similar transaction.
d. Interpretation. These Terms will be governed by and interpreted in accordance with the laws of Illinois, excluding its conflict of law principles. The parties consent to the jurisdiction of the state and federal courts sitting in Illinois, waiving any objection to forum non conveniens. Except as otherwise provided above, any waiver, amendment or other modification of these Terms will not be effective unless in writing and signed by the party against whom enforcement is sought. If any provision of these Terms is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of these Terms. These Terms and the Registration Form constitute the complete and entire statement of all terms, conditions and representations of the agreement between Daubert Tracker and Customer with respect to its subject matter and supersedes all prior writings or understanding.
If you have a question about these terms and conditions, please e-mail us at
[email protected] or call us at 866-528-3300 ext. 100, and we will try to respond promptly.