Terms of Service
Simple Sales Tracking is a service of PTEC GROUP, INC
THIS AGREEMENT is made and entered into between PTEC GROUP, INC ("PTEC GROUP, INC") and the SUBSCRIBER ("SUBSCRIBER") with respect to the service known as Simple Sales Tracking ("Simple Sales Tracking") which is owned by PTEC GROUP, INC and which is a computer on-line service in which SUBSCRIBER shall have the right to operate its own system. Subject to the terms and conditions of this Agreement, PTEC GROUP, INC authorizes SUBSCRIBER to access and utilize Simple Sales Tracking throughout the term of this Agreement.
1. Simple Sales Tracking. Throughout the term of this Agreement, SUBSCRIBERS shall be permitted to provide password access to Simple Sales Tracking to that number of users ("USERS") for which Subscriber has paid the required fee in order for USERS to perform such activities as tracking sales, appointments, tasks, documents and contacts, running reports and forecasts and managing staff and clients and such other lawful purposes as Simple Sales Tracking permits. PTEC GROUP, INC may, without advance notice or liability, add, discontinue, or revise any aspect of Simple Sales Tracking, including, without limitation, such aspects as scope of service, availability of service, time of service availability, or the hardware and/or software required for SUBSCRIBER to access and use Simple Sales Tracking, subject to the terms and conditions of this Agreement.
2. SUBSCRIBER Equipment and Remote Connect Charges. SUBSCRIBER shall be responsible for obtaining and maintaining, at its own expense, all computer hardware, software, communication equipment, internet access accounts and access lines necessary to access and utilize Simple Sales Tracking.
3. User Passwords and Use Thereof. All USERS will be responsible for maintaining the confidentiality of their passwords and SUBSCRIBER will be responsible for all activities and charges resulting from the use of their edition of Simple Sales Tracking, including unauthorized use.
4. Conduct of SUBSCRIBER. SUBSCRIBER agrees that all USERS authorized by SUBSCRIBER to access Simple Sales Tracking shall use Simple Sales Tracking only for lawful purposes. SUBSCRIBER and its USERS will not post or transmit on or through Simple Sales Tracking any libelous, obscene, or otherwise unlawful information of any kind, and they will not engage in any conduct involving Simple Sales Tracking that would constitute a criminal offense or give rise to civil liability under any local, provincial, state, federal or other law or regulation and SUBSCRIBER and its USERS will not upload, post, reproduce or distribute to or through Simple Sales Tracking any material protected by copyright, privacy or other proprietary right without first obtaining the written permission of the owner thereof. Any complaint with regard to "SPAM" may result in the immediate termination of Subscribers access to Simple Sales Tracking. SUBSCRIBER acknowledges that Simple Sales Tracking, Simple Sales Tracking software and software accessible through Simple Sales Tracking contain copyrighted and other proprietary and confidential information and material, and SUBSCRIBER and its USERS will respect all such proprietary rights and take such precautions as may be reasonably necessary to protect private, confidential and other proprietary information and material from unauthorized use or disclosure.
5. Accuracy and Validity of Information and Opinions. PTEC GROUP, INC will make a reasonable effort to ensure that information it contributes to Simple Sales Tracking is timely and accurate. However, PTEC GROUP, INC does not endorse or warrant and assumes no responsibility whatsoever for the timeliness, accuracy, reliability, completeness or usefulness of any statement, opinion, advice, service or other information contributed to Simple Sales Tracking.
6. Monitoring of Simple Sales Tracking. PTEC GROUP, INC may, in its discretion, monitor Simple Sales Tracking and SUBSCRIBERS and USER'S use thereof to determine and ensure compliance with this Agreement and to protect itself and other USERS of Simple Sales Tracking from fraudulent, unlawful, dangerous or abusive use of Simple Sales Tracking. PTEC GROUP, INC may also intercept and disclose any content, record, use or other information to the extent reasonably necessary to protect the rights of PTEC GROUP, INC, for mechanical or service quality control as permitted by law, or to comply with any law, regulation, or governmental request. PTEC GROUP, INC may also, in its discretion, review, edit, refuse to post or remove any material or information submitted or transmitted to Simple Sales Tracking. PTEC GROUP, INC will not, however, intentionally intercept or disclose any private e-mail message unless required or permitted by law to do so, and PTEC GROUP, INC shall be under no obligation to monitor, review, screen, edit or otherwise control any information or material contributed to Simple Sales Tracking.
