Terms of Use
1. Your relationship with Ken Traub Consulting
1.1 Your use of Ken Traub Consulting’s products, software, services and web sites (referred to collectively as the “Services” in this document and excluding any services provided to you by Ken Traub Consulting under a separate written agreement) is subject to the terms of a legal agreement between you and Ken Traub Consulting. “Ken Traub Consulting” means Ken Traub Consulting LLC, a Massachusetts limited liability company whose principal place of business is at 12 John Poulter Road, Lexington, MA, United States. This document explains how the agreement is made up, and sets out the terms of that agreement.
1.2 The terms and conditions set forth in this document form a legally binding agreement between you and Ken Traub Consulting in relation to your use of the Services. It is important that you take the time to read them carefully. This legal agreement is referred to below as the “Terms”.
2. Accepting the Terms
2.1 In order to use the Services, you must first agree to the Terms. You may not use the Services if you do not accept the Terms.
2.2 You accept the Terms by actually using the Services. In this case, you understand and agree that Ken Traub Consulting will treat your use of the Services as acceptance of the Terms from that point onwards.
2.3 You may not use the Services and may not accept the Terms if (a) you are not of legal age to form a binding contract with Ken Traub Consulting, or (b) you are a person barred from receiving the Services under the laws of the United States or other countries including the country in which you are resident or from which you use the Services.
2.4 Before you continue, you should print off or save a local copy of the Terms for your records.
3. Provision of the Services by Ken Traub Consulting
3.1 Ken Traub Consulting is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Services which Ken Traub Consulting provides may change from time to time without prior notice to you.
3.2 As part of this continuing innovation, you acknowledge and agree that Ken Traub Consulting may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally at Ken Traub Consulting’s sole discretion, without prior notice to you. You may stop using the Services at any time. You do not need to specifically inform Ken Traub Consulting when you stop using the Services.
3.3 You acknowledge and agree that while Ken Traub Consulting may not currently have set a fixed upper limit on the number of transmissions you may send or receive through the Services or on the amount of storage space used for the provision of any Service, such fixed upper limits may be set by Ken Traub Consulting at any time, at Ken Traub Consulting’s discretion.
4. Use of the Services by you
4.1 In order to access certain Services, you may be required to provide information about yourself (such as identification or contact details) as part of the registration process for the Service, or as part of your continued use of the Services. You agree that any registration information you give to Ken Traub Consulting will always be accurate, correct and up to date.
4.2 You agree to use the Services only for purposes that are permitted by (a) the Terms and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).
4.3 You agree not to access (or attempt to access) any of the Services by any means other than through the interface that is provided by Ken Traub Consulting, unless you have been specifically allowed to do so in a separate agreement with Ken Traub Consulting. You specifically agree not to access (or attempt to access) any of the Services through any automated means (including use of scripts or web crawlers) and shall ensure that you comply with the instructions set out in any robots.txt file present on the Services.
4.4 You agree that you will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services).
4.5 Unless you have been specifically permitted to do so in a separate agreement with Ken Traub Consulting, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose.
4.6 You agree that you are solely responsible for (and that Ken Traub Consulting has no responsibility to you or to any third party for) any breach of your obligations under the Terms and for the consequences (including any loss or damage which Ken Traub Consulting may suffer) of any such breach.
5. Privacy and your personal information
5.1 For information about Ken Traub Consulting’s data protection practices, please read Ken Traub Consulting’s privacy policy at http://www.kentraub.com/privacy.html. This policy explains how Ken Traub Consulting treats your personal information, and protects your privacy, when you use the Services.
5.2 You agree to the use of your data in accordance with Ken Traub Consulting’s privacy policies.
6. Content in the Services
6.1 You agree that you are solely responsible for (and that Ken Traub Consulting has no responsibility to you or to any third party for) any content that you create, transmit or display while using the Services and for the consequences of your actions (including any loss or damage which Ken Traub Consulting may suffer) by doing so.
7. Proprietary rights
7.1 You acknowledge and agree that Ken Traub Consulting (or Ken Traub Consulting’s licensors) own all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You further acknowledge that the Services may contain information which is designated confidential by Ken Traub Consulting and that you shall not disclose such information without Ken Traub Consulting’s prior written consent.
7.2 Unless you have agreed otherwise in writing with Ken Traub Consulting, nothing in the Terms gives you a right to use any of Ken Traub Consulting’s trade names, trade marks, service marks, logos, domain names, and other distinctive brand features.
7.3 If you have been given an explicit right to use any of these brand features in a separate written agreement with Ken Traub Consulting, then you agree that your use of such features shall be in compliance with that agreement and any applicable provisions of the Terms.
7.4 Other than the limited license set forth in Section 9, Ken Traub Consulting acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content that you submit, post, transmit or display on, or through, the Services, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with Ken Traub Consulting, you agree that you are responsible for protecting and enforcing those rights and that Ken Traub Consulting has no obligation to do so on your behalf.
7.5 You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) which may be affixed to or contained within the Services.
7.6 Unless you have been expressly authorized to do so in writing by Ken Traub Consulting, you agree that in using the Services, you will not use any trade mark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos.
8. License from Ken Traub Consulting
8.1 Ken Traub Consulting gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by Ken Traub Consulting as part of the Services as provided to you by Ken Traub Consulting (referred to as the “Software” below). This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by Ken Traub Consulting, in the manner permitted by the Terms.
8.2 You may not (and you may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by Ken Traub Consulting, in writing.
8.3 Unless Ken Traub Consulting has given you specific written permission to do so, you may not assign (or grant a sub-license of) your rights to use the Software, grant a security interest in or over your rights to use the Software, or otherwise transfer any part of your rights to use the Software.
