Updated November 7, 2022
Please carefully read these terms and conditions (“Terms”), which govern the provision of services and goods by or on behalf of Softrim, LLC (“Softrim”) to you (“Customer”). These Terms constitute an agreement between you and Softrim and include important information regarding warranties, liability, and indemnification. Softrim’s fees for its services and goods are based on the specific limitations contained herein.
CONFIDENTIALITY, NON-DISCLOSURE, AND PHI UNDER HIPAA
This section addresses the parties’ duties regarding protected health information (PHI) and other confidential information, and survives termination of your relationship with Softrim.
Confidential Information: Confidential Information includes all non-public, confidential or proprietary information, including without limitation trade secrets and information pertaining to technologies, business operations and strategies, customers, pricing, and marketing disclosed in connection with the provision of services or goods by Softrim but excluding information that is in the public domain, known to the receiving party at the time of disclosure as demonstrated by written evidence, or rightfully obtained by the receiving party on a non-confidential basis from a third party.
Non-Disclosure: The receiving party agrees to use the Confidential Information only in connection with the provision of services or goods by Softrim or to comply with applicable governmental regulations and law, and agrees that the disclosing party shall be entitled to injunctive relief for any violation of this section.
HIPAA and PHI: Confidential Information may also include protected health information (PHI) to the extent that the provision of services or goods by Softrim entails the use or disclosure of PHI. Customer agrees that prior to the provision of services or goods by Softrim, Customer will specifically identify circumstances where Customer reasonably anticipates the provision of services or goods by Softrim will involve the creation, receipt, maintenance, or transmission of PHI. If necessary, Customer and Softrim will collaborate on the execution of a mutually acceptable business associate agreement sufficient to comply with HIPAA.
PAYMENT, CANCELLATION, AND LIMITATIONS ON SERVICES AND GOODS
This section addresses payment terms, cancellation of services, and reasonable limitations on the provision of goods and your use of the services provided by Softrim.
Payment: Invoices are due based on thirty (30) day net terms for account balances less than $15,000. Invoices on accounts greater than $15,000 are due immediately unless agreed otherwise in a writing executed by Softrim. Deposits are non-refundable. Sales tax is in addition to the amounts stated on the quote and Customer is solely responsible for paying all taxes and reimbursing Softrim for any and all taxes paid by Softrim on behalf of Customer. An interest and administrative charge equivalent to the maximum rate permitted by law (or if no maximum rate is prescribed by law, then one and a half percent (1.5%) per month) may be applied to any amount invoiced but not paid within thirty (30) days of the date of the invoice. Customer is responsible for all costs and expenses associated with the collection of any unpaid invoice that is overdue by more than sixty (60) days.
Cancellation: Customer understands that the fees charged by Softrim are based on Customer’s commitment to purchase services or goods, including the provision of monthly or otherwise recurring services for the entire term or renewal term. In the event of any cancellation for any reason prior to the completed provision of services or goods or expiration of the applicable term or renewal term (which may be identified in the applicable quote), all remaining fees including fees for the remainder of the term or renewal term shall be accelerated and immediately due and owing as of the date of such cancellation. Any of Customer’s obligations and duties, which by their terms or nature extend beyond such cancellation (including Customer’s obligation to pay all amounts which are due and payable or which Customer has agreed to pay), shall survive any such cancellation.
Limitations on the Provision of Services and Goods: Softrim reserves the right to replace proposed hardware or software in the case of obsolescence, discontinuation, or unavailability with comparable hardware or software of equal or greater value. Softrim also reserves the right to adjust fees for goods based on material price increases resulting from Customer’s delay in the commencement of the provision of services or goods. Softrim may limit, interrupt, suspend, or terminate the provision of services or goods if:
A. after reasonable notice, Customer has not paid all outstanding amounts due, or has failed to pay a deposit or advance payment requested by Softrim;
B. Customer resells any services unless expressly authorized by Softrim;
C. Customer uses the services or goods in an adverse manner that affects Softrim’s provision of services to other customers or in an excessive, abusive, or unreasonable manner that is not customary for the type of services;
D. Customer or others use the services fraudulently or unlawfully, or Customer fails to comply with any applicable regulations or federal or state statutes and does not cure such failure within ten (10) days of receiving notice;
E. Customer uses obscene or profane language or is abusive, harassing, or discriminatory, and fails to cure such behavior within five (5) days of receiving notice; or
F. an event occurs for which Softrim reasonably believes that the suspension or termination of services is necessary to protect Softrim or Softrim’s other customers from an imminent and significant operational, financial, or security risk, in which case Softrim will provide advance notice if practicable; or
Prior to or during the provision of services or goods, Softrim may attempt to verify the availability of Customer’s facilities, and if Softrim determines in its sole discretion that the provision of services or goods is not feasible, or that the facilities are unsafe, Softrim may cancel the provision of services or goods without liability.
