Thank you for selecting IT Pro Dashboard™!

 

We are committed to providing the best software and services for Information Technology (IT) Service Providers. By this Hosted Software License and Assurance Agreement (“Agreement”) and any applicable Schedules, Karisoft Corporation. (“Karisoft”) and the client identified below (“Client”) agree as follows:

1. 30 Day Free Trial. Karisoft is so certain you will like IT Pro Dashboard™ that we offer you a 30 day free trial from the date we import your client data and integrate it with your other business applications (Activation date). During the 30 Day free trial, we will continue to train and assist you to adopt and configure IT Pro Dashboard to support your business processes, all at no cost or any obligations to you!

2. Engagement. Client retains Karisoft to provide the hosted software described in Schedules to this Agreement (“Software”).

3. Effective Date. This Agreement shall be effective as of Activation date.

4. Price Guarantee. Client shall pay Karisoft the fees set forth in accordance with the terms specified in the Pricing page of Karisoft’s web site (“Fees”). Unless otherwise specifically indicated. Fees will not change and remain the same during the term of this agreement.

5. Term and Survival. The “Initial Term” begins upon the Effective Date and ends upon completion of the next full month, at which time the Agreement is automatically extended (“Extended Term”) for the next month until either party terminates it upon 30 days’ written notice prior to the start of the next Extended Term. The terms of this Agreement will continue to apply during any Extended Term.

6. Termination. Either party may terminate this Agreement for Cause. “Cause” means (a) Customer’s failure to pay any invoice (excluding Disputed amounts) within 10 days of receiving notice that payment is overdue, or (b) breach by a party of a material provision of this Agreement that the breaching party has not cured within 30 days of receiving notice from the non-breaching party. If interruption of Service is necessary to prevent or protect against fraud or otherwise protect Karisoft’s personnel, facilities or services, Karisoft may do so without notice.

7. Assignment. Either party may assign this Agreement or any of its rights hereunder to an affiliate or successor upon notice to the other party. A Customer affiliate or successor must meet Karisoft’s creditworthiness standards for the assignment to become effective. All other assignments are void.

8. Software. Subject to full and timely payment of all fees specified in this agreement, Client is granted a limited, non-exclusive, non-transferable license to use the Software specified in the Schedule, together with any documentation associated with such Software provided by Karisoft, solely: (i) for its own internal business use; (ii) in accordance with the terms of this Agreement; (iii) on the system software specified in the Schedule. Client shall not directly or indirectly; (i) lease, rent, assign, sublicense, transfer, provide, sell, market, distribute or copy the Software; (ii) use or allow the Software to be used by or for the benefit of any third-party other than Client’s customers; (iii) use the Software in a time-sharing arrangement; or (iv) modify, revise, delete, enhance or make additions to the Software.

9. Installation. Karisoft will install and prepare the Software for the Client’s use on Karisoft’s Hosting facilities, configure the Software for Client’s use, and test the Software to confirm that it operates in conformity with the applicable Karisoft documentation.

10. Intellectual Property. Client has no copyright, trade secret, patent or other intellectual property right in any Software or in any related data, design, code, program or other item provided by Karisoft and Karisoft shall own all such rights exclusively. Client shall not alter, obscure or revise any proprietary, restrictive, trademark or copyright notice included with, or affixed to, the Software. Client shall keep the Software free and clear of any claim, lien or encumbrance, and any such action shall be void from its inception.

10. Client data.

10.1 Subject to the terms of this Agreement, Karisoft shall not use any Customer data and other Customer nonpublic information (“Customer Information”) other than as permitted by law, rule, regulation, code provision, policy or procedure, and Karisoft shall use its best efforts to: (i) cause its agents and employees to be informed of and to agree to be bound by applicable data privacy laws, rules, regulations, codes, policies or procedures; and (ii) maintain physical, electronic and procedural safeguards reasonably designed to protect the confidentiality and integrity of, and to prevent unauthorized access to or use of, Customer Information.

10.2 Karisoft warrants that it shall use all commercially reasonable efforts to ensure that the storage and transmission of Customer Information and any electronic communications will be secure. Commercially reasonable efforts shall include, but not be limited to: (i) use of user identification and access controls designed to limit access to Customer Information to permitted users; (ii) industry standard firewalls regulating all data entering Karisoft’s internal data network from any external source, which will enforce secure connections between internal and external systems and will permit only specific types of data to pass through; (iii) industry standard virus protection programs and techniques to prevent harmful software code from entering Karisoft’s internal data network or affecting Customer or Customer Information; (iv) external connections to the World Wide Web (the “Internet”) will have appropriate security controls including an industry standard intrusion detection and countermeasures system that will detect and terminate any unauthorized activity prior to entering the firewall maintained by Karisoft; and (v) industry standard encryption techniques will be used when Customer Information is transmitted by the Ported Construction Software.

