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End User License Agreement

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License Subscription Agreement

PLEASE READ THIS LICENSE SUBSCRIPTION AGREEMENT (THIS “AGREEMENT”) IN ITS ENTIRETY. BY CLICKING THE “I AGREE” BUTTON, YOU ACKNOWLEDGE THAT (1) YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (2) YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT AND ITS TERMS AND CONDITIONS; AND (3) YOU ARE THEREBY ENTERING INTO THIS AGREEENT AND AGREEING TO ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE FOREGOING AND ACCEPT THE TERMS AND CONDITIONS CONTAINED HEREIN, CLICK THE “CANCEL” BUTTON BELOW.

This Agreement is entered into between You and PCLAW TIME MATTERS LLC (“PCLTM”), unless You are a Canadian entity. If You are a Canadian entity, this Agreement is between You and PCLAW TIME MATTERS CANADA INC., (“PCLTM Canada”). “Company” means PCLTM or PCLTM Canada, as applicable, and You and Company are together referred to hereunder as the “Parties” and, each individually, a “Party”. This Agreement is effective as of the first date a Software Order is submitted to Company by You and confirmed by Company in writing (the “Effective Date”). The terms and conditions of any Software Order are incorporated herein by reference. Certain capitalized terms used herein are defined in Section 19.

1. SUBSCRIPTION

1.1 Subject to your timely payment of the Subscription Fee in accordance with your Software Order(s) and the other terms and conditions hereof, Company (i) grants to You or each of your employees, Affiliates, agents, representatives, or contractors designated by You in a Software Order (each, an “Authorized User” and, collectively, your “Authorized Users”), as applicable, a limited, personal, non-exclusive, nontransferable and non-assignable (except as this Agreement otherwise provides) right to access and use the Product and the Documentation in accordance with the terms and conditions hereof (a “License”) and (ii) in connection with each such License, agrees to make available to You the Services; in each case, for the duration of the Term only ((i) and (ii), together, your “Subscription”).

1.2 Each Software Order shall specify the number of your Authorized Users. The number of Authorized Users under your Subscription may be increased by You at any time during the Term by providing written notice to Company specifying the number of desired additional Authorized Users. Upon receipt of such written notice, the Company shall provide each new Authorized User with a License, and your Subscription Fee shall be increased in accordance with the terms and conditions of the applicable Software Order(s). You hereby acknowledge and agree that in the event that You increase your number of Authorized Users in accordance with the foregoing, You will pay for such number of additional Authorized Users in accordance with the terms and conditions of the applicable Software Order(s). You agree that You shall be responsible for any use of and/or access to the Product and/or the Services by your Authorized Users.

2. RIGHT TO USE PRODUCT

2.1 Subject to the restrictions set forth herein, You may (a) install the number of authorized copies of Product in executable form for your internal operations; (b) use the Documentation for your internal operations; (c) make a single backup copy of the Product, provided that such backup copy is not used for production purposes; and (d) permit access to and use of the Product locally or remotely in accordance with this Agreement. Notwithstanding any other provision of this Agreement, a License must be purchased by You for each intended Authorized User.

2.2 The Product may be (a) installed on a remote server for use solely in accordance with this Agreement, provided that Company shall not be responsible for any problems accessing or using the Product, and/or its associated add-ons or plug-ins, related to a computing or hosting environment operated or managed by any other person or entity; (b) installed on multiple CPUs or on a central server, but may only be accessed and used by a specified number of Authorized Users simultaneously; (c) installed and made available to all Authorized Users within your organization; provided that, in some instances the total number of Authorized Users may be limited; (d) installed on desktop computers for use by any Authorized User allowed access to that computer; (e) installed on a single server for use enterprise-wide by your Authorized Users, if applicable; and (f) installed on multiple CPUs so long as it is accessed and used by only the Authorized User for which it was intended. (e.g., may be installed on an Authorized User's desktop, laptop, or accessed remotely from your server).

2.3 Copyright notices and any other proprietary legends on the original copy of the Product must be reproduced on any copies of the Product. You may not transfer the rights to a backup copy unless You transfer all rights in the Product.

2.4 Use of some third-party materials included in the Product may be subject to other terms and conditions typically found in a separate agreement or “Read Me” file located in or near such materials.

3. PRODUCT USE RESTRICTIONS

3.1 By accepting the rights granted by Company, You agree that You will not, without the prior written consent of Company (a) sell, license, sublicense, distribute, lease or otherwise transfer or allow the transfer of the Product, or any backup copy, to third parties; (b) use the Product in any manner inconsistent with the rights granted herein including, but not limited to, use of the Product in a service bureau, renting, leasing, lending or using the Product to provide commercial hosting services, or using more than the number of authorized copies or users, whichever the case may be, of the Product or permit access to the Product by more than the number of Authorized Users; (c) modify or create derivative works of the Product or the Documentation or separate the Product's component parts for use on more than one (1) device; or (d) unless specifically permitted under applicable law without the possibility of contractual waiver, attempt to decompile, disassemble or reverse engineer the Product, or otherwise attempt to (i) derive source code or underlying ideas, algorithms, structure or organization from the Product or (ii) defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Product, including without limitation any such mechanism used to restrict or control the functionality of the Product.