This section sets forth all warranties concerning all services or goods provided by or on behalf of Softrim, and survives termination of your relationship with Softrim.
Quality of Service: Softrim represents that all services will be performed in a professional and workman like manner consistent with reasonably applicable industry standards. Softrim may elect, at its sole discretion, to engage personnel with industry experience in lieu of any specific education or certifications.
Labor: Softrim’s labor is warranted for a period of ninety (90) days if issues resulting from incomplete or defective services occur within the scope and control of work specifically performed by Softrim.
Goods: Hardware and software may be covered by the original equipment manufacturer’s product warranty, and Softrim will provide initial assistance in facilitating Customer’s warranty claim against the original equipment manufacturer and may charge fees for additional support.
Network Availability and Cyber Security: Softrim may host information systems such as websites, e-mail, applications, data, etc. at its own or leased facilities. Softrim may also administer, monitor, or support information systems provided by third parties including internet service providers and providers of cloud-based systems like Microsoft 365. If such services are interrupted for any reason (including cyber security breaches), Softrim shall attempt in good faith to restore the services to the extent within Softrim’s control. Softrim may charge fees to repair or restore such services or Customer’s affected systems and data.
YOU AGREE THAT YOUR USE OF THE SERVICES SHALL BE AT YOUR SOLE RISK, NETWORK FAILURES MAY OCCUR AND CANNOT ALWAYS BE AVERTED BY ANY MONITORING OR MANAGED SERVICES OFFERED BY SOFTRIM, AND NEITHER SOFTRIM NOR ANY SECURITY OR BACKUP SYSTEMS CAN SAFEGUARD YOUR SYSTEMS AND DATA AT ALL TIMES. SOFTRIM ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR BREACH OF SERVICES, YOUR NETWORKS, OR YOUR COMPUTER SYSTEMS AND DATA, OR ANY BUGS, VIRUSES, MALWARE, RANSOMWARE, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES, YOUR NETWORKS, OR YOUR COMPUTER SYSTEMS.
Exclusion of All Other Warranties: THESE EXPRESS WARRANTIES ARE MADE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION: ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NONINFRINGEMENT, TITLE, OR OTHERWISE; ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; AND ANY WARRANTY THAT SERVICES OR GOODS PROVIDED SHALL BE SECURE, UNINTERRUPTED, ERROR-FREE, OR SUITABLE FOR THE PARTICULAR NEEDS OF CUSTOMER. THE SERVICES AND GOODS PROVISIONED BY SOFTRIM TO CUSTOMER ARE SOLD AND DELIVERED “AS IS” AND “WITH ALL FAULTS.”
LIMITATION OF LIABILITY
This section defines and limits Softrim’s liability arising from any services or goods provided to Customer under any and all circumstances, and survives termination of your relationship with Softrim.
Maximum Liability: SOFTRIM’S TOTAL LIABILITY IN CONNECTION WITH ANY CLAIM DIRECTLY OR INDIRECTLY RELATED TO ANY SERVICES OR GOODS PROVIDED BY SOFTRIM SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO SOFTRIM OVER THE THREE (3) MONTHS PRIOR TO THE CUSTOMER’S IDENTIFICATION OF THE SPECIFIC ISSUE FOR THE PARTICULAR SERVICE OR GOOD FROM WHICH THE CLAIM ARISES.