10.3 Karisoft shall provide disaster recovery and backup capabilities and facilities in order to minimize any disruptions or delays. Karisoft shall further provide a geographically dispersed disaster recovery site and associated solution, and a geographically dispersed customer service platform, with related customer service agents. Karisoft shall provide to Customer a “disaster recovery plan” (“DRP”) reasonably acceptable to Customer, and, at least once every calendar year, Karisoft shall test the operability of the DRP and certify to Customer that the DRP is fully operational. In the event of a disruption or delay, Karisoft shall immediately implement the DRP, immediately provide Customer with written notice thereof, and use its best efforts to overcome such disruption or delay

10.4 Karisoft shall implement processes to restrict physical and computer system access in any shared environment to that portion of the shared environment dedicated to the Customer information only to Karisoft’s employees, subcontractors or agents engaged in performing services relating to the Customer information.

11. Warranty. Client shall independently determine if the Software meet its needs and requirements. However, if there is a material failure of the Software to substantially comply with IT Pro Dashboard’s most current and applicable Software Manual (“Defect”) during the first one hundred twenty (120) days following delivery to Client (“Warranty Period”), Karisoft shall, at its election and as its sole obligation under this Agreement (and as Client’s sole remedy), either: (i) repair or replace the Software; or (ii) terminate this Agreement and refund any applicable fees paid by Client.

12. Assurance. Provided all applicable fees are fully paid, Karisoft shall provide Assurance (“Assurance”) for Software during the period of time, if any, specified in the applicable Schedule (“Assurance Period”) consisting of: (i) the identification and correction of covered Defects as described in this Agreement; and (ii) the periodic provision of additional releases that update the Software to the current level of the same version maintained by Karisoft. In addition, Karisoft may, at its option, enhance the functionality, utility or efficiency of Software by producing new versions during the life of this Agreement. Karisoft shall notify Client of the terms and conditions, including additional fees, if any, required to license and/or maintain such new versions.

13. Disclaimer. Under no circumstances shall Karisoft have any liability for any Defect or losses, claims, demands, penalties, actions, causes of action, suits, obligations, liabilities, damages, delays, costs or expenses, including reasonable attorney’s fees, (collectively “Losses”) caused, directly or indirectly, in whole or in part, by: (i) Client; (ii) a third party; (iii) abuse, misuse, alteration or use outside of IT Pro Dashboard-specified operating requirements; (iv) incorrect or incomplete data used by Client; (vi) software, hardware or systems not supplied by Karisoft; or (vi) any other failure not directly attributable to, or reasonably anticipated by Karisoft. Karisoft shall make the final determination as to the existence and cause of any Defect. Karisoft shall have no obligation with respect to a Defect unless: (i) Client reasonably assists Karisoft in its diagnosis and correction; (ii) Client provides a written description of the Defect to Karisoft; (iii) Client installs and maintains internet connectivity in accordance with Karisoft specifications; (iv) Client performs diagnostic and remedial actions described in documentation supplied by Karisoft; and (v) the Defect, if it relates to Software, can be reproduced at Karisoft’s facilities using the most current release. Client shall pay Karisoft its then current labor rates for analyzing any irregularity or failure not caused by a covered Defect. EXCEPT AS SPECIFICALLY STATED IN THIS AGREEMENT, ALL SOFTWARE IS PROVIDED “AS IS”, AND ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF QUALITY, DURABILITY, FITNESS FOR PARTICULAR PURPOSE, MERCHANTABILITY, CONTINUOUS USE, DESIGN, COMPLIANCE OF DATA OUTPUT WITH APPLICABLE LAW, PERFORMANCE OR ERROR-FREE OPERATION (INCLUDING ANY CREATED BY THE INTERNATIONAL SALE OF GOODS CONVENTION) ARE DISCLAIMED IN THEIR ENTIRETY.

14. Third Party Products. Under no circumstances shall Karisoft have any responsibility or liability to Client with respect to any product or service provided by a third party.

