iPoint MASTER AGREEMENT
THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF THE IPOINT CONTROL SOFTWARE AND SERVICES AND SHALL SUPERSEDE ALL PRIOR TERMS OR AGREEMENTS BETWEEN THE CUSTOMER AND iPoint LLC dba iPoint CONTROL (“iPoint CONTROL”).
BY USING THIS SOFTWARE YOU AGREE TO THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THESE SERVICES. If any part of the Agreement should be found to be invalid or unenforceable by a court or other competent authority, then the rest shall not be affected. Any notice to be given in respect of this Agreement by either of the parties shall be in writing and delivered to the address set forth in the Order Form of the other.
“Agreement” means this iPoint Control Subscription Agreement.
“Customer” means the company or other legal entity for which you are accepting this Agreement, and affiliates of that company or entity.
“Documentation” means iPoint Control’s online user guides, documentation, and help and training materials, as updated from time to time.
“Order Form” means the iPoint Control Purchase & Sales Order Form specifying the Services to be provided hereunder that is entered into between the Customer and iPoint Control.
“Services” means services ordered by the Customer and made available by iPoint Control, including but not limited to, database hosting, training, and support.
“Software” means the Filemaker based database program created by iPoint Control.
“Usage” means accessing the iPoint Control database program from any computer, smartphone, or mobile device.
“User” means a single individual that accesses the Software via computer, smartphone, or mobile device, who is authorized by the Customer to use a Service, for whom the Customer has ordered the Service, and to whom the Customer has supplied a username and password. Users may include employees, contractors, consultants, agents, and third parties with which the Customer transacts business.
- Providing Services. iPoint Control shall make the Services available to the Customer pursuant to this Agreement and the relevant Order Forms during a subscription term. Customer agrees that the Customer’s purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments regarding future functionality or features and that Customer will use the Services in accordance with the terms of this agreement including User Rights below.
- User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) Usernames and passwords may not be shared with other individuals, (iii) additional User subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iv) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
PRICES, FEES, AND PAYMENT TERMS
- Price Quotes. Prices, which are expressed herein in U.S. Dollars (if not clearly stated otherwise), are only valid if expressed in writing by iPoint Control and only for the period stated in the quotation or contract. If not stated, the price validity period is 30 days.
- Fees. Fees are based on quantities purchased and not on actual usage. Quantities purchased cannot be reduced during the subscription term. User quantities above the purchased amounts will be billed to the Customer accordingly. Payment obligations during the subscription period are noncancelable and all amounts paid are non-refundable.
- Payment Terms. Unless otherwise stated on the Order Form, payment of all invoiced amounts shall be made within 14 days of the date of invoice or before any due date for payment shown on the invoice. License fees are invoiced in advance on a monthly/quarterly basis as specified in the Order Form for full access to the iPoint Control service via computer, internet browser, smartphone, or mobile device.
- Payment Options. Payment is to be made via Electronic Funds Transfer or credit card. If the Customer has provided iPoint Control with credit card information, the Customer authorizes iPoint Control to charge such credit card on the first day of the monthly billing period as specified in the Order Form for all Services listed in the Order Form for the initial subscription period and any renewing subscription periods.
- Taxes. All payments due to iPoint Control do not include taxes unless specifically stated. The Customer is responsible for payment of all applicable taxes, however, designated or incurred in connection with the transactions under this Agreement.
- Late Payments. If any payment is not made by the Customer by the due date, iPoint Control reserves the right to charge interest at the rate of 20% until payment is received in full. Additionally, if payment is not made for 30 days after the due date, iPoint Control reserves the right to suspend Services to the Customer.
The subscription period commences on the date specified on the Order Form and will last for a term of one calendar month. Thereafter, the Services shall automatically be renewed for successive one calendar month unless the Customer gives iPoint Control written notice of its intention not to renew the Services at least 1 day before the day on which the Services or renewal would expire.
All delivery times and dates are approximate, but iPoint Control shall use its reasonable endeavors to respect them. iPoint Control shall not be liable for any loss or damage resulting from late delivery.
- Grant of Rights. Subject to the terms and conditions of this Agreement, iPoint Control hereby grants Customer a non-exclusive, non-transferable limited right, License in the territory where the Customer is located (i) to install and use the Software, consistent with any additional use limitations specified or referenced in the Order Form and solely for Customer’s use; and (ii) to download, print, copy and use any documentation as reasonably necessary for its internal, in- house use related to the rights granted under subsection (i) above.
