SOFTWARE AND SERVICE LICENSE AGREEMENT
IMPORTANT PLEASE READ CAREFULLY
This Software and Service License Agreement along with all materials referenced herein (“Agreement”) is a legal agreement between an entity (“Customer”) and ePOSTouch division of Sonte Corporation (“ePOSTouch”) permitting Customer to access and use, subject to the terms of this Agreement, (i) ePOSTouch’s software identified on the license agreement page, our terms and accompanying documentation provided electronically (“Software”) and (ii) services relating to Customer’s access and use of the Software, including the provision of a web site, content therein and software relating thereto (“Services”). CUSTOMER MUST READ THIS AGREEMENT CAREFULLY BEFORE INDICATING ACCEPTANCE AT THE END BY CLICKING THE “I ACCEPT” BUTTON. IF CUSTOMER DOES NOT AGREE TO ANY OF THE TERMS OF THIS AGREEMENT, CLICK ON THE “I DO NOT ACCEPT” BUTTON AT THE END OF THIS AGREEMENT AND CUSTOMER WILL NOT BE PERMITTED TO ACCESS AND USE THE SOFTWARE AND SERVICES.
TERMS AND CONDITIONS
1. License Grant
1.1 Subject to the terms of this Agreement, ePOSTouch grants Customer a nonexclusive, nontransferable license to access and use the Software and Services for internal business purposes only, without the right to sublicense such rights, provided Customer unconditionally agrees to access and use the Software and Services in accordance with this Agreement (“License”). Under the License, Customer may print out, or otherwise make, printed copies (“Copies”) of the reports, numeric results, and other information or materials generated from Customer’s access and use of the Software and Services for business purposes only. Any updates, modifications, enhancements or new versions of the Software and Services provided or made available to Customer by ePOSTouch, shall be considered Software and Services subject to this Agreement. ePOSTouch may at any time and for any reason elect to modify, discontinue, delete or restrict any aspect or feature of the Software and Services without notice to Customer or any liability to ePOSTouch or any ePOSTouch Party; however, ePOSTouch agrees to make commercially reasonable efforts to provide Customer with prior notice of any such changes.
2. Registered and Licensed Users
2.1 In order for Customer to access and use the Software and Services, Customer shall register with ePOSTouch, provide ePOSTouch with an email address, pay the license fee (“Fee”) and obtain a unique password for accessing the Software and Services (“Password”). The Fee shall be determined at the time of registration based on the number of locations (“Licensed Location”) using the Software and Services and the level of service provided. Such Fee is non-refundable upon use of the Password. Upon receiving a Password, Customer may issue unique passwords to its employees and agents (“Licensed Users”) whom work at the licensed location. ePOSTouch and Customer acknowledge and agree that ePOSTouch may obtain email addresses from Licensed Users upon their accessing and using the Software and Services. Customer is responsible and wholly liable for all acts or omissions committed under Customer’s Password and any and all passwords issued by Customer to Licensed Users. Any and all personal information obtained from Customer or a Licensed User by ePOSTouch relating to this Agreement and the Software and Services is subject to ePOSTouch’s privacy policy (as defined in Section 16); and Customer agrees to the terms and conditions of such privacy policy by clicking the “I Accept” button below.
3. Term, Renewal, and Termination
3.1 The Effective Date of this Agreement shall be the first day in which Customers “user profiles” are activated and made available for usage on the ePOSTouch Service and shall continue in full force and effect for an initial Term of one (1) month from the Effective Date. Customer may terminate service by phone or email. Cancellation Orders submitted for service termination will become effective at the end of customers current paid in full period.
3.2 This Agreement shall be automatically renewed for one (1) month, unless terminated by either party, by giving notice by email or phone to the other party prior to the expiration of the initial Term or any successive Term.