Other Liability Exclusions: IN NO EVENT WILL SOFTRIM BE LIABLE FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR OTHER INDIRECT DAMAGES, OR FOR LOST PROFITS, REVENUE, OR DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE AND BREACH OF WARRANTY OR CONTRACT), EVEN IF SOFTRIM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
This section defines the Customer’s and Softrim’s indemnity obligations (including obligations to defend, compensate, act, or refrain from acting), and survives termination of your relationship with Softrim.
Softrim: Softrim does and shall indemnify, defend, and hold harmless Customer (and its managers, members, employees, agents, successors, and assigns) against any claims and any and all losses, liabilities, damages, penalties and all related costs and expenses (including reasonable attorney’s fees) directly arising from the negligent provision of services by Softrim, subject to Softrim’s maximum liability limitation above and excluding claims, losses, liabilities, damages, penalties, costs, and expenses relating to misappropriation or infringement of intellectual property rights.
Customer: Customer does and shall indemnify, defend, and hold harmless Softrim (and its managers, members, employees, agents, successors, and assigns) against any claims and any and all losses, liabilities, damages, penalties and all related costs and expenses (including reasonable attorney’s fees) arising from or related to the provision of services or goods by or on behalf of Softrim, regardless of whether or not such claim, damage, loss, or expense is caused in part by Softrim, but specifically excluding any losses resulting from Softrim’s gross negligence or willful, wanton, or intentional misconduct.
This section limits your ability to solicit or hire Softrim’s current and former personnel, and survives termination of your relationship with Softrim.
Customer understands that Softrim’s personnel have undertaken and/or executed agreements imposing certain confidentiality obligations and reasonable limitations on their ability to compete with their employer in the same or similar line of business.
Customer agrees that during your relationship with Softrim and/or the applicable term (whichever is longer) and for a period of twelve (12) months following the termination thereof (“Non-Solicitation Period”), you shall neither solicit nor hire (or engage, directly or indirectly) any Softrim personnel or ex-personnel (employed at any time during the Non-Solicitation Period) without Softrim’s written consent, to be given, or withheld, in Softrim’s sole discretion.
Customer agrees that this limitation is necessary to protect the training and intellectual investment made by Softrim in its personnel, as well as valuable confidential business or professional information, substantial relationships with specific, prospective, or existing customers, and other goodwill of Softrim. Customer understands that a violation of this section entitles Softrim to liquidated damages equal to at least one hundred and fifty percent (150%) of the subject’s total, maximum annualized compensation while employed with Softrim.
This section addresses the ownership and licensing of Softrim’s intellectual property and any intellectual property created in connection with the provision of services or goods, and survives termination of your relationship with Softrim.
Ownership: All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials that are delivered to Customer or prepared by or on behalf of Softrim in the course of providing services or goods, including any items identified as such in an order confirmation (collectively, the “Deliverables”), except for any confidential information of Customer or Customer materials, shall be owned by Softrim.
Customer License: Softrim hereby grants Customer a license to use all such Intellectual Property Rights on a worldwide, non-exclusive, non-transferable, non-sublicensable, and revocable basis to the extent necessary to enable Customer to make reasonable use of Softrim’s services and goods during the applicable term so long as Customer is also in compliance with these Terms.
VoIP AND E911 SERVICES
This section provides important information about VoIP and E911 services to the extent Softrim’s provision of services or goods includes or relates to VoIP or E911 services or goods.
Mandatory Internet Connectivity. VoIP products and services require sufficient and stable internet access in order to operate as intended. If sufficient and stable internet access is unavailable, then phone and related services will not work. Additional important warnings and disclosures are identified in the section below titled “E911 Disclosure and Disclaimer.” In certain configurations and depending on the services purchased, business phones may be answered on mobile apps as a potential backup if the mobile device has independent internet access.
Fire Panel and Elevator Interface. VoIP products and services do not include a communications interface to the current fire panel or elevators. At Customer’s direction and subject to technical and third-party limitations, Softrim will attempt in good faith to work with the local fire panel monitoring company and the applicable elevator service company to facilitate in the potential migration the panel to an AHJ-approved communications solution.