15. Indemnification.

15.1 Client shall indemnify, defend, and hold harmless Karisoft and its officers, employees, directors and agents, in their individual capacities or otherwise, from and against any and all Losses asserted by a third party resulting from, arising out of, or incurred in connection with Client’s: (i) gross negligence or willful misconduct resulting in personal injury or property damage; (ii) misuse of the Software; (iii) failure to comply with applicable law; (iv) failure to comply with the terms of this Agreement; (v) failure to comply with the terms of any third party agreement to which it is a party; or (vi) any claim of libel, violation of privacy rights, unfair competition or infringement of a intellectual property rights not caused by Karisoft.

15.2 Karisoft shall indemnify, defend, and hold harmless Client and its officers, employees, directors, shareholders and agents, in their individual capacities or otherwise, from and against any and all Losses asserted by a third party resulting from, arising out of, or incurred in connection with Karisoft’s: (i) gross negligence or willful misconduct resulting in personal injury or property damage; (ii) failure to comply with applicable law; (iii) failure to comply with the terms of any third party agreement to which it is a party; or (iv) Software infringing a registered U.S. patent or copyright. Karisoft shall have no liability for any claim of infringement resulting, in whole or in part, from: (i) any use of a version of the Software other than the most current unmodified version; (ii) use or combination of the Software with computer programs owned or licensed by a party other than Karisoft; or (iii) Client’s failure to implement corrections or changes to the Software offered by Karisoft. If a claim of infringement of a registered U.S. patent or copyright has been asserted, or in Karisoft’s reasonable opinion is about to be asserted, Karisoft shall, at its option either: (i) procure for Client the right to continue using the Software; (ii) replace or modify the Software so that it becomes non-infringing; (iii) terminate this Agreement and refund all of the paid License Fee; or (iv) fight such action and pay all costs, damages or settlements finally paid by Client, provided such settlement monies were pre-approved by Karisoft.

15.3 The obligation to provide indemnification under this section is contingent upon: (i) the indemnified party promptly notifying the indemnifying party in writing of any claim; (ii) the indemnifying party having sole control over the defense and settlement of the claim; (iii) the indemnified party reasonably cooperating during defense and settlement efforts; and (iv) the claim not arising, in whole or in part, out of the indemnified party’s breach of this Agreement.

16. Limitation of Liability. Under no circumstances shall Karisoft be liable for any Losses relating to the Software or the actions of Karisoft in connection with this Agreement that was not brought to its attention by Client in writing within thirty (30) days of its occurrence. No claim for Losses or other relief arising out of this Agreement or the Software may be filed by Client more than one (1) year following its access by Client, unless it relates to Assurance, in which case it must be filed within one (1) year of the event that gave rise to the alleged liability. Karisoft’s total liability in any case is limited, in the aggregate, during the first year following the Effective Date, to the amount of fees actually paid by Client for the software. Karisoft shall not be liable for any indirect, incidental, consequential, special, delay, punitive, economic or property damages whatsoever (including any damages for loss of business profits, business interruption, loss of information or other pecuniary loss) arising out of the Software or this Agreement, even if Karisoft or its vendors were advised of the possibility of such damage.

17. Advertising. Karisoft shall have the right to include Client’s name in a general listing of users of its products and services, however, neither party shall use any logo or trademark owned by the other party unless pre-approved in writing by its owner.

18. Relationship. Karisoft is an independent contractor. Neither Karisoft nor any of its representatives shall be considered an employee of Client. Except as specifically agreed by the parties, Karisoft has the sole obligation to supervise, manage, contract, direct, procure, perform its obligations under this Agreement. Karisoft reserves the right to determine which of its representatives shall be assigned to perform its obligations, and to replace or reassign such representatives as it deems appropriate. Client shall appoint a coordinator and a backup Coordinator that shall serve as Karisoft’s primary contact. Karisoft shall be entitled to rely on all oral and written orders and instructions issued by these coordinators, including without limitation, instructions to initiate work and incur expenses on Client’s account. Client may select and reassign coordinators, provided that any replacement coordinator meets the requirements of this Agreement and is otherwise reasonably acceptable to Karisoft.

19. Interference and Competition. Client shall not, directly or indirectly, during the term of this Agreement: (i) induce or influence any employee of Karisoft or any other person or entity to terminate their relationship with Karisoft; or (ii) produce a product or service that competes with the Software.