4. Charges/Payments
4.1 One-time setup fees are due upon submission of an Order.
4.2 Charges set forth in the Order shall be charged monthly and other charges due for services performed under this Agreement shall be invoiced the month immediately following the use of services by the Customer. Charges invoiced are due and payable upon receipt. If charges are not paid within thirty (30) days of the invoice date, a one and one half percent (1.5%) per month interest charge shall be assessed until date of payment. Further if charges are not paid within thirty (30) days of the invoice date, ePOSTouch retains the right to disable the Customer account to prevent further use until payments for all charges on account have been received. Accounts with outstanding balances over ninety (90) days in arrears may be referred for legal collection action.
4.3 The Customer is required to keep a valid credit card on file with ePOSTouch to pay for recurring monthly service charges. If the Customer is unable or unwilling to keep a credit card on file, the Customer may elect to pay for the full term (12 months) of this agreement with the setup fees upon submission of the Order.
4.4 All charges are exclusive of all taxes. Taxes imposed by Government agencies, whether based upon the software, its use, or the Agreement, shall be paid by the Customer.
4.5 Any new software program or services, other than those contracted for by the Customer on the Effective Date of this Agreement, may be obtained by the Customer at the current price. Charges set forth in the Order may be modified by ePOSTouch upon posting of changed pricing to the Website at [siteurl] and becoming effective on the next monthly billing.
4.6 ePOSTouch reserves the right to suspend or terminate Services to Customer for lack of timely payments for subscriptions or services due.
5. Availability/Interruptions
5.1 Service is available to Customer equipment when it is within the operating parameters of the ePOSTouch network and when connectivity is available through established telecommunication providers. Service is subject to interruption when telecommunication service is subject to transmission limitation and/or interruptions including access to the public Internet.
6. Hardware and Service Requirements
6.1 Customer is solely responsible for acquiring, servicing, maintaining, and updating all equipment, computers, software and communications services (such as long distance phone charges) not owned or operated by or on behalf of ePOSTouch, that allow Customer to access and use the Software and Services, and for all expenses relating thereto (plus any applicable taxes). Customer agrees to access and use the Software and Services in accordance with any and all operating instructions or procedures that may be issued by ePOSTouch, and amended by ePOSTouch from time to time. ePOSTouch and the ePOSTouch Parties do not make any commitments with respect to use or performance of the Software and Services.
7. Training and Support
7.1 Unless Customer and ePOSTouch enter into a separate agreement, ePOSTouch will not provide any training or on-site support to Customer relating to the Software and Services. ePOSTouch will provide Customer with (a) commercially reasonable telephone and email support for the Software and Services during normal business hours; and (b) updates and enhancements for the Software and Services, to the extent that ePOSTouch generally makes such updates and enhancements available to Customers without a separate charge.
8. Customer Support
8.1 Customer support services will be available via telephone at (855) 376-7868 ext 200 during the regular business hours of Monday – Friday, 9:00am-4:00pm, CST. Email support response is available within 24hours, submit messages to support@ePOSTouch.com.
9. Authorized Usage
9.1 The Customer acknowledges that it has been advised by ePOSTouch that any software, related documentation, or service delivery methods deployed or developed by ePOSTouch contain valuable trade secrets or proprietary information and products. The Customer agrees to preserve the confidential nature of the software by retaining and using the software in trust and confidence, solely for its own internal use and not permitting the use of the software or disclosure of information relating to the software to unauthorized persons.
9.2 ePOSTouch reserves the right to interrupt or restrict service without notice to the Customer if fraudulent or abusive activity is suspected. Customer agrees to cooperate with ePOSTouch in any fraud investigation and to use any fraud prevention measures we prescribe within reason. Failure to cooperate will result in Customer’s liability for all fraudulent usage.
9.3 ePOSTouch reserves the right to intercept and disclose any sessions being served by ePOSTouch’s facilities in order to protect the rights or property of ePOSTouch.
