BY CLICKING ON THE CHECKBOX “I ACCEPT THE TERMS OF THIS LICENSE AGREEMENT” OR, IF ISSUETRAK, INC. PRESENTS A PRINTED COPY OF THIS DOCUMENT TO YOU, BY SIGNING A PRINTED COPY OF THIS ISSUETRAK SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) YOU ACKNOWLEDGE AND AGREE THAT: (A) YOU HAVE READ THIS AGREEMENT IN ITS ENTIRETY; (B) YOU ARE OVER THE AGE OF EIGHTEEN (18) YEARS AND ARE A DULY AUTHORIZED OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF THAT CERTAIN ORGANIZATION THAT YOU HAVE IDENTIFIED TO ISSUETRAK, INC. BY PROVIDING THE ORGANIZATION‘S NAME, ADDRESS, AND ALL RELEVANT CONTACT INFORMATION, EITHER BELOW OR ELSEWHERE AND EITHER ELECTRONICALLY OR IN PRINTED FORM; AND © BY YOUR EXECUTION OF THIS AGREEMENT AS INDICATED ABOVE THE FOREGOING ORGANIZATION (“LICENSEE”) IS ENTERING INTO AN AGREEMENT WITH ISSUETRAK, INC. TO ENABLE LICENSEE TO ACCESS AND USE, ACCORDING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, ISSUETRAK SOFTWARE. THE EFFECTIVE DATE OF THIS AGREEMENT WILL BE THE DATE (“EFFECTIVE DATE”) OF ISSUETRAK, INC.’S INVOICE TO LICENSEE FOR THE ISSUETRAK SOFTWARE (“INVOICE”).
THIS AGREEMENT CONTAINS NUMEROUS TERMS AND CONDITIONS THAT WILL GOVERN THE RIGHTS OF THE PARTIES, INCLUDING LIMITATIONS ON WARRANTIES AND PROVISIONS GOVERNING THE RESOLUTION OF DISPUTES. BY ENTERING INTO THIS AGREEMENT LICENSEE WILL BE BOUND BY THE TERMS AND CONDITIONS HEREIN. IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU SHOULD NOT CLICK THE CHECKBOX TO ACCEPT LICENSE TERMS OR DECLINE TO SIGN IT WHERE INDICATED BELOW, IN EITHER CASE PROMPTLY GIVING NOTICE THEREOF TO ISSUETRAK, INC. IN THAT EVENT (A) ISSUETRAK, INC. WILL PROMPTLY CANCEL THIS TRANSACTION AND (B) LICENSEE MAY NOT USE THEREAFTER ANY PART OR ALL OF THE ISSUETRAK SOFTWARE COVERED BY THIS AGREEMENT.
IN CONSIDERATION OF THE COVENANTS AND MUTUAL PROMISES HEREIN AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND ADEQUACY OF WHICH EACH PARTY ACKNOWLEDGES, THE PARTIES HERETO AGREE AS FOLLOWS.
ISSUETRAK, INC. is the owner of certain Software and associated Documentation that is intended to enable a user of the Software and Documentation to identify, communicate and track the resolution of certain requests, issues and problems relating to the user‘s enterprise and/or operations, such as, by way of example only, computer and information technology, telephone or voicemail systems, customer services, product delivery, manufacturing and quality control (“Issuetrak Software”). Licensee has determined that Issuetrak Software is suitable for use in Licensee’s enterprise and/or operations and desires to license from ISSUETRAK, INC., and ISSUETRAK, INC. desires to license to Licensee, Issuetrak Software for use on the terms and conditions herein.
Capitalized terms used in this Agreement have the meanings indicated in the body of the Agreement or set forth in the schedule of definitions (“Definitions Schedule”) or the attachments included at the end of this Agreement. Whenever a term that is otherwise defined in this Agreement is used herein without being capitalized, the uncapitalized term will be given its broadest and most generic meaning, distinct from any specifically defined meaning of such term. For example, the capitalized term “Software” means ISSUETRAK, INC.'s proprietary computer programs and applications, regardless of whether in source-code or object-code form, but the uncapitalized term “software” means any and all computer programs and applications, restricted only by the context in which such uncapitalized term is used.
3. RIGHTS GRANTED.
Subject to the terms and conditions of this Agreement, ISSUETRAK, INC. hereby grants to Licensee, and Licensee hereby accepts from ISSUETRAK, INC., a non-exclusive, non-transferrable and terminable right during the Term of this Agreement: (a) to use Issuetrak Software and such Documentation as ISSUETRAK, INC. determines to be necessary or appropriate for Licensee's particular Issuetrak Software application(s); and (b) to create works based on and/or derived from any such application (collectively, “Derivative Works”) solely for use by Licensee in accordance with the terms and conditions of this Agreement.
4. RIGHTS NOT GRANTED.
4.1 Rights Reserved. All rights not expressly granted herein to Licensee and/or derivatively to a User are retained by ISSUETRAK, INC.
4.2 Use Restrictions. Licensee is authorized to use Issuetrak Software solely to support its ordinary business enterprise and/or operations. Unless otherwise specified herein, Licensee is expressly not permitted (and may not authorize or permit others) to: (a) resell any ISSUETRAK, INC. products or services or provide access to any third party in the nature of a “service bureau”; (b) authorize any third-party licensing or further transfer or disposition of Issuetrak Software application(s) (other than to Users); (c) make or use unauthorized copies of the Issuetrak Software application(s); (d) exceeding more than one (1) production instance and one (1) QA/development/Test instance per licenser key; e) allow use of Issuetrak Software by more than the authorized number and type of Users, or; (f) infringe, misappropriate or otherwise violate the contract or proprietary rights, including without limitation intellectual property rights, of ISSUETRAK, INC. or any of ISSUETRAK, INC.'s affiliates or licensors. If Licensee is an educational institution that acquires an Issuetrak Software license for teaching and evaluation purposes, Licensee agrees not to use Issuetrak Software for any other purpose, including without limitation any commercial purpose.
5. LICENSEE'S REPRESENTATIONS AND OBLIGATIONS.
5.1 Representations. Licensee represents that it has full power and authority to enter into this Agreement and to consummate the transaction contemplated hereby and that this Agreement constitutes the valid and binding agreement of Licensee, enforceable against Licensee in accordance with its terms and conditions.