7. Simple Sales Tracking Licenses. PTEC GROUP, INC hereby grants to SUBSCRIBER a non-exclusive, non-transferable license to use Simple Sales Tracking and to have its USERS use Simple Sales Tracking in accordance with the terms and conditions of this Agreement. SUBSCRIBER agrees to respect the copyright and other proprietary rights of third party licensors of Simple Sales Tracking and to abide by the terms of license agreements applicable thereto and to ensure that its USERS also abide by the terms of license agreements applicable thereto.
7.1 Throughout the term of this Agreement, SUBSCRIBER and its USERS may use Simple Sales Tracking solely for the purpose for which it is intended and SUBSCRIBER may use Simple Sales Tracking for the number of USERS for which SUBSCRIBER has paid the applicable fee to PTEC GROUP, INC
7.2 PTEC GROUP, INC is the copyright owner of Simple Sales Tracking. The technical procedures, processes, methods of operation, and concepts which are embodied within Simple Sales Tracking are trade secret information of PTEC GROUP, INC and/or its licensor(s). This license is not a sale of a copy of Simple Sales Tracking and does not render SUBSCRIBER or its USERS the owner of a copy of Simple Sales Tracking. Ownership of Simple Sales Tracking and all components and copies thereof shall at all times remain with PTEC GROUP, INC and its licensor(s), regardless of who may be deemed the owner of the tangible media in or on which Simple Sales Tracking may be copied, encoded or otherwise fixed. However all data and files submitted by SUBSCRIBER and its USERS to Simple Sales Tracking shall at all times be the property of SUBSCRIBER.
7.3 SUBSCRIBER and its USERS may not make any copies of Simple Sales Tracking. SUBSCRIBER will make all reasonable efforts to prevent any unauthorized copying of Simple Sales Tracking or disclosure or use of PTEC GROUP, INC's or any third party licensor's trade secret information, and SUBSCRIBER will advise its USERS who are permitted access to Simple Sales Tracking of the restrictions upon duplication, reverse engineering, disclosure and use contained in this Agreement. SUBSCRIBER will be liable for any unauthorized copying, reverse engineering, disclosure and/or use by its USERS, employees or agents.
7.4 SUBSCRIBER will not lease, rent, sell, pledge, assign, sublicense, loan or otherwise transfer to any third party any part of Simple Sales Tracking or any copy thereof or any of SUBSCRIBER'S rights under this Agreement without the prior written consent of PTEC GROUP, INC
7.5 Subject to the limitations of paragraph 11, PTEC GROUP, INC will indemnify SUBSCRIBER and hold SUBSCRIBER harmless against costs, expenses and liabilities upon any claim by any third party that Simple Sales Tracking infringes or violates any copyright, trademark or trade secret rights of such third party, provided that: a) SUBSCRIBER notifies PTEC GROUP, INC within seven (7) days in writing of any notice of any such claim; b) SUBSCRIBER cooperates with PTEC GROUP, INC in all reasonable respects in connection with the investigation and defense of any such claim; c) PTEC GROUP, INC shall have sole control of the defense of any action on any such claim and all negotiations for its settlement or compromise; and d) should Simple Sales Tracking become, or in PTEC GROUP, INC's opinion be likely to become, the subject of a claim of copyright, patent or trademark infringement or trade secret misappropriation, SUBSCRIBER will permit PTEC GROUP, INC, at PTEC GROUP, INC's option and expense, either to: i) procure for SUBSCRIBER the right to continue using Simple Sales Tracking, ii) replace or modify the same so that it becomes non-infringing; or iii) terminate this license insofar as the use of Simple Sales Tracking is concerned, and refund to SUBSCRIBER the proportionate amount of prepayment fee paid to PTEC GROUP, INC for the period for which such payment has not been earned. Notwithstanding anything herein to the contrary, however, PTEC GROUP, INC shall have no obligation or liability to SUBSCRIBER under any provision of this paragraph if any copyright, patent or trademark infringement or trade secret misappropriation claim is based upon the use of Simple Sales Tracking in a manner other than that for which it was furnished by PTEC GROUP, INC or upon any modification by or for SUBSCIBER, in such a way as to cause it to become infringing.