10. Confidentiality and Proprietary Nature of Data
10.1 It is agreed that information furnished to or utilized by ePOSTouch shall be regarded as confidential in accordance with section 16 of this Agreement. Information furnished to or utilized by the Customer and provided by ePOSTouch shall remain the sole property of ePOSTouch and shall be held in confidence and safekeeping by the Customer. Both ePOSTouch and the Customer further agree to exercise good business judgment and discretion in the disclosure of such information to any person and will take appropriate precautions to limit use or disclosure to those personnel in its organization who are directly concerned with performance of this Agreement.
10.2 The specified “billing entity” and “administrative contact” for any subscription Order acknowledge that they are authorized to financially commit the subscribing organization to these services. Further, the specified “billing entity” and “administrative contact” for any subscription Order becomes the “owner” of any data in the file system managed by that entity. ePOSTouch has no ability to provide access to parties other than those assigned by the “administrative contact” of the “billing entity”. The “billing entity” is the sole owner and authority governing data sets and Licensed User access rights provided. ePOSTouch cannot provide access to or copies of any data sets other than as communicated in writing by the designated “administrative contact” for the “billing entity”.
10.3 While ePOSTouch’s Service uses encryption technology, and the law generally prohibits third parties from monitoring transmission, we cannot guarantee security with respect to the connection to the Service.
10.4 Subject to the terms and conditions of this Agreement, ePOSTouch shall store and otherwise maintain Data, reports and numeric results, and ePOSTouch shall follow the same archival procedures for Customer’s Data, reports and numeric results as ePOSTouch employs for its own data, as modified from time to time at ePOSTouch’s discretion. In the event of any loss or damage to Customer’s Data, reports or numeric results, Customer’s sole and exclusive remedy shall be for ePOSTouch to use commercially reasonable efforts to replace or restore the lost or damaged data from the latest backup of such Data, reports or numeric results which ePOSTouch has maintained in accordance with its standard archival procedures.
11. Customer Responsibilities
11.1 Customer shall obtain and maintain, at its sole expense, equipment and appropriate telecommunication service adaptable to, compatible with, and suitable for communication with ePOSTouch’s network specifications.
11.2 Customer agrees to be responsible for the accuracy and adequacy of the data which it furnishes or transmits to ePOSTouch for processing or storage. Reasonable precautions have been taken by ePOSTouch to prevent the loss, alteration or improper access to the Customer’s data, but ePOSTouch does not guarantee the accuracy or security of the same.
12. Electronic Agreement/Notices
12.1 All questions, comments or notices concerning this Agreement shall be submitted to ePOSTouch by Customer via email at support@ePOSTouch.com or via mail at: ePOSTouch Corporation, Attention: Customer Support, 3007 Brossman Street, Naperville, IL 60564. All notices to be given under this Agreement to Customer shall be submitted by ePOSTouch via email at the account Customer provided to ePOSTouch pursuant to Section 2 or to Customer upon accessing the Software and Services.
12.2 By checking the “I agree to the terms of service.” checkbox on the sign up page and providing ePOSTouch with Customer’s email address under section 2, Customer agrees and consents to (i) contract electronically with ePOSTouch for the Software and Services in accordance with this Agreement; (ii) receipt of electronic legal notices regarding this Agreement to the email account Customer provided under Section 4 or upon accessing the Software and Services; and (iii) that by clicking “I accept”, Customer intends to be bound by this Agreement. Customer may request to receive a copy of this Agreement by U.S. mail free of charge by giving notice to ePOSTouch of such request within 45 days after entering into this Agreement.
12.3 If Customer consented to receive ongoing legal notices from ePOSTouch via email Customer may (i) update its email information by providing notice to ePOSTouch and/or (ii) withdraw such consent by providing notice to ePOSTouch. Please be aware that if Customer withdraws its consent, such withdrawal of consent will not be effective until the date of receipt. The legal effect of this intervening time period is that Customer is still bound by the terms of this Agreement during such period. The legal consequence of withdrawing Customer’s consent shall not act to void or invalidate Customer’s actions prior to the effective date that shall remain subject to the terms of this Agreement. Upon withdrawing Customer’s consent Customer will be responsible for all incurred fees and charges payable under this Agreement.
