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AMTELCO Hosted System Terms and Conditions
1. Definitions
1.1.1 “Agreement” means this AMTELCO Hosted Systems Terms and Conditions.
1.2. “Company” means American Tel-A-Systems, Inc.
1.3. “Customer” means the person or entity purchasing the Amtelco hosted system, as stated in the accompanying order or invoice.
1.4. “Hosted System” means the software and services offered to Customer in the accompanying order or invoice.
1.5. “Permitted Use(s)”, with respect to Customer’s use of the Hosted System, means telecommunications uses and other uses intended by the parties.
1.6. “Effective Date” means the date upon which this Agreement is accepted by the Company or such other date agreed upon in writing. Such acceptance shall be evidenced by signature of an authorized representative of Company on the accompanying order or invoice.
1.7. “Company Patents” means any patent rights owned by (or licensed to) Company—including rights that Company acquires after the Effective Date—that cover the Hosted System and are required for Customer to use the Hosted System for its Permitted Use.
1.8. “System Data” means any data created by or used by the Hosted System (or any component of the Hosted System) that is provided to, collected by, or used by Company and which relates to Customer.
2. Subscription Fees.The initial Subscription Fees shall be as stated in the accompanying order or invoice. Other fees, such as training fees, may be due as specified in the order or invoice.
3. Licenses
3.1. License. Company hereby grants to Customer a limited, non-exclusive, non-sublicensable license to use the Hosted System, including any software offered as part of the services, for the Permitted Uses. For the sake of clarity, the Hosted System is licensed, not sold, to Customer by Company for use only under the terms of this license and only for its Permitted Use. The terms of this License will govern any software upgrades provided by Company that replace and/or supplement the original Hosted System, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
3.2. Company Patents. Company hereby covenants not to sue Customer for infringement of the Company Patents with respect to any Permitted Use of the Hosted System by Customer at the Site.
3.3. Company Use of System Data. Customer grants Company a license to use the System Data that comes into its possession solely to provide the services contemplated under this Agreement. All information disclosed by one party to the other under this Agreement, including all System Data, shall be treated as confidential information unless it is or becomes publicly available through no fault of the other party, is already known to the other party, or is later rightfully obtained by the other party from independent sources.
3.4. Term and Termination of Licenses. The licenses described in this Section shall terminate upon the expiration or termination of this Agreement.
4. Hosted System, Maintenance, and Support. Company shall provide access to Hosted System and shall maintain and support the Hosted System for the term specified in the accompanying order or invoice, starting on the Effective Date. The subscription shall automatically renew for another identical term unless canceled by Customer or Company at least 30 days prior to the end of the existing term.
5. Termination for Cause. If either party breaches any of its obligations under this Agreement in any material respect and the breach is not substantially cured within the Cure Period specified below, then the other party may terminate this Agreement, without penalty, by giving written notice to the breaching party at any time before the breach is substantially cured. With respect to a breach of Company’s obligation to provide the Hosted System during the term of the Agreement, the Cure Period shall be five days. With respect to the Customer’s obligations to pay Subscription Fees or other amounts due, the Cure Period shall be the period of time specified on the invoice. With respect to all other obligations under the Agreement the Cure Period shall be 30 days after receipt of written notice describing the breach, provided that, if a longer period is reasonably required to cure the breach and the cure is promptly begun, such Cure Period shall be extended for as long as the cure is being diligently prosecuted to completion. The Company may destroy all System Data following termination or expiration of the Agreement, and in no event shall Company be liable for any loss of business, interruption in service, or other damages caused by Customer’s inability to use the Hosted System upon termination or expiration of this Agreement.
6. Limited Warranty. Company warrants that all the provided software, materials, and equipment that may be provided to Customer under this Agreement are of good quality and will be free from defects in materials and workmanship during the term of the Agreement. This warranty excludes any damages caused by abuse, modifications not executed by Company, improper or insufficient maintenance by Customer, or improper operation. Customer’s exclusive remedy for a breach of this warranty is limited to repair or replacement of the defective aspect of the Hosted System. THIS EXPRESS WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES, GUARANTEES, OR REPRESENTATIONS, EXPRESS OR IMPLIED. THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
7. Limitation of Damages. COMPANY’S ENTIRE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE AMOUNT OF THE SUBSCRIPTION FEES PAID UNDER THIS AGREEMENT. THIS LIMITATION APPLIES EVEN IF COMPANY CANNOT OR DOES NOT REPAIR OR REPLACE ANY DEFECTIVE MATERIALS, SOFTWARE, OR EQUIPMENT AND USER’S EXCLUSIVE REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
8. No Consequential or Other Damages. UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE FOR LOST PROFITS, DAMAGES FOR DELAY OR OTHER ACTUAL, SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES SUFFERED BY USER.