7.6 If Simple Sales Tracking does not conform to and perform substantially in accordance with PTEC GROUP, INC's specifications, PTEC GROUP, INC will endeavor to correct any failure of Simple Sales Tracking to so conform or perform; provided that: a) SUBSCRIBER gives PTEC GROUP, INC written notice of any such claimed failure to so conform or perform within said fifteen (15) day period of the effective date; and b) such failure to so conform or perform is not, in PTEC GROUP, INC's reasonable opinion, a result of any modification of or damage to Simple Sales Tracking or its operating environment or of SUBSCRIBER and its USER'S failure to operate Simple Sales Tracking in the proper hardware and software environment. SUBSCRIBER'S sole and exclusive remedy for breach of the foregoing warranty shall be that: a) PTEC GROUP, INC will endeavor to correct within a reasonable time any reported failure of Simple Sales Tracking to substantially conform to or perform substantially in accordance with PTEC GROUP, INC's specifications; or b) in the event that PTEC GROUP, INC shall fail or be unable for any reason to correct any failure of Simple Sales Tracking to substantially conform to or perform substantially in accordance with PTEC GROUP, INC's specifications, SUBSCRIBER may terminate this license and cease using Simple Sales Tracking, and PTEC GROUP, INC will refund to User the full amount of any license fee paid to PTEC GROUP, INC from the date any error is reported.
8. On-line Software Updates. PTEC GROUP, INC may, when feasible, remotely update any version of Simple Sales Tracking, either with or without notice to SUBSCRIBERS or its USERS. Such updates may occur automatically or may occur pursuant to prompts which appear on SUBSCRIBERS or its USERS terminal screen during use of Simple Sales Tracking. Any updated version of Simple Sales Tracking furnished to SUBSCRIBER by PTEC GROUP, INC will be subject to all of the same terms and conditions of this license or other license agreement applicable to the version being replaced. Simple Sales Tracking may send email communications and intersystem messages to SUBSCRIBERS explaining new features of the Simple Sales Tracking software and other news concerning PTEC GROUP, INC
9. Simple Sales Tracking Help Desk. Throughout the term of this Agreement, PTEC GROUP, INC will maintain e-mail support help desk to assist paying SUBSCRIBERS in their use of Simple Sales Tracking as posted on simplesalestracking.com.
10. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED ABOVE, Simple Sales Tracking, AND INFORMATION AVAILABLE THROUGH Simple Sales Tracking ARE FURNISHED BY PTEC GROUP, INC AND ACCEPTED BY USER "AS IS" AND "AS AVAILABLE", WITHOUT ANY WARRANTY WHATSOEVER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED. PTEC GROUP, INC DOES NOT WARRANT THAT Simple Sales Tracking, OR INFORMATION OBTAINED THROUGH Simple Sales Tracking WILL MEET SUBSCRIBER'S REQUIREMENTS, THAT THE OPERATION OF Simple Sales Tracking OR Simple Sales Tracking WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL FAILURES OF THE Simple Sales Tracking TO SUBSTANTIALLY CONFORM TO OR PERFORM SUBSTANTIALLY IN ACCORDANCE WITH PTEC GROUP, INC'S SPECIFICATIONS WILL BE CORRECTED. EXCEPT AS EXPRESSLY PROVIDED ABOVE AND IN SUCH WARRANTIES, IF ANY, AS MAY BE PROVIDED BY THIRD PARTY VENDORS OF EQUIPMENT OR SOFTWARE UTILIZED IN CONNECTION WITH Simple Sales Tracking, THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF Simple Sales Tracking, AND INFORMATION OBTAINED THROUGH Simple Sales Tracking IS WITH SUBSCRIBER.