13. General
13.1 ePOSTouch retains the right to subcontract without Customer’s consent the Services contracted for in this Agreement to third parties; however, no subcontract will relieve ePOSTouch of its obligations hereunder. Except as provided in the preceding sentence, neither this Agreement nor any rights hereunder may be assigned or otherwise transferred by either party, except to any corporation controlled by or under common control with the assigning party, or in connection with the acquisition of, or the sale of substantially all of, the assets of the business to which this Agreement pertains.
13.2 This Agreement is the complete and exclusive statement of the agreement between Customer and ePOSTouch, and supersedes any proposal or prior agreement, oral or written, and any other communications between the parties relating to the subject matter of this Agreement. This Agreement may not be modified by Customer except upon mutual agreement by the parties in writing signed by an authorized officer of ePOSTouch. ePOSTouch reserves the right, at any time, to change the terms of this Agreement, including its privacy policy, by providing Customer with notice of such changes. Any use of the Software and Services by Customer after ePOSTouch’s publication of any such changes shall constitute Customer’s acceptance of the Agreement as modified.
13.3 Force Majeure. ePOSTouch will not be responsible for any failure to perform due to causes beyond its reasonable control, including, acts of God, acts of terrorism, war, riot, embargoes, acts of civil or military authorities, national disasters, strikes and the like.
13.4 This Agreement shall be governed by the laws of the State of California, and exclusive jurisdiction for any legal proceeding regarding this Agreement shall be in the State of California. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the remainder of the Agreement, which shall remain valid and enforceable according to its terms. The words “and” as well as “or” shall be interchangeable to provide the broadest interpretation, and the word “including” shall mean “including without limitation” and “including but not limited to” to provide the broadest interpretation. The headings contained in this Agreement are for reference only and shall not affect the meaning or interpretation of this Agreement. ePOSTouch’s failure to exercise or enforce any right or power under this Agreement shall not constitute a waiver of such right or power.
13.5 Either party has the right to terminate this Agreement if the other party breaches or is in default of any obligation hereunder which default is incapable of cure or which, being capable of cure, has not been cured within seven (7) days after receipt of notice of such default. Upon termination of this Agreement payment obligations under this Agreement, shall survive such termination.
13.6 No term or provision hereof shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by the parties.
13.7 Nothing contained in this Agreement is intended to confer upon any person other than the parties hereto and their respective successors and permitted assigns, any benefit, right or remedy under or by reason of this Agreement, except with respect ePOSTouch Parties who shall be deemed third party beneficiaries under this Agreement but solely with respect to those terms that specifically reference an ePOSTouch Party or the ePOSTouch Parties.
14. Disclaimers
14.1 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, (A) THE SOFTWARE AND SERVICES ARE PROVIDED “AS-IS” AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ePOSTouch AND ITS DIRECTORS, OFFICERS, LICENSORS, SUBCONTRACTORS AND AGENTS (“ePOSTouch PARTIES”) DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SOFTWARE AND SERVICES OR OTHERWISE RELATING TO THIS AGREEMENT, INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT AND ACCURACY; (B) NEITHER ePOSTouch NOR ANY ePOSTouch PARTY WARRANTS THAT THE SOFTWARE AND SERVICES ARE OR WILL BE ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS, OTHER HARMFUL COMPONENTS, OR OTHER PROGRAM LIMITATIONS; (C) CUSTOMER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION OF PROBLEMS CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS, UNLESS SUCH ERRORS OR VIRUSES ARE THE DIRECT RESULT OF ePOSTouch’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (D) EACH OF ePOSTouch AND THE ePOSTouch PARTIES DISCLAIM AND MAKE NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS, OR EFFECTIVENESS OF THE REPORTS, DATA, SCORES, RESULTS OR OTHER INFORMATION OBTAINED, GENERATED OR OTHERWISE RECEIVED BY CUSTOMER FROM ACCESSING AND/OR USING THE SOFTWARE AND/OR SERVICES OR OTHERWISE RESULTING FROM THIS AGREEMENT, AND (E) USE OF THE SOFTWARE, SERVICES AND REPORTS IS ENTIRELY AT CUSTOMER’S OWN RISK AND ePOSTouch AND EACH OF ePOSTouch PARTIES SHALL HAVE NO LIABILITY OR RESPONSIBILITY THEREFOR.