3.2 Any permitted transfer of the Product must include the Product and the Documentation, any backup copies, any Updates or Upgrades, if applicable, and a copy of this Agreement. Written notice of the transfer must be sent by You to Company within 15 business days of the transfer, specifying the new grantee. Any permitted transfer of the Product shall constitute a transfer of your Subscription and shall therefore include a transfer of the Services.

3.3 THERE MAY BE TECHNOLOGICAL MEASURES IN THE PRODUCT THAT ARE DESIGNED TO PREVENT UNAUTHORIZED USE OF THE PRODUCT BEYOND THE EXPIRATION OF THE TERM, INCLUDING, BUT NOT LIMITED TO, A TIME-OUT ROUTINE THAT MAY RENDER THE PROGRAM “READ ONLY” OR DENY ACCESS TO THE PROGRAM UPON EXPIRATION OF THE TERM UNTIL YOUR LICENSE IS REINSTATED. You understand that You will need to maintain your License with respect to the Product in order to continue to use of the Product.

3.4 Internet-Based Services. If the Product accesses a Company internet-based service associated with the Product, You agree that You will not use the Product in any manner that could damage, disable, overburden, or impair such services or interfere with any other person’s or entity's use and enjoyment thereof.

You understand that the Product may collect, categorize and store anonymous data related to program errors and use for purposes of providing technical support, analyzing errors and product improvements. Company will not disclose anonymous data in any form that personally identifies You.

3.5 This Agreement is limited to use of the Product and availability of the Services in the United States and Canada. Maintenance and support services for Software used outside of the United States and Canada may be subject to different terms and conditions.

3.6 To the extent that You have Authorized Users, each of your Authorized Users shall, and You shall cause each Authorized User to, comply with each of the restrictive and prohibitive terms and conditions of this Agreement applicable to You as if each such Authorized User was party to this Agreement. You further agree that You shall be responsible for any breach or violation of such terms and conditions by any of your Authorized Users.

3.7 The Software Policies shall apply to this Agreement and all aspects of your Subscription, including but not limited to the Product, the Services, any Updates/Upgrades, increases to the number of Authorized Users permitted to use the Product under this Agreement, and mobile access and use of the Product.

4. SERVICES

4.1 The Services available to You during the Term shall include:

Notwithstanding anything to the contrary herein, Company reserves the right to change or modify the Services at any time and from time to time upon thirty (30) days’ written notice to You or posting of notice at the website located at pclawtimematters.com.

4.2 Delivery of Software Releases.

Whenever Company makes Software Releases generally available to its customers who have purchased Software, Company will grant You a copy of the new Software Release containing the updated/upgraded version of the Covered Software. Your use of all such Software Releases is governed by the terms and conditions of this Agreement.

Except for the immediate purpose of data conversion from the previous version to the updated/upgraded version of the Covered Software, after implementing the Update/Upgrade, You may no longer continue to use the earlier version of the Software. All Updates/Upgrades are provided to You on a per copy exchange basis. You agree that by installing and implementing an Update/Upgrade, your right to use any previous version of the Covered Software is terminated.

4.3 Access to Telephone Support.

Company will make a member of its technical support staff available by telephone to your System Administrator to assist You in the standard business use of the Covered Software (“Telephone Support. Your System Administrator will be responsible for the daily maintenance of the Software per the Documentation and will provide the first line of technical support of the Software to your Authorized Users. Telephone Support includes assistance relating to any Fixes. Telephone Support shall be available 8:00 am – 8:00 pm EST/EDT Monday through Friday, excluding holidays recognized by Company.

4.4 AMP+ Support.

If You have a Certified System Administrator, You are eligible to purchase a premium access phone number for direct access to 2nd level technical support engineers (“AMP+ Support”). Access is limited to the Certified System Administrator. The caller will be verified prior to the provision of any assistance. AMP+ Support shall be available 8:00 am – 8:00 pm EST/EDT Monday through Friday, excluding holidays recognized by Company.

4.5 Weekend Support Hours.

You are eligible to reserve weekend technical support assistance for an additional fee. Available Saturday and Sunday, excluding holidays recognized by Company. Reservations are subject to availability and must be scheduled at least five (5) business days in advance. Assistance is limited to Upgrade and installation services. No data corruption assistance is available during weekend support hours. There shall be no cancellations, refunds, or returns for reservations made.

