Updated October 19, 2021
Please carefully read these Terms and Conditions for Services (“TCS” or “Terms”), which governs the provision of services and goods by Softrim, LLC (“Softrim”) to you (“Customer”). These Terms constitute an Agreement between you and Softrim. This document contains important terms and limitations relating to Softrim’s provision of services and goods to you, including important information regarding warranties, liability, and indemnification. These Terms supersede all prior or contemporaneous understandings, agreements, representations, or warranties, both written and oral concerning the same subject matter. These Terms 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. Provision of 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. Softrim’s fees for its services and goods are based in part on the specific limitations contained herein.
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 the industry standards reasonably applicable to such services in Florida, Georgia, Texas, and other states and regions as applicable. 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 occur within the scope and control of work specifically performed by Softrim.
Hardware and Software: Hardware (other than televisions and video displays) sold by Softrim is warranted for a period of one (1) year. THIS WARRANTY IS STRICTLY LIMITED TO ISSUES RESULTING FROM ORIGINAL OEM DEFECTS. Software may be covered by the original equipment manufacturer’s product warranty. SOFTRIM DOES NOT OFFER ANY SEPARATE OR ADDITIONAL WARRANTY FOR SOFTWARE.
Television and Video Displays: Televisions and video displays may be covered by the original equipment manufacturer’s product warranty. SOFTRIM DOES NOT OFFER ANY SEPARATE OR ADDITIONAL WARRANTY OR PROMISES TO REPLACE, REPAIR, OR EXCHANGE DEFECTIVE UNITS.
Network Availability and Cyber Security: As part of its services, Softrim may host and/or monitor websites, email, applications, data, etc. at its own or leased facilities. If such services are interrupted for any reason including cyber security breaches, Softrim shall attempt in good faith to restore the services but SHALL NOT BE MONETARILY OR OTHERWISE LIABLE, and shall have the right to charge fees to repair or correct or restore Client computer systems and/or data.
YOU AGREE THAT YOUR USE OF THE SERVICES SHALL BE AT YOUR SOLE RISK. YOU UNDERSTAND THAT NETWORK FAILURES MAY OCCUR AND CANNOT ALWAYS BE AVERTED BY ANY MONITORING OR MANAGED SERVICES OFFERED BY SOFTRIM. YOU UNDERSTAND THAT NEITHER SOFTRIM NOR ANY ANTI-VIRUS SYSTEMS OR OTHER SAFETY AND SECURITY SYSTEMS (INCLUDING GATEWAY SECURITY APPLIANCES AND/OR FIREWALLS) CAN COMPLETELY BLOCK OR SAFEGUARD YOUR COMPUTER SYSTEMS AND DATA AT ALL TIME UNDER ALL CIRCUMSTANCES.
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 SOLD 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.
Network Availability and Cyber Security: SOFTRIM ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES, YOUR NETWORKS, OR YOUR COMPUTER SYSTEMS AND DATA, ANY BUGS, VIRUSES, TROJAN HORSES, RANSOMWARE, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES, YOUR NETWORKS, OR YOUR COMPUTER SYSTEMS BY ANY THIRD PARTY.
Maximum Liability: SOFTRIM’S TOTAL LIABILITY IN CONNECTION WITH ANY CLAIM 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 Client’s and Softrim’s indemnity obligations (including obligations to defend, compensate, act, or refrain from acting), and survives termination of your relationship with Softrim.
Customer: To the fullest extent permitted by law, 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 Softrim, regardless of whether or not such claim, damage, loss, or expense is caused in part by a party indemnified hereunder, but specifically excluding any claims of, or damages to the extent resulting from: (1) an indemnified party’s gross negligence or (2) the willful, wanton, or intentional misconduct of such indemnified party.
Softrim: Subject to Softrim’s maximum liability limitation above, Softrim does and shall indemnify, defend, and hold harmless Customer against any claims and any and all losses, liabilities, damages, penalties and all related costs and expenses directly arising from the negligent provision of services by Softrim.
UNDER NO CIRCUMSTANCES WILL SOFTRIM HAVE ANY OBLIGATION TO INDEMNIFY, DEFEND, OR HOLD HARMLESS CUSTOMER AGAINST ANY CLAIMS RELATING TO MISAPPROPRIATION OR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS ARISING FROM THE PROVISION OF SERVICES OR GOODS BY SOFTRIM.
