SOFTWARE – The software covered by the scope of this license is commonly known under the trade name ITS Management System, in its current version (the “Software”) with all hosting obligations as Licensor, Industrial Tracking Systems(“ITS or “Licensor”) provides. Software includes the web portal, any modules, variations, amendments and updates that Client has or will lease from Licensor. Licensor warrants that it has authority to supply License to Client.
All right, title and interest in and to the Software and Documentation, including all intellectual property rights therein, shall remain the property of Licensor, subject only to the license granted to Client. Any development, updates or maintenance that we perform, whether under this license or by separate agreement will remain solely our intellectual property. The license(s) set forth in this Agreement is not a sale and do not transfer to Client any title or ownership in or to the Software or the Documentation or any patent, copyright, trade secret, trade name, trademark or other proprietary or intellectual property rights related thereto.
Client shall not copy, reproduce, translate, adapt, vary or modify the Software without our express consent. It is Client’s responsibility to (1) supervise and control the use of the Software in accordance with the terms of this license; (2) ensure its employees, sub-contractors and other agents who have authorized access to the program are made aware of the terms of this license; and (3) not provide or otherwise make available the Software in any form to any person other than those bound by this Agreement without our written consent.
ITS agrees to support and maintain the Software during the term of the License in a professional and timely manner – but is not responsible for any malfunctions due to unforeseen issues relating to Clients’ operating environment.
LICENSE TERM AND FEES – This Agreement provides Client a non-exclusive, non-transferable license to use ITS Software (hereinafter “ITS Software Subscription”) together with any other modules that may be leased from ITS. The minimum duration for the ITS Software Subscription is one (1) year (“Initial Term”). The Initial Term and any successive terms shall be hereinafter defined as the “Term”. The Term begins upon Client’s subscription selection, execution of online signup form, agreement to Terms and Conditions and confirmation of initial payment received by ITS. The ITS Software Subscription will automatically renew for successive one (1) year Terms unless Client submits written notice to ITS thirty (30) days prior to Term’s end. During the Term, it is the responsibility of ITS to support and maintain the Software in the manner described herein for the Client.
If Client is delinquent, ITS has the right to assess a late fee to be calculated in a sum equal to 18% per annum of the amount outstanding. This charge will be assessed against all fees and costs delinquent in excess of fifteen (15) days. ITS reserves the right to terminate Client’s access to the ITS Software Subscription and terminate services where Client is delinquent in excess of fifteen (15) days. If Client is terminated, ITS reserves the right to assess a Reactivation/Data Recovery Fee associated with reactivating Client. The Reactivation/Data Recovery Fee will not exceed the 18% per annum amount of Client’s ITS Software Subscription. Upon reactivation Client remains bound to one (1) year firm commitment.
MAINTENANCE AND SUPPORT – ITS agrees to provide the following Software related maintenance and support Services during the Term: (1) corrective maintenance which shall include reactive modification to attempt to correct discovered functionality problems; (2) perfective maintenance which shall include reasonable services to improve performance or maintainability; (3) preventive maintenance which shall include modification to detect and attempt to correct latent faults central to the Software functionality.
NOTIFICATION – In the event a claim, suit or proceeding by a third party for which indemnification may be available under this Agreement is made or filed against any person, party or Entity, the person, party or Entity against which the claim, suit or proceeding is made (the “Indemnified Party”), shall promptly notify the other party (the “Indemnifying Party”) in writing of the claim, suitor proceeding. The Indemnifying Party, within fifteen (15) days, or such shorter period as is required to avoid any prejudice in the claim, suit or proceeding, after the notice, may elect to defend, compromise, or settle the third-party claim, suit or proceeding at its expense. In any third-party claim, suit or proceeding which the Indemnifying Party has elected to defend, compromise or settle, the Indemnifying Party shall not after the election be responsible for the expenses, including counsel fees, of the Indemnified Party but the Indemnified Party may participate therein and retain counsel at its own expense. In any third party claim, suit or proceeding the defense of which the Indemnifying Party shall have assumed, the Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the matter without the consent of the Indemnifying Party and the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement affecting the Indemnified Party to the extent that the judgment or settlement involves more than the payment of money without the written consent of the Indemnified Party. The Indemnified Party shall provide to the Indemnifying Party all information, assistance and authority reasonably requested in order to evaluate any third party claim, suit or proceeding and affect any defense, compromise or settlement.