20. Confidentiality. Each party shall treat all information received from the other party and designated as confidential (“Confidential Information”) as a trade secret and strictly confidential. Karisoft designates the Software, all information relating to the Software, the Materials and the terms of this Agreement as confidential. Both parties shall: (i) restrict disclosure of Confidential Information to its employees and agents solely on a “need to know” basis; (ii) advise its employees and agents of their confidentiality obligations; (iii) use commercially reasonable means to comply with the confidentiality obligations of this Agreement; and (iv) notify the other of any unauthorized possession or use of that party’s Confidential Information as soon as possible upon receiving notice of same. Notwithstanding the foregoing, neither party shall be obligated to preserve the confidentiality of any information which: (i) was previously known; (ii) is a matter of public knowledge; (iii) was or is independently developed; (iv) is released for disclosure with written consent; or (v) is received from a third party to whom the information was disclosed without restriction. Disclosure of Confidential Information shall not be precluded if the disclosure is: (i) required by law; or (ii) is in response to a valid order of a U.S. court or other governmental body, provided the receiving party gives written notice to the providing party and makes a reasonable effort to obtain a protective order requiring the information disclosed be used only for the purpose set forth in the original order.

21. Additional Remedies. In addition to any other remedies at law or in equity to which it is entitled, Karisoft reserves the right to terminate this Agreement upon thirty (30) days advance written notice if Client: (i) is in material breach of this Agreement for more than ten (10) consecutive days after written notice; (ii) is the subject of a dissolution or bankruptcy action; (iii) suffers the appointment of a receiver or trustee; or (iv) commits any act related to this Agreement with the intent to defraud Karisoft. Due to the likelihood of irreparable injury, Karisoft shall also be entitled to an injunction, without bond, prohibiting any breach of this Agreement by Client. Client shall pay Karisoft a late fee equal to the lesser of one and one-half percent (1½%) per month, or the maximum allowed by law, for any amount remaining unpaid for more than thirty (30) days following its due date. Fees payable under this Agreement are not subject to reduction or set-off of any kind for any reason.

22. Miscellaneous.

22.1 Client shall not subcontract, assign, subrogate or transfer any interest, obligation or right under this Agreement without prior written consent from Karisoft (which shall not be unreasonably withheld), and any such attempt shall be null and void. Any dissolution, merger, consolidation, reorganization or transfer of a majority of the assets or stock of Client shall constitute an attempted assignment of this Agreement. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their successors or assigns.

22.2 This Agreement shall be governed by the state and Federal laws applicable in Massachusetts, U.S.A. Any dispute, claim or controversy arising out of or relating to the subject matter of this Agreement shall be settled through binding arbitration administered by the American Arbitration Association in accordance with its then current Commercial Arbitration Rules and, if applicable and available, any specialized rules relating to the administration of technology disputes. The arbitrator shall have jurisdiction to award the prevailing party, if any, its reasonable attorney’s fees, costs and expenses. All arbitration proceedings shall be held in the city of Brookline, Massachusetts, U.S.A. Judgment on any arbitration award may be entered in any court having jurisdiction over the subject matter or the parties.

22.3 Neither party shall be deemed to have waived any of its rights under this Agreement without specifically agreeing to do so in writing. No waiver of a breach of this Agreement shall constitute a waiver of any prior or subsequent breach of this Agreement.

22.4 In order to maintain quality service, telephone communications with Client may be monitored and/or recorded without any further notice.

22.5 Karisoft shall not be liable for any loss, damage or failure due to causes beyond its control, including strikes, riots, earthquakes, epidemics, wars, fires, floods, weather, power failure, telecommunications interruption, the failure or closure of a financial institution, computer malfunctions, and acts of God or any other failure, interruption or error not directly caused, or reasonably anticipated, by Karisoft.

22.6 The headings that appear in this Agreement are inserted for convenience only and shall not limit or extend the scope of this Agreement.

22.7 This Agreement, together with any referenced Schedules, Addenda or other documents, constitutes the entire understanding of the parties with respect to its subject matter, and all prior agreements, understandings and representations are canceled in their entirety.

22.8 This Agreement shall not be construed more strongly against either party, regardless of who is more responsible for its preparation.

22.9 If there is a conflict between a part of this Agreement and any present or future law, the part of this Agreement that is affected shall be curtailed only to the extent necessary to bring it within the requirements of that law.

22.10 Client shall be solely responsible for any taxes or similar charges arising out of this Agreement, including all applicable customs, duties, sales taxes, use taxes, value-added taxes, excise charges or brokerage fees. Client shall also be solely responsible for assessing and remitting payment for any such items to the appropriate authorities.