Provision of Products and Services. Softrim’s ability to provide products and services depends on Customer’s complete and timely cooperation including the sufficiency and accuracy of information provided by Customer. Softrim reserves the right to terminate all or a portion of its services for Customer’s failure to timely pay fees and costs or Customer’s bad faith in facilitating the provision of services. If Customer attempts to terminate these services early, Customer remains obligated to pay the full monthly payments for the remainder of the term.
E911 Disclosure and Disclaimer. The Federal Communications Commission (“FCC”) requires that Customer is informed of any differences between the E911 access capability available in connection with the product and services provided by Softrim as compared to the E911 access capability available with traditional telephone service. A copy of the relevant FCC order is available at http://www.fcc.gov/cgb/voip911order.pdf. We ask that you carefully read this E911 Disclosure and understand how these differences affect your ability to access E911 services. If you have any questions or concerns about the information contained in this notice, or if you do not understand anything discussed in this notice, please contact a Softrim representative at 239-449-4444 during regular business hours. The FCC also requires that Softrim obtain and keep a record on file showing that Customer has received and understood this E911 Disclosure (e.g., by signing a quote referencing these terms).
By using the products and services provided by Softrim, Customer agrees to the terms of this 911 Disclosure and Disclaimer and affirmatively acknowledges that Customer (1) has read and understood this E911 Disclosure and Disclaimer, (2) understands that Customer may not be able to contact emergency services by dialing 9‐1‐1 using the products and services provided by Softrim, and (3) understands that Customer must inform its users of these products and services provided by Softrim that they may not be able to contact emergency services by dialing 9‐1‐1 using these products and services.
HOSTED VOIP E911 SERVICES MAY NOT OPERATE DURING A POWER OUTAGE. In the event of a power outage, a loss of voice and data service, including access to E911 services, is possible. Once power service is restored, you may be required to reset or reconfigure your equipment before you will be able to use Hosted VoIP to contact E911 services. You are responsible for providing an uninterruptible backup power supply and other necessary equipment if you wish to ensure continued operation of electrical equipment in the event of a power outage.
HOSTED VOIP E911 SERVICES WILL NOT OPERATE IF YOUR INTERNET CONNECTION IS DISRUPTED OR YOUR SERVICES HAVE BEEN SUSPENDED. Once your internet connection and Hosted VoIP have been restored, you may be required to reset or reconfigure your equipment before you will be able to use Hosted VoIP service to contact E911 services. If your services have been suspended due to non-payment, E911 services may remain available but all other Hosted VoIP services will be inoperable until services have been reinstated.
YOU MUST PROVIDE SOFTRIM WITH YOUR CORRECT SERVICE ADDRESS OR HOSTED VOIP E911 SERVICES CALLS MAY BE ROUTED TO EMERGENCY PERSONNEL WHO WILL NOT BE ABLE TO ASSIST YOU. For each phone number that you use with the Hosted VoIP service, you must register with Softrim the physical location where you will be using the service with that phone number. When you move the device to another location, you must register your new location. If you do not register your new location, any call you make may be sent to an emergency center near your old address.
You will register your initial location of use when you subscribe to the service. If you need to change your physical location associated with your phone number, you can call your Softrim customer service representatives at 239-449-4444 or submit a request via e-mail to VOIP911@softrim.com. In addition, you can request access to an online portal through which you can directly change your physical location associated with each of your phone numbers. Customer is fully responsible for confirming any changes to the physical location(s) associated with your phone number(s) and neither Softrim nor its officers or employees may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to 911 dialing using Hosted VOIP unless such claims or causes of action arose from our gross negligence, recklessness or willful misconduct. Customer shall defend, indemnify, and hold harmless Softrim its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection the Hosted VOIP service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, Customer or any third-party relating to the absence, failure or outage of the service, including 911 dialing, incorrectly routed 911 calls, and/or the inability of any user of the service to be able to use 911 dialing or access emergency service personnel.
HOSTED VOIP E911 SERVICES CALLS MAY NOT COMPLETE OR MAY BE ROUTED TO EMERGENCY PERSONNEL WHO WILL NOT BE ABLE TO ASSIST YOU IF YOUR EQUIPMENT IS DISABLED, MISCONFIGURED, OR DAMAGED, OR IF YOU MOVE TO A LOCATION OTHER THAN THE SERVICE ADDRESS YOU PROVIDED TO SOFTRIM WHEN SERVICE WAS INITIATED.
