IMPORTANT — READ CAREFULLY. THIS SOFTWARE LICENSE & SERVICES AGREEMENT (“AGREEMENT”) GOVERNS CUSTOMER’S USE OF THE PANATRACKER GP SOFTWARE. BY CLICKING “I ACCEPT” (WHERE PRESENTED), OR BY INSTALLING, ACCESSING, OR USING THE SOFTWARE, CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE, CUSTOMER MUST NOT INSTALL, ACCESS, OR USE THE SOFTWARE. THE INDIVIDUAL ACCEPTING REPRESENTS THAT HE OR SHE IS AUTHORIZED TO BIND CUSTOMER. THESE ARE PANATRACK’S STANDARD TERMS; NO MODIFICATION IS BINDING UNLESS AGREED IN A WRITING SIGNED BY PANATRACK.
THIS SOFTWARE LICENSE & SERVICES AGREEMENT (“Agreement”) is made as of the Effective Date (defined below) by and between PANATRACK, INC., a Wisconsin corporation (“Panatrack®”), and the customer that installs, accesses, or uses the Software (“Customer”), and relates to Panatrack licensing to Customer, subject to the terms and conditions of this Agreement, the software products and modules, documentation and license keys comprising the Panatracker® GP product, which may also be referred to as “Panatrack GP” (collectively, the “Software”), owned by Panatrack, as may be set forth on the proposal, quote, or other ordering document submitted by Panatrack to Customer (the “Proposal”). The Proposal includes any accompanying terms and information provided by Panatrack.
(a) Grant of License. Subject to Customer’s continued compliance with the terms and conditions of this Agreement, Panatrack grants to Customer a limited, non-transferable, non-exclusive license to use the Software solely for Customer’s internal business purposes (the “License”), which includes the use of any printed and electronic user documentation related to the Software and provided by Panatrack under this Agreement (the “Documentation”). The License is granted on either a perpetual basis (a “Perpetual License”) or a subscription basis (a “Subscription License”), as designated in the Proposal. A Perpetual License continues perpetually, subject to the terms and conditions of this Agreement. A Subscription License is a term license that continues only during the applicable Subscription Term and is governed by Section 19 (Subscription Licenses); except as expressly modified in Section 19, all terms of this Agreement apply equally to both. The License is measured by the number of handheld or mobile devices activated to access and use the Software (each an “Activated Device”); each Activated Device registers with the Portal through a unique hardware key and token, and only activated devices count against the licensed device count. The number of Activated Devices shall not exceed the number specified on the Proposal, as may be amended pursuant to Section 1(d) below. Customer’s access to and use of the Software’s web interface portal (the “Portal”) for administration, configuration and transaction history is not limited by user count. The License, license keys, and device registrations may not be shared, transferred, or used to exceed the licensed number of Activated Devices. The License permits Customer to connect the Software to any number of Microsoft Dynamics GP companies or databases residing within a single Microsoft SQL Server instance hosting Customer’s Dynamics GP company databases. Deployment of the Software against any additional or separate SQL Server instance constitutes a separate installation of the Software and requires a separate License. Notwithstanding the foregoing, Customer may, at no additional License fee, install and configure the Software against (i) a single passive standby Microsoft SQL Server instance (whether cold, warm, or hot standby) used solely for high-availability or disaster-recovery failover and not operated concurrently with the primary production instance for production transactions, and (ii) a single non-production instance used solely for testing, staging, development, or training and not for production operations. Only the primary production instance and its Activated Devices count against the licensed Activated Device count, and Customer shall not use any standby or non-production instance to circumvent the licensed Activated Device count or to operate a second concurrent production environment.
(b) License Restrictions. Customer and its Affiliates may use the Software solely in connection with their internal business operations, and not on behalf of, or for the benefit of, any other entity or organization. Customer remains responsible for each Affiliate’s compliance with this Agreement, and all use by Affiliates counts toward the licensed number of Activated Devices. As used herein, “Affiliate” means any entity that controls, is controlled by, or is under common control with Customer. Customer shall not (i) publish, display, distribute, sublicense, rent, lease, lend, remarket, resell or otherwise commercially exploit or transfer the Software or Documentation, or any part or derivative thereof; (ii) create derivative works based on the Software or any part thereof; (iii) resell data or services which are derived from the Software or Documentation; (iv) modify or adapt the Software or merge it into another program; (v) reverse engineer, decompile, translate, adapt, or disassemble any part of the Software; (vi) attempt to discover or create the source code for any part of the Software in any manner; or (vii) place or upload the Software or Documentation, or any part thereof, onto a server so that it is accessible via a public network, such as the internet, except as expressly permitted under Section 1(g); (viii) circumvent, disable, or tamper with any license key, device registration, hardware key or token authentication, or other technical limitation of the Software; or (ix) share, publish, or reuse any license key or device credential to exceed the licensed number of Activated Devices. Customer further agrees that it will not violate any applicable local, state or Federal law or regulation in connection with the use of the Software.
(c) Back-Up Copies. Notwithstanding anything in this Agreement to the contrary, Customer may make and use copies of the Software for non-productive archival or back-up purposes. Customer may also make and use copies of the Documentation for internal business operations. Each copy, back-up or reproduction shall be stored in a safe, confidential and secure location and protected by Customer using at least the same level of safety and security Customer uses for its own confidential information. No act or omission by Customer shall serve to affect any copyright, patent, trade secret and other intellectual property rights Panatrack may have in any copies, back-ups or reproductions of the Software, the Documentation or anything created or developed by Panatrack for Customer in connection with the license or under this Agreement, all of which shall remain vested in Panatrack.
