Terms of Service

ISOFT DATA SYSTEMS SOFTWARE TERMS AND CONDITIONS

1. DEFINITIONS

  • The term “Documentation” shall mean all user manuals, associated data and other written material created by ISOFT to describe the functionality or assist in the use of the Software.

  • The term “Software” shall mean the computer program or programs marketed and sold under the ITrack name by ISOFT, in object code form only, and the Documentation. Software includes any updates, modifications, bug fixes, upgrades, enhancements, or other modifications. It does not include any version of the Software that constitutes a separate product because of differences in function or features.

  • The term “System Software License” shall mean the site specific master license purchased by the PURCHASER that shall allow one agent of the PURCHASER to use or access the Software at any given time at the Installation Address identified in this Agreement.

  • The term “User License” shall mean each license to the Software in addition to the System Software License purchased by the PURCHASER that shall allow one additional agent of the PURCHASER to use or access the Software simultaneously with another agent of the PURCHASER at the Installation Address identified in this Agreement.

2. TERMINATION

          Either party, as applicable, shall have the right, in addition, and without prejudice to any other rights or remedies, to terminate this Agreement and any license granted as follows:

          • By ISOFT, if PURCHASER fails to pay the amounts due to ISOFT pursuant to this Agreement within thirty (30) days after the due date of the invoice;
          • By ISOFT upon thirty (30) days’ written notice to PURCHASER, if there is a change in control of PURCHASER, whether by sale of assets, stock, or otherwise;
          • By either party for a material breach of this Agreement, other than the failure to make payments as contemplated by Section 2(A) above, that is not cured within thirty (30) days of receipt by the party in default of a notice specifying the breach and requiring its cure;
          • By either party so long as notice of termination is given at least thirty (30) days but not more than ninety (90) days prior to the expiration of the term, or any renewal term of this Agreement, of said party’s intention not to renew this Agreement beyond the initial term or any renewal term, as the case may be; or
          • By either party, immediately upon written notice, if (a) all or a substantial portion of the assets of the other party are transferred to an assignee for the benefit of creditors, to a receiver, or to a trustee in bankruptcy, (b) a proceeding is commenced by or against the other party for relief under bankruptcy or similar laws and such proceeding is not dismissed within 30 days, or (c) the other party is adjudicated bankrupt.

          3. RIGHTS UPON TERMINATION

            ISOFT has and reserves all rights and remedies that it has by operation of law or otherwise to enjoin the unlawful or unauthorized use of Software and Documentation. Upon termination, (a) all rights granted to PURCHASER under this Agreement cease and PURCHASER will promptly cease all use and reproduction of the Software and Documentation, and (b) PURCHASER will promptly return all copies of the Software to ISOFT or destroy all of PURCHASER’S copies of the Software and so certify to ISOFT in writing within fourteen (14) days of termination.

            4. INSTALLATION CHARGES

            PURCHASER shall prepare the site where the Software and other purchased equipment will be located in a manner acceptable to ISOFT, and shall bear all costs associated with this preparation. PURCHASER shall be solely responsible for obtaining the permission of the landlord or any other applicable third party necessary for the installation and shall indemnify and hold harmless ISOFT from any liability regarding whether there was authority to commence with the installation. PURCHASER is responsible for any additional charges incurred by ISOFT resulting from environmental conditions at the installation site and will be billed separately for these charges. PURCHASER shall be responsible for reasonable travel and lodging expenses incurred by ISOFT during installation. Travel and lodging expenses shall be limited to the standard Internal Revenue Service per mile fee, and reasonable accommodations for the duration of installation. Travel and lodging expenses will be billed separately to PURCHASER. Additional on-site training is available on a per day basis at the request of PURCHASER.

            5. COMMITMENT FEE

            The commitment fee called for by this Agreement is a non-refundable fee due to ISOFT from PURCHASER upon the execution of this Agreement. This commitment fee will be advanced to ISOFT for its costs incurred in scheduling and organizing resources and purchasing equipment necessary for the installation of the Software and shall be applied by ISOFT to the balance of the total purchase made by PURCHASER. If the total purchase price is not paid upon installation, PURCHASER shall further forfeit any interest it may have acquired in any equipment purchased by ISOFT with the commitment fee and that equipment shall be ISOFT’s sole and separate property.