HOSTED VOIP E911 SERVICES CALLS MAY BE DELAYED OR DROPPED DUE TO NETWORK ISSUES. Due to network congestion or problems, calls to E911 services made using Hosted VoIP may be dropped, in which case you will not be connected to emergency services, or your E911 calls may take longer to connect than E911 calls made using traditional telephone service.
HOSTED VOIP E911 SERVICES CALLS MAY BE DELAYED OR DROPPED DUE TO DEFICITS OR LIMITATIONS OF EMERGENCY SERVICE OPERATORS, PUBLIC SAFETY ACCESS POINTS, OR OTHER THIRD PARTIES AND THIRD PARTY EQUIPMENT. For instance, 911 operators may or may not be able to access the required database(s) in order to automatically retrieve information pertaining to a registered DID, such as caller names and addresses, and in such instances, users may be required to verbally provide this information to the operator at the time the call is placed.
YOU SHOULD MAINTAIN ALTERNATE MEANS OF CONTACTING E911 SERVICES AND YOU MUST INFORM YOUR USERS OF THESE ALTERNATE MEANS.
Reselling of Softrim’s VoIP Services. Customer may resell or provision Softrim’s VoIP services to its residents or tenants only; however, Customer assumes sole responsibility and liability in the event of any alteration or modification to said services and Softrim provides direct support only to the specifically identified Customer.
OTHER SERVICE-SPECIFIC TERMS
This section provides notices and provisions specific to low voltage design, construction, surveillance, and support services, to the extent such services are provided to Customer by or on behalf of Softrim.
Low Voltage Design. If the provision of services or goods by Softrim includes low voltage design services, then, in addition to the Intellectual Property section above, Customer agrees that the corresponding low voltage design drawings are prepared solely for use in connection with the project identified on the drawings and no portion of such work may be copied or reproduced in connection with other designs or projects.
Construction. If the provision of services or goods by Softrim includes construction services, Customer agrees that phased installations are subject to a $1,500.00 trip charge per additional trip.
Surveillance and Door Access. If the provision of services or goods by Softrim includes the provision, administration, installation, maintenance, or support of surveillance or door access systems and equipment, Customer represents that it has verified that the location of all cameras is lawful, does not constitute an invasion of privacy, and complies with all federal and state laws, and that Customer has obtained all necessary consents and provided all necessary notices required by law or regulation. Softrim makes no representations or guarantees regarding the security of the surveilled premises or ability of the door access systems to provide or prevent access, and Customer acknowledges and agrees that Softrim does not provide security or emergency services and shall not be held liable for any breach of security or failure by a door access system to permit or deny access.
Assignment: Customer may not assign any rights without prior written consent of Softrim, and any such attempted assignment shall be void.
Force Majeure: Customer agrees and understands that Softrim will not be liable for any failure or delay in the provision of services or goods due to reasons beyond Softrim’s control including the COVID-19 or other pandemics and local/state/national emergencies.
Severability: These Terms are severable, and the unenforceability of any one of the provisions shall not affect the enforceability of other provisions. If a provision is found to be unenforceable, the parties shall substitute that provision with an enforceable provision that preserves the original intent of the parties.
Entire Agreement: These Terms govern the entire relationship and any other agreements between you and Softrim, past, present, and future. These Terms supersede all prior or contemporaneous understandings, agreements, representations, or warranties, both written and oral concerning the same subject matter, and prevail over any of Customer’s general terms and conditions regardless whether or when Customer has submitted its request for proposal, order, or such terms. The provision of goods or services by Softrim to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
Dispute Resolution: These Terms shall be construed and enforced in accordance with the laws of the State of Florida only, regardless of any principles of conflicts of laws. Exclusive venue and jurisdiction for any claims, causes of action, or disputes between Customer and Softrim shall be vested in the appropriate state or federal court in Lee County, Florida. CUSTOMER AND SOFTRIM HEREBY WAIVE THEIR RIGHT TO A TRIAL BY JURY ON ANY DISPUTE ARISING BETWEEN THEM.