4.6 Services Disclaimer.

In Providing the Services, Company has made reasonable efforts to offer the most current, correct, and clearly expressed information possible. Nevertheless, inadvertent errors in information may occur. In particular but without limiting anything herein, Company disclaims any responsibility for typographical errors and accuracy of the information that may be added or amended in your system. You may from time to time, during a remote access session or otherwise, request that Company personnel make edits or modifications to your data. With respect to such circumstances, Company makes no warranties or representations whatsoever regarding the quality, content, completeness, suitability, adequacy, sequence, accuracy, or timeliness of the information and data so edited or modified.

The services, information, and data made available are provided "as is" without warranties of any kind. Company makes no representations or warranties regarding the condition or functionality of the data, its suitability for use, or that this service will be error-free.

Company shall not in any event be liable for any direct, indirect, punitive, special, incidental, or consequential damages, including, without limitation, lost revenues, or lost profits, arising out of or in any way connected with the use or misuse of the information or lack of information associated with the Services or with the delay or inability to use this software, or from any information, documents, services, software, or other material obtained through Service, or otherwise arising out of the use of the Service, whether based on contract, tort, strict liability or otherwise, even if Company and/or any of its employees/affiliates has been advised of the possibility of damages. Company shall not be liable for any loss or injury caused in whole, or in part, by its actions, omissions, or contingencies beyond its control, including in procuring, compiling, or delivering the information, or arising out of any errors, omissions, or inaccuracies in the information regardless of how caused, or arising out of any user's decision, or action taken or not taken in reliance upon information furnished.

5. USE GRANT FOR REMOTE ASSISTANCE

5.1 You hereby permit any device to access and use the Product for the sole purpose of providing You with Services; provided that such access and use shall be in accordance with the other terms and conditions of this Agreement.

5.2 You agree that Company may collect and use technical information gathered as part of the Services, if any, related to the Software. Company may use this information to ensure proper authorization of all copies of the Software as well as to improve Company’s products or provide customized products, services or technologies to You. Company will not disclose this information in a form that personally identifies You to any third parties.

6. EXCLUSIONS TO SERVICES

6.1 In accordance with this Agreement and unless otherwise agreed to in writing by Company, the Services and the Subscription Fee do not cover or include the following:

  1. Support of Software which has been modified or repaired other than by Company or by a third party engaged by Company;
  2. Making specification changes or performing Services connected with the relocation of Software;
  3. Modification or replacement of Software, repair of damage, or increase in service time caused by failure to continually provide a suitable operational environment with all facilities prescribed by the applicable documentation; including, but not limited to, the failure to provide or the failure of adequate electrical power, temperature or humidity control, or computing environment;
  4. Modification or replacement of Software, repair of damage, or increase in service time caused by the use of the Software for other than the purposes for which it is authorized or not in accordance with the Software operating guidelines;
  5. Modification or replacement of Software, repair of damage, or increase in service time caused by:
    • accident
    • natural or man-made disaster which shall include but not be limited to fire, water, wind, and lightning
    • transportation
    • neglect or misuse;
  6. Modification or replacement of Software, or increase in service time caused by the use of the Software in combination with other products (e.g., Microsoft® SQL Server or SQL Server Express or other Company products);
  7. Backing up or restoring programs and/or data;
  8. Keying, importing, converting or manipulation of data;
  9. On-site or formal classroom training on the operation and use of the Software;
  10. Creation of any new non-standard, customer-defined reports;
  11. Initial installation of the Software and any subsequent releases;
  12. Use of the Software other than in accordance with system requirements; or
  13. Support of Software which is not Covered Software.

6.2 In the sole discretion of Company, Company may perform any of the foregoing services on a billable Special Service basis or as part of a separate professional services agreement. You agree that any Services rendered pursuant to your request for Services which are determined by Company to have been caused by any problem, issue, action or inaction set forth in the exclusions above will be considered a Special Service.

7. YOUR OBLIGATIONS

7.1 Your rights to use the Software or a Software Release commence upon installation. Therefore, You agree that you shall download and complete the installation of all Software and any Software Releases prior to the expiration of the Term. Upon the conclusion of the Term and thereafter, You shall have no rights to install any Software or Software Releases even if such Software or Software Releases were downloaded during the Term.

7.2 You shall provide Company with access to your facilities and equipment to permit Company to perform its obligations hereunder. No charge shall be made for such access and Company will provide prior notification when such access is required.

7.3 If applicable, You shall maintain a proper network connection near any CPU used with the Software being maintained by Company hereunder and provide access to a voice grade local telephone.

7.4 You shall be responsible for obtaining and maintaining any required third-party hardware and/or software, including any updates or upgrades thereto.

7.5 Your System Administrator must be present in the event Company provides any on-site Services. If applicable, You agree that if a representative is not present when Company’s technician arrives on site that no Services will be performed, and You will be charged at the Special Service rate then in effect for such visit.