(d) Additional Capacity. Customer may add additional Activated Devices or other licensed capacity to the License upon prior written approval of Panatrack and Customer’s payment of any additional license, maintenance, implementation or other fees at Panatrack’s then-current rates.
(e) License Verification. Panatrack may, upon reasonable prior notice and no more than once in any twelve (12) month period (or more frequently if Panatrack reasonably suspects unauthorized use), verify Customer’s compliance with the Activated Device counts and other terms of this Agreement, including by requesting Customer’s written self-certification or reasonable device-registration records. If any verification reveals use of the Software in excess of the quantities or scope licensed, Customer shall promptly pay the applicable additional license, maintenance and implementation fees at Panatrack’s then-current rates, retroactive to the date such excess use began, without prejudice to any other remedy available to Panatrack.
(f) Reservation of Rights. All rights not expressly granted to Customer in this Agreement are reserved by Panatrack. No license or other right is granted to Customer by implication, estoppel or otherwise.
(g) Deployment and Hosting. Customer may install and operate the Software in Customer’s own on-premises environment or, at Customer’s election, in a hosted environment operated by Customer or by a third-party hosting or managed-service provider acting solely on Customer’s behalf and for Customer’s internal benefit, including an internet-facing deployment. Notwithstanding Section 1(b)(vii), such deployment is permitted provided that access to the Software remains limited to Customer’s authorized personnel and licensed Activated Devices. Customer is responsible for the acts and omissions of any such hosting or managed-service provider as if they were Customer’s own, and for provisioning and securing any hosted or internet-facing deployment in accordance with Section 14 (Customer Environment and Security).
This Agreement shall commence on the Effective Date and shall, subject to Customer’s continued compliance with the terms and conditions of this Agreement, remain in full force and effect unless and until terminated as provided in this Agreement. Either party may terminate this Agreement for convenience upon at least sixty (60) days’ prior written notice to the other party, and this Agreement may also be terminated earlier in accordance with its other terms. In addition, either party may terminate this Agreement for the other party’s material breach if the breaching party fails to cure such breach within thirty (30) days after receiving written notice describing the breach in reasonable detail (an “uncured” or “uncured material” breach); provided that this cure right does not apply to Customer’s payment defaults under Section 6 or to Customer’s violation of Section 1, Section 8, or Section 13, as to which the remedies set forth in those Sections apply. The period of time this Agreement is in effect shall be referred to as the “Term”. For a Perpetual License, the Term of this Agreement and Customer’s License to use the Software and Documentation shall continue despite Customer’s failure to procure, maintain or renew the Annual Software Maintenance Plan (as defined below), and Panatrack’s termination of this Agreement for convenience (that is, other than on account of Customer’s uncured breach or an Event of Default) shall not terminate a Perpetual License to the release of the Software then installed by Customer. For a Subscription License, the Term, expiration and renewal of this Agreement and the License are governed by the Proposal and Section 19 (Subscription Licenses).
Subject to Customer’s continued compliance with the terms and conditions of this Agreement, and Customer’s further engagement of Panatrack when applicable, to provide Customer with maintenance and support services under Panatrack’s annual software maintenance plan (the “Annual Software Maintenance Plan” or “Plan”), and Customer’s cooperation with Panatrack in the provision of the Plan, the following provisions of this Section 3 apply:
For a Subscription License, the maintenance and support services described in this Section are included during the Subscription Term as part of the subscription, as provided in Section 19 (Subscription Licenses), and no separate Annual Software Maintenance Plan purchase is required.
(a) Telephone and Email Support. Panatrack shall, during its normal hours of business operation (8:00 A.M. to 5:00 P.M. Central U.S. Time Zone) on weekdays, but excluding holidays, provide Customer with free telephone, email and online web support during the Term. Such support shall include troubleshooting and incident analysis limited to the operation of the Panatrack software only, and may require remote access into Customer’s system to assist in any diagnosis. If the Annual Software Maintenance Plan is not in effect, Panatrack may, at its discretion, offer support on an hourly basis at Panatrack’s then-current service rates. Panatrack reserves the right to change the terms of the Plan, which changes will be identified to Customer at least 30 days in advance thereof.
(b) Error Correction Services. Panatrack shall use all reasonable efforts to design, code and implement programming changes to the Software, and modifications to the Documentation, to correct reproducible errors therein so that the Software is brought into substantial conformance with this Agreement. The provision of the error-correction and support services described above shall be expressly contingent upon Customer reasonably promptly reporting any errors in the Software to Panatrack in writing and NOT modifying the Software OR the operating environment without Panatrack’s prior written consent. Panatrack’s error correction services shall not include support where the failures are due to (i) defects, power problems, environmental problems or any other causes that are independent of errors or defects in the Software supplied by Panatrack, including but not limited to causes related to Customer’s network, whether wireless, LAN or otherwise; (ii) modifications to the Software, operating systems or computer hardware made by a party other than Panatrack; (iii) issues with Customer’s databases or set-up, incompatibility with other third-party applications, data corruption; or (iv) misuse, errors or negligence of Customer, its employees or agents in operating the Software. Customer shall be billed for support services for any issues outside the scope of Panatrack’s error correction services at the then-current service rates.
(c) Software Version Release Upgrades. Panatrack shall provide Customer with upgrades and modifications to the Software in the form of fixes and further releases and upgrades to the Software during the Term that Panatrack makes generally available to all customers at no charge. Version release upgrades include support to host system version upgrades as well as major feature and functionality enhancement upgrades to the Software. Panatrack will provide the services to install and configure one (1) standard upgrade version release per year during the Term. Additional version upgrade requests will be billed at Panatrack’s then-current service rates or are included as part of any modification request proposals. All upgrades and modifications shall become part of the Software and shall be subject to all terms and conditions of this Agreement.