PAYMENT, PROVISION, AND CONTINUATION OF SERVICES OR GOODS
Payment: Deposits are non-refundable. Softrim will submit invoices when services are rendered. 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 upon receipt. The balance on such accounts is due immediately unless agreed otherwise in a signed writing by Softrim. An interest and administrative charge of one and a half percent (1.5%) may be applied to any amount invoiced but not paid within thirty (30) days of the date of the invoice. All expenses associated with the collection of any unpaid invoice that is overdue by more than ninety (90) days shall be paid by the Client. SALES TAX IS COLLECTED IN ADDITION TO THE AMOUNTS STATED IN THE PURCHASE PRICE.
Pre-installation Cancellation: If Client attempts to cancel the provision or installation of services or goods before the provision of such services or goods begins, Client shall pay to Softrim a pre-installation cancellation charge in an amount equal to monies expended by or on behalf of Softrim or its partners in anticipation of the provision of services or goods as of the date when so notified and as reasonably estimated by Softrim at its sole discretion.
Post-Installation Cancellation: Customer understands that the rates charged by Softrim are based upon Customer’s commitment to purchase services or goods for the entire term or renewal term. If client attempts to cancel any services or goods provided hereunder after installation or initiation of services during the term or renewal term for any reason other than for good cause after reasonable opportunity to cure, or as a result of Softrim’s termination for Customer’s failure to pay, misuse of services or goods, or other breach, Customer shall pay to Softrim as liquidated damages, and not as a penalty, an amount equal to twenty-five percent (25%) of the contract value of the remainder of the term or renewal term of the terminated services.
Customer acknowledges that actual damages would be difficult to determine and such liquidated damages represent a fair and reasonable estimate of the damages which may be incurred by Softrim, including but not limited to actual expenses incurred by Softrim to initiate or terminate services, third-party costs, use of limited resources, installation charges waived, and any discounts or credits granted.
Customer’s right to cancel for cause after reasonable opportunity to cure is limited to cancellation of the affected services at the affected location only, and all other obligations remain.
Availability of Parts: 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.
Provision of Services or Goods: Softrim may limit, interrupt, suspend, or terminate the provision of services or goods immediately if:
Prior to or during the provision of services or goods, Softrim may attempt to verify the availability of Customer’s facilities, and in the event that Softrim determines at its sole discretion that the provision of services or goods is not economically or technically feasible, or that the facilities are unsafe, Softrim may cancel the provision of services or goods without liability.
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.
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. Softrim hereby grants Customer a license to use all such Intellectual Property Rights and on a non-exclusive, worldwide, non-transferable, non-sublicensable basis to the extent necessary to enable Customer to make reasonable use of the Deliverables, except that, with respect to customized software, such license shall terminate upon termination of your relationship with Softrim unless otherwise agreed to in writing by Softrim.
This section addresses your duties regarding Softrim’s confidential information, and survives termination of your relationship with Softrim.
All non-public, confidential or proprietary information of Softrim, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by Softrim to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of services or goods is confidential, and shall not be disclosed or copied by Customer without the prior written consent of Service Provider.
Customer agrees to use the Confidential Information only to make use of the Services and Deliverables or to comply with applicable governmental regulations and law, and understands that Softrim shall be entitled to injunctive relief for any violation of this section.
Confidential Information does not include information that is:
NON-SOLICITATION AND HIRE
This section limits your ability to solicit or hire Softrim’s current and former personnel, and survives termination of your relationship with Softrim.
You understand that Softrim’s personnel have executed agreements imposing or have otherwise undertaken certain confidentiality obligations and reasonable limitations on their ability to compete with their employer in the same or similar line of business.
You agree that during your relationship with Softrim and for a period of twelve (12) months following the termination thereof, you shall neither solicit nor hire (or engage, directly or indirectly) any Softrim personnel or ex-personnel (employed at any time during the 180 days prior to attempted solicitation or hiring) without Softrim’s written consent, to be given, or withheld, in the Company’s sole discretion.
You understand 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. You understands that a violation of this section entitles Softrim to liquidated damages equal to at least one hundred and fifty percent (150%) and up to three hundred percent (300%) of the subject’s total annual compensation.
Assignment: Customer may not assign any rights without prior written consent of Softrim, and any such attempted assignment shall be void.
Force Majeure: Client 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.
Dispute Resolution: In the event of a dispute arising out of these Terms, the prevailing party shall be entitled to recover its reasonable attorney’s fees and costs. 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 or including Lee County, Florida.
CUSTOMER AND SOFTRIM HEREBY WAIVE THEIR RIGHT TO A TRIAL BY JURY ON ANY DISPUTE ARISING BETWEEN THEM.