8. SOFTWARE UPDATES, UPGRADES, FIXES AND WORKAROUNDS

You agree that all Updates and Upgrades of the Covered Software, including all Fixes and Workarounds furnished to You, shall be deemed to be part of such Covered Software and are subject to the terms and conditions of this Agreement. Except for the immediate purpose of data conversion from the previous version to an Update or an Upgrade, after implementing an Update or an Upgrade, You may no longer continue to use the earlier version of the Product. All Updates and Upgrades are provided to You on a per-Software copy exchange basis. You agree that by installing and implementing an Update or an Upgrade, You voluntarily terminate your right to use any previous version of the Product. In certain cases, your continued access to the Services requires that you install a Supported Version of the relevant Product on your systems.

9. TAXES

If any authority imposes a duty, tax, levy or fee, excluding those based on Company's net income, upon your Subscription, the Product and/or the Services, You agree to pay the amount specified. You are responsible for any personal property taxes for the Product from the date it was acquired.

10. COPYRIGHT AND PROPRIETARY

10.1 Company and its suppliers, as applicable, reserve all of their respective rights to their Intellectual Property and with respect to the Product, the Services, the Documentation and any copies thereof under all applicable national and international laws and treaties for the protection of Intellectual Property, including, but not limited to, trade secrets, copyrights, trademarks and patents. Any rights not expressly granted to You in this Agreement are retained by Company and its suppliers, as applicable.

10.2 Except as otherwise provided in this Agreement, You shall not cause or permit unauthorized copying, reproduction or disclosure of any portion of the Product, the Services or the Documentation, or the delivery or distribution of any part thereof to any third party, for any purpose, without the prior written permission of Company. This restriction shall survive any termination or cancellation of this Agreement and shall continue beyond the conclusion of the Term.

11. EXPORT

You agree that You will not ship, transfer or export the Product to any country, nor will You use the Product in any manner prohibited by the United States Export Administration Act or any other export laws national or international, restrictions or regulations that apply to the Product. You agree to indemnify and hold Company harmless for any violation of this foregoing provision.

12. U.S. GOVERNMENT RIGHTS

The Product and the Documentation are “Commercial Items” as that term is defined at 48 CFR 2.101 consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation” as such terms are used in 48 CFR 12.212 or 48 CFR 227.7202, as applicable. The rights to the Product and the Documentation are granted to U.S. Government end users (a) only as Commercial Items and (b) only with those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement.

13. LIMITED WARRANTIES

13.1 Company warrants that it has sufficient rights to grant the rights in the Product pursuant to this Agreement; Company further warrants that the Product will operate substantially in accordance with its written specifications. No warranty is made that the Product will run uninterrupted or error-free. The warranty period for the Product and any Documentation is thirty (30) days from delivery of the Product (“Warranty Period”).

13.2 Company also warrants that the Services will be performed in a professional manner and in accordance with good usage and accepted practices as established in the community in which such Services are performed. If such Services are not so performed and if You notify Company in writing within a fifteen (15) day period commencing on the date of completion of the Services, Company will, at its sole and commercially reasonable discretion, consider correcting any commercially reasonable problems and deficiencies.

13.3 Company's and its suppliers' entire liability and your exclusive remedy for any breach of the limited warranties provided by Company hereunder or for any other breach of this Agreement or for any other liability relating to your Subscription, the Product or the Services shall be, at Company's option from time to time exercised subject to applicable law, (a) repair, (b) replacement, or (c) return with proof of purchase and refund of the applicable fees of a Product that does not meet the limited warranty provided by Company in Section 13.1. You will receive the remedy elected by Company without charge, except that You are responsible for any expenses You may incur (e.g., cost of shipping the Product to Company, third party services not provided by Company). The limited warranties provided by Company hereunder are void if failure of the Product has resulted from accident, abuse, misapplication, abnormal use or a virus. Any replacement Product will be warranted for the remainder of the original Warranty Period and Company will use commercially reasonable efforts to provide a remedy within a commercially reasonable time of your compliance with the terms and conditions hereof and Company's warranty remedy procedures. Outside the United States or Canada, neither these remedies nor any product support services offered by Company are available without proof of purchase from an authorized international source, and in any such case remain subject to all other terms and conditions hereof.

13.4 THE PRECEDING LIMITED WARRANTIES IN SECTIONS 13.1 AND 13.2 ARE EXCLUSIVE, ARE THE ONLY WARRANTIES RELATED TO YOUR SUBSCRIPTION, THE PRODUCT, THE SERVICES AND THE DOCUMENTATION, AND ARE MADE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

13.5 If an implied warranty or condition is created by your state/jurisdiction and federal or state/provincial law prohibits disclaimer thereof, You also have an implied warranty or condition, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE WARRANTY PERIOD. AS TO ANY DEFECTS DISCOVERED AFTER THE WARRANTY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. Some states/jurisdictions do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to You. The limited warranties provided by Company herein give You specific legal rights. You may have other rights which vary from state/jurisdiction to state/jurisdiction.