(d) Microsoft Dynamics. Customer acknowledges that the Software is an add-on to and dependent upon the functionality and performance of Microsoft Dynamics and its software. Panatrack makes no representations or warranties regarding Microsoft Dynamics and shall not be liable for any damages, losses, costs or expenses Customer may incur as a result of errors, deficiencies or other issues affecting Microsoft Dynamics, including but not limited to the decreased effectiveness of the Software as a result of such issues with Microsoft Dynamics. Customer further acknowledges that the Software’s functionality depends on the continued availability and support of Microsoft Dynamics and its related components, and that Microsoft’s product lifecycle decisions regarding Dynamics GP are outside Panatrack’s control. Any support provided by Panatrack related to the functionality of Microsoft Dynamics shall be billed at Panatrack’s then-current service rates.
(e) Third-Party Components. The Software may include, incorporate or interoperate with third-party or open-source software components that are subject to their own license terms. Panatrack makes no representation or warranty with respect to, and shall have no liability arising out of or relating to, any such third-party or open-source components, and Customer’s use of such components is governed by the applicable third-party terms.
(f) Third-Party Prerequisites. Customer is responsible, at its own expense, for obtaining and maintaining all third-party software, licenses and infrastructure required to operate the Software, including a supported version of Microsoft Dynamics GP (currently Dynamics GP 2013 or higher), Microsoft SQL Server, Microsoft Windows Server and Internet Information Services (IIS), the Microsoft .NET Framework, Microsoft eConnect for Dynamics GP, and, if automated label printing is used, a Panatrack-supported label printing engine (such as NiceLabel). Any label printing engine used with the Software must be one that Panatrack then supports, as identified in the Documentation or otherwise by Panatrack, and Panatrack’s provision of label-printing support is contingent upon Customer’s use of such a supported engine. Panatrack’s provision of the Software and support services is contingent upon Customer maintaining a Panatrack-supported version of Dynamics GP and the required prerequisites in Customer’s environment. Panatrack is not responsible for Customer’s compliance with, or the cost of, any such third-party licenses.
(g) Remote Access for Support. Where diagnosis or error correction requires access into Customer’s environment, Customer shall grant Panatrack reasonable remote access and is responsible for providing and securing the means of access (including any VPN or remote session). Customer remains responsible for its environment, systems and data during any such session, and Panatrack shall have no liability for the Customer environment or for data that Customer directs or permits Panatrack to access.
(h) Legacy and Discontinued Platforms. Support for legacy or end-of-life platforms and devices, including without limitation devices running Microsoft Windows Mobile, is provided on a limited, best-efforts basis and may be reduced or discontinued by Panatrack upon reasonable notice. Panatrack is not obligated to maintain compatibility of the Software with platforms or operating systems that their manufacturers no longer support.
Customer shall designate in writing to Panatrack an individual or individuals whom shall be deemed “Customer’s Representative”. Customer’s Representative shall be responsible for all communications with Panatrack regarding the Software or any other matters related to Panatrack’s grant of the license and this Agreement. Panatrack shall not be required to communicate with any officer, manager, representative, employee or agent of Customer other than Customer’s Representative.
In consideration of the rights granted Customer pursuant to the License, and services provided, Customer shall pay to Panatrack or its reseller the fees set forth in the Proposal in full at the specified time and manner. Customer is required to purchase the Annual Software Maintenance Plan along with its License of the Software for the initial year of the License. The initial cost of the Plan is set forth in the Proposal. Thereafter, annual renewals of the Plan shall not increase by more than 5.00% per year. Invoices for renewal of the Plan will be invoiced approximately 60 days prior to each anniversary of the Effective Date. Additional technical support bundles may be available for purchase at any time.
For a Subscription License, Customer instead pays the subscription fees set forth in the Proposal as provided in Section 19 (Subscription Licenses), and the provisions of this Section requiring the purchase of a separate Annual Software Maintenance Plan do not apply.
If Customer is not covered by an Annual Software Maintenance Plan, Panatrack is under no obligation to provide any support services. In the event that Panatrack does provide Customer support services when Customer is not covered by a Plan, Customer will be billed for ALL support services at Panatrack’s then-current hourly rates, which is billed for a minimum of one hour and for each quarter hour thereafter.
All payment obligations are non-cancelable, and all amounts paid are non-refundable except as expressly provided in Section 6 (Delinquent Payment and Suspension) and Section 12 (Indemnification). Customer is responsible for paying all fees associated with the License for the entire Term, including any Annual Software Maintenance Plan, whether or not such License or Plan is actually used. Customer shall also be responsible for all taxes due in connection with the License and this Agreement, including but not limited to sales, use, excise and personal property taxes (but not related to income taxes). Customer agrees to hold harmless Panatrack from all claims and liability arising from Customer’s failure to report or pay any taxes which are not collected by Panatrack or its reseller from Customer. All pricing terms are confidential, and Customer agrees not to disclose them to any third party.
In addition to any other rights granted to Panatrack under this Agreement, Panatrack reserves the right to suspend or terminate this Agreement and Customer’s access and use of the Software if Customer fails to make any payment to Panatrack or its reseller within ten (10) days of its due date and such failure remains uncured for five (5) days after Panatrack provides written notice of the delinquency. Any delinquent payments shall be subject to interest at the rate of 1.00% per month (12.00% per annum) from the date such payment first became due, or the maximum rate permitted by law, whichever is less.