9. Content license from you
9.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. By submitting, posting or displaying the content you give Ken Traub Consulting a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This license is for the sole purpose of enabling Ken Traub Consulting to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.
9.2 You understand that Ken Traub Consulting, in performing the required technical steps to provide the Services to its users, may (a) transmit or distribute your Content over various public networks and in various media; and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that this license shall permit Ken Traub Consulting to take these actions.
9.3 You confirm and warrant to Ken Traub Consulting that you have all the rights, power and authority necessary to grant the above license.
10. Software updates
10.1 The Software which you use may automatically download and install updates from time to time from Ken Traub Consulting. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit Ken Traub Consulting to deliver these to you) as part of your use of the Services.
11. Ending your relationship with Ken Traub Consulting
11.1 The Terms will continue to apply until terminated by either you or Ken Traub Consulting as set out below.
11.2 If you want to terminate your legal agreement with Ken Traub Consulting, you may do so by (a) notifying Ken Traub Consulting at any time and (b) closing your accounts for all of the Services which you use, where Ken Traub Consulting has made this option available to you. Your notice should be sent, in writing, to Ken Traub Consulting’s address which is set out at the beginning of these Terms.
11.3 Ken Traub Consulting may at any time, terminate its legal agreement with you if:
(A) you have breached any provision of the Terms (or have acted in manner which clearly shows that you do not intend to, or are unable to comply with the provisions of the Terms); or
(B) Ken Traub Consulting is required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful); or
(C) Ken Traub Consulting is transitioning to no longer providing the Services to users in the country in which you are resident or from which you use the service; or
(D) the provision of the Services to you by Ken Traub Consulting is, in Ken Traub Consulting’s opinion, no longer commercially viable.
11.4 Nothing in this Section shall affect Ken Traub Consulting’s rights regarding provision of Services under Section 3 of the Terms.
11.5 When these Terms come to an end, all of the legal rights, obligations and liabilities that you and Ken Traub Consulting have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of paragraph 16.6 shall continue to apply to such rights, obligations and liabilities indefinitely.
12. EXCLUSION OF WARRANTIES
12.1 NOTHING IN THESE TERMS, INCLUDING SECTIONS 12 AND 13, SHALL EXCLUDE OR LIMIT KEN TRAUB CONSULTING’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
12.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED "AS IS" AND “AS AVAILABLE.”
12.3 IN PARTICULAR, KEN TRAUB CONSULTING, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT:
(A) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS,
(B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR,
(C) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, AND
(D) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.
12.4 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
12.5 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM KEN TRAUB CONSULTING OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
12.6 KEN TRAUB CONSULTING FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
13. LIMITATION OF LIABILITY
13.1 SUBJECT TO OVERALL PROVISION IN PARAGRAPH 12.1 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT KEN TRAUB CONSULTING, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR:
(A) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY.. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS;
(B) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF:
(I) ANY CHANGES WHICH KEN TRAUB CONSULTING MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES);
(II) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES;
(III) YOUR FAILURE TO PROVIDE KEN TRAUB CONSULTING WITH ACCURATE ACCOUNT INFORMATION;
(IV) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL;
13.2 THE LIMITATIONS ON KEN TRAUB CONSULTING’S LIABILITY TO YOU IN PARAGRAPH 13.1 ABOVE SHALL APPLY WHETHER OR NOT KEN TRAUB CONSULTING HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
14. Other content
14.1 The Services may include hyperlinks to other web sites or content or resources. Ken Traub Consulting may have no control over any web sites or resources which are provided by companies or persons other than Ken Traub Consulting.
14.2 You acknowledge and agree that Ken Traub Consulting is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
14.3 You acknowledge and agree that Ken Traub Consulting is not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
15. Changes to the Terms
15.1 Ken Traub Consulting may make changes to the Terms from time to time. When these changes are made, Ken Traub Consulting will make a new copy of the Terms available at http://www.kentraub.com/terms.html.
15.2 You understand and agree that if you use the Services after the date on which the Terms have changed, Ken Traub Consulting will treat your use as acceptance of the updated Terms.
16. General legal terms
16.1 Sometimes when you use the Services, you may (as a result of, or through your use of the Services) use a service or download a piece of software, or purchase goods, which are provided by another person or company. Your use of these other services, software or goods may be subject to separate terms between you and the company or person concerned. If so, the Terms do not affect your legal relationship with these other companies or individuals.
16.2 The Terms constitute the whole legal agreement between you and Ken Traub Consulting and govern your use of the Services (but excluding any services which Ken Traub Consulting may provide to you under a separate written agreement), and completely replace any prior agreements between you and Ken Traub Consulting in relation to the Services.
16.3 You agree that Ken Traub Consulting may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Services.
16.4 You agree that if Ken Traub Consulting does not exercise or enforce any legal right or remedy which is contained in the Terms (or which Ken Traub Consulting has the benefit of under any applicable law), this will not be taken to be a formal waiver of Ken Traub Consulting’s rights and that those rights or remedies will still be available to Ken Traub Consulting.
16.5 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable.
16.6 The Terms, and your relationship with Ken Traub Consulting under the Terms, shall be governed by the laws of the State of Massachusetts without regard to its conflict of laws provisions. You and Ken Traub Consulting agree to submit to the exclusive jurisdiction of the courts located within the county of Middlesex, Massachusetts to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that Ken Traub Consulting shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
September 7, 2010