ISI TELEMANAGEMENT SOLUTIONS
CALL-VIDEO RECORDING END USER AGREEMENT
ATTENTION: THIS CALL-VIDEO END USER AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (“END USER”) AND ISI TELEMANAGEMENT SOLUTIONS (“ISI”). AS THE TERMS OF THIS AGREEMENT GOVERN THE USE OF THE SOFTWARE AND RELATED SERVICES (AS APPLICABLE) THAT YOU HAVE PURCHASED FROM RESELLER, PLEASE READ THIS DOCUMENT CAREFULLY. BY CLICKING THE “ACCEPT” BUTTON AT THE END OF THIS AGREEMENT, YOU ARE ACKNOWLEDGING THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, CLICK THE “REJECT” BUTTON AT THE END OF THIS AGREEMENT, AND YOUR ORDER FOR THE SOFTWARE AND RELATED SERVICES (AS APPLICABLE) WILL BE CANCELLED AND YOU WILL BE ENTITLED TO SEEK A FULL REFUND FROM RESELLER OF ANY AMOUNTS PAID TO RESELLER UNDER SUCH ORDER.
For purposes of this Agreement, the following terms shall be defined as follows:
“Licensor” shall mean ISI’s supplier of the Software.
“Purchaser” means ISI’s reseller who is purchasing the Software from ISI for resale to End User.
“Software” means the call and/or video recording software purchased by Purchaser.
“Support” means the Software support and maintenance services described in Attachment A attached hereto and incorporated herein.
“Support Fee” means the fee payable by Purchaser to ISI for the Support.
“Support Term” means the term during which the Support will be provided by ISI.
“System Location” means the location(s) of End User at which the Software is installed or delivered, as applicable.
1. Software License from Licensor. The licensing terms relating to the Software shall be governed by an End User License Agreement (“EULA”) to be entered into directly between Licensor and End User upon installation of the Software. A copy of all relevant user manuals and instructions for the Software (“Software Instructions”) will be made available to End User by Licensor. ISI (or Licensor) shall: (i) remotely install the Software (with End User’s assistance) on End User-provided hardware; and (ii) remotely provide administrative and end user training to End User on the operation and use of the Software. End User acknowledges that title to the Software, Software updates and upgrades, and Software Instructions are and shall remain with ISI or Licensor, including all applicable rights to patents, copyrights, trademarks, and trade secrets inherent therein and appurtenant thereto. ISI DISCLAIMS ALL WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THE SOFTWARE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. Any warranties relating to the Software shall be contained in the EULA between End User and Licensor.
2. Software Support and Support Term. In consideration for Purchaser’s payment of the Support Fee, ISI will provide Support to End User during the Support Term. The initial Support Term shall commence on the date of installation of the Software and shall continue for the initial term agreed to in writing by ISI and Purchaser. The Support Term is non-cancelable and the Support Fee is non-refundable. Upon expiration of the initial Support Term, the Support Term shall be automatically extended for increments of one (1) year (each, a “Renewal Term”), unless at least thirty (30) days prior written notice has been given by Purchaser or ISI before the expiration of the initial Support Term or then-current Renewal Term.
3. LIMITATION OF LIABILITY. ISI’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, THE TERMINATION THEREOF, OR THE RELATED SERVICES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE SUPPORT FEES ACTUALLY PAID BY PURCHASER TO ISI WITHIN THE 12-MONTH PERIOD PRECEDING END USER’S CLAIM, AND, IN EACH CASE, FOR THE SERVICES THAT CAUSED THE DAMAGE OR IS THE SUBJECT MATTER OF OR IS DIRECTLY RELATED TO THE CAUSE OF ACTION. IN NO EVENT SHALL ISI BE LIABLE TO END USER OR ANYONE CLAIMING THROUGH OR AGAINST END USER FOR (i) COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (ii) ANY INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA, OR INTERRUPTION OF BUSINESS) RESULTING FROM OR ARISING OUT OF THE DELIVERY, INSTALLATION, OPERATION, PERFORMANCE, NONPERFORMANCE, OR USE OF THE SOFTWARE, SOFTWARE INSTRUCTIONS AND RELATED SERVICES, EVEN IF ISI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
4. Notice. Any notice, request, demand, consent or other communication required or permitted to be given under this Agreement shall be in writing and shall be effective when delivered personally or three days after mailing by first class, postage prepaid, certified or registered mail, return receipt requested, to: (i) End User at the address of the System Location; and (ii) ISI at 1051 Perimeter Drive, Suite 200, Schaumburg, IL 60173, Attn: President. Any party hereto may change its address by giving notice in accordance with this paragraph stating its new address to the other party hereto. Commencing with the giving of such notice, such newly designated address shall be said party's address for purposes of all notices or other communications required or permitted to be given pursuant to this Agreement.