If this Agreement is terminated prior to the end of the then-current Term (a) by Customer for convenience or without cause, or (b) by Panatrack on account of Customer’s uncured breach or an Event of Default under Section 8, then the balance due on Customer’s account — computed as all committed fees remaining payable for the balance of the then-current Term (including, for a Subscription License, the remaining subscription fees for the then-current Subscription Term, and, for a Perpetual License, any committed Annual Software Maintenance Plan fees for the then-current annual Plan period) — shall become immediately due and payable. If Panatrack terminates this Agreement for convenience under Section 2 (that is, other than on account of Customer’s uncured breach or an Event of Default), or if Customer terminates this Agreement on account of Panatrack’s uncured material breach, then the foregoing acceleration shall not apply, and Panatrack shall refund to Customer, on a pro-rata basis, any prepaid subscription or Annual Software Maintenance Plan fees allocable to the period after the effective date of termination.
Panatrack may immediately suspend Customer’s License, account and access to or use of the Software, or terminate this Agreement (a) as set forth in Section 6 above, or (b) if Customer violates any provision within Section 1 or Section 13 of this Agreement, or if an Event of Default under Section 8 occurs. Any suspension of Customer’s use of the Software under the preceding sentence shall not excuse Customer from Customer’s payment obligations under this Agreement. Customer’s License of the Software shall terminate concurrently with the termination of this Agreement due to Customer’s default and, in such event, Customer shall immediately and permanently cease all use of the Software. Customer shall immediately return or destroy, as requested by Panatrack, all Software, Documentation, Confidential Information and other related materials, including all copies thereof. Customer shall, within ten (10) days of Panatrack’s request, provide Panatrack with written certification that Customer has complied with this requirement. Customer shall not be relieved of its obligation to pay Panatrack or its reseller any amounts owed pursuant to this Agreement. The obligations of the parties under this Agreement that expressly survive termination or by their nature would continue beyond expiration, termination or cancellation of this Agreement shall survive any such expiration, termination or cancellation. For a Perpetual License, Customer’s termination of or failure to renew the Annual Software Maintenance Plan does not, in and of itself, terminate Customer’s License to use the Software; for a Subscription License, non-renewal or non-payment terminates the License as set forth in Section 19 (Subscription Licenses).
Each of the following constitutes an “Event of Default” under this Agreement: Customer (a) fails to make any payments due under this Agreement or under any other agreement with Panatrack, (b) fails to perform or improperly performs any of its other obligations under this Agreement, (c) commits an act of bankruptcy, becomes subject to any proceeding pursuant to the Bankruptcy Code, becomes insolvent, or has any substantial part of its assets become subject to levy, seizure, assignment, application or sale for or by any creditor or governmental agency, or (d) ceases doing business.
Panatrack has sole and exclusive ownership of all rights, title, ownership and interest in and to the Software, Documentation and all other Panatrack Confidential Information (subject only to the limited internal business use License granted under this Agreement). Panatrack shall retain all copyright, patent, trade secret and other intellectual property rights Panatrack may have in the Software, the Documentation or anything created or developed by Panatrack for Customer in connection with the License or under this Agreement. Customer shall not have any rights, title, ownership or interest in or to Panatrack’s name, trademarks or logo, or any goodwill now or hereafter associated therewith, all of which rights, title, ownership, interest and goodwill is the sole and exclusive property of and shall inure exclusively to the benefit of Panatrack. Customer shall not use Panatrack’s name, trademark, logo and/or any part of the Software or Documentation in any marketing or other materials that will be distributed by Customer to third parties without Panatrack’s prior written consent. Customer shall keep the Software free and clear of all claims, liens, and encumbrances. “Panatrack” and “Panatracker” are registered trademarks of Panatrack, Inc.; the Software is offered under the product name “Panatracker GP” (also referred to as “Panatrack GP”). All such marks and the associated goodwill are and shall remain the exclusive property of Panatrack.
(a) Feedback. If Customer provides Panatrack with any suggestions, ideas, enhancement requests, feedback or recommendations regarding the Software or Documentation (collectively, “Feedback”), Panatrack may freely use, incorporate, modify and commercialize such Feedback for any purpose without restriction and without any obligation or compensation of any kind to Customer, and all right, title and interest in and to such Feedback and any product, service or improvement incorporating it shall vest solely and exclusively in Panatrack.
(a) Warranty of Performance. Panatrack warrants that the Software will be provided in a manner consistent with general industry standards, that the Software will be fit for the purpose of tracking inventory and assets and such other uses specifically set forth in the Proposal under normal use and circumstances, and that the Software will be compatible with Customer’s hardware and software in effect as of the date of the implementation of the Software. The Software will be reasonably free from material reproducible programming errors and defects in workmanship and materials when maintained and operated in accordance with the instructions provided as part of the Documentation. If material reproducible programming errors are discovered and reported as required under Section 3, Panatrack shall promptly remedy them at no additional expense to Customer. The foregoing warranties are expressly conditioned upon Customer’s observance of the operating security and data control procedures set forth in this Agreement and the Documentation and shall be null and void if Customer modifies or otherwise alters the Software without Panatrack’s prior written consent.
(b) Hardware. Panatrack makes no representations or warranties regarding any hardware and/or third-party software not manufactured by Panatrack, including but not limited to performance of the hardware and/or software or damages caused by a malfunction of the hardware and/or software. Any hardware or third-party software purchased, licensed, leased or otherwise used by Customer shall be covered by the manufacturer’s warranty, if any, which may be obtained directly from the manufacturer.
(c) Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION AND PANATRACK’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12(b), THE SOFTWARE IS PROVIDED “AS-IS”. PANATRACK DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, OR COMPLETELY SECURE. PANATRACK DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF ACCURACY, MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT IS NOT RELYING ON ANY STATEMENT, PROMISE, OR REPRESENTATION, EITHER ORAL OR WRITTEN, MADE BY OFFICERS, SALESMEN, OR AGENTS OF PANATRACK, WHICH WOULD SUPPLEMENT, EXPLAIN, INTERPRET, MODIFY OR EXPAND THE TERMS AND CONDITIONS OF THIS AGREEMENT OR ANY SALES LITERATURE OR WRITTEN PROPOSALS. CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT NO EXPRESS WARRANTY IS CONTAINED OR CREATED IN ANY ORAL STATEMENT OR IN ANY WRITING OTHER THAN THE EXPRESS WRITTEN WARRANTIES CONTAINED IN THIS AGREEMENT.
