BY USING THE SOFTWARE, YOU ACCEPT THESE TERMS. IF YOU DO NOT ACCEPT THEM, DO NOT USE THE SOFTWARE. AS DESCRIBED BELOW, USING THE SOFTWARE ALSO OPERATES AS YOUR CONSENT TO THE TRANSMISSION OF CERTAIN COMPUTER INFORMATION DURING ACTIVATION, VALIDATION AND FOR INTERNET-BASED SERVICES.
This Agreement is intended to cover acquisitions of licenses for use of PalMate Software from time to time during the term of the Agreement. The acquisition of the licenses will be covered by the following terms:
GENERAL/DEFINITIONS
- Agreement Materials. This Agreement initially consists of the main
body hereof, in addition to attached materials: Order Form. - Additional Order Forms. The Customer is initially requiring one or
more licenses for use of the PalMate Software as described in the
attached Order Forms. When the Customer acquires additional PalMate
Software licenses, these acquisitions may be covered by the
addition of consecutively numbered Order Forms to this Agreement.
Each Order Form will be signed by both parties and will operate as
an amendment to this Agreement. - Conflicting Terms. If the terms of an Order Form conflict with
terms of the main body of this Agreement, the terms of the Order
Form will be controlling. - Definition of Designated Hardware. “Designated Hardware” means the
specific processor configuration and system software identified
under the corresponding heading in each corresponding Order Form.
The Designated Hardware describes the system on which the PalMate
Software associated with the Order Form will be used. - Definition of PalMate Authorized Hardware Series. “PalMate
Authorized Hardware Series” means computer systems for which AMS
supports use of the PalMate Software thereon. The current PalMate
Authorized Hardware Series are set forth at website address
http://www.PalmateERP.com/msa (“Software Website”). AMS may modify
the PalMate Authorized Hardware Series from time to time during the
term of this Agreement. - Definition of PalMate Software. “PalMate Software” means the
PalMate Software packages identified in the attached Order Forms.
Each component of the PalMate Software is defined as a “PalMate
Software Module.” Software available from AMS is listed at the
Software Website. The list of available software may be modified by
AMS from time to time during the term of this Agreement. The term
“PalMate Software” shall also include all Documentation as defined
in Paragraph #7 and all Enhancements as defined in Paragraph #8. - Definition of Documentation. “Documentation” means materials made
available to the Customer by AMS to facilitate use of the PalMate
Software. Advertising or similar promotional materials are not
considered to be part of the Documentation. - Definition of Enhancements. “Enhancements” mean modifications,
corrections, new releases and updates to the PalMate Software, as
may be developed by AMS from time to time during the term of this
Agreement. Enhancements will be provided to the Customer as part of
the Client Support Services. However, the term “Enhancements” will
not include software which consists of additional features,
functions, or customizations which are developed and licensed
separately by AMS. - Definition of Primary Facility. “Primary Facility” means, with
respect to each PalMate Software license and Order Form, the
Customer’s facility at which the application server hosting the
PalMate Software and database will reside. - Definition of Integrated Facility. “Integrated Facility” means any
alternate logical Customer location requiring an additional
application server that shares the same database with the Primary
Facilityís application server. - Definition of Client Support Services. “Client Support Services”
are made available to the Customer for each PalMate Software
license associated with a given Order Form. Details regarding the
current Client Support Services being offered by AMS are set forth
at the Software Website. AMS may modify the Client Support Services
from time to time during the term of this Agreement. - Definition of Order Form Term. “Order Form Term” means the time
period during which the Customer has rights to use the PalMate
Software license associated with the given Order Form. - Definition of Responsibilities for Customer Communications
Requirements. “Customer Communications Requirements” mean the
communications equipment, protocols, and internet communications
which will be required to be maintained by the Customer for use and
proper function of the AMS software. The Customer Communications
Requirements are set forth at the Software Website. The Customer
understands that the internet connection between the Customer and
AMS must be maintained at all times, and is required for a number
of functions, including the following:
a. Communications with the PalMate Software residing at the
Customer’s Primary Facilities, so that AMS can ensure that the
Customer’s accounts are up-to-date and are using no more than
the authorized number of Connection Licenses.
b. So as to provide communications between the Customer and help
files.
c. So as to ensure that all communications occur between the
Primary Facilities and AMS as required, so that AMS can
appropriately audit the Primary Facilities. The Customer
understands that if there is no communication between any
Primary Facility and AMS for a period exceeding thirty (30)
days, the Customer will be considered in material breach of
this Agreement, and AMS shall have the right to immediately
suspend all rights of the Customer under its licenses to use
the PalMate Software and receive services from AMS. - Definition of Customer Information. “Customer Information” means
data, information, or communications sent or entered by the
Customer while accessing and using the AMS software.