5. Choice of Law. This Agreement and performance hereunder shall be governed by the internal laws of the State of Illinois (without giving effect to conflict of law rules). The sole jurisdiction and venue for any litigation or other dispute settlement proceeding arising out of this Agreement shall be an appropriate tribunal located in Chicago, Illinois.
6. General. This Agreement may not be modified, amended, or changed except by written agreement between ISI and End User. Any terms or conditions contained in Purchaser’s proposal (a “Proposal”) or End User’s purchase order (or other instrument issued by End User) shall not be binding upon ISI and shall not apply to this Agreement. The headings or captions of paragraphs are for identification purposes only and do not limit or construe the contents of the paragraphs.
7. Confidentiality. The Software and the Software Instructions contain trade secrets of ISI (or Licensor) and are provided to Purchaser on a confidential basis. End User shall maintain the confidential nature of the Software, Software Instructions, and any information regarding the business affairs, property, method of operation, or other information relating to ISI (or Licensor) (collectively, “Confidential Information”) by taking every reasonable precaution to protect the confidentiality thereof, but in no event less than the degree of care End User uses to maintain the confidentiality of End User’s own confidential information. End User shall not disclose or otherwise make available the Confidential Information, or any portion thereof, to any person other than any employee or contractor of End User having a need to know. End User shall take appropriate action, by instruction or agreement with such employees and contractors to protect the confidentiality of the Confidential Information. End User will use its best efforts to assist ISI (or Licensor) in identifying and preventing any unauthorized use or disclosure of the Confidential Information or any portions thereof.
8. Injunctive Relief. End User acknowledges that any breach of its obligations under this Agreement with respect to the Confidentiality Obligations in Section 7 may immediately give rise to continuing irreparable injury to ISI inadequately compensatory in damages at law. Accordingly, ISI shall be entitled to seek to obtain immediate injunctive relief (without the necessity of posting bond) against the breach or threatened breach of any of the foregoing undertakings, in addition to any other legal remedies which may be available, and End User consents to and will not oppose the obtaining of such injunctive relief.
9. ISI Remedies. In the event End User fails to perform any obligation hereunder and, if curable, to cure such failure within thirty (30) days after receiving written notice thereof from ISI, ISI shall have, in addition to any other remedies at law or in equity, the right to take immediate possession of the Software, Software Instructions, and all copies of the Software wherever located and retain all prior payments for the Software not as a penalty but as compensation for the loss suffered by ISI. ISI’s rights shall be cumulative and no delay or failure of ISI to exercise in any respect any right or remedy hereunder shall operate as a waiver thereof. End User shall pay ISI all costs and expenses, including reasonable attorney’s fees, incurred by ISI in successfully enforcing any of its rights and remedies hereunder.
10. Survival. The provisions of Sections 3, 5, 7, 8 and 9 shall survive the termination of this Agreement.
ATTACHMENT A – SOFTWARE SUPPORT TERMS
1. Provider of Support- ISI will subcontract the Support services (as described below) to Verba Technologies, LLC, as Licensor (“Verba”), and End User shall contact Verba directly for Support (unless otherwise directed in writing by ISI).
