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.
LIMITED WARRANTY
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.
INDEMNIFICATION
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.
NON-SOLICITATION
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.
INTELLECTUAL PROPERTY
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.
Service Desk & Related Support
Services. If the
provision of services or goods by Softrim includes managed services, monthly
monitoring and support, or service desk support, Customer understands that any
calls placed to Softrim may be recorded for quality assurance purposes and are
subject to Softrim’s privacy policy located at www.softrim.com/privacy.
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.
MISCELLANEOUS
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.