SOFTWARE LICENSES
- PalMate Software Licenses. During the term of this Agreement, the
Customer may acquire personal, nonexclusive and nontransferable
licenses to use the PalMate Software in accordance with the terms
identified in an attached Order Form describing details associated
with such use. For each license, the Customer shall have the right
to use the corresponding PalMate Software for the length of the
Order Form Term, which will commence upon AMS providing access to
the PalMate Software by the Customer. These licenses do not consist
of any transfer of title or any proprietary rights to the Customer
with respect to the PalMate Software. - Delivery. For each copy of the PalMate Software license identified
in an Order Form, AMS shall make available to the Customer one (1)
copy of the PalMate Software in object code format. The
Documentation will also be made available digitally by AMS through
the Customerís internet connection. - Scope of License. The rights granted herein to the Customer for use
of each PalMate Software license identified in the attached Order
Forms allow the Customer to execute the given PalMate Software only
on the Designated Hardware associated with the corresponding Order
Form, and only for the number of Connection Licenses also identified
in the Order Form. To the extent that the Customer may wish to use
any given PalMate Software server copy associated with a particular
Order Form with a processor configuration or system software other
than the Designated Hardware associated with the corresponding Order
Form, the Customer understands that such use may require payment of
additional license fees to those identified in the corresponding
Order Form. The Customer will notify AMS in the event the Customer
wishes to change or add additional Primary Facilities and/or
Integrated Facilities. The Customer understands that a change in
the number of Integrated Facilities will incur one-time setup fees
per Integrated Facility. - Copying. The Customer may copy the PalMate Software only for
purposes of making backup and archival copies, as necessary for
support and as otherwise permitted under U.S. copyright law. All
titles, trademarks, copyright notices and other proprietary
markings must also be reproduced. - Connection Licenses. Use of the PalMate Software by the Customer is
initially limited to the designated number of Connection Licenses
described in the corresponding Order Forms. The Customer shall have
the right to increase the number of Connection Licenses, with the
understanding that such increase may require additional license fees. - Limitations on Use of PalMate Software. In addition to limitations
as may be set forth elsewhere in this Agreement, and except as
expressly provided in this Agreement, the Customer shall not
undertake any of the following activities:
a. Decompile, disassemble, duplicate or reproduce, in whole or in
part, any of the PalMate Software without the prior written
consent of AMS.
b. Undertake any “work around” of technical information within the
PalMate Software;
c. Use the PalMate Software in any manner that violates any
federal or state statutes or regulations;
d. Rent, lease or lend the PalMate Software to third parties, use
the PalMate Software to provide processing services to third
parties, use the PalMate Software on a “service bureau” basis,
or otherwise use the PalMate Software for commercial software
hosting services. - Responsibility for Customer Information. The Customer hereby grants
to AMS all rights to the Customer Information necessary for AMS to
provide the PalMate Software and services associated therewith to
the Customer. The Customer understands that AMS exercises no
control whatsoever over the content of the Customer Information,
and it is the sole responsibility of the Customer, at its own
expense, to provide the Customer Information, and to ensure that it
complies with all applicable laws and regulations now in place or
enacted in the future. The Customer agrees that AMS shall have no
obligations whatsoever to keep or maintain any Customer Information
obtained in the course of performance of the PalMate Software and
services associated therewith. AMS shall have no responsibilities
for any deletion, loss, damage, destruction or failure to backup
any Customer Information. In the event of termination of this
Agreement for any reason whatsoever, the Customer shall have sole
responsibility for extracting Customer Information and related data
files. - Escrow. AMS shall deposit a current version of the source code for
the PalMate Software with a third party ìEscrow Agentî, with the
Escrow Agent having instructions to release a copy of the source
code to the Customer, as requested by the Customer, if AMS becomes
insolvent, is adjudged bankrupt or otherwise makes an assignment
for the benefit of creditors. - Export Restrictions. The Customer will not use or otherwise
transfer any PalMate Software outside of the country of the Primary
Facilities in which the PalMate Software initially resides.