5.2 System Requirements. Commencing on the Effective Date and continuing throughout the Term of this Agreement, Licensee is responsible for establishing and maintaining internally such hardware, interface, support and associated system features necessary to enable appropriate use of Issuetrak Software by each User, including without limitation the minimum System Environment requirements described in Attachment A hereto.
5.3 Number and Type of Users. The number and type of authorized Users is set forth in the Invoice, and ISSUETRAK, INC. will monitor and enforce that number by means of a license key.
5.4 Payment of Fees. Licensee will pay to ISSUETRAK, INC. all fees owed to ISSUETRAK, INC. under this Agreement (collectively, “Fees”) and will make all such payments when due.
5.5 Compliance with Laws; Payment of Taxes. ISSUETRAK, INC. intends for Issuetrak Software to be available globally to Customers, ISSUETRAK, INC. makes no representation or covenant that Issuetrak Software is legally available or appropriate for use outside the United States of America. Licensee is solely responsible for compliance with all applicable local, state, national and foreign laws and regulations, including without limitation the Gramm-Leach-Bliley Act, the Sarbanes-Oxley Act, the Health Insurance Portability and Accountability Act and any applicable U.S. Export Administration Regulations Licensee is also solely responsible for obtaining advice of competent legal counsel as to the identification and interpretation of any relevant laws that may affect Licensee‘s business and any actions that Licensee may need to take to comply with such laws. Other than taxes imposed on ISSUETRAK, INC.’s gross receipts, net income or real or personal property, all taxes, commissions, duties, fees or other charges imposed by any government authority will be borne by Licensee.
5.6 Standards Compliance. Licensee acknowledges and agrees that ISSUETRAK, INC. does not provide legal, accounting or auditing advice or represent or warrant that its products or services, including without limitation Issuetrak Software, Documentation and any and all related services, will ensure that Licensee is in compliance with any law or regulation.
6. ISSUETRAK, INC.'S REPRESENTATIONS AND OBLIGATIONS.
6.1 Representations. ISSUETRAK, INC. represents that it has full power and authority to enter into this Agreement and to consummate the transaction contemplated hereby and that this Agreement constitutes the valid and binding agreement of ISSUETRAK, INC., enforceable against ISSUETRAK, INC. in accordance with its terms.
6.2 Issuetrak Software Delivery. Before, on, or within a reasonable time after the Effective Date, ISSUETRAK, INC. will deliver to Licensee via electronic format one copy of the relevant Issuetrak Software application(s).
6.3 Licensee Rescission Rights. IN THE EVENT THAT LICENSEE IS NOT ENTIRELY SATISFIED WITH ISSUETRAK SOFTWARE, LICENSEE MAY, WITHIN FIFTEEN (15) DAYS AFTER THE EFFECTIVE DATE, NOTIFY ISSUETRAK, INC. OF ITS NONSATISFACTION, IN WHICH CASE LICENSEE WILL IMMEDIATELY CEASE ITS USE OF ISSUETRAK SOFTWARE AND WILL DISCARD, DELETE FROM ITS SYSTEM OR RETURN TO ISSUETRAK, INC. ALL COPIES OF ISSUETRAK SOFTWARE AND DOCUMENTATION AND ANY OTHER ITEMS PROVIDED TO LICENSEE BY ISSUETRAK, INC. UNDER THIS AGREEMENT. IN SUCH CASE ISSUETRAK, INC. WILL RETURN TO LICENSEE IN FULL ALL FEES PAID FOR THE ISSUETRAK SOFTWARE LICENSE LEASE BY LICENSEE PURSUANT TO THIS AGREEMENT AND THE AGREEMENT WILL THEN TERMINATE. OTHER THAN ISSUETRAK SOFTWARE LICENSE LEASE FEES, ANY FEES PAID TO ISSUETRAK, INC., INCUDING PROFESSIONAL SERVICE TIME USED, WILL NOT BE REFUNDED. LICENSEE'S FAILURE TO TIMELY RESCIND THIS AGREEMENT AS PROVIDED IN THIS SECTION WILL RENDER THE AGREEMENT VALID AND BINDING AGAINST LICENSEE AND TERMINABLE THEREAFTER ONLY AS PROVIDED ELSEWHERE HEREIN.
6.4 Documentation. The Documentation associated with the particular Issuetrak Software application(s) licensed hereunder will be included as one or more digital files contained within such Issuetrak Software application(s).
7.1 Fees. Licensee will pay to ISSUETRAK, INC. the applicable Fees set forth in the Invoice and Attachment B hereto including, without limitation, the License Lease Fee.
7.2 Payment. All applicable Fees will be paid in U.S. dollars to ISSUETRAK, INC. at 249 Central Park Avenue, Suite 200, Virginia Beach, Virginia 23462, or at such other address as may hereafter be designated by ISSUETRAK, INC. in writing. The License Lease Fee, for the initial Term, which ISSUETRAK, INC. will communicate to Licensee in advance, is due within the period specified on the Invoice. The License Lease Fee for any Renewal Term, which ISSUETRAK, INC. will communicate to Licensee in advance, is due before the commencement of the applicable Renewal Term. Licensee will pay a late-payment charge at a rate of one and one-half percent (1.5%) per month or the highest rate allowed by applicable law, whichever is less, for any Fees not paid as provided herein. In addition, Licensee‘s failure to timely pay any Fees will, at ISSUETRAK, INC.’s sole option, constitute a material breach by Licensee of this Agreement.
7.3 Fee Increases. Other than the License Lease Fee, which is fixed for the Initial Term, ISSUETRAK, INC. reserves the right to increase all other applicable Fees, hourly rates, costs, expenses and/or charges. After the Initial Term, ISSUETRAK, INC. reserves the right to increase the License Lease fee for any subsequent Renewal Term. Thirty days advance notice of any such increases will be sent to the Licensee's contact listed in Section 12.4 of this Agreement.
7.4 Customization Fees. At Licensee's request ISSUETRAK, INC. may choose, in its sole discretion, to customize one or more Issuetrak Software applications for Licensee. The fees for any such customization work will be as set forth in a separate customization agreement between the parties, and ISSUETRAK, INC. will not perform any such work unless and until the parties have entered into such an agreement.