            6. SERVICES SUPPLIED

            ISOFT agrees to provide PURCHASER, at the installation address specified in this Agreement, delivery of the Software and any necessary hardware upon PURCHASER’s request and PURCHASER shall be responsible for payment of the fees specified in this Agreement in the section titled LICENSES, EQUIPMENT & SERVICES. ISOFT shall provide ongoing technical support, consisting exclusively of technical information given over the telephone to PURCHASER concerning the Software and any necessary hardware sold to PURCHASER by ISOFT, and annual Software upgrades for the first year and any subsequent years for which this Agreement is renewed. It is understood that the elements and components of the Software purchased by PURCHASER from ISOFT may be changed from time to time.

            7. LICENSE AGREEMENT

            Subject to the terms and conditions set forth in this Agreement, ISOFT hereby grants to PURCHASER a nonexclusive, royalty-bearing, nontransferable license in the Software. PURCHASER assumes responsibility for the selection of the product to achieve intended results and for the use and results obtained from it. This Agreement gives PURCHASER the right to backup the Software for the sole purpose of emergency use in the event of data loss. PURCHASER shall be prohibited from copying, modifying, reverse engineering, disassembling or decompiling the Software, or creating derivative works based on the Software or any data therein for any purpose, except those authorized by this Agreement, without the prior written permission of ISOFT. PURCHASER agrees to use the Software only for its own internal business purposes. PURCHASER agrees that it will not sell, lease, sublease, license, sub-license, assign, transfer, or provide directly or indirectly, the Software or any portion thereof to any third party. The Software is protected by copyright and other intellectual property laws and treaties. ISOFT and any third-party licensor(s) own and retain title to the Software and all copies thereof, and to any patents, copyrights, trade secrets or other intellectual property rights therein and thereto. PURCHASER shall preserve all ISOFT and third party copyright and trademark notices on the Software and Documentation and shall take other reasonably necessary steps to protect ISOFT’s intellectual property rights. ISOFT shall have the right to enter PURCHASER’s premises during normal business hours to inspect and maintain the Software and to determine if there are any violations of this Agreement. PURCHASER agrees to adopt and enforce any regulation regarding protection of the confidentiality of the Software or any portion thereof which ISOFT or any vendor to ISOFT may deem advisable.

            8. FEES & CHARGES

            The prices, fees, and charges (collectively called “Fees”) which the PURCHASER agrees to pay according to the terms stated herein for the goods and services provided under this Agreement are stated in the LICENSES, EQUIPMENT & SERVICES section on the front of this Agreement. The Fees stated in the LICENSES, EQUIPMENT & SERVICES section shall remain unchanged throughout the initial one (1) year term of this Agreement. Thereafter, ISOFT may change any or all of such Fees from time to time upon written notice given to PURCHASER at least thirty (30) days prior to the effective date of change; provided, however, that taxes imposed are subject to change without written notice at any time during the initial term or any subsequent terms of this Agreement. All monthly service Fees shall be invoiced and payable monthly. PURCHASER shall pay all invoices in full immediately upon receipt. Interest on all unpaid balances exceeding thirty (30) days shall be charged at a rate of one and one-half percent (1 ½%) per month on amounts not paid within thirty (30) days of the date of invoices. PURCHASER agrees to pay ISOFT for any and all expenses incurred by ISOFT, including reasonable attorney’s fees, in the collection of amounts due ISOFT under this Agreement.

            PURCHASER shall pay all local and state sales, use, privilege, excise or other taxes or assessments, however designated, imposed or levied with respect to the Software, its uses or the services provided by ISOFT hereunder. When ISOFT has authority to do so, said taxes will be calculated for each installation site and added to the monthly invoice. Purchasers utilizing credit cards as their method of payment agree to have the monthly service Fees charged to the Credit Card Number provided on the front of this Agreement or any other Credit Card Number provided to ISOFT for the purpose of payment of the Fees and will receive no invoice or statement of such charges. In the event of a declined or expired card, ISOFT may continue to attempt to receive authorization for the provided Credit Card Number and may also seek a replacement Credit Card Number for the continued payment of the Fees.

            Expired or unauthorized cards or charges are the responsibility of the PURCHASER to provide alternative forms of payment to avoid late payment charges or cancellation of service.

            9. DISCLAIMER OF WARRANTY

            Hardware: The hardware provided by ISOFT pursuant to this Agreement is not manufactured by ISOFT and thus may be accompanied by its own third party manufacturer warranty and that warranty provided shall govern the hardware and ISOFT shall have no liability or warranty obligations whatsoever with regards to such hardware.