(a) Exclusion of Indirect Damages. In no event shall either party, or its officers, directors, employees, representatives, agents or resellers, be liable to the other for any special, indirect, incidental, exemplary or consequential damages, including but not limited to lost profits, loss of goodwill, lost data, lost opportunities, or other similar damages arising from, related to or in connection with this Agreement, the License, or Customer’s use or inability to use the Software, even if such party has been advised of the possibility of such damages. This exclusion applies to the maximum extent permitted by applicable law, regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, and even if any limited remedy fails of its essential purpose. This exclusion applies notwithstanding the uncapped and enhanced-cap liabilities described in subsections (c) and (d); those subsections remove only the monetary cap on a party’s direct damages and do not create liability for any category of damages excluded by this subsection (a).
(b) General Cap. Except as provided in subsections (c) and (d), each party’s total cumulative liability for all claims in the aggregate arising out of or relating to this Agreement, the License, or the Software shall not exceed the total amount of fees actually paid by Customer to Panatrack (or its reseller) under this Agreement during the twelve (12) months immediately preceding the event first giving rise to the claim, including License fees, Annual Software Maintenance Plan fees, and, for a Subscription License, subscription fees paid during such period (the “General Cap”).
(c) Customer’s Uncapped Obligations. The General Cap does not limit or exclude: (i) Customer’s payment obligations under this Agreement; or (ii) Customer’s liability arising out of Customer’s indemnification obligations, Customer’s breach of Section 1 (License) (including any use of the Software beyond the scope licensed), Customer’s breach of Section 13 (Confidentiality), or Customer’s infringement or misappropriation of Panatrack’s intellectual property rights, each of which is unlimited as to direct damages.
(d) Panatrack Enhanced Cap. Panatrack’s total cumulative liability for its breach of Section 13 (Confidentiality) and for its indemnification obligations under Section 12(b) shall not exceed two (2) times the General Cap (the “Enhanced Cap”). In all other respects, Panatrack’s liability is subject to the General Cap.
(a) Customer Indemnification. Customer shall defend, indemnify and hold harmless Panatrack and its officers, directors, employees, agents, resellers, successors and assigns from and against any and all third-party claims, demands, actions, damages, losses, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to: (i) Customer’s use of the Software in violation of this Agreement or applicable law; (ii) Customer’s data or content, or the combination or use of the Software with any hardware, software, data or systems not provided by Panatrack; (iii) Customer’s breach of this Agreement or of any representation or warranty made by Customer; or (iv) the negligence or willful misconduct of Customer or its employees, agents or representatives.
(b) Panatrack Intellectual Property Indemnification. Subject to the exclusions in Section 12(c) and the limitation in Section 12(e), Panatrack shall defend Customer, and its officers, directors and employees, against any third-party claim alleging that the Software, as provided by Panatrack and used by Customer in accordance with this Agreement, directly infringes a United States patent, registered copyright, or trademark, or misappropriates a trade secret, of such third party (an “Infringement Claim”), and shall indemnify Customer for damages and reasonable attorneys’ fees finally awarded against Customer by a court of competent jurisdiction, or agreed to in a settlement approved by Panatrack in writing, with respect to such Infringement Claim.
(c) Exclusions from Panatrack’s Indemnity. Panatrack shall have no obligation under Section 12(b) to the extent an Infringement Claim arises out of or relates to: (i) Microsoft Dynamics GP, Microsoft SQL Server, or any other third-party, open-source, or Customer-provided software, hardware, database, or infrastructure, or the combination, operation, or integration of the Software therewith; (ii) any modification, adaptation, or configuration of the Software not made or authorized in writing by Panatrack; (iii) Customer’s use of the Software other than in accordance with this Agreement or the Documentation, or in violation of applicable law; (iv) Customer Data (as defined in Section 15) or Customer’s proprietary workflows, processes, or specifications; or (v) Customer’s continued use of an allegedly infringing version of the Software after Panatrack has made available, at no additional charge, a non-infringing update, replacement, or modification.
(d) Mitigation and Sole Remedy. If the Software is, or in Panatrack’s reasonable opinion is likely to become, the subject of an Infringement Claim, Panatrack may, at its option and expense: (i) procure for Customer the right to continue using the Software; (ii) modify or replace the Software so that it becomes non-infringing while remaining substantially equivalent in functionality; or (iii) if neither (i) nor (ii) is commercially reasonable, terminate the License to the affected Software and refund to Customer (A) for a Perpetual License, the License fees paid for the affected Software, depreciated on a straight-line basis over a five (5) year useful life, and (B) for a Subscription License, any prepaid subscription fees allocable to the terminated period. This Section 12(b)–(d) states Panatrack’s entire liability and Customer’s sole and exclusive remedy for any Infringement Claim.
(e) Limitation on Panatrack’s Indemnity. Panatrack’s total cumulative liability under Section 12(b) (including amounts paid in defense, indemnity, and settlement) is subject to, and shall not exceed, the Enhanced Cap set forth in Section 11(d). The remedies set forth in Sections 12(b)–(d) are Customer’s sole and exclusive remedy for any Infringement Claim.