8. TITLE AND CONFIDENTIALITY.
8.1 Title. Notwithstanding any authorized or unauthorized modification of Issuetrak Software by Licensee or any User, title to Issuetrak Software, all applications thereof, and all Documentation will remain the sole property of ISSUETRAK, INC. Except as expressly provided by this Agreement, no right, title or interest in Issuetrak Software, any application thereof, or any Documentation will transfer to Licensee, any User or any third party. For precautionary purposes Licensee hereby grants to ISSUETRAK, INC. a security interest in all Issuetrak Software, Documentation and any other items provided to Licensee by ISSUETRAK, INC. under this Agreement and agrees that ISSUETRAK, INC., in its sole discretion, may file financing statements to perfect such security interest.
8.2 Derivative Works. Subject to ISSUETRAK, INC.'s title in Issuetrak Software, all applications thereof, and all Documentation, Licensee will own the rights in any authorized Derivative Works that are created by or on behalf of Licensee hereunder, provided that with respect to any and all Derivative Works created by or on behalf of Licensee hereunder, Licensee (a) promptly discloses them to ISSUETRAK, INC. and gives to ISSUETRAK, INC. a copy of all applicable software and documentation; and (b) gives ISSUETRAK, INC. a perpetual, irrevocable, transferrable, worldwide, royalty-free license to use, display, copy, modify, disseminate, sublicense, and/or create derivative works from such Derivative Works.
8.3 Confidentiality. ISSUETRAK, INC. and Licensee will each have the following joint and mutual obligations to the other:
Non-Disclosure and Non-Use: to hold the other's Proprietary or Confidential Information in confidence and, except as expressly permitted by this Agreement, not to disclose or make available such Proprietary or Confidential Information to any third party;
Authorized Persons: to permit access to the other's Proprietary or Confidential Information by its employees, consultants, agents and Users only as reasonably related to authorized use of Issuetrak Software or performance of obligations hereunder; but
Compelled Disclosure: neither party's confidentiality obligations hereunder will extend to information that is required to be disclosed or released in connection with any judicial or quasi-judicial proceeding, provided that the disclosing party gives the other party reasonable notice of its intention to disclose and seeks to limit such disclosure as much as reasonably possible.
8.4 Equitable Relief. Each party acknowledges and agrees that any use or disclosure of the other‘s Proprietary or Confidential Information, other than as contemplated under this Agreement, may result in irreparable injury and damage to the other party. Accordingly, each party agrees that, in the event it uses or discloses the other’s Proprietary or Confidential Information other than as permitted by this Agreement, the other party will be entitled to seek equitable relief from an appropriate judicial body and will not have any obligation to post bond in connection therewith.
8.5 Duration of Confidentiality Obligation. The confidentiality obligation set forth in this Section 8 of the Agreement will last during the Term of the Agreement and for three (3) years thereafter, except that with respect to any trade secret information the confidentiality obligation will last so long as the information remains a trade secret.
8.6 Collection of User Data. Licensee consents to ISSUETRAK, INC. collecting data regarding the Licensee‘s use of the Issuetrak Software, including but not limited to number and types of users, number and types of issues submitted, and number and types of attachments. (collectively, the “User Data”). ISSUETRAK, INC. shall treat such User Data as Licensee’s Proprietary or Confidential Information, provided, however, that ISSUETRAK, INC. may use such information for the analysis and improvement of the use of its software by its licensees and customers. Licensee may opt out of this data collecting activity at any time by notifying ISSUETRAK, INC. by email at email@example.com.
9. TERM AND TERMINATION.
9.1 Term. Unless otherwise specified on the Invoice or a separate written agreement between the Parties, the “Initial Term” of this Agreement will commence on the Effective Date and expire on the date that is twelve (12) months after the Effective Date, unless terminated sooner in accordance with the terms and conditions of this Agreement. This Agreement shall automatically renew at the end of the Initial term or the then current Renewal Term, as the case may be, for a successive twelve (12) month term (each a “Renewal Term”), unless either party gives written notice of its intention not to renew this Agreement at least thirty (30) days before the expiration of the Initial Term or the then current Renewal Term, as the case may be. The Initial Term and any Renewal Terms shall be collectively referred to in this Agreement as the “Term.”
9.2 Termination. This Agreement may be terminated by either party if the other materially breaches this Agreement and fails to cure such breach to the nonbreaching party's reasonable satisfaction within fifteen (15) days after the breaching party receives notice specifying such breach in detail. Except as otherwise provided by this Agreement, either party may terminate the Agreement if the other party becomes insolvent or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; if a petition under any foreign, state, or United States bankruptcy act, receivership statute, or the like, as they now exist, or as they may be amended, is filed by the other party or if such a petition is filed by any third party; or an application for a receiver is made by anyone and such petition or application is not resolved favorably within ninety (90) days
9.3 Post-Termination Rights. Upon expiration or termination of this Agreement for any reason Licensee will immediately cease its use of Issuetrak Software and will discard, delete from its system or return to ISSUETRAK, INC. all copies of Issuetrak Software and all Documentation and any other items provided to Licensee by ISSUETRAK, INC. under this Agreement, and (b) ISSUETRAK, INC. will immediately cease all Software Subscription and Support.. Notwithstanding the reason for termination of the Agreement Licensee will be obligated to pay to ISSUETRAK, INC. all Fees earned through the effective date of such termination.
9.4 Survival. Rights and obligations created by this Agreement which are continuing in nature, including without limitation those rights and obligations described in Sections 4.2, 5.5, 7, 8, 9.3, 10, and 12 of the Agreement, will survive termination of this Agreement and remain in full force and effect.
10. TITLE WARRANTY; PRODUCT WARRANTY DISCLAIMER; INDEMNIFICATION; LIMITATION OF LIABILITY.
10.1 Title Warranty. ISSUETRAK, INC. warrants that it has title to and full right and authority to permit Licensee‘s use of, Issuetrak Software. Licensee's sole and exclusive remedies for ISSUETRAK, INC.’s breach of this warranty of title are to declare a material breach of this Agreement and resort to the protections afforded by the title indemnification set forth in Section 10.3 of this Agreement.