            Software: The Software is provided “AS IS” WITH NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY WARRANTY OTHERWISE ARISING OUT OF ANY PROPOSAL. NEITHER ISOFT NOR ANY THIRD PARTY FURNISHING SOFTWARE OR RELATED DOCUMENTATION TO ISOFT REPRESENTS OR WARRANTS THAT THE SOFTWARE PROVIDED WILL IN ALL CASES BE FREE OF ERRORS, INACCURACIES, OR OMISSIONS, THAT THERE WILL BE NO INTERRUPTIONS OR DELAYS IN THE FUNCTION SOFTWARE, THAT THE SOFTWARE IS COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS, OR THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET PURCHASER’S REQUIREMENTS.

            10. LIMITATION OF LIABILITY

            TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL ISOFT BE LIABLE TO PURCHASER OR ANY THIRD PARTY FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, LOST REVENUE, LOST DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR ANY FORM OF INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES FROM ANY CAUSES OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT, SOFTWARE OR DOCUMENTATION, WHETHER ARISING IN TORT , CONTRACT, STRICT LIABILITY OR OTHERWISE, WHETHER EVEN IF ISOFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ISOFT’S AGGREGATE LIABILITY IN REGARDS TO THIS AGREEMENT SHALL BE LIMITED TO ONE (1) MONTH’S TOTAL CHARGES TO THE PURCHASER UNDER THIS AGREEMENT. ANY DAMAGES CAUSED TO THE SOFTWARE BY PURCHASER’S MISUSE OF THE SOFTWARE OR PURCHASER’S INTENTIONAL ACTS OR NEGLIGENCE SHALL BE THE SOLE RESPONSIBILITY OF PURCHASER.

            11. INDEMNIFICATION

            PURCHASER agrees to indemnify and hold harmless ISOFT, its agents, officers, assigns and any third party provider to ISOFT from and against any claims, actions, demands, proceedings, fines, penalties, damages (including consequential damages), judgments and expenses (including reasonable attorney’s fees) for the loss or damage sustained by any other third party arising out of or in any way connected with the use of or the reliance on the Software, Documentation, hardware or other related equipment supplied or to be supplied to the PURCHASER under this Agreement.

            12. LIMITATION ON ACTION

            Any action under this Agreement, regardless of the form, whether in contract, negligence, or tort, must: (a) be brought within four (4) years after such cause of action has arisen, and (b) have been preceded by written notice to the other party within thirty (30) days after the cause of action is known, or should have been known. This Agreement shall be governed by and interpreted and enforced in accordance with the laws of the State of Nebraska without regard to conflicts of laws principles. The parties hereto agree that jurisdiction and venue for any dispute hereunder shall be exclusively in the courts of Lancaster County, Nebraska or the Federal Court for the District of Nebraska located in Lincoln, Nebraska.

            13. MISCELLANEOUS

            • Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the Software and supersedes all prior or contemporaneous agreements, communications or understandings regarding such subject matter, whether oral or written.

            • Waiver; Amendment. No waiver, express or implied, by either party of any right or remedy for any breach by the other party of any provision of this Agreement will be deemed or construed to be a waiver of any succeeding breach of such provision or as a wavier of the provision itself or of any other breach provision. No waiver of or amendment to this Agreement will be effective unless reduced to writing and executed by authorized representatives of the parties.

            • Assignment. PURCHASER may not assign this Agreement, in whole or in part, by operation of law or otherwise, without ISOFT’s prior written consent. Any merger, acquisition, reorganization, change of control, or the like, involving PURCHASER shall be deemed an assignment in violation of the foregoing. Subject to the foregoing, this Agreement will be for the benefit of ISOFT’s successors and assigns, and will be binding on PURCHASER’s permitted assignees.

            • Injunctive Relief. PURCHASER agrees that a breach of this Agreement may cause irreparable injury to ISOFT for which monetary damages would not be an adequate remedy and ISOFT shall be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law.

            • Force Majeure. The performance of any obligation hereunder by ISOFT will be excused if prevented by acts of God, third party providers of information, data, and service, public enemy, fire or other casualty, labor dispute or, without limiting the foregoing, any circumstances beyond ISOFT’s reasonable control.

            • Severability and Survival. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision shall be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement shall continue in full force and effect.

            • Third Party Programs and Hardware. The Software and related materials may contain third party programs. The license terms of those third party programs apply to PURCHASER’s use of them.

            • Survival. The provisions of Sections 3, 5, 7, 9 through 13 shall survive the completion and payment for the products and services provided hereunder.