SUBSCRIPTION FEES
- Fees. In consideration for the licenses granted to the Customer as
set forth herein, and the rights granted to the Customer for use of
the PalMate Software identified in the attached Order Forms, the
Customer shall pay to AMS the “Subscription Fees” described in each
of the attached Order Forms. The Subscription Fees for each Order
Form Initial Term (as defined in Paragraph #30 of this Agreement)
shall be paid prior to commencement of use of the PalMate Software
by the Customer. Subscription Fees for each Order Form Renewal
Period (as defined in Paragraph #30 of this Agreement) shall be
paid to AMS by the Customer no later than the commencement of the
Order Form Renewal Period. Any unpaid amounts of the Subscription
Fees shall be subject to late charges of one point five percent (1.5%)
per month (from the due date), or the highest rate allowed by law,
whichever is less. In the event the Customer adds Connection Licenses
within a monthly billing cycle, fees for the additional Connection
Licenses will be charged for the entirety of the month. Any
payments which are to be made on a monthly basis will always be due
on the first of each month via preauthorized credit card or ACH payment.
If a preauthorized transaction is returned for any reason, the Customer
shall have thirty (30) days to pay before all services associated
with the PalMate Software are suspended. In the event the rights of
the Customer to use the PalMate Software and receive services
associated therewith are suspended under this Paragraph or
otherwise for a material breach of this Agreement by the Customer,
the Customer shall have ongoing obligations for payments of
Subscription Fees during the period of suspension. - Taxes. Any sales, use, excise, personal property, or other taxes
(whether federal, state, or local) which may be imposed with
respect to this Agreement shall be paid by the Customer. If the
Customer considers itself exempt from any state or other taxes, the
Customer must, prior to use of the PalMate Software, and prior to
any billing or payments made to AMS, provide AMS with a copy of the
Customer’s Certificate of Tax Exemption. - Changes in Subscription Fees. For a PalMate Software license
associated with any given Order Form, AMS shall have the right to
modify the Subscription Fees for any Order Form Renewal Period. AMS
shall be subject to providing the Customer with at least sixty (60)
days’ written notice of the intended adjustment prior to
commencement of the corresponding Order Form Renewal Period.
IMPLEMENTATION, TRAINING AND USER SUPPORT SERVICES
- Implementation and Training. If requested by the Customer, and
subject to availability of AMS personnel, AMS may provide
installation, implementation, and/or training of the PalMate
Software on the Customer’s Designated Hardware for any given Order
Form, at AMS’s then current rates for the same and in addition to
reasonable travel and living expenses, if necessary. Unless
otherwise agreed, fees and expenses for any such services shall be
invoiced to the Customer once per month, and shall be due and
payable within fifteen (15) days following the date of invoice.
Further, any services as described in this Paragraph #27 may be
subject, at AMS’s option, to AMS and the Customer executing a
separate services agreement for the work to be performed by AMS. - Client Support Services. For each PalMate Software license
associated with a given Order Form, AMS shall provide to the
Customer the Client Support Services described at the Software
Website. The Client Support Services shall generally be provided
for the entirety of the Order Form Term. Except in the event of a
material breach of this Agreement by the Customer, or in the event
of a suspension of the Customer’s rights to use the PalMate
Software as a result of the suspension of rights under other terms
of this Agreement, AMS shall have no right to cease providing
Client Support Services for any given PalMate Software, except in
the event that AMS ceases to provide support services to its
business customers in general for the particular PalMate Software,
or for use of the particular PalMate Software on the Designated
Hardware. The Client Support Services are to be provided to the
Customer without charge, except as otherwise described at the
Software Website.
TERM/TERMINATION
- Term. The term of this Master Subscription Agreement (“Master
Subscription Agreement Term”) shall commence as of the Master
Subscription Agreement Effective Date set forth at the outset hereof,
and shall continue until such time as the Master Subscription
Agreement is terminated in accordance with other terms and conditions
hereof. - Order Form Term. As described in Paragraph #12, the Customer shall
have the right to use any given PalMate Software license associated
with and described in an Order Form for the Order Form Term. The
Order Form Term shall first consist of the Order Form Initial Term
(defined in the Order Form). Following the Order Form Initial Term,
the rights of the Customer to continue use of the PalMate Software
license and to receive Client Support Services for the same shall
automatically be renewed and continue in effect for successive
twelve (12) month periods, characterized as “Order Form Renewal
Periods.” However, the Customer shall have the right to terminate
the Order Form Term and terminate the Customer’s rights to continue
use of any given PalMate Software license by providing AMS with at
least thirty (30) days written notice prior to the end of the then
current Order Form Initial Term or Order Form Renewal Period, as
the case may be. - Termination for Cause. If the Customer commits a material breach of
this Agreement, and should such breach not be corrected within
thirty (30) days following receipt by the Customer of written
notice from AMS, this Agreement may be terminated by AMS without
further notice. Notwithstanding the foregoing, in the event the
Customer fails to make any payments when due (including any return
of transactions), AMS shall have the right to terminate all
services and rights of use by the Customer of the PalMate Software
licenses at any time following thirty (30) days after the date any
such payments were made. AMS shall make reasonable efforts to
notify the Customer of the occurrence of a nonpayment or failure of
a transaction within a reasonable period of time following AMS
learning of the nonpayment or failure of transaction. - Effect of Termination. Upon termination of the rights of the
Customer to use a given PalMate Software license, the rights granted
herein to the Customer for the given PalMate Software shall be of
no further force or effect whatsoever, and the Customer shall,
within ten (10) days following the end of the then current Order
Form Initial Term or Order Form Renewal Period (as the case may
be), either deliver to AMS or destroy or permanently purge all
portions of the PalMate Software (including all copies) then in the
possession or under the control of the Customer. The Customer will
certify such action in writing to AMS.