13.6 Company is acting on behalf of its suppliers for the purpose of disclaiming, excluding, and/or limiting obligations, warranties, and liability as provided in this Agreement, but in no other respects and for no other purpose.

14. LIMITATION OF LIABILITIES

IN NO EVENT WILL COMPANY, ITS PRODUCT DEVELOPERS OR SUPPLIERS HAVE ANY OBLIGATION OR LIABILITY (WHETHER IN TORT, CONTRACT, STATUTE, WARRANTY OR OTHERWISE AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE, PRODUCT LIABILITY, OR STRICT LIABILITY), FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOSS OF OR DAMAGE TO DATA, PROFITS OR BUSINESS INTERRUPTION LOSSES, SUSTAINED OR ARISING FROM OR RELATED TO YOUR SUBSCRIPTION, THE PRODUCT, THE DOCUMENTATION OR THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY'S LIABILITY FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL AT ALL TIMES AND IN THE AGGREGATE AMOUNT BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO COMPANY UNDER THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM OR CAUSE OF ACTION AROSE. NO ACTION OR PROCEEDING AGAINST COMPANY MAY BE COMMENCED MORE THAN ONE (1) YEAR AFTER THE CLAIM ARISES. THIS SECTION 14 SHALL SURVIVE FAILURE OF AN EXCLUSIVE REMEDY.

COMPANY SHALL NOT BE RESPONSIBLE FOR THE NEGLIGENT, GROSSLY NEGLIGENT, OR WILLFUL ACTIONS OR INACTIONS OF ANY THIRD PARTY UNLESS SUCH THIRD PARTY HAS BEEN DIRECTLY ENGAGED BY COMPANY AS A SUBCONTRACTOR TO PERFORM SERVICES ON COMPANY'S BEHALF FOR YOU AND THEN ONLY TO THE EXTENT OF THE LENGTH OF THE ENGAGEMENT. FURTHERMORE AND EXCEPT FOR AUTHORIZED COMPANY SUBCONTRACTORS, THIS LIMITATION SHALL APPLY EVEN TO THOSE THIRD PARTIES THAT MAY HAVE BEEN CERTIFIED PURSUANT TO A COMPANY CERTIFICATION PROGRAM OR RECOMMENDED OR REFERRED TO YOU BY COMPANY.

Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to You.

15. INVOICES AND PAYMENT

15.1 Upon your acceptance of this Agreement in accordance with Section 20 below, the Subscription Fee shall be due and paid by You in accordance with the terms and conditions of your Software Order(s). Any other fees or charges incurred by You hereunder, unless otherwise specified herein, shall be payable in full upon order, or, if invoiced by the Company, within thirty (30) days of the date of Company's invoice.

15.2 Your continued use of and access to the Product and the availability of the Services in connection with your Subscription during the Term shall be subject to and contingent upon your timely payment of the Subscription Fee and any other fees or charges incurred by You hereunder. In the event that You fail to make any payment due to Company hereunder when due in accordance with the terms and conditions of this Agreement and/or your Software Order(s), in addition to any other rights of the Company hereunder or under applicable law, Company reserves the right to take one (1) or more of the following actions: (i) terminate this Agreement, (ii) cancel your Subscription, (iii) cancel, revoke or suspend any License or any use of or access to the Product and/or (iv) cancel, revoke or suspend the Services, in each case without further notice to You; provided that any such action(s) taken by Company shall not relieve You of your obligations under this Agreement or your Software Order(s), including the obligation to pay any fees due. Upon any such termination, revocation, cancellation or suspension, You shall have no further right to use or access the Product or to receive any Services, as applicable.

15.3 Payments provided for in this Agreement or any Software Order shall, when overdue, be subject to a late payment charge calculated at a rate of one and one-half percent (1.5%) per month until paid; provided, however, if the amount of such late payment charge exceeds the maximum amount permitted by law, then the late payment charge shall be reduced to such maximum amount allowed. You shall be liable for all costs of collection incurred by Company, including without limitation collection agency fees, reasonable attorney's fees and court costs, if You fail to comply with the payment obligations set forth herein.

15.4 The Subscription Fee for any given Renewal Period may be adjusted by the Company in its sole and absolute discretion; provided that Company shall provide You with written notice of any such adjustment at least thirty (30) days prior to the first day of such Renewal Period.

16. CONFIDENTIAL INFORMATION

16.1 As used in this Agreement, “Confidential Information” means (a) proprietary or trade secret information which is clearly labeled or designated in writing as confidential, proprietary or the like by the disclosing Party, and (b) information disclosed orally with a designation of such information as secret, confidential or proprietary prior to or during the oral disclosure and a subsequent reduction of such information to a writing labeled confidential, proprietary or the like and sent to the Party to whom the disclosure was made within fifteen (15) days after the oral disclosure. Information shall not be considered Confidential Information to the extent that such information is: (w) already known to the receiving Party free of any restriction at the time it is obtained from the other Party; (x) subsequently learned from an independent third party free of any restriction and without breach of this Agreement; (y) or becomes publicly available through no wrongful act of the receiving Party; or (z) required to be disclosed by applicable law.