10.2 Limited Product Warranty and Disclaimer. Subject to the limitations of liability set forth in Section 10.4 of this Agreement and only so long as Licensee is not in breach of any of its obligations hereunder, ISSUETRAK, INC. warrants that during the Term of this Agreement Issuetrak Software, in the form in which ISSUETRAK, INC. delivers it to Licensee, willfunction on Licensee‘s server(s) free of material defects and in material conformance with the Documentation. EXCEPT AS PROVIDED ABOVE, ISSUETRAK SOFTWARE IS PROVIDED “AS IS” AND WITH NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR DATA ACCURACY. ISSUETRAK, INC. DOES NOT WARRANT THAT (A) LICENSEE'S ABILITY TO USE ISSUETRAK SOFTWARE WILL BE ERROR FREE OR UNINTERRUPTED; (B) THAT ISSUETRAK SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS; OR © THAT ANY CERTAIN RESULTS WILL BE OBTAINED BY VIRTUE OF LICENSEE'S OR ANY USER’S UTILIZATION OF ISSUETRAK SOFTWARE.
10.3 Title Indemnification. Subject to the limitations of liability set forth in Section 10.4 of this Agreement, ISSUETRAK, INC. will indemnify and hold harmless Licensee from and against liability that Licensee may suffer or incur arising out of a suit or proceeding based upon any claim that Licensee‘s use of Issuetrak Software under this Agreement infringes a U.S. patent, trademark or copyright that is a matter of public record as of the Effective Date. ISSUETRAK, INC.'s obligations under this section are conditioned upon Licensee’s providing ISSUETRAK, INC. with (a) prompt notice of such claim of infringement, (b) full cooperation in the defense of such claim, and (c) sole authority to control such defense and effect a settlement of such claim.
10.4 Limitations of Liability. OTHER THAN AS MAY RESULT FROM LICENSEE‘S MATERIAL BREACH OF ANY OF THE RESTRICTIONS SPECIFIED IN SECTION 4.2 OF THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS OR DAMAGES BASED ON INTERRUPTION OF BUSINESS) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ISSUETRAK SOFTWARE, WHETHER OR NOT THE OTHER PARTY IS INFORMED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. IN ADDITION, ISSUETRAK, INC.’S AGGREGATE LIABILITY TO LICENSEE, TO ANY USER AND TO ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, WHETHER IN TORT OR IN CONTRACT, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR TO ISSUETRAK SOFTWARE, WILL NOT, UNDER ANY CIRCUMSTANCES, EXCEED THE AMOUNT OF THE FEES PAID BY LICENSEE TO ISSUETRAK, INC. DURING THE TWELVE (12) MONTHS PRECEDING THE RELEVANT CLAIM. THESE LIMITATIONS OF LIABILITY REPRESENT A FUNDAMENTAL TERM OF THIS AGREEMENT SUCH THAT NEITHER PARTY WOULD HAVE ENTERED INTO THIS AGREEMENT WITHOUT THEIR INCLUSION.
10.5 Limitations of Remedies. Upon a breach of the warranty set forth in Section 10.2 of this Agreement ISSUETRAK, INC.‘s entire liability and Licensee's exclusive remedy will be, at ISSUETRAK, INC.’s sole option, to (a) cure or replace the defect within a reasonable time, at no cost or expense to Licensee or (b) refund the fee applicable to the defective product paid by Licensee under this Agreement, which refund will be made upon receipt by ISSUETRAK, INC. of the defective product.
10.6 Indemnification by Licensee. Subject to the limitations of liability set forth in Section 10.4 of this Agreement, Licensee will indemnify and hold harmless ISSUETRAK, INC. from and against liability that ISSUETRAK, INC. may suffer or incur arising out of a suit or proceeding based upon any claim that Licensee‘s use of Issuetrak Software (except in accordance with this Agreement) or the creation and/or use any of Licensee’s Derivative Works infringes a U.S. patent, trademark or copyright.
11. MAINTENANCE PLUS (UPGRADES, PRODUCT SUPPORT, TRAINING).
11.1 General. During the Term ISSUETRAK, INC. provide a variety of services, including software releases, technical support, and access to consulting and training services, all collectively known as “Maintenance Plus” to Licensee upon timely payment of all Fees. The terms and conditions governing ISSUETRAK, INC.'s provision of Maintenance Plus hereunder are set forth in Attachment C hereto as well as in the body of this Agreement .If any terms or conditions of Attachment C conflict with any terms or conditions of the body of this Agreement, the terms and conditions of the body of the Agreement, not Attachment C, will govern.
11.2 Consulting and Training (“Professional Services”). At Licensee‘s request ISSUETRAK, INC. may choose to make Professional Services training available to Licensee and its Users at a mutually agreed-upon time at Licensee's offices, unless ISSUETRAK, INC., at its sole option, agrees to conduct training elsewhere. In return for any such Professional Services Licensee will pay to ISSUETRAK, INC. (a) the then-current hourly rates that ISSUETRAK, INC. charges for such services and (b) all of ISSUETRAK, INC.’s costs and expenses (including without limitation reasonable travel, lodging and miscellaneous expenses and taxes) associated with any Professional Services..
12. GENERAL PROVISIONS.
12.1 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Virginia.
12.2 Entire Agreement; Headings. This Agreement, including the Definitions Schedule, all attachments hereto and the Invoice, sets forth the parties‘ entire agreement and understanding related to the subject matter hereof and merges all prior discussions between them. This Agreement’s captions and headings are intended solely for convenience and are not intended to explain, modify or restrict any of the terms or provisions of this Agreement.
12.3 Modifications to Agreement. We reserve the right, at our sole discretion, to change, modify or otherwise alter these Terms at any time. You can find the most recent version of these terms and conditions on the website https://Issuetrak.com/legal.php. Such modifications shall become effective immediately upon the posting. You must review this Agreement on a regular basis to keep yourself apprised of any changes. You may terminate this Agreement if the Agreement is modified in a manner that substantially affects your rights in connection with use of the Software. Your continued use of the Software after notice of any change to the Terms will be deemed to be your agreement to the amended Terms
12.4 Notices. Any notice required or permitted by this Agreement other than those described in Sections 8.6 and 12.3, must be in writing and deemed effective (a) upon delivery if given in person, or by email, or facsimile transmission, or; (b) the next business day after being sent if sent by internationally recognized overnight courier, in any case addressed to the other party as set forth below.