PROTECTION OF PROPRIETARY INFORMATION & OBLIGATIONS OF NON-DISCLOSURE
- General. The Customer acknowledges that the information contained
in the PalMate Software is confidential and comprises trade secrets
and other proprietary data which are the property of AMS or others
from which AMS holds rights for the marketing and distribution
thereof. The Customer agrees not to provide or otherwise make
available, nor permit or otherwise allow any of its employees to
provide or otherwise make available the whole or any portion of the
PalMate Software, in any form, to any person other than its
employees requiring the same for purposes of carrying out the
rights, duties and obligations of the Customer pursuant to this
Agreement. The Customer shall take appropriate action by
instruction or agreement with its employees permitted access to the
PalMate Software to notify those employees of their obligations
under this Agreement with respect to use, reproduction, protection
and security of the same. The non-disclosure obligations of the
Customer as set forth herein shall continue after the termination
of this Agreement and until such time that neither AMS nor any of
its licensors hold any patent, copyright, trade secret or other
proprietary rights in the PalMate Software. - For Customer Information. AMS acknowledges that the Customer
Information is confidential and may comprise trade secrets and
other proprietary data which are the property of the Customer. AMS
agrees not to provide or otherwise make available, nor permit or
otherwise allow any of its employees to provide or otherwise make
available the whole or any portion of the Customer Information, in
any form, to any person other than its employees requiring the same
for purposes of carrying out the rights, duties and obligations of
AMS pursuant to this Agreement. AMS shall take appropriate action
by instruction or agreement with its employees permitted access to
the Customer Information to notify those employees of their
obligations under this Agreement with respect to use, reproduction,
protection and security of the same. The non-disclosure obligations
of AMS as set forth herein shall continue after the termination of
this Agreement and until such time that the Customer holds no
proprietary rights in the Customer Information.
WARRANTIES/INDEMNIFICATIONS
- PalMate Software. For each PalMate Software license acquired by the
Customer, AMS warrants that the PalMate Software shall perform
substantially in accordance with applicable functional
specifications as set forth in the Documentation. If a PalMate
Software copy fails to perform in accordance with the
specifications, the Customer’s preferred remedy is to notify AMS in
writing, and for AMS to undertake reasonable efforts to correct the
nonperformance. - Disclaimer. Except as expressly set forth in Paragraphs #35 through
#41, AMS MAKES NO WARRANTY WITH RESPECT TO THE PALMATE SOFTWARE OR
AMS’S PERFORMANCE OF SERVICES UNDER THIS AGREEMENT, EXPRESS OR
IMPLIED, AND AMS HEREBY DISCLAIMS THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. In no event
shall AMS be liable for any loss of profits, loss of use,
interruption of business or indirect, special, incidental or
consequential damages of any kind in connection with or arising out
of the furnishing, performance or use of the PalMate Software or
services acquired from AMS, whether alleged as a breach of contract
or tortious conduct, including negligence. AMS’s liability
hereunder for damages shall not, in any event, exceed the amounts
paid by the Customer to AMS for software or services as to which
the claim arose. The Customer shall indemnify and hold AMS harmless
from claims and demands of any third parties arising from the use
by the Customer of the PalMate Software, except for claims of
patent and copyright infringement in accordance with Paragraph #36. - Third-Party Integrations. The Customer understands that AMS
supports certain third-party software integrations, as expressly
described at the Software Website. To the extent commercially
feasible, AMS shall undertake reasonable efforts to maintain such
supported third-party integrations. However, AMS shall have no
responsibility or liability whatsoever for any changes made by such
third-party software that may affect in any way PalMate Software
integrations. - Disclaimer for Liability for Data Storage Backup. The Customer
understands that as of the Master Subscription Agreement Effective
Date, AMS is utilizing a third-party service provider (as described
at the Software Website) for providing AMS’s business customers in
general with an account for a data storage backup. The service
provided by the service provider is integrated with the PalMate
Software for purposes of facilitating file backup. However, the
Customer understands that all services being provided by or through
the third-party service provider are being provided to the Customer
on an “as-is” basis, and AMS makes no representations or warranties
whatsoever with respect to the quality or continuance of services
provided by the third-party service provider. - Causes of Action. No action arising out of any claimed breach of
this Agreement or transactions under this Agreement may be brought
by either party more than two (2) years after the cause of action
has accrued. - Customer Expertise. The Customer has the requisite expertise to
select and evaluate the PalMate Software, and to determine its
appropriateness for the intended uses of the Customer. The Customer
is solely responsible for the evaluation of its software and
hardware requirements, and selection of computer systems to satisfy
these requirements.