- Restrictions. iPoint Control reserves all rights not expressly granted herein. Except as otherwise permitted herein, in no event shall Customer (i) copy, modify, adapt, or create derivative works of the Software, (ii) use, or permit any third party to use, the Products for time-sharing, rental, or service bureau purposes, (iii) decompile, disassemble, reverse assemble, or otherwise reverse engineer the Software, or permit any third party to decompile, reverse assemble, or reverse engineer the Software, (iv) attempt to gain unauthorized access to the Services or their related systems or networks, or (v) access any Service in order to build a competitive product.
- Ownership. Customer acknowledges that iPoint Control owns all rights, title, and interest in the Software (and all copies thereof), including but not limited to all worldwide copyrights, trade secrets, trademark, patents, confidential information, and proprietary and intellectual property rights subsisting therein. Customer does not acquire any rights, express or implied, in the Software other than those specified in this Agreement.
- Third-Party Software. Customer acknowledges that the third party software (if any) identified in the Order Form (“Third Party Software”), is not owned by iPoint Control. All rights of Customer to use the Third Party Software and warranties thereof, if any, shall be governed by the terms and conditions of the master license agreement for such Third Party Software between iPoint Control and the third party.
- Warranty Limitations. iPoint Control warrants that the Software will function in substantial accordance with the description and specifications as defined in this document. The warranty granted herein is in lieu of all other warranties, expressed or implied, including, but not limited to, any implied warranties of merchantability or fitness for a particular purpose.
- 30 Day Guarantee Remedy Limitations. iPoint Control’s entire liability and Customer’s sole and exclusive remedy for breach of the foregoing warranty within 30 days of the execution of the Sales Agreement shall be, at the written request of the Customer within the 30-day Guarantee, to return the Customers entire purchase price of all Products and Services.
INTELLECTUAL PROPERTY RIGHTS
- Indemnity. iPoint Control indemnifies the Customer from all costs and liabilities from any claim that use of the Products or Services infringes any 3rd party intellectual property. No refund shall be made for Services already paid for, and outstanding payment for Products (less depreciation) and Services received by the Customer up to the time of withdrawal of the Products shall be payable within 30 days.
- User Rights. iPoint Control retains all iPoint Control-owned intellectual property in the Services. Copyright and all other intellectual property rights’ subsisting in the database accessible via the Services is owned by iPoint Control or the providers of such information (the ‘Data Providers’). The Customer may use information retrieved from the Services only to monitor jobs being done for customers of the Customer or technicians of the Customer and not to record the location or movement of a vehicle for his own use and the Customer may not sell, resell, retransmit or otherwise make the information retrieved from the Services available in any manner or on any medium to any third party unless the Customer has obtained iPoint Control’s prior written consent.
USE OF THE iPoint CONTROL APPLICATION
- Username Security. The Customer is responsible for all use of the Services made using any usernames and passwords registered by or allocated to him, whether or not the use is made by the Customer or someone else using his username and password and whether use is made through the iPoint Control server or the Customer’s own server. The Customer is responsible for protecting and securing his username and password from unauthorized use.
- Breach of Security Notification. The Customer must notify iPoint Control immediately in the event that he is aware of the possibility of a breach of security.
- External Sites. iPoint Control provides hypertext links to sites on the Internet, which are operated by other people. Using an external hypertext link means that the Customer may be leaving iPoint Control’s site and iPoint Control, therefore, takes no responsibility for and gives no warranties, guarantees or representations in respect of the linked sites.
AVAILABILITY OF SERVICES
- Availability of Services. iPoint Control does not warrant any connection, transmission over, security of, or results from the use of any information provided (or omitted to be provided) in connection with the Services. Availability of or accuracy of Information provided by the Services may become disrupted or degraded from time to time as a result of events such as, but not limited to; disruption to satellite system operation, unavailability of mobile telephone services or signals, disruptions to the internet or iPoint Control’s server, computer failures and viruses, and hardware failures. iPoint Control shall use all reasonable endeavors to minimize the effects of any such disruption or degradation to the Customer, but shall not be liable to the Customer for any loss or damage, whether resulting directly or indirectly from the unavailability of any of the Services, degradation of the accuracy of the Information or the failure of the Products. iPoint Control accepts no responsibility whatsoever for any Information lost as a result of any failure of the Products or disruption to or degradation of any of the Services. iPoint Control’s total liability to the Customer shall not exceed the price paid for the Services for the period during which any disruption or degradation of the Services continued.
- Disclaimer of Warranties. iPoint Control makes no warranties, express or implied, with respect to the service or the performance of any obligations herein including, without limitation, warranties of merchantability or fitness for a particular purpose. All such warranties are expressly excluded. iPoint Control is not the manufacturer of any Customer equipment and makes no warranties, express or implied, with respect thereto. iPoint Control passes through to the Customer all manufacturers’ warranties and guarantees that are provided for the Products other than the Software sold to the Customer. To the extent iPoint Control provides access to information provided by other sources, iPoint Control accepts no liability for and makes no warranties, express or implied, with respect to the content thereof. Customer has not relied on and will not make claim that it is entitled to the benefit of any representations, promises, description of services, or other statements not specifically set forth in this agreement.