15. Limitations on Liability
15.1 THE TOTAL LIABILITY OF ePOSTouch AND THE ePOSTouch PARTIES IN THE AGGREGATE TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE AND SERVICES WILL BE LIMITED TO THE PAYMENTS RECEIVED FROM CUSTOMER UNDER THIS AGREEMENT. ePOSTouch AND THE ePOSTouch PARTIES SHALL NOT BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY TYPE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE AND/OR SERVICES, WHETHER OR NOT ePOSTouch AND ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED UPON BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE). ePOSTouch AND THE ePOSTouch PARTIES SHALL HAVE NO LIABILITY FOR ANY DAMAGES RESULTING FROM ALTERATION, DESTRUCTION OR LOSS OF ANY DATA OR INFORMATION INPUT, GENERATED OR OBTAINED FROM ACCESS AND/OR USE OF THE SOFTWARE AND SERVICES, INCLUDING ANY REPORTS OR NUMERIC RESULTS, WHETHER OR NOT ePOSTouch AND THE ePOSTouch PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF DAMAGES AND LIABILITIES SET FORTH IN THIS AGREEMENT ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ePOSTouch AND CUSTOMER, AND THE PRICING FOR THE LICENSE REFLECTS SUCH LIMITATIONS. IF CUSTOMER IS NOT SATISFIED WITH THE SOFTWARE AND SERVICES, THE ENTIRE LIABILITY OF ePOSTouch AND THE ePOSTouch PARTIES, AND CUSTOMER’S EXCLUSIVE REMEDY, SHALL BE TO IMMEDIATELY STOP ACCESSING AND USING THE SOFTWARE AND SERVICES AND CONTACTING ePOSTouch WITHIN 30 DAYS OF AGREEING TO THIS AGREEMENT AND REQUESTING A FULL REFUND OF THE FEES PAID BY CUSTOMER TO ePOSTouch UNDER THIS AGREEMENT. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR DAMAGES (SUCH AS CONSEQUENTIAL OR INCIDENTAL DAMAGES), OR THE EXCLUSION OF IMPLIED WARRANTIES AND LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER. NOTWITHSTANDING THE FOREGOING, ePOSTouch WILL INDEMNIFY CUSTOMER AND HOLD IT HARMLESS FROM AND AGAINST ANY LIABILITY, JUDGMENTS, CLAIMS, LOSSES AND EXPENSES (INCLUDING ATTORNEYS’ FEES) RESULTING FROM OR RELATED TO A CLAIM BY ANY PARTY CLAIMING DAMAGES FOR INFRINGEMENT OF COPYRIGHT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY BASED ON MATERIAL SUPPLIED BY ePOSTouch TO CUSTOMER UNDER THIS AGREEMENT.
16. Privacy Policy
16.1 Information gathered by ePOSTouch remains private and will never be sold or shared with anyone without the Customers express consent except as specified in section 16.2. We will not rent or sell Customer’s name, address, email address, credit card information or personal information to any third party without Customer’s permission.
16.2 Customer elects to allow ePOSTouch to share non-personal, non-individual statistical or demographic information in aggregate form with third-parties for research purposes.
17. Customer Representations and Warranties
17.1 Customer represents and warrants to ePOSTouch that this Agreement shall be binding on Customer, and, unless Customer is an individual, Customer represents and warrants that this Agreement was executed by an authorized signatory of Customer with the authority to enter into binding agreements on behalf of Customer.
YOU AGREE
You agree that you are an authorized representative for your organization and wish to execute a services Agreement with ePOSTouch according to the terms and conditions as stated above. |