(f) Indemnification Procedure. The indemnifying party’s obligations under this Section are conditioned upon the indemnified party (i) promptly providing written notice of the applicable claim (provided that failure to give prompt notice shall relieve the indemnifying party of its obligations only to the extent it is materially prejudiced thereby), (ii) granting the indemnifying party sole control of the defense and settlement of the claim, and (iii) providing reasonable cooperation at the indemnifying party’s expense. No settlement that imposes any non-monetary obligation on, or requires any admission of liability by, the indemnified party shall be entered into without the indemnified party’s prior written consent, not to be unreasonably withheld.
(a) Definition. In connection with this Agreement, each party (as “Disclosing Party”) may disclose to the other party (as “Receiving Party”) certain proprietary, non-public or confidential information, whether verbal or written, that is marked or identified as confidential or that a reasonable person would understand to be confidential given its nature and the circumstances of its disclosure (collectively, the “Confidential Information”). Panatrack’s Confidential Information includes, without limitation, the Software and all modifications and upgrades to the Software, the Documentation, the terms of this Agreement, trade secrets, source codes, data, formulas, systems, inventions, innovations, processes, information, techniques, records and specifications, business and product processes, methods and procedures, financial information, and organizational information relating to Panatrack’s officers and employees. Customer’s Confidential Information includes, without limitation, Customer’s proprietary warehouse and business processes, workflows, integration parameters, system configurations and recap documentation, and any Customer Data or business, financial, or technical information that Customer discloses to, or that Panatrack accesses or receives from Customer (including during any remote-access support session), in connection with this Agreement.
(b) Obligations. The Receiving Party agrees that it will not disclose any of the Disclosing Party’s Confidential Information, directly or indirectly, or use any of it in any manner, either during the Term or at any time thereafter, except as required and permitted to perform its obligations or exercise its rights under this Agreement. The Receiving Party shall store the Disclosing Party’s Confidential Information in its possession or under its control in a safe, confidential and secure location, protected using at least the same level of safety and security the Receiving Party uses for its own confidential information of like importance, and in no event less than a reasonable standard of care. The Receiving Party may disclose Confidential Information only to those of its employees, agents and representatives who have a need to know it for the purposes of this Agreement and who are bound by confidentiality obligations at least as protective as those set forth herein, and the Receiving Party remains responsible for their compliance. Panatrack acknowledges that it is not a records custodian of Customer Data, does not host Customer Data, and does not require standing access to Customer’s production data; this Section 13 does not obligate Panatrack to ingest, host, or retain Customer Data, but does obligate Panatrack to protect any Customer Confidential Information it does receive or access.
(c) Exclusions. Confidential Information does not include information that (i) has become publicly known and generally available through no wrongful act or omission of the Receiving Party; (ii) was rightfully in the Receiving Party’s possession without obligation of confidentiality prior to disclosure by the Disclosing Party; (iii) is rightfully received by the Receiving Party from a third party without obligation of confidentiality; or (iv) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. The Receiving Party may disclose Confidential Information to the extent required by law, regulation or court order, provided that (where legally permitted) it gives the Disclosing Party reasonable prior notice and cooperates in any effort to obtain confidential treatment.
(d) Reservation of Rights. Panatrack claims and reserves all rights and benefits afforded under federal copyright law in its Confidential Information as unpublished works. Nothing in this Section 13 transfers or grants to either party any right, title, or interest in the other party’s Confidential Information, except the limited right to use it as necessary to perform under this Agreement.
(e) Return; Survival. Upon the Disclosing Party’s request following the termination of this Agreement, the Receiving Party shall promptly deliver to the Disclosing Party, or destroy, all of the Disclosing Party’s Confidential Information in the Receiving Party’s possession or under its control. The terms of this Section shall survive the termination of this Agreement.
The Software operates within Customer’s own network and infrastructure, and Customer’s data is stored in Customer’s SQL Server database; the Software stores no such data on the handheld devices. As between the parties, Customer is solely responsible for the provisioning, configuration, operation and security of the environment in which the Software is deployed, including without limitation network and firewall configuration, any VPN or internet-facing access, binding of SSL/TLS certificates in IIS, database and server security, encryption at rest, operating-system and component patching, physical and logical device security, user and credential management, and routine backups. Customer is the controller and custodian of all Customer Data. Panatrack does not host the Software or Customer Data and does not require standing access to Customer’s production data. Customer shall promptly deactivate, through the Portal, any Activated Device that is lost, stolen or decommissioned. Panatrack shall have no liability for any loss, corruption, unauthorized access or breach arising from or occurring within Customer’s environment or resulting from Customer’s failure to implement or maintain appropriate security measures.
Customer is solely responsible for the accuracy, quality, integrity, legality, reliability and backup of all data and content it inputs into or processes with the Software (“Customer Data”). Panatrack is not a records custodian of Customer Data, and Customer shall maintain its own independent backups. Customer is solely responsible for configuring and operating its environment to meet any statutory or regulatory obligations applicable to Customer Data (including, as applicable, HIPAA, PCI-DSS, or comparable regimes). The Software is a general-purpose inventory and asset-tracking application, and Panatrack does not represent or warrant that it is designed, certified, or configured to satisfy the requirements of any such regime. Because Panatrack does not host Customer Data and does not require standing access to it, Customer shall not expose, transmit, or otherwise make available to Panatrack any protected health information, cardholder data, government-issued identifiers, or other sensitive personal data — whether during a remote-access support session or otherwise — unless the parties have first entered into a separate written agreement (such as a Business Associate Agreement) governing such data. Absent such a separate written agreement, Panatrack is not a business associate of Customer and assumes no obligations under HIPAA or any comparable regime. Panatrack may collect and use technical, diagnostic and usage data relating to the provision, performance and security of the Software for the purpose of providing, maintaining, protecting and improving Panatrack’s products and services, provided that such data is used by Panatrack in aggregated or de-identified form that does not identify Customer or any individual.