16.2 Company and You each agree that it will not, during the Term and for one (1) year thereafter, subject to Section 16.1, disclose to any other person or entity any Confidential Information received from the other Party, except (a) to the extent necessary or desirable for performance under this Agreement, (b) in connection with any pending action related to this Agreement, or (c) as required by a court of competent jurisdiction. Notwithstanding the provisions of this Section 16, the Parties may disclose Confidential Information to their respective accountants, attorneys, and other similar professional advisors as long as the entity to which Confidential Information is disclosed is subject to obligations of confidentiality with the same effect as those specified in this Section 16.

17. TERM OF AGREEMENT

17.1 This Agreement, and your Subscription, shall commence on the Effective Date and shall remain in effect for one (1) year (such end date, the “Initial Term End Date” and, such one (1) year time period, the “Initial Term”). This Agreement, and your Subscription, shall automatically renew without any further action by or on behalf of either Party for additional one-year periods (each, a “Renewal Period”) following the Initial Term; provided that all terms and conditions of this Agreement shall continue to apply except as otherwise stated herein. The Initial Term and any Renewal Period(s) are collectively referred to herein as the “Term”.

17.2 In the event that You do not wish for your Subscription to automatically renew, You shall provide Company with written notice that You wish to cancel your Subscription at least five (5) days prior to the last day of the Initial Term or the then-current Renewal Period, as applicable. In the event that You timely provide Company with such written notice, your Subscription will be cancelled on the date that is the last day of the Initial Term or then-current Renewal Period, as applicable and this Agreement shall terminate on such date; provided that any such termination shall not relieve You of your obligations under this Agreement, including the obligation to pay any fees due hereunder and/or under any Software Order incurred prior to the date of such termination.

17.3 Company may, in its sole and absolute discretion, terminate this Agreement and/or any Software Order at any time, effective upon written notice to You, without any liability to You, your Authorized Users or any other person or entity.

18. MISCELLANEOUS

18.1 Governing Law. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. This Agreement shall be governed in all respects by the laws of the State of New York, United States, without regard to conflicts of law principles. If You are a Canadian entity, (i) this Agreement is governed by the laws in force in the Province of Ontario, Canada; (ii) in respect of any dispute which may arise hereunder, You consent to the jurisdiction of the federal and provincial courts sitting in Toronto, Ontario; and (iii) the PCLTM Canada privacy policy found at https://pclawtimematters.com/privacy/ shall apply. Any action, suit or proceeding arising under or in connection with your Subscription, the Product, the Services and/or this Agreement must be commenced within one (1) year after the claim or cause of action arises.

18.2 Technical Information. By licensing the Product and having the Services made available to You, You agree that Company and its Affiliates may collect, use and compile and monitor statistical information based on non-personally identifiable information gathered or transmitted to Company or its Affiliates via the Product and/or the Services for the purpose of verifying proper authorization of all copies of the Product in use by You, as well as for the purpose of improving the Product and the Services and for new product, service and technology development.

18.3 Modifications. Company reserves the right to change or modify the terms and conditions of this Agreement immediately upon written notice to You. If any changes are made to this Agreement, such changes will: (a) only be applied prospectively; and (b) not be specifically directed against You or your Authorized Users and will apply to all similarly situated customers using the Product and/or the Services, as applicable. Continued use of the Product and/or the Services, as applicable, after the effective date of any change to this Agreement constitutes your acceptance of such change but does not affect any termination rights contained herein.

18.4 Severability. If any provision of this Agreement is held unlawful, invalid or unenforceable for any reason, the Parties agree (i) that such provision shall be deemed severable from the remaining provisions of this Agreement and shall not affect the validity and enforceability of such remaining provisions of this Agreement and (ii) to substitute for such provision a lawful, valid and enforceable provision which most closely approximates the intent and economic effect of such provision.

18.5 Waiver. None of the provisions of this Agreement shall be considered waived by either Party unless such waiver is in writing, and then only by persons executing this Agreement or other duly authorized agents or representatives. The waiver by either Party of a breach or a violation of any provision of this Agreement shall not operate as or be construed to be a waiver of any subsequent breach or violation.

18.6 Assignment. Neither Party may assign (voluntarily, by operation of law, or otherwise) this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld; provided, however, Company may assign this Agreement to any Affiliate or successor on notice to You. As a condition to any permitted assignment by You, your assignee must agree to assume and be bound by all terms and conditions of this Agreement.

18.7 Compliance with Rights Granted. You agree that, upon request from Company or Company's authorized representative, You will within thirty (30) days fully document and certify any and all use of and access to the Product and use and receipt of the Services at the time of the request is in conformity with the terms and conditions of this Agreement.