Both iPoint Control and the Customer must treat all information received from the other marked ‘Confidential’ or which is reasonably obvious to be confidential as it would treat its own confidential information (“Confidential Information”). Confidential Information may include, but not be limited to business plans, lists of customers, operational and technical data, and product plans. Customer will treat the Software as a trade secret and proprietary know-how belonging to iPoint Control that is being made available to the Customer in confidence.
- Limitation of Liability. iPoint Control does not represent or warrant that Customer will achieve any certain results by use of the Products. iPoint Control does not warrant that the functions contained in the Products will meet Customer’s requirements or that the operation of the Products will be uninterrupted or error-free. Except as set out in the Warranty provisions above, iPoint Control disclaims all warranties, including but not limited to, implied warranties of merchantability and fitness for a particular purpose. The Customer understands and agrees that iPoint Control’s sole obligation and Customer’s exclusive remedy, whether in contract, tort or otherwise, is the corrective action as stated above. iPoint Control’s total liability for any one claim or for the total of all claims arising from one act of default on iPoint Control’s part (whether in tort, contract, negligence or otherwise) shall not exceed one year’s license fee and the total purchase price paid by the Customer for the Products and Services during the year in respect of which a claim is made.
- Exclusion of Consequential and Related Damages. Neither the Customer nor iPoint Control shall be liable to the other for any economic (including, without limitation, loss of revenues, profits, contracts, business or anticipated savings), special, indirect, incidental, exemplary, punitive or consequential losses or damages or loss of goodwill in any way whether such liability is based on tort, contract, negligence, strict liability, product liability or otherwise arising from or relating to this Agreement or resulting from the use or the inability to use the Products or the performance or non-performance of the Services. It is the responsibility of the Customer to insure itself in this regard if it so desires.
iPoint Control shall not be liable to the Customer for non-performance or delay in performance of any of its obligations under this Agreement or loss or damage of any Products due to acts of God, war, riot, civil commotion, embargo, strikes, fire, theft, delay in delivery or services of sub-contractors or sub-suppliers, shortage of labor or materials, confiscation or any other unforeseen event (whether or not similar in nature to those specified) outside the reasonable control of iPoint Control.
TERM AND TERMINATION
- Term of Agreement. This Agreement shall take effect from the date the Customer first accepts it until the end of the final subscription period, including renewal subscription periods.
- Term of Confidentiality. The provisions of the Confidentiality clause of these Terms shall survive termination by two years.
- Termination. Upon the termination of this Agreement, for whatever reason, all rights and Service granted by iPoint Control to Customer hereunder shall immediately. Upon the termination of this Agreement, iPoint Control shall immediately return to Customer all Customer property, including, but not limited to, its Confidential Information and all copies thereof. Termination of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer of its obligation to pay all Fees and other amounts due by Customer under this Agreement as of the date of termination.
- Applicable Law. Each party will comply with all applicable laws, including all U.S. laws and international treaties related to the export and re-export of software and other goods, intellectual property, data protection, and privacy.
- Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any iPoint Control employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
- No Agency. Nothing contained herein will be construed as creating any agency, partnership, joint venture or other form of joint enterprise between the parties.
- Electronic Signature. Customer agrees to (i) use electronic signatures and (ii) be subject to the provisions of the U.S. E-SIGN Act (i.e., the Electronic Signatures in Global and National Commerce Act – E-SIGN, Pub.L. 106-229, 14 Stat. 464, enacted June 30, 2000, 15 U.S.C. ch.96).
- Complete Agreement. This Agreement together with the Order Form and all schedules or policies referred to in this Agreement, all of which are incorporated herein by reference, constitutes the sole and entire Agreement between the parties concerning the subject matter hereof. This Agreement supersedes all prior understandings, agreements, representations, and documentation relating to the subject matter in this Agreement.
This Agreement is personal to the Customer, and the Customer may not assign the Customer’s rights or obligations, in whole or in part, to any third party without iPoint Control’s written approval.
GOVERNING LAW AND JURISDICTION
This Agreement shall be construed according to and governed by the laws of the State of Kansas. Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby or thereby may be instituted in the Federal District Court of Kansas or the Kansas Circuit Courts, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice, or other documents by mail to such party’s address set forth in the Order Form shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any object to the laying of venue of any suit, action or any proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. The parties, to the full extent permitted by law, waive their respective rights to a jury trial with respect to any action or claim arising out of or relating to any dispute in connection with this Agreement. By using the software I agree to the terms of this document.