Customer shall comply with all applicable laws and regulations in connection with its access to and use of the Software, including all applicable export control, economic sanctions, and anti-corruption laws and regulations (including the U.S. Export Administration Regulations and the U.S. Foreign Corrupt Practices Act). Customer represents and warrants that it is not located in, under the control of, or a national or resident of, any country or party subject to U.S. embargo or restricted-party designation, and that Customer will not access, use, export, re-export or transfer the Software in violation of any such laws or regulations.
Each party acknowledges that any actual or threatened breach of Section 13 (Confidentiality) by the other party, and any actual or threatened breach by Customer of Section 1 (License) or Section 9 (Software Ownership), may cause the non-breaching party (or, in the case of Sections 1 and 9, Panatrack) irreparable harm for which monetary damages would be an inadequate remedy. Accordingly, the affected party shall be entitled to seek injunctive and other equitable relief to prevent or restrain any such breach, without the necessity of posting a bond or other security and without the need to prove actual damages, in addition to any other remedies available to it at law or in equity.
All notices required or permitted under this Agreement shall be in writing and shall be deemed to be delivered, whether actually received or rejected, on the date that is three (3) days after being deposited in the United States mail, postage prepaid, addressed to the respective party at the address set forth in the Proposal or otherwise provided by the party, or by email to an address the party has provided, or at such other address as a party may hereafter specify by written notice. Delivery by recognized overnight carrier to such addresses will be deemed to satisfy the notice requirements of this Agreement, effective upon the date of receipt or refusal of delivery.
This Section applies only where the Proposal designates the License as a Subscription License, and applies notwithstanding anything to the contrary in this Agreement (including any reference to a “perpetual” license or to the continuation of the License apart from the Annual Software Maintenance Plan). Except as expressly modified in this Section, all terms and conditions of this Agreement apply to Subscription Licenses.
(a) Nature of Subscription License. A Subscription License is a limited, non-transferable, non-exclusive, term license to access and use the Software and Documentation solely during the period for which Customer has paid the applicable subscription fees (the “Subscription Term”). Customer acquires no perpetual or irrevocable right to use the Software under a Subscription License.
(b) Included Services. During the Subscription Term, the subscription entitles Customer to access and use of the Software together with Panatrack’s standard maintenance and support services described in Section 3 (including telephone and email support, error correction services, and software version release upgrades), as if an Annual Software Maintenance Plan were in effect. No separate Annual Software Maintenance Plan purchase is required for a Subscription License.
(c) Subscription Term and Renewal. The initial Subscription Term and the terms governing its renewal are as set forth in the Proposal. Renewal subscription fees, and any increases thereto, are as set forth in the Proposal; where the Proposal does not specify a limitation on renewal increases, the limitation set forth in Section 5 shall apply.
(d) Subscription Fees. Subscription fees are payable in the amounts and at the times set forth in the Proposal. All subscription fees are non-cancelable and non-refundable except as expressly provided in Section 6 and Section 12, and Customer is responsible for the full subscription fees for the entire Subscription Term whether or not the Software is actually used.
(e) Expiration and Termination. A Subscription License, and Customer’s right to access and use the Software and Documentation, terminates immediately and automatically upon the expiration of the Subscription Term without renewal, upon any termination of this Agreement, or upon Customer’s failure to pay subscription fees when due (subject to Section 6). Upon any such expiration or termination, Customer shall immediately cease all use of the Software, and the obligations set forth in Section 7 (including the obligation to return or destroy the Software, Documentation, Confidential Information and related materials and to certify the same in writing) shall apply. Customer shall deactivate all Activated Devices, and Panatrack may disable or discontinue support for the license keys associated with the Subscription License. No wind-down, transition, or post-termination access period applies unless otherwise agreed by the parties in writing.
(a) Captions; Construction of Terms. The captions used in this Agreement are for convenience only and shall not control the meaning or interpretation of any of the provisions in this Agreement. The language in all parts of this Agreement shall in all cases be construed as a whole and according to its fair meaning, and not strictly for or against either Panatrack or Customer, and the construction of this Agreement and any of its various provisions shall be unaffected by any argument or claim that it has been prepared by or on behalf of Panatrack or Customer. Whenever herein the singular number is used, the same will include the plural, and words of any gender will include each other gender.
(b) No Waiver. One or more waivers of any breaches of any covenant, term or condition of this Agreement by either party shall not be construed as a waiver of a subsequent breach of the same covenant, term or condition. The consent or approval by either party will not be construed as a waiver of a subsequent breach of the same covenant, term or condition. The consent or approval by either party to or of any act by the other party requiring such consent or approval will not be deemed to waive or render unnecessary consent to or approval of any subsequent similar act.
(c) Assignment. This Agreement may not be assigned by Customer without the prior written approval of Panatrack. Notwithstanding the foregoing, Customer may assign this Agreement in its entirety, upon written notice to Panatrack and without Panatrack’s consent, to a successor in interest in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Customer’s assets or of the business unit to which this Agreement relates, provided that (i) the assignee is not a competitor of Panatrack; (ii) the assignee agrees in writing to be bound by this Agreement; (iii) use of the Software does not, as a result of the assignment, exceed the licensed number of Activated Devices (any increase being subject to Section 1(d)); and (iv) Customer is not then in material breach of this Agreement. Any other purported assignment by Customer in violation of this section shall be void. Panatrack may freely assign or transfer this Agreement, in whole or in part, including to any successor in interest or in connection with any merger, acquisition, corporate reorganization or sale of all or substantially all of its assets.