If to Issuetrak, Inc.:
249 Central Park Avenue, Suite 200
Virginia Beach, VA 23462
Fax: (757) 213-1333
Attn: Henry G. (“Hank”) Luhring, III, CEO
If to Licensee:
As indicated on the Invoice, unless Licensee gives ISSUETRAK, INC. notice of a different address.
12.5 Force Majeure. The non-performance of either party (except payment of any monies due hereunder) will be excused to the extent that performance is rendered impossible by terrorism, war, strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing party.
12.6 Binding Effect; Assignment; Non-Agency; No Third-Party Beneficiaries. This Agreement will be binding upon the parties hereto, their successors, assigns, heirs and personal representatives. Licensee may not assign its rights or duties under this Agreement to any other person(s) or entity (ies) without ISSUETRAK, INC.'s prior written consent, except in the context of reorganization, merger, consolidation, acquisition or other restructuring involving all or substantially all of the voting securities and/or assets of Licensee. Nothing in this Agreement will be construed to make the parties partners, joint venturers, representatives or agents of one another, nor will either party so represent to any third person or entity. Nothing in this Agreement is intended to, or will, create any third-party beneficiaries, whether intended or incidental and neither party will make any representations to the contrary.
12.7 Partial Invalidity; Waiver. If any provision of this Agreement is held to be invalid by an arbitrator or a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect, unless the Agreement would thereby fail of its essential purpose. The parties agree to renegotiate in good faith any term held invalid and to be bound by any mutually agreed-upon substitute provisions. A party‘s failure in a given instance to enforce any of its rights or any of the other party’s obligations hereunder will not be construed or act as a waiver of enforcement of such right or obligation in any other instance.
12.8 Legal Expenses. The substantially prevailing party in any arbitration or legal action brought by one party against the other under this Agreement will be entitled, in addition to any other rights and remedies it may have, to reimbursement for its reasonable costs and expenses, including court costs, all arbitrations fees, and reasonable fees and expenses of attorneys and other professionals.
12.9 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which will be deemed an original and all of which together will constitute but one (1) instrument.
12.10 Dispute Resolution. The parties will act in good faith and use reasonable efforts to promptly resolve any claim, dispute, controversy or disagreement (each, a “Dispute”) between the parties under or related to this Agreement. Such efforts will include at least one face-to-face meeting between senior executive officers of the parties. Any Dispute arising out of this Agreement that cannot be resolved by the parties will be governed exclusively by arbitration (provided that no arbitration will be required prior to a party‘s seeking injunctive relief hereunder). The arbitration will be initiated and conducted (except as otherwise provided herein) in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association, will be conducted by three arbitrators (at least one of whom will be knowledgeable about the software industry) and will be conducted in Virginia Beach, Virginia. The arbitrator will have the power to award reasonable costs, fees and expenses (including without limitation attorney’s fees and expenses) to the substantially prevailing party, and either party will have the right to take appropriate action to enforce any arbitration award.
12.11 Publicity. ISSUETRAK, INC. and Licensee may reasonably publicize the existence of this Agreement and the provision of the products and services set forth herein. Each party grants to the other a limited license to use the trademark, if any, typically associated with the other party to accomplish the publicity set forth in the previous sentence. Notwithstanding the foregoing, neither party may disclose to any third party the terms of this Agreement.
12.12 Attachments. This Agreement is supplemented by and subject to the terms and conditions of the Definitions Schedule and the following attachments, which will govern in case of any conflict with the rest of the Agreement:
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in accordance with its terms and conditions. If Licensee executed this Agreement by clicking “Yes,” the Agreement will be considered to have been executed by both parties on the date that Licensee executed it, but if the parties executed the Agreement by signing it below, the Agreement will be considered to have been executed by a party on the date that such party signed it. Regardless of the manner and date of its execution, the Agreement's Effective Date will be as defined above.
Documentation. All operating instructions, user manuals, help files, flow charts, logic diagrams, video materials, program documentation and other technical or training material, whether in written or electronic form, delivered with or intended for use in connection with Issuetrak Software.
Proprietary or Confidential Information. With respect to either party, all information or material that (a) gives that party some competitive business advantage or the opportunity of obtaining such advantage or (b) is either (i) marked “Confidential,” “Restricted,” or “Proprietary Information” or with markings of similar import, (ii) known by both parties to be considered confidential and proprietary, or (iii) from all the relevant circumstances should reasonably be assumed to be confidential and proprietary. Proprietary or Confidential Information includes Issuetrak Software. No information constitutes Proprietary or Confidential Information if it is (a) generic information or otherwise publicly known or in the public domain, (b) was in the recipient's possession before receipt from the discloser, (y) is received from a third party without a violation of any duty of confidentiality, or (c) is independently developed by the recipient.
Term, Initial Term, Renewal Term. See Section 9.1 for definitions of these terms.
User. Any duly authorized user of Issuetrak Software whose rights are derivative of those granted to Licensee under this Agreement. The term User includes any individual who directly uses Issuetrak Software application(s) or who indirectly uses Issuetrak Software application(s) through or with the assistance of another (for example, an individual who submits an issue to a help desk staff member for entry into an Issuetrak Software application). A Licensed User is a User that can assign an issue, can be assigned an issue, can administrate and/or can submit for others. A Standard User is a User that submits problems via the web, has access to the knowledge base and/or has access to the status of his or her issues.
