PARTS OF THIS AGREEMENT
THIS AGREEMENT CONSISTS OF THE FOLLOWING TERMS AND CONDITIONS (HEREINAFTER THE “GENERAL TERMS”) AND TERMS AND CONDITIONS, IF ANY, SPECIFIC TO USE OF SERVICES ORDERS AND/OR ADDENDUMS (HEREINAFTER THE “SERVICE SPECIFIC TERMS”). THE GENERAL TERMS AND SERVICE SPECIFIC TERMS ARE COLLECTIVELY REFERRED TO AS THE “TERMS”. IN THE EVENT OF A CONFLICT BETWEEN THE GENERAL TERMS AND SERVICE SPECIFIC TERMS, THE SERVICE SPECIFIC TERMS SHALL PREVAIL.
ACCEPTANCE OF THE TERMS
YOU MUST BE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT IN ORDER TO ACCEPT THE TERMS. IF YOU DO NOT AGREE TO THE GENERAL TERMS, DO NOT USE ANY OF OUR SERVICES. IF YOU AGREE TO THE GENERAL TERMS AND DO NOT AGREE TO ANY SERVICE SPECIFIC TERMS, DO NOT USE THE CORRESPONDING SERVICE. YOU CAN ACCEPT THE TERMS BY CHECKING A CHECKBOX OR CLICKING ON A BUTTON INDICATING YOUR ACCEPTANCE OF THE TERMS OR BY ACTUALLY USING THE SERVICES.
The Software shall consist of the modules or components, shall perform the functions, and shall comply with the proposals and specifications. The Documentation shall consist of all operator and user manuals, training materials, guides, listings, specifications, online videos and other materials for use in conjunction with the software.
Licensor hereby grants to Licensee a non-exclusive license to use the Software and documentation (collectively, the “Software”), subject to the terms and conditions hereinafter set forth.
This License is effective when executed by both parties and will last for a term of one month. Thereafter, this License shall automatically be renewed for successive one month terms unless Licensee gives Licensor written notice at least five days before the day on which the license or renewal would expire of its intention not to renew this License, or until Licensor terminates this License because of Licensee’s failure to comply with any of its terms and conditions.
If, at any time during the Term of this Agreement, the Licensee’s account is considered past due, Licensor may, at its sole discretion, restrict access until such time as the Licensee’s account is brought back to a “current” status. Licensee recognizes that a reactivation charge will apply anytime an account is deactivated.
Upon termination of this License, Licensee shall no longer attempt to access the software and shall return to Licensor or destroy the original and all copies of the documentation including partial copies and modifications.
As consideration for the license to use the Software granted to Licensee herein, Licensee shall pay to Licensor a license fee billed on a recurring monthly basis. License fees shall be billed according to the maximum number of concurrent licenses during the term. Additional fees may also include, but are not limited to, per minute, activation, redundancy, service levels, toll-free numbers, add-on services and professional services. Licensee will be responsible for any state or local sales tax, or any other taxes that may be due, as a result of this Agreement.
Title to Software AND DATA
Licensor retains title to and ownership of the Software and all enhancements, modifications and updates of the Software. Licensee shall retain ownership to all data residing within the system.
LICENSEE EXPRESSLY AGREES AND UNDERSTANDS THAT LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL BE UNINTERRUPTED OR THAT ALL COMMUNICATIONS WILL BE DELIVERED, NOR DOES LICENSOR MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SOFTWARE. LICENSOR SPECIFICALLY DOES NOT WARRANT THAT THE FUNCTIONS OF THE SOFTWARE WILL MEET THE LICENSEES REQUIREMENTS, AND THAT THE SOFTWARE WILL BE ERROR FREE OR UNINTERRUPTED, THAT THE FUNCTIONS OF THE SOFTWARE WILL WORK WITH ANY OTHER COMPUTER PROGRAMS, EXCEPT TO THE EXTENT SPECIFIED IN THE DOCUMENTATION, AND THAT THE SOFTWARE WILL WORK WITH ANY EQUIPMENT OTHER THAN THE SOFTWARE HARDWARE SPECIFIED BY LICENSOR.