(d) Force Majeure. Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. If either party is unable to perform because of causes beyond its reasonable control, it shall provide notice to the other party of such inability as promptly as feasible under the circumstances and shall use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than thirty (30) days, either party may cancel unperformed services upon written notice. This section does not excuse Customer of its payment obligations under this Agreement.
(e) Amendment. No amendment or modification of this Agreement, and no additional or different term, will be effective to change or modify this Agreement in whole or in part unless it is in writing and signed by an authorized representative of Panatrack and, where this Agreement has been executed by Customer’s signature, also signed by an authorized representative of Customer. No Customer purchase order, click-acceptance, or course of dealing shall vary these terms. This standard is to be read together with, and is consistent with, the preamble and Section 20(n).
(f) Governing Law. This Agreement shall be governed by and interpreted in accordance with the internal laws of the State of Wisconsin without regard to conflict of law principles, and for purposes of any act or proceeding with respect to this Agreement, Customer hereby irrevocably submits to the jurisdiction of the Waukesha County Circuit Court, in Waukesha, Wisconsin or the federal court for the Eastern District of Wisconsin, in Milwaukee, Wisconsin, and waives any objection which it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in such court has been brought in an inconvenient forum.
(g) Benefit and Burden. The terms, provisions and covenants contained in this Agreement will inure to the benefit of and be binding upon the parties hereto and their respective heirs, successors in interest, assigns and legal representatives except as otherwise herein expressly provided.
(h) Validity and Severability. Each provision of this Agreement will be construed in such manner as to give such provision the fullest legal force and effect possible. To the extent any provision herein (or part of such provision) is held to be unenforceable or invalid when applied to a particular set of facts, or otherwise, the unenforceability or invalidity of such provision (or part thereof) will not affect the enforceability or validity of the remaining provisions hereof (or of the remaining parts of such provision), which will remain in full force and effect, nor will such unenforceability or invalidity render such provision (or part thereof) invalid for any other purposes.
(i) Customer’s Authority. The individual accepting this Agreement, or installing, accessing, or using the Software on Customer’s behalf, represents and warrants that he or she is authorized to bind Customer, and that upon such acceptance, installation, access, or use this Agreement is the valid and binding obligation of Customer.
(j) Attorneys’ Fees. In any legal dispute between the parties, the prevailing party will be entitled to recover reimbursement of its reasonable legal fees from the non-prevailing party, including attorneys’ fees in any bankruptcy proceedings or on appeal.
(k) Acceptance and Electronic Assent. No physical or electronic signature is required for this Agreement to be binding; Customer accepts this Agreement by clicking to accept (where presented) or by installing, accessing, or using the Software. If this Agreement is nonetheless executed by signature, it may be executed in one or more counterparts, and electronically transmitted or electronic signatures shall be valid and binding for all purposes.
(l) Non-Disclosure. The terms of this Agreement shall remain confidential and the knowledge of its terms will be limited to each party’s respective agents, and to those persons within each party who are in a need to know position, with each of them expressly agreeing to be under a like duty of confidentiality and non-disclosure. In addition, the parties may disclose the terms of this Agreement in any action to enforce its terms, pursuant to a court order, or to government agencies.
(m) Independent Contractors. The parties are independent contractors. Nothing in this Agreement creates any partnership, joint venture, agency, franchise, fiduciary or employment relationship between the parties, and neither party has any authority to bind the other.
(n) Entire Agreement; Order of Precedence. This Agreement, together with the Proposal, constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous agreements, proposals, understandings or representations, whether written or oral. In the event of any conflict between the body of this Agreement and the Proposal, the body of this Agreement shall control unless the Proposal expressly states that it supersedes a specifically identified section of this Agreement. Any pre-printed or standard terms contained in any Customer purchase order or similar Customer-issued document shall be of no force or effect. These are Panatrack’s standard terms; no modification, amendment, deletion of, or additional or different term to this Agreement is or shall be binding on Panatrack unless expressly agreed in a writing signed by Panatrack, and, except as so agreed, Customer’s acceptance is limited to this Agreement as published by Panatrack.
(o) Survival. The following provisions shall survive the expiration or termination of this Agreement: Section 1(b), Section 5 (as to accrued amounts), Section 6, Section 7, Section 9, Section 10(c), Section 11, Section 12, Section 13, Section 14, Section 15, Section 16, Section 17, Section 19, and Section 20, together with any other provision that by its nature is intended to survive.
(p) Effective Date. The “Effective Date” of this Agreement is the earliest date on which Customer clicks to accept this Agreement or first installs, accesses, or uses the Software.
(q) Updates to this Agreement. Panatrack may update this Agreement from time to time and will make the then-current version available with the Software and through Panatrack’s published knowledgebase or customer portal. Where Customer and Panatrack have entered into a signed agreement or signed ordering document incorporating these terms, the version of this Agreement in effect as of the date of signature shall govern for the duration of the then-current Term (or, for a Perpetual License, for the release of the Software then licensed by Customer), and any updated terms shall apply only upon the commencement of a renewal term or upon Customer’s voluntary election to install a subsequent release of the Software. Panatrack will make any updated version reasonably available to Customer before it takes effect, and no update that materially diminishes Customer’s rights or materially increases Customer’s obligations will apply to Customer during the then-current Term without Customer’s agreement. In the absence of such a signed agreement, the version of this Agreement in effect at the time Customer installs, accesses, or uses a given release of the Software governs that use, and Customer’s continued installation, access, or use of that release following the release of an updated version of the Software, or the renewal of a Subscription License, constitutes acceptance of the then-current version of this Agreement.
This Agreement does not require a physical or electronic signature. By clicking “I accept” (where presented), or by installing, accessing, or using the Software, Customer accepts and agrees to be bound by this Agreement as of the Effective Date. If Customer does not agree to this Agreement, Customer must not install, access, or use the Software.