GENERAL PROVISIONS
- Non-Assignment. The Customer may not assign or otherwise transfer
this Agreement or any rights hereunder, in whole or in part,
whether voluntary or by operation of law, including any merger or
consolidation, without the prior written consent of AMS. - AMS Competitors. The Customer agrees that during the Master
Subscription Agreement Term, the Customer will not engage, or enter
into any agreement with a third party to engage, in any business
activities which are directly or indirectly competitive with any
business activities of AMS, without the prior, express written
consent of AMS. - Causes Beyond Control of Parties. Neither party shall incur any
liability to the other party on account of any loss or damage
resulting from any delay or failure to perform all or any part of
this Agreement, where such delay or failure is caused, in whole or
in part, by events, occurrences or causes beyond the reasonable
control of the parties. - Notices. Any notice of termination or breach of this Agreement, or
any other notices permitted or required under this Agreement, shall
be provided to the parties as follows: To the Customer:- Mailed to the Customer’s address shown at the outset of this
Agreement (or at such other address as the Customer may
substitute by written notice), by first class mail or pre-paid
post. - Notice by electronic mail to the e-mail address identified on
the Customer’s account materials.
- By letter delivered by a nationally recognized overnight service
or Certified Mail Return Receipt Requested to:
Automated Machine Systems, Inc.
6651 Pine Ridge Ct. SW
Jenison, MI 49428
Attn: Accounts Receivable - By facsimile letter addressed to Automated Machine Systems,
Inc., Attention: Accounts Receivable, to facsimile number
616-662-1310.
given one (1) day following email or facsimile transmittal, as the
case may be. Any notice given by overnight delivery service, first
class mail or pre-paid post shall be deemed to be given three (3)
days following the date of posting. - Mailed to the Customer’s address shown at the outset of this
- Entire Agreement. This Agreement contains the entire agreement of
the parties with respect to its subject matter, and there are no
promises, conditions, representations or warranties except as
expressly set forth herein. This Agreement may be modified or
amended only by written instrument executed by authorized
representatives of the Customer and AMS. No terms, provisions or
conditions of any purchase order which the Customer may use in
connection with the acquisition of the PalMate Software licenses or
support services shall have any effect on the rights, duties, or
obligations of AMS or the Customer in accordance with this
Agreement. - Waiver. No term or provision of this Agreement shall be deemed
waived, and no breach excused, unless such waiver or consent shall
be in writing and signed by the party claimed to have waived or
consented. Any consent by any party to, or waiver of, a breach by
the other party, whether express or implied, shall not constitute a
consent to or waiver of any different or subsequent breach. - Publication. The Customer agrees that AMS shall have the right to
publicize the existence of this Agreement, and identify the
Customer by name (and logo), through AMSís marketing channels
(e.g., website, press release, advertising, sales materials and the
like). Upon request by AMS, the Customer shall provide AMS with the
Customer’s appropriate logo. - Governing Law. This Agreement shall be interpreted and construed in
accordance with the laws of the state of Michigan. Exclusive
jurisdiction for any disputes arising under this Agreement shall
reside with the State Courts located in Ottawa County, Michigan and
the Federal Courts covering the Michigan Western district. - Binding Effect. This Agreement binds and inures to the benefit of
the parties hereto and their respective successors and permitted
assigns.