TO THE EXTENT PERMITTED BY LAW, THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, AND LICENSOR DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS, INCLUDING ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, REGARDLESS OF WHETHER LICENSOR KNOWS OR HAD REASON TO KNOW OF LICENSEE PARTICULAR NEEDS. LICENSOR MAKES NO OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY WARRANTIES OF MERCHANABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT BE APPLICABLE. THIS WARRANTY PROVIDES SPECIFIC LEGAL RIGHTS, AND THERE MAY BE OTHER RIGHTS PROVIDED WHICH VARY FROM STATE TO STATE. NO EMPLOYEE, AGENT OR DISTRIBUTOR OF LICENSOR IS AUTHORIZED TO MODIFY THIS WARRANTY, OR TO MAKE ANY ADDITIONAL WARRANTIES.
IN NO EVENT WILL LICENSOR BE LIABLE TO LICENSEE FOR ANY DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM THE USE OR THE INABILITY TO USE THE SOFTWARE (EVEN IF LICENSOR OR AN AUTHORIZED DEALER OR DISTRIBUTOR HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY).
LICENSOR’S TOTAL LIABILITY FOR DAMAGES HEREUNDER, WHETHER IN AN ACTION FOR CONTRACT OR TORT, INCLUDING NEGLIGENCE SHALL NOT EXCEED THE TOTAL CHARGES PAID BY LICENSEE FOR THE GOODS LICENSED HEREUNDER FOR THE CURRENT TERM. LICENSEE ACKNOWLEDGES AND AGREES THAT LICENSOR’S ENTIRE LIABILITY, AND LICENSEE AGREES THAT IT’S SOLE AND EXCLUSIVE REMEDY AGAINST LICENSOR IS, AT LICENSOR’S OPTION.
Representations and Warranties
Licensor hereby represents and warrants to Licensee that:
- Licensor is the owner of all right, title and interest, including copyright, in all the Licensed Materials, or has the authority to enter into this Agreement on behalf of the owner.
- Licensor has not granted any rights or licenses to the Licensed Materials that would conflict with Licensor’s obligations under this Agreement.
- Licensor is fully aware of Licensee’s business requirements and intended uses for the Software and the Software shall satisfy such requirements and is fit for such intended uses.
- Licensor will not enter into any agreement with any third party, which would affect Licensee’s rights under this Agreement, or bind Licensee to any third party, without Licensee’s prior written consent.
- Licensee’s use of the Licensed Materials as authorized by this Agreement will not infringe any existing copyright, trade secret, patent or trademark rights of any third party.
The Software, and each module or component and function thereof, shall be capable of operating fully and correctly with the following minimum requirements:
- Site Preparation: LICENSEE MUST BE connected to Internet and Firewalls must allow port 5060 to be available behind the NAT. licensee must have minimum of 512 kbps bandwidth upload per active license for toll call voice quality.
- Computer System Requirements:
- Computer CPU: 1.5 Ghz (minimum P4 hyper-threaded)
- Memory: 1GB of RAM
- Monitor: 1024×768 Resolution
- Headset: USB Headset With Built-In Microphone
- Internet Speed: 512 Kbps Per License Connected Via Ethernet
- ACTIVATION AND Training
- Within five (5) days of the execution of this Agreement by Licensor, Licensor shall provide access to the required number of licenses.
- Activation fees are charged on a per license basis and include a one-time remote setup and configuration of the Software with assistance the uploading data to the server.
- Online training, such as videos, support knowledge base and written documentation is included in the License Fee.
- Onsite start-up and training costs are not included in the license fee and may be incurred at an additional cost. Pursuant to mutually agreed upon training fees and schedule, Licensor shall provide sufficient experienced and qualified personnel to conduct “Train the Trainer” programs, or other custom training of employees or other personnel of Licensee at a location or locations designated by Licensee.
- Maintenance, UPGRADES AND SUPPORT
Licensor shall provide maintenance, additional support and enhancements in connection with the Software:
- Technical Support: Licensor shall provide to Licensee, without additional charge, all reasonably necessary telephone, online chat and/or portal ticket requests by Licensee in connection with its use and operation of the Software or any problems therewith. Licensor provides technical support on hardware and software during regular business hours, Monday through Friday from 9:00am to 6:00pm EST/EDT, not including Easter, Thanksgiving, Christmas and New Year’s. Support during off-hours such as weekends can be provided through a weekend number.
- Maintenance and Upgrades: General system maintenance and planned upgrades are included as part of this Agreement at no additional costs. Power Studio™ Software upgrades are at the discretion of Licensor.