2. Easy Access to Technical Assistance Center (by phone, email or web ticket submissions) – End User will be able to access Verba’s Technical Assistance Center during the hours of 9:00 AM through 5:00 PM (Eastern Time), Monday through Friday (excluding Verba-recognized holidays) (“Verba Business Hours”) for assistance with the Software. In order to confirm that a request for service is a bona fide service issue, Verba will only accept a service call requesting assistance from an End User -designated, trained system administrator. Verba reserves the right to defer assistance to End User until a system administrator is available or, alternatively, to bill for such support or service calls (even though they may normally be covered by these Software Support Terms) if Verba is requested to work with untrained personnel of End User.
3. Remote Diagnosis of Software – Verba requires remote access to End User’s system for proper diagnosis, such remote access method to be agreed to by End User. Verba will remotely diagnose reported difficulties with the assistance of End User’s staff. If support is requested, and End User does not have remote diagnostics available, Verba reserves the right to defer assistance until remote access is available or, alternatively, to bill for such support or service calls even though they may normally be covered under this Agreement. On-site visits are excluded from Support under this Agreement.
4. Software Releases Needed to Maintain Proper System Operation – ISI will, at its option, replace or update the Software at no charge based on ISI’s determination that a Release (as hereinafter defined) or replacement is needed to maintain proper operation of the Software. Such Releases will not include: (i) changes due to other software or equipment used in conjunction with End User s system, including, but not limited to, changes in a manufacturer’s supported products, changes to End User’s telephone system, or hard drive crashes; (ii) changes necessitated by circumstances not within ISI’s control; or (iii) problems unrelated to the Software which require a change in the Software. End User assumes all responsibility for any updated hardware requirements and any applicable service fees required to install, implement and/or receive training on the necessary update. A “Release” is defined as a version or service pack that updates the Software and is made generally available, without additional charge, by ISI to its customers who are under a Software support contract with ISI. Purchaser assumes all responsibility for the fees associated with requested custom programming in connection with the Release, even if said custom programming was previously purchased for a prior product/Release.
5. Software Releases of New or Basic Features within the Call Recording Product Line – End User will be offered Releases within the Software product line that become available during the Support Term. These Releases may include new features or may provide improved operation. ISI MAKES NO EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY REGARDING THE FREQUENCY OF THE ISSUANCE OF RELEASES OR THE NATURE THEREOF. End User assumes all responsibility for any updated hardware requirements or any service fees required to install, implement and receive training on a Release. End User assumes all responsibility for the fees associated with requested custom programming in connection with the Release, even if said custom programming was previously purchased for a prior Release.
6. Remote Operational Assistance – During the Support Term, End User’s trained system administrators will receive unlimited telephone assistance with the operation of the Software as installed and trained by Verba. Operational assistance shall not in any case be deemed to include data entry of any kind, reinstallation assistance or assistance with the use of other software, hardware or network issues of any kind. Any changes made by Purchaser or End User to the system configuration or network environment that are outside of standard maintenance procedures as outlined in Verba’s training sessions may result in the assessment of Time and Materials (“T&M”) charges. These changes include, but are not limited to, installing additional software on a computer, installing the Software on a new computer, changing network or email configurations such that network-reliant or email-reliant features of the Software are not functional. Verba will investigate system problems as requested by End User. In the event the problem is found to be the result of configuration changes (as outlined above), power failures or other acts of God (e.g., lightning strikes), Purchaser will be responsible for T&M charges for Verba’s efforts.
7. Remote System Diagnosis Due to or Related to Other Software or Equipment – End User may receive remote assistance in diagnosing Software difficulties that are determined by Verba to be caused by or related to other software or equipment, including the analysis of collected and stored data. However, while reasonable efforts will be made to investigate the problem and recommend corrective action, diagnosis cannot be guaranteed. Such investigation may include diagnosis of difficulties due to End User’s local area network, although “diagnosis” shall not be deemed to include the performance of activities associated with the administration of End User’s network. Should the result of the diagnosis be determined by Verba to be caused by or related to other software or equipment, the time required to diagnose the problem will be billable at T&M rates. Additionally, any activities performed remotely at Purchaser’s or End User’s request to correct difficulties caused by or related to other software or equipment, including utilization of diagnostic software, re-installation of Software, or administration of the End User’s network or database, will be billable at T&M rates.