Maintenance Plus. An Issuetrak service that provides telephone and/or web-based technical support, no-charge software release upgrades, hot-fix and software patch releases, and access to Issuetrak Professional Services. Maintenance Plus coverage is included as part of the License Lease Fee. A description of provided services is detailed in Attachment C of this License Agreement.
attachment a: system environment
“System Environment” means Licensee‘s computing and network environment as may be approved in advance by Issuetrak, Inc. as being appropriate and suitable for utilization of the Issuetrak Software application(s) contemplated under this Agreement, including without limitation the minimum requirements described in associated documentation. The Issuetrak Software application(s) generally consist(s) of the following two components: (1) the database component and (2) the web-server component. One copy of each component may be installed on the same server or on two separate servers of Licensee, subject to the terms and conditions of this Agreement. The System Environment minimum requirements for Licensee’s access to and utilization of relevant Issuetrak Software application(s) are found: https://www.issuetrak.com/system_requirements.
attachment b: fee schedule
- License Fee. The fee provided in the initial Invoice and any subsequent Invoices for additional number and types of Users specified therein.
- Maintenance Plus Fee. For the first year of the Term, a fee equal to 20% of the License Fee, paid annually in advance. For any subsequent years of the Term, a fee equal to 20% of Issuetrak, Inc.‘s then-current list price(s) for the Issuetrak Software application(s) licensed hereunder. If, however, Licensee does not purchase Maintenance Plus for any period of the Term, the Maintenance Plus Fee will consist of the standard 20% renewal fee plus a pro-rated Reinstatement Charge. Under no conditions will the Reinstatement Charge exceed 100% of the standard 20% renewal fee. If Licensee chooses to increase the number of Agents in Issuetrak Software during the Term, any incremental Maintenance Plus charges associated with such Upgrade will be prorated over the remaining period of Licensee's current Maintenance Plus Term, charged to the Licensee and due upon implementation of such Upgrade. In any future Term renewals, Licensee’s Maintenance Plus fee will be based on the most current Agent count.
- Chat Service Fee. Those Licensees subscribing to ISSUETRAK INC's optional Chat Messaging Service will receive a monthly invoice based on the number of agents enrolled in the Service during the prior month. Licensee assumes full responsibility for managing the agent enrollment count via the Chat Service Web Portal.
attachment c: maintenance plus
- Technical Support. During the first year of the Term and the Additional Maintenance Plus Period (if any), ISSUETRAK, INC. will accept requests related to Issuetrak Software via telephone, electronic mail, or the Issuetrak Support site twenty-four (24) hours per day, seven (7) days a week. ISSUETRAK, INC. will provide technical support staff during the hours of 8:00 a.m. and 8:00 p.m. Eastern Time, Monday through Friday, excluding U.S. Federal and/or company holidays. ISSUETRAK, INC. may employ Third-Party answering service, as needed, to facilitate a time in which technical support staff is not available. Outside normal business hours, during the Term, ISSUETRAK, INC. will use reasonable efforts to provide technical support for any problem related to the Issuetrak Software or ISSUETRAK, INC.‘s equipment that renders unusable the Issuetrak Software available to Licensee (“EMERGENCY”). Such after-hours EMERGENCY support shall be provided only by telephone and only to the extent that ISSUETRAK, INC. has technicians available during such times. Severity of the EMERGENCY will be determined by the ISSUETRAK, INC. support staff in conjunction with the Licensee. Under EMERGENCY conditions, ISSUETRAK, INC. may opt to follow the quickest path to resolution in order to restore services as quickly as possible, including, but not limited to, rolling back executed changes that inflicted the EMERGENCY. Licensee acknowledges and agrees that to ensure accurate issue logs and to facilitate the creation of a “lessons-learned” database that can help speed recovery from future incidents requiring ISSUETRAK, INC.’s support, ISSUETRAK, INC. may monitor and track all support-related requests and monitor and record all support-related telephone calls and electronic mail. Issuetrak Maintenance Plus coverage does not include customization, Issuetrak Software that has been modified or altered, software not covered by this Agreement, on-site support, support of hardware and related equipment, supplies or training except as expressly provided for in this Agreement.
- Reporting and Resolution Procedures. ISSUETRAK, INC. will address and attempt to correct any Problem and any Emergency Problem within a reasonable time after Licensee reports the Problem or Emergency Problem to ISSUETRAK, INC., as follows: (a) Problem Reporting: Upon discovering a Problem, Licensee will report the Problem to ISSUETRAK, INC. by opening an issue in ISSUETRAK, INC.‘s support website or, if that option is unavailable, by placing a telephone call to ISSUETRAK, INC.’s support desk or sending electronic mail to ISSUETRAK, INC. (regardless of which of the foregoing reporting methods is used, each such report a “Service Request”). (b) Emergency Problem Reporting: Upon discovering an Emergency Problem, Licensee will report the Emergency Problem to ISSUETRAK, INC. by placing a telephone call to ISSUETRAK, INC.‘s support desk (an “Emergency Service Request”).(c) Normal Support: During normal support hours ISSUETRAK, INC. will provide telephone and/or electronic mail support in the form of consultations, assistance and advice concerning use of Issuetrak Software and correction of the Problem or Emergency Problem (collectively, “Service Desk Support”) within four (4) hours after receiving a Service Request or Emergency Service Request, as the case may be. (d) After-Hours Support: After normal support hours, ISSUETRAK, INC. will provide Service Desk Support for Emergency Issues within (4) hours if it receives the Service Request through a telephone call to ISSUETRAK, INC.'s support desk. (e) Resolution: If a Problem or Emergency Problem is not corrected within forty eight (48) hours after ISSUETRAK, INC. receives a Service Request or Emergency Service Request, ISSUETRAK, INC. may conduct tests and analyses at ISSUETRAK, INC.’s facility designed to reproduce, isolate and correct the Problem or Emergency Problem using data and information provided to ISSUETRAK, INC. by Licensee.
- Software Releases. During the first year of the Term and during and the Additional Maintenance Plus Period (if any), Licensee will receive at no additional charge all Updates to the relevant Issuetrak Software in the form of Major, Minor, and Patch Releases (as defined below), provided that ISSUETRAK, INC. reserve the right to charge for any rewrites or other complete overhauls of Issuetrak Software that go beyond the scope of a standard Release. Licensee's use of a Release with or in place of the relevant Issuetrak Software application will be governed by and subject to the terms and conditions of this Agreement. Licensee agrees promptly to install each Release supplied by ISSUETRAK, INC. and to destroy or return to ISSUETRAK, INC. any portion of the relevant Issuetrak Software application(s) replaced or modified by a Release.Major, Minor, and Patch Release versions are identified by a release version number consisting of a sequence of three numbers separated by a dot (“.”). The first number in the sequence identifies a Major Release where dramatic or substantial changes to the product are included. The second number identifies a Minor Release when a few new features are included but are not substantial enough to be considered a Major Release. The third number in the sequence is a Patch Release which includes fixes to issues, but no new features.