- Feature Requests and Enhancements: Support requests and other non-technical issues such as enhanced modifications to database(s) and scripting will be billed at the currently published rate.
- Remote Monitoring: Licensor’s technical staff can monitor your dialer system through remote monitoring software for an additional fee.
LICENSEE’S RIGHTS AND OBLIGATIONS
- Licensee may access the software through an Internet browser via login granted by the Licensor.
- Licensee shall have the right, in its own discretion, to independently customize the Software for its own purposes and use, through the services of its own employees or of independent contractors, provided that same agree not to disclose or distribute any part of the Software to any other person or entity or otherwise violate Licensor’s proprietary rights therein.
- Licensor shall not incorporate any such modifications into its software for distribution to third parties unless it first agrees to pay Licensee a reasonable royalty, pursuant to mutually agreed upon terms.
- The Software and Documentation are protected by U.S. copyright laws and international treaties. Licensee must treat the Software and documentation like any other copyrighted material.
Licensee may NOT:
- Copy the documentation or software;
- Modify or adapt the Software or merge it into another program, reverse engineer, disassemble, decompile or make any attempt to discover the source code of the Software; or
- Share access to the Software, including sublicense, rent, lease or lend any portion of the Software or Documentation.
SECURITY AND PRIVACY OF DATA
Licensor takes strict measures to insure that customer data is safeguarded at every level of its operation. It is the Licensor’s Policy to respect Licensee’s data, to hold customer’s data with privacy and security, and to hold customer’s data with responsibility and integrity. Licensor uses Internet Security such as SSL (Secured Socket Layer) Technology and other security features to ensure the privacy of customer information on its network is not breached. Licensor will not sell trade or disclose to any third party any form of customer identifiable information without customer’s knowledge or request. Licensee is responsible for the confidentiality of its password(s).
Each party agrees that it shall not disclose to any third party any information concerning the customers, trade secrets, methods, processes or procedures or any other confidential, financial or business information of the other party, which it learns during the course of its performance of this Agreement, without the prior written consent of such other party. This obligation shall survive the cancellation or other termination of this Agreement.
The Software contains trade secrets and proprietary knowledge that belong to us and it is being made available to Licensee in strict confidence. ANY USE OR DISCLOSURE OF THE SOFTWARE, OR OF ITS ALGORITHMS, PROTOCALS OR INTERFACES, OTHER THAN IN STRICT ACCORDANCE WITH THIS LICENSE AGREEMENT, MAY BE ACTIONABLE AS A VIOLATION OF OUR TRADE SECRET RIGHTS.
Licensor’s Proprietary Notices
Licensee agrees that any copies of the Software or documentation, pursuant to this Agreement shall bear all copyright, trademark and other proprietary notices included therein by Licensor and, except as expressly authorized herein, Licensee shall not distribute same to any third party without Licensor’s prior written consent.
Licensor shall not refer to the existence of this Agreement in any press release, advertising or materials distributed to prospective customers, without the prior written consent of Licensee.
- other provisions
- Additional Instruments: Each of the parties shall, from time to time, at the request of others, execute, acknowledge and deliver to the other party any and all, further instruments that may be reasonably required to give full effect and force to the provisions of this Agreement.
- Arbitration: The parties agree to submit any dispute under this Agreement to binding arbitration in County of Broward under the rules of the State of Florida. Judgment upon the award rendered by the arbitrator may be entered in any court with jurisdiction to do so.
- Assignment: Licensee may assign this Agreement to any subsidiary or affiliate under its control, or as part of the sale of that part of its business, which includes any substantial portion of its data processing facilities, or pursuant to any merger, consolidation or other reorganization, without Licensor’s consent, upon notice to Licensor. Licensor shall not assign this Agreement without Licensee’s prior written consent, which shall not be unreasonably withheld. An assignee of either party, if authorized hereunder, shall have all of the rights and obligations of the assigning party set forth in this Agreement.
- Attorneys’ Fees: If any arbitration, litigation, action, suit, or other proceeding is instituted to remedy, prevent or obtain relief from a breach of this Agreement, in relation to a breach of this Agreement or pertaining to a declaration of rights under this Agreement, the prevailing party shall recover all such party’s attorneys’ fees incurred in each and every such action, suit or other proceeding, including any and all appeals or petitions there from. As used in this Agreement, attorneys’ fees shall be deemed to be the full and actual cost of any legal services actually performed in connection with the matters involved, including those related to any appeal or the enforcement of any judgment calculated on the basis of the usual fee charged by attorneys performing such services.