LIMITATION OF LIABILITY – NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT WILL ITS BE LIABLE FOR ANY FINE, LOST REVENUE, PROFIT, OR DATA LOSS, ANY DAMAGES RESULTING FROM THE PROVISION OF INACCURATE INFORMATION OR DOCUMENTATION, OR FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE EVEN IF ITS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR INFRINGEMENT INDEMNITY OBLIGATIONS AS SET FORTH UNDER THIS AGREEMENT, IN NO EVENT SHALL ITS’S LIABILITY TO CLIENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT PAID BY CLIENT UNDER THIS AGREEMENT. THIS LIMITATION OF LIABILITY SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
TERMINATION – Subject to the Dispute Resolution requirements set forth herein, either party may terminate this Agreement in the event the other party fails to comply with any material provision herein. Additionally, after the Initial Term, the ITS Software Subscription will automatically renew for successive one (1) year Terms unless Client submits written notice to ITS thirty (30) days prior to Term’s end. Notwithstanding any termination of this Agreement, the rights and obligations relating to title, infringement indemnity, warranty, termination, confidentiality and limitation of liability, as well as any other provisions, which survive by their terms, shall survive termination. Upon termination of this Agreement, ITS makes no representation or warranty regarding data retention or ongoing access to the ITS Software Subscription. To the contrary, ITS will immediately revoke Client’s access to the ITS Software and all related hosting or data retention services will cease. Client must download any data desired to be retained prior to termination, whether termination is voluntary or by operation of the rights of ITS under this Agreement. Client shall have ninety (90) days from the date of termination of the Term to renew the ITS Software Subscription for a minimum term of one (1) year. If Client renews the ITS Software Subscription within ninety (90) days of termination of the Term, Client will be provided access to any Client data retained by ITS through Client’s prior use of the ITS Software. If Client fails to renew as set forth herein, all data related to the ITS Software Subscription will be permanently deleted.
DISPUTE RESOLUTION – In the event of a dispute between the Parties, the issue will first be escalated to the individuals identified as each Party’s project manager. If these individuals cannot resolve the dispute within ten (10) days of written notice of failure to resolve this issue, the issue will shall be escalated to a senior executive that each party may determine is respected, knowledgeable and responsible within each Party’s company. Either Party may initiate dispute resolution by notice to the other Party. Such notice will be without prejudice to the invoking Party’s rights to any other remedy permitted hereunder. The Parties will use commercially reasonable efforts to arrange meetings or telephone conferences, as needed at mutually convenient times and places, to facilitate negotiations between the Parties. In the event that the Parties are unable to resolve a dispute between them within five (5) days of receiving notice, and after exhausting the escalation process set forth above, then either Party may declare that a deadlock exists.
Arbitration – In the event the Parties are unable to dispose of a dispute, any and all claims, disputes, questions or controversies involving the parties hereto and arising out of or in connection with this Agreement, or the execution, interpretation, validity, performance, breach, or termination hereof (collectively, the “Disputes”) shall, upon the written request of any Party to this Agreement, be resolved by a final and binding arbitration. The arbitration shall be conducted Miami-Dade County, Florida in accordance with the Commercial Arbitration Rules of the American Arbitration Association as then existing, before a single arbitrator. Judgment upon the award of the arbitrator may be entered in any court having jurisdiction thereof. Arbitration shall be in lieu of all other remedies and procedures available to the parties, provided that the Parties may seek preliminary injunctive or other interlocutory relief prior to the commencement of or during such proceedings. The arbitrator shall award reasonable costs and attorney fees to the party that is deemed to be the substantially prevailing party in the arbitration.
Interim Injunctive Relief – Nothing in this Section shall be construed to preclude any party from seeking injunctive or other provisional relief in order to protect its rights pending mediation or arbitration, provided however, that such relief may only be sought within the appropriate judicial forum as provided in this Agreement. A request to a court for interim injunctive relief shall not be deemed a waiver of the obligation to arbitrate all other Disputes. The exclusive venue for any interim injunctive relief or any action brought arising out of a Dispute between the Parties shall be the state courts located in Miami-Dade County, Florida.
Governing Law – Without regard for conflicts of law provisions, Florida law shall govern any proceeding arising out of or related to this Agreement
CONFIDENTIALITY – Each party must treat the confidential information of the other party as confidential and commercially valuable and ensure that its representatives do the same. The parties must not disclose each other’s confidential information unless: (1) there is a legal requirement to do so; (2) or the confidential information is disclosed to employees or contractors solely for the purposes of performing this Agreement. For the protection of both parties, the confidentiality of this Agreement will survive the termination of this Agreement into perpetuity.
ENTIRE AGREEMENT – These terms and conditions shall constitute the final, complete and exclusive agreement of the parties with respect to all sales and the ITS Software Subscription and shall supersede all prior offers, negotiations, understandings and agreements, between the Parties.
MISCELLANEOUS – Any signature (including any electronic symbol or process attached to, or associated with, a contract or other record and adopted by a Person or Entity with the intent to sign, authenticate or accept such contract or record) hereto or to any other certificate, agreement or document related to a transaction in any part of the ITS Software, and any contract formation between parties by way of the ITS Software through electronic means shall have the same legal validity and enforceability as a manually executed signature or use of a paper-based recordkeeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, or any similar state law based on the Uniform Electronic Transactions Act, and the parties hereby waive any objection to the contrary.
Provider may assign or transfer any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Client. This Agreement shall inure to the benefit of, shall be binding upon and shall be enforceable by any such assignee. No delay, failure or waiver by either party to exercise any right or remedy under this Agreement shall operate to waive any exercise of such right or remedy or any other right or remedy. If any provision in this Agreement shall be found or be held to be invalid or unenforceable, then the meaning of said provision shall be construed, to the extent feasible, so as to render the provision enforceable; and the remainder of this Agreement shall remain in full force and effect. This Agreement constitutes the entire Agreement between Provider and Client with respect to the subject matter of this Agreement.