- Licensee Contacts. Licensee will designate one person as its primary point of contact and another person as its secondary point of contact for ISSUETRAK, INC. hereunder. Those two persons will be the only persons with whom ISSUETRAK, INC. is obligated to communicate with respect to Maintenance Plus hereunder, and ISSUETRAK, INC. may, at its sole option, communicate with such persons by telephone, electronic mail (including without limitation electronic mail sent through ISSUETRAK, INC.'s website[s]) or facsimile.
- Access to Software and System(s). Solely to enable ISSUETRAK, INC. to perform its obligations under this Agreement, Licensee will (a) give ISSUETRAK, INC. reasonable access to (i) the Issuetrak Software licensed hereunder, (ii) the system(s) in connection with which that Issuetrak Software is used, (iii) all Documentation and (iv) all other relevant documents in Licensee's possession or control and (b) provide to ISSUETRAK, INC. any and all such technical consultation and/or other assistance that ISSUETRAK, INC. may reasonably request.
- Customized, altered, or modified Software. ISSUETRAK, INC., at its sole option, will use reasonable efforts to support Licensee with respect to any customization, alteration or modification of relevant Issuetrak Software that is performed by or on behalf of Licensee, but Licensee acknowledges and agrees that ISSUETRAK, INC. (a) has no obligation to do so and (b) cannot and does not guarantee any results with respect to any such support that ISSUETRAK, INC. chooses, in its sole discretion, to provide with respect to such customized Issuetrak Software. ISSUETRAK, INC. reserves the right to charge Licensee, at ISSUETRAK, INC.‘s then-current hourly rates, for any support that ISSUETRAK, INC. provides with respect to customized Issuetrak Software and to require that Licensee pay in advance (or, at ISSUETRAK, INC.’s sole option, reimburse ISSUETRAK, INC. for) any costs, fees or expenses, including without limitation travel expenses, that ISSUETRAK, INC. reasonably incurs in connection with providing such support.
- Access to Professional Services. Licensee will have reasonable (as determined by ISSUETRAK, INC.) complimentary access to ISSUETRAK, INC.'s software experts for consultation on such topics as configuration and best practices. Additionally, as described in Section 11.2 of the License Agreement, Licensee will also have the ability to purchase customized training, configuration and/or consulting time in either on-site or remote sessions.
attachment d: chat services
NOTE: This Section is only applicable to users of Issuetrak's optional chat messaging service.
If Customer is utilizing optional third-party chat service that allows the sharing of messages with other users through the Chat Provider's website (“Website”) you agree to the terms detailed in this Attachment.
- Chat Service customers agree not to record, upload, post, transmit, cause the display, playback or performance of, or otherwise make available any content that:
- is harmful, threatening, abusive, harassing, tortious, vulgar, hateful, obscene, pornographic excessively violent or racially, ethnically or otherwise offensive or discriminatory;
- is illegal, tortious, defamatory, libelous or invasive of another's privacy or publicity rights;
- infringes any patent, trademark, trade secret, copyright or other proprietary or intellectual property rights of any party or includes copyrighted materials for which you do not possess appropriate rights;
- you do not have a right to make available under law or contractual or fiduciary relationships;
- includes private information of any third-party;
- is advertising, solicitations or promotional material;
- contains software viruses or any other computer code, files or programs designed to destroy, interrupt or otherwise limit the functionality of any computer software, computer hardware or other equipment.
- All messages, information, videos or other content, whether publicly posted, displayed or performed on, or privately transmitted, are the sole responsibility of the person who sends or publishes such items. Accordingly, you are responsible for all items that you record, upload, post, cause a display, playback or performance of, email, transmit or otherwise make available via the website. Issuetrak reserves the right to, but has no obligation to, monitor or screen the content posted and/or displayed or performed in the Website and to remove any content in its sole discretion. Nevertheless, YOU REMAIN SOLELY RESPONSIBLE FOR THE CONTENT YOU RECORD, UPLOAD, POST, CAUSE TO BE DISPLAYED, PLAYED BACK OR PERFORMED IN ANY AREAS OF THE WEBSITE AND THAT YOU TRANSMIT IN ANY OF YOUR COMMUNICATIONS THAT USE THE WEBSITE AND THE SERVICE PROVIDED THEREBY.
- You may not do any of the following to the Website:
- use the Website in any manner that could damage, disable, overburden, disrupt or impair the Website or any Website server, or the network(s) connected to any Website server, or interfere with any other party‘s use and enjoyment of the Website;
- disobey any applicable policies or regulations of networks connected to the Website;
- use any robot, spider, site search/retrieval application, or other device to retrieve, index or interface with any portion of the Website;
- modify, adapt, translate, reverse engineer or frame the Website or reformat it in any way or create user accounts using any automated means or under false pretenses.
- No Responsibility for Third-Party Content. You understand that the chat service acts only as a technical interface between users and that Issuetrak and its Chat licensor does not verify the qualifications of users, nor do they evaluate or control in any ongoing manner exchanges between users. Any opinions or statements expressed by a user are of those of the user alone, and are not to be attributed to Issuetrak or its Chat licensor who cannot and do not assume responsibility for the accuracy, completeness, safety, reliability, timeliness, innocuousness, legality or applicability of anything said, written, posted, displayed or otherwise made available by any user. You understand that you may be exposed to content that you find offensive to you, and that you use the Service at your own risk.
- Interstate and International Use. Users in the European Union consent to the collection and processing of personal information, as described in this Agreement, in the United States. All users understand the potential cross-border nature of communications made using the Website, and acknowledge that using the Website may result in interstate and international transmission of data.
- Content License. You retain copyright and any other rights you already hold in content which you submit, post or display on or through, the Service. By submitting, posting or displaying the content you give Issuetrak or its Chat licensor a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, transmit and distribute any content which you submit, post or display on or through, the Services. This license is for the sole purpose of enabling Issuetrak or its Chat licensor to maintain, operate and provide the Service. This license includes no rights for Issuetrak or its Chat licensor to make such content available to other companies, organizations or individuals without your permission.