18.8 Entire Agreement. This Agreement (which includes any associated Software Order) is the entire agreement between You and Company relating to the matters contemplated hereby and supersedes all prior or contemporaneous oral or written communications and representations with respect to the subject matter covered by this Agreement.

18.9 Headings and Section Numbers. The headings, subheadings and section titles in this Agreement are inserted for convenience of reference only and are not to be considered in construction of the provisions hereof. Any reference to a “Section” hereunder refers to such section of this Agreement.

18.10 Parties Bound. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective legal representatives, heirs, successors, and permitted assignees.

18.11 Force Majeure. Except with respect to your obligation to make timely payments hereunder, neither Party shall be held responsible for any delay or failure in performance to the extent that such delay or failure is caused by fires, strikes, embargoes, explosions, earthquakes, floods, wars, water, the elements, labor disputes, government requirements, civil or military authorities, acts of God or by the public enemy, inability to secure raw materials or transportation, facilities, acts or omissions of carriers or suppliers, or other causes beyond its control whether or not similar to the foregoing.

18.12 Notices. All notices under this Agreement (except for requests for Services, as described herein) shall be in writing and shall be given by mail, postage prepaid or by overnight delivery addressed to the respective Party; if to You, at your address set forth in the applicable Software Order, and if to Company, at:

If You are a Canadian entity, only:

PCLTM - Practice Management
55 Commerce Valley Drive W, Suite 610
Thornhill
ON L3T 7V9 CANADA

If You are not a Canadian entity:

PCLTM –Software Solutions
Attn: Product Manager
2235 Gateway Access Point, Suite 300
Raleigh, NC 27607
United States of America

Such notice shall be deemed to have been given three (3) days after properly addressed and deposited in the mail, or the next business day after deposit with an overnight courier. Either Party may change its notice address upon notice to the other Party in compliance with this provision.

18.13 Independent Contractor. All work performed under the Agreement by a Party shall be performed as an independent contractor and not as an agent of the other Party. No persons furnished by either Party shall be considered the other Party's employees or agents, and each Party shall be responsible for its own employees' compliance with all laws, rules, and regulations involving employment of labor, working conditions, payment of wages, and payment of taxes, such as unemployment, social security, and other payroll taxes, including applicable contributions from such persons when required by law.

19. DEFINITIONS

“Affiliate” means, with respect to a Party, a corporation, partnership, or other legal entity that controls, is controlled by, or is under common control with such Party, either directly or through another Affiliate, but only while that control relationship exists; “control” of an entity means the power to direct the management and policies of that entity through a controlling vote on the board of directors or similar governing body of that entity or the ownership of interests entitled to more than 50% of the votes of that entity.

“Certified System Administrator” means an employee or agent of You certified under the PCLTM University Software 301 Pro Certification Course, with the knowledge and experience to identify and isolate Problems and to provide sufficient information and assistance to Company to be able to reproduce such Problems. You may be required to re-certify the Certified System Administrator if Company makes significant updates to the software programming. If your Certified System Administrator is no longer employed by You, a new Certified System Administrator would be required to maintain eligibility for AMP+ Support.

“Covered Software” means the Software titles and numbers of Licenses/Authorized Users set forth on or pursuant to a Software Order.

“CPU” means a single computer, a central processing unit or logical partition (if a computer or server has more than one (1) processor or logical partition).

“Documentation” means a written guide in any form or media describing the use and operation of Software, together with any related supporting documentation.

“Fix(es)” means a Workaround or Hot Fix and/or additional or replacement lines of Software code provided by Company to remedy a Problem in the Software that caused it to not operate substantially in accordance with its written specifications.

“Intellectual Property” mean all current and future patents, patent applications (including, without limitation, all reissues, divisions, renewals, extensions, continuations and continuations-in-part), copyrights (including but not limited to rights in audiovisual works and moral rights), trade secrets, trademarks, service marks, trade names and the rights thereto, along with all other intellectual property rights and proprietary rights, whether arising under the laws of the United States or any other country, state or jurisdiction.

“Major Release” means a major release for the Software which may contain new features, enhancements and Problem corrections. A Major Release will generally include significant new functionality, database schema, underlying technology or user interface changes. Major Releases are designated by a change in the version number to the left of the decimal point. (e.g., “3.0”, to “4.0”).

“Minor Release” means a minor release for the Software which generally will contain fewer changes than a Major Release but will generally include any Fixes and may contain some new features, enhancements and Problem corrections. Minor Releases are designated by a change in the version number to the right of the decimal point (e.g., “3.1”, to “3.2”).

“Problem” means Software that does not operate substantially in accordance with its written specifications, or Documentation that is not correct.

“Product” means the Software identified in one (1) or more associated Software Orders.

“Service Pack” means a special release required to support specific regulatory changes (ex., mandated 1099 format changes) or to provide specific corrections to address Problems of a serious nature or significant impact. A Service Pack will typically not introduce new features or enhancements but may include a number of corrections.