- Complete Agreement: This Agreement sets forth the entire understanding of the parties as to its subject matter and may not be modified except in a writing executed by both parties.
- Enforceability: The unenforceability, for any reason, of any term, condition, covenant or provision of this Agreement shall neither limit nor impair the operation, enforceability or validity of any other terms, conditions, provisions or covenants of the Agreement.
- Entire Agreement: This Agreement supersedes any and all agreements, either oral or written, between the parties with respect to the rendering of Services by Consultant to Company, and contains all of the agreements between the parties with respect to the rendering of such service. Both parties agree that no representations, inducements, promises or agreements (oral or otherwise) have been made by any party or anyone acting on behalf of any party, which are not embodied herein; and that no other agreement, statement or promise not contained herein shall be valid or binding.
- Execution: The Execution, delivery and performance of this Agreement, in the time and manner herein specified, shall not conflict with, result in a breach of, or constitute a default under any existing agreement, indenture or other instrument to which either entity may be bound or affected. The individuals, whose signatures appear below, are authorized to sign this Agreement on behalf of their respective corporations.
- Governing Law: This Agreement shall be governed in its enforcement, construction and interpretation by the laws of State of Florida without reference to the doctrines of choice of laws, conflict of laws, or comity. Any suit, action or other legal proceeding arising out of this Agreement, including any action regarding the interpretation and enforcement of this Agreement shall be brought in the courts of the State of Florida. The parties hereto specifically agree to, contract for, and consent to the personal and subject matter jurisdiction of such courts in any suit, action or proceeding, and waive any objection, which any of them may have to the laying of venue of any such action or proceeding in Broward County, Florida. In the event that any suit, or legal proceeding arising out of this Agreement, is based on acclaim over which the exclusive jurisdiction is vested in the courts of the United States, such suit, action or legal proceeding shall lay only in the United States District Court for the Southern District of Florida.
- Indemnity: Licensor agrees to indemnify and hold harmless Licensee and its subsidiaries or affiliates under its control, and their directors, officers, employees and agents, against any and all losses, liabilities, judgments, awards and costs (including legal fees and expenses) arising out of or related to any claim that Licensee’s use or possession of the Software or Documentation, or the license granted hereunder, infringes or violates the copyright, trade secret or other proprietary right of any third party. Licensor shall defend and settle at its sole expense all suits or proceedings arising out of the foregoing, provided that Licensee gives Licensor prompt notice of any such claim of which it learns. No settlement, which prevents Licensee from continuing to use the Software as provided herein, shall be made without Licensee’s prior written consent. In all events, Licensee shall have the right to participate in the defense of any such suit or proceeding through counsel of its own choosing.
- Limited Liability: Unless otherwise expressly stated herein, Licensor shall not be liable to Licensee for any consequential damages arising out of Licensor’s breach of this Agreement.
- Modification and Waiver: A modification or waiver of any of the provisions of this Agreement shall be effective only if made in writing and executed with the same formality as this Agreement. The failure of any party to insist upon strict performance of any of the provisions of this Agreement shall not be construed as a waiver of any subsequent default of the same or similar nature or of any other nature.
- Notices: All notices that are required to be or may be sent pursuant to the provision of this Agreement, shall be sent by certified mail, return receipt requested, or by overnight package delivery service to each of the parties at the address appearing herein, and shall count from the date of mailing or the validated air bill. Each party shall, at all times, keep the other informed of its principal place of business if different from that stated herein, and shall promptly notify the other of any change, giving the address of the new place of business or residence.
- Originals: This Agreement may be executed in any number of counterparts, each of which so executed, shall be deemed an original and constitute one and the same agreement. Facsimile copies with signatures shall be given the same legal effect as an original.
- Severability: If any provision of this Agreement is held invalid or otherwise unenforceable, the enforceability of the remaining provisions shall not be impaired thereby.
- Timely Appraisals: During the term of this Agreement, the Company shall keep the Consultant up to date and apprised of all developments related to the Company and its operations and management. The Company shall promptly notify the Consultant of the threat or filing of any suit, arbitration or administrative action, injunction, lien, claim or complaint. The Company shall notify the Consultant promptly of the occurrence of any event, which might materially affect the condition (financial or otherwise), or prospects of the Company.