8.1. Service Levels / Force Majeure. Company does not guarantee that the Hosted System will be operable at all times and cannot be held liable for any damages or inaccuracies in reports because of any down time (1) caused by outages to any public Internet backbones, networks, servers, or electrical power supplies, (2) caused by any failures of Customer’s equipment, systems, Internet connection, local access services, or electrical power supplies, (3) for previously scheduled maintenance, or (4) relating to events beyond Company’s control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services or electrical power supplies to an area where Company or Customer’s servers are located.
9. Indemnification.
9.1. The Company shall defend, indemnify, and hold harmless the Customer against liability for infringement of any United States patent arising out of the Customer’s use of the Hosted System. This indemnity shall not apply unless the Company shall have been informed as soon as practicable by the Customer of the suit or action alleging such infringement and shall have been given such opportunity as is afforded by applicable laws, rules, or regulations to participate in its defense. Further, this indemnity shall not apply to a claimed infringement that is unreasonably settled without the consent of the Company.
9.2. Except for allegations of patent infringement covered by Section 9.1, and to the fullest extent allowed by law, the Customer shall defend, indemnify, and hold harmless Company from and against any and all claims, demands, suits, actions, expenses, judgments, losses and liabilities, including fines and penalties, costs and attorney’s fees arising out of or alleged to arise out of Customer’s use of the Hosted System. In such a case, Company will provide Customer with written notice of such claim, suit, or action, and Customer shall cooperate fully as reasonably required in the defense of any claim. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject indemnification by Customer.
10. Proprietary Rights Notice. Customer acknowledges that the hardware and software received pursuant to this Agreement contains and embodies trade secrets belonging to Company and Customer shall not decompile, reverse engineer, disassemble or otherwise reduce the software to a human perceivable form. Company owns all rights, title and interest in and to all other intellectual property rights, including patent and copyrights, embodied by or reflected in the products or software provided under this Agreement. CUSTOMER MAY NOT COPY, MODIFY, ADAPT, TRANSLATE, RENT, LEASE, LOAN, RESELL, DISTRIBUTE, NETWORK OR CREATE DERIVATIVE WORKS BASED UPON THE SOFTWARE OR ANY PART THEREOF. All software shipped or accessed under this Agreement is licensed, not sold, to the Customer and Company grants Customer a limited non-transferable, non-exclusive License solely for the use of the software contained in the products or provided under this Agreement. Company retains for itself all proprietary rights in and to all designs, engineering details, and other data pertaining to the products. This License is effective until terminated. The License will terminate immediately, without notice from Company, if Customer fails to comply with any material provision of this Agreement. Upon termination, Customer must destroy or return the Software and all copies thereof.
11. U.S. Government Contracts. If the Hosted System is to be used in the performance of a U.S. Government contract or sub-contract and a U.S. Government contract number appears on Customer’s purchase order, those clauses of the applicable U.S. Government procurement regulation, which are mandated by Federal Statute to be included in U.S. Government subcontracts, shall be incorporated herein by reference.
12. Confidentiality. Customer acknowledges that all technical or business and other documentation, information and materials delivered to or learned by Customer hereunder shall be considered Company’s confidential information (the “Confidential Information”). Customer hereby agrees: (i) to hold and maintain in strict confidence all Confidential Information of Company; and (ii) not to use any Confidential Information of Company except as permitted hereunder. Customer will use at least the same degree of care to protect the Company’s Confidential Information as it uses to protect its own confidential information of like importance, and in no event shall such degree of care be less than reasonable care. Customer agrees that it will only provide Confidential Information to those employees who have a need to know for the purposes hereunder. Customer agrees that it shall not disclose the Company Confidential Information to any third party, including third party contractors, without written authorization from Company.
13. No Resale, Assignment, Or Sublicensing. Customer shall not resell, assign, sublicense, otherwise transfer, or delegate its rights or obligations under this Agreement without prior express written authorization of Company.
14. Successors and Assigns. Without in any way limiting the prohibition on Customer’s resale, assignment, sublicensing, or other transfer of rights or obligations, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors, and assigns.
15. Choice of Law and Venue. The laws of the State of Wisconsin shall govern this Agreement. The parties agree that any litigation that may be instituted regarding this agreement shall take place in the state or federal courts located in Dane County, Wisconsin.
16. Entire Agreement. Except as explicitly noted herein, such as by references to an accompanying invoice or order, this Agreement contains the entire understanding of Company and Customer with respect to the Hosted System and supersedes all prior negotiations, agreements and proposals. The terms in this Agreement shall supersede any terms and conditions of any other document that may apply to the transaction between the Customer and the Company.