“Services” mean availability of Software Major Releases, Minor Releases, Fixes, access to web-based training and product information, and technical support to be provided to You (and as further described in Section 4.1), in each case pursuant and subject to the terms and conditions of this Agreement (including but not limited to Section 6.1), or any remediation by Company pursuant to the limited warranties provided by Company under Sections 13.2 and 13.3.

"Software" means one (1) or more of Company’s proprietary computer software programs, which may include Time Matters® and/or Billing Matters® and/or PCLaw®, in machine-readable form for use on designated CPU(s). “Software” includes the original software program, the following materials and components, and all whole or partial copies of each of the foregoing: 1) machine-readable instructions and data, 2) components and releases, 3) audio-visual content (such as images, text, recordings, or pictures), 4) related software materials, and 5) software use documents or keys, and Documentation. “Software” does not include any version of Source Code and any operating system software installed on a CPU.

“Software Order” means a document setting forth the Product, the number of Licenses for Authorized Users purchased by You in connection with your Subscription (and includes any written notice pursuant to Section 1.2), and the Subscription Fee. The Software Order may be in the form of an invoice, acknowledgement or proposal and may be in paper form or may be comprised of the online form You completed or the information You provided orally and any confirmation of the information You provided. Each Software Order shall be considered part of this Agreement and subject to the terms and conditions hereof.

“Software Policies” mean those additional terms and conditions as outlined in the Software Policies and FAQ for Time Matters®, and PCLaw® found at www.PCLTM.com/terms.

“Software Releases” means Major Releases, Minor Releases, Service Packs and Workarounds.

“Source Code” means a high-level program that is not machine-readable.

“Special Service” means a service not within the scope of this Agreement, but that may be performed by Company for additional charge.

“Subscription Fee” means the fee for your Subscription, as specified in a Software Order.

“Supported Version” means the current major version of the Software and the two (2) immediately prior Major Releases.

“System Administrator” means an employee or agent of You with sufficient training and experience to identify and isolate Problems and to provide sufficient information and assistance to Company to be able to reproduce such Problems. The System Administrator or his/her delegate shall be the single point of contact with Company when reporting Problems. Company may require You to appoint a new System Administrator if Company reasonably determines that the System Administrator does not possess the training or experience necessary to perform the required functions of the System Administrator or cannot communicate effectively with Company’s support personnel.

“Updates” means subsequent service releases of Software which are generally made available for supported Software, other than media and handling charges, to correct design faults, discrepancies or defects in the Product. Updates are generally designated by a change in the number appearing to the right of the initial decimal point in the Product's version number (i.e., 1.1 vs. 1.0).

“Upgrades” means subsequent releases of the Product that contain one (1) or more improvements in the Product that generally include enhancements and new functionality. Upgrades are generally designated by a change in the number appearing to the left of the initial decimal point in the Product's version number (i.e., 2.0 vs. 1.0).

“Workaround” or “Hot Fix” means a manual process or a program executable or separate utility program that addresses a specific Problem in the Software. Workarounds and Hot Fixes are intended to provide an interim solution until it can be incorporated into the Software via a release of a Major Release, Minor Release or Service Pack.

“You” or “your” means the undersigned person or entity, as applicable, accepting the terms and conditions of this Agreement (and in the case of an entity, includes your divisions and departments within such entity), but in each case does not include clients, co-counsel, independent third parties or non-Affiliates.

20. ACCEPTANCE

UPON RECEIPT OF ORDER CONFIRMATION FROM COMPANY VIA EMAIL OR INVOICE, OR, BY CLICKING THE “I AGREE” BUTTON, YOU HEREBY ACKNOWLEDGE THAT (1) YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (2) YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT AND ITS TERMS AND CONDITIONS; AND (3) YOU ARE THEREBY ENTERING INTO THIS AGREEENT AND AGREEING TO ITS TERMS AND CONDITIONS.

FOR ONLINE TRANSACTIONS ONLY: IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS CONTAINED HEREIN, DO NOT CLICK THE “I AGREE” BUTTON AND THIS AGREEMENT WILL NOT TAKE EFFECT.

FOR OFFLINE TRANSACTIONS ONLY: AFTER PLACEMENT OF AN OFFLINE SOFTWARE ORDER, YOU MAY CANCEL SUCH SOFTWARE ORDER AND THIS AGREEMENT BY SENDING A WRITTEN NOTICE OF CANCELLATION TO COMPANY WHICH MUST BE RECEIVED BY COMPANY WITHIN TEN (10) CALENDAR DAYS OF THE DATE OF THE SOFTWARE ORDER FOR SUCH CANCELLATION TO TAKE EFFECT. NOTICE OF CANCELLATION SHALL BE SENT TO COMPANY VIA EMAIL SENT TO SALES@PCLAWTIMEMATTERS.COM.