- Copyright Policy. In addition to any other use restrictions set forth in this Agreement, you may not engage in or facilitate the posting, modification, distribution, reproduction of any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. It is the policy of Issuetrak or its Chat licensor to terminate all privileges of any user who repeatedly infringes the copyright rights of others.
- Third-Party Web Sites, Services and Content. The Website may contain links to third-party sites that are not under the control of Issuetrak or its Chat licensor who are not responsible for, nor does it guarantee the accuracy or integrity of these links.
Disclaimer of Warranties and Limitation of Liability. Issuetrak and its Chat licensor disclaims any and all responsibility or liability for the content, legality, reliability, or operability or availability of information or material displayed in or from the Website. Issuetrak and its Chat licensor disclaims any responsibility for the deletion, failure to store, mis-delivery, or untimely delivery of any content, information or other material and disclaim any responsibility for any harm resulting from downloading or accessing any information or material on the Internet through the Website.
THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITH NO WARRANTIES WHATSOEVER. ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS, ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. IN ADDITION, EXCEPT AS EXPRESSLY PROVIDED OTHERWISE, ISSUETRAK, INC. AND ITS CHAT LICENSOR DISCLAIM ANY WARRANTIES OF NON-INFRINGEMENT, TITLE, OR QUIET ENJOYMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, ISSUETRAK, INC. AND ITS CHAT LICENSOR DO NOT REPRESENT OR WARRANT TO YOU THAT: YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, YOUR USE OF THE SERVICE WILL MEET YOUR REQUIREMENTS,AND, ANY INFORMATION OR CONTENT OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE LEGAL, ACCURATE, RELIABLE OR OF A QUALITY THAT MEETS YOUR EXPECTATIONS.TO THE FULLEST EXTENT PERMITTED BY LAW, AND DISCLAIM ANY WARRANTIES FOR OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SERVICE OR RECEIVED THROUGH ANY LINKS PROVIDED IN SERVICE, AS WELL AS FOR ANY INFORMATION OR ADVICE RECEIVED THROUGH THE SERVICE OR THROUGH ANY LINKS PROVIDED IN THE SERVICE. ISSUETRAK, INC. AND ITS CHAT LICENSOR DISCLAIM ANY RESPONSIBILITY FOR THE DELETION, FAILURE TO STORE, MISDELIVERY, OR UNTIMELY DELIVERY OF ANY INFORMATION OR MATERIAL AND DISCLAIM ANY RESPONSIBILITY OR LIABILITY FOR ANY HARM RESULTING FROM DOWNLOADING OR ACCESSING ANY INFORMATION OR MATERIAL THROUGH THE SERVICE, INCLUDING, WITHOUT LIMITATION, FOR HARM CAUSED BY VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.YOU UNDERSTAND AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE ACCESSED OR OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM, MOBILE TELEPHONE, OTHER DEVICE OR DATA THAT RESULTS IN THE DOWNLOAD OF SUCH MATERIAL.NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED BY YOU FROM ISSUETRAK, INC. AND ITS CHAT LICENSOR, THEIR EMPLOYEES OR REPRESENTATIVES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.YOU EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES SHALL ISSUETRAK, INC. AND ITS CHAT LICENSOR BE LIABLE TO ANY USER OF THAT USER'S USE OR MISUSE OF THE SERVICE OR RELIANCE ON THE SERVICE. SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES (EVEN IF ISSUETRAK, INC. AND ITS CHAT LICENSOR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SERVICE, FROM INABILITY TO USE THE SERVICE, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SERVICES AND THE DELETION OF CONTENT (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES).SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SERVICE OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE SERVICE, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED ON THE SERVICE OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE SERVICE. SUCH LIMITATION SHALL APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA. SUCH LIMITATION SHALL APPLY WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICE OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO THE SERVICE OR TO ISSUETRAK, INC. OR ITS CHAT LICENSOR. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SUCH LIMITATION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
SUCH LIMITATION OF LIABILITY SHALL ALSO APPLY TO ANY DAMAGE CAUSED BY LOSS OF ACCESS TO, DELETION OF, FAILURE TO STORE, FAILURE TO BACK UP, OR ALTERATION OF USER CONTENT. YOU AGREE THAT ISSUETRAK, INC. AND ITS CHAT LICENSOR'S ENTIRE LIABILITY, IF ANY, FOR ANY AND ALL CLAIMS ARISING FROM THE USE OF THE SERVICE SHALL NOT EXCEED THE AMOUNT OF THE MOST RECENT ONE MONTH SERVICE FEE PAYMENT OR TEN ($10) US DOLLARS, WHICHEVER IS LOWER. UNDER NO CIRCUMSTANCES SHALL ISSUETRAK, INC.OR ITS CHAT MESSAGING LICENSOR BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, NON-PERFORMANCE OF THIRD PARTIES, OR LOSS OF OR FLUCTUATIONS IN HEAT, LIGHT, OR AIR CONDITIONING.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF THIS SECTION MAY NOT APPLY TO YOU.
- Termination or Modification; Consequences of Violation of Terms of Service. ISSUETRAK, INC, and its Chat Licensor reserve the right to terminate your privilege to use the Website at any time for any reason. In addition, ISSUETRAK, INC, and its Chat Licensor shall have the right but no obligation to:
- remove any material that in its sole opinion may violate, or that is alleged to violate, any applicable law or these Terms of Service;
- terminate a Website discussion or any other portion of the Website, and/or remove a user or users from a discussion or otherwise terminate any use of the Website if ISSUETRAK, INC, or its Chat Licensor determine or had a good faith concern that such use is unlawful and/or prohibited by these Terms of Service;
- inform law enforcement of any illegal activity or material that is suspected or discovered on, through, or otherwise relating to the Website and provide law enforcement officials with all requested information about the user account from which the illegal activity or material originated.
- European Union (“EU”) customers have the ability to store Chat Service content on EU servers. If you are a customer in the EU and you wish to store your content on EU servers, contact ISSUETRAK, INC. for additional information.