11. LIMITATION OF PTEC GROUP, INC LIABILITY. IN NO EVENT WILL PTEC GROUP, INC BE LIABLE TO SUBSCRIBER OR ANY OTHER PERSON FOR ANY LOST PROFITS, LOST SAVINGS, LOST DATA, OR OTHER SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY INFORMATION, PRODUCT OR SERVICE FURNISHED OR TO BE FURNISHED BY PTEC GROUP, INC UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF PTEC GROUP, INC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND THE AGGREGATE LIABILITY OF PTEC GROUP, INC UPON ANY CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY INFORMATION, PRODUCTS OR SERVICES FURNISHED OR TO BE FURNISHED BY PTEC GROUP, INC UNDER THIS AGREEMENT WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO THE AMOUNT PAID TO PTEC GROUP, INC BY SUBSCRIBER UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT NOTHING IN THIS AGREEMENT SHALL OPERATE TO RELIEVE PTEC GROUP, INC FROM LIABILITY FOR ITS OWN WILLFUL OR WANTON RECKLESSNESS OR INTENTIONAL TORTS.
12. Throughout the Term of this agreement and for a period of one and one half years from the date of its termination, SUBSCRIBER, or any of its USERS, shall not develop a service or software that competes with, or is similar to, Simple Sales Tracking without the express written approval of PTEC GROUP, INC directors.
13. Term and Termination. This Agreement shall be effective immediately and shall continue in effect on a month-to-month basis until terminated as provided herein. Either party may, at its election and in its sole discretion, terminate this Agreement as of the end of any calendar month by written notice to the other party at least thirty (30) days prior to the effective date of termination. SUBSCRIBER may, at its option, terminate this Agreement effective immediately by written notice to PTEC GROUP, INC within thirty (30) days following the date on which access to Simple Sales Tracking first becomes available to SUBSCRIBER. PTEC GROUP, INC may, at any time, terminate this Agreement and/or terminate SUBSCRIBER'S access to any or all of Simple Sales Tracking without advance notice if SUBSCRIBER or anyone of its authorized USERS commit any violation of paragraphs 4 or 7 above. Upon termination of this Agreement, SUBSCRIBER will immediately cease and desist from using Simple Sales Tracking.
14. Simple Sales Tracking Access and Service Fees. SUBSCRIBER will pay to PTEC GROUP, INC implementation charges as posted on simplesalestracking.com or as agreed to from time to time. Throughout the term of this Agreement, SUBSCRIBER will pay PTEC GROUP, INC a monthly fee determined in accordance with fee schedules established by PTEC GROUP, INC for Simple Sales Tracking from time to time as posted at simplesalestracking.com. SUBSCRIBER will also pay or reimburse PTEC GROUP, INC for all sales, use, excise, and other taxes and governmental charges including GST (other than income taxes) which PTEC GROUP, INC is at any time required to pay or collect in connection with the furnishing of Simple Sales Tracking under this Agreement. SUBSCRIBER's credit card will be charged for the monthly fees and other charges to be paid under this Agreement. PLEASE NOTE credit card statements will indicate that charges are paid to PTEC GROUP, INC If SUBSCRIBER gives written notice of termination of this Agreement within thirty (30) days following the date on which access to Simple Sales Tracking first becomes available to SUBSCRIBER, PTEC GROUP, INC will credit SUBSCRIBER'S account for all installation and basic monthly service fees incurred up to the date on which such notice of termination is received except for customized web site installation charges, which shall not be refunded. Payment terms of all charges by PTEC GROUP, INC to SUBSCRIBER under this Agreement are net thirty (30) days from date of charge. Any amount not paid when due will accrue a finance charge at the rate of two percent (2%) per month (26.82% per year), or the highest rate permitted by law, whichever is less, until fully paid.
15. Change in Monthly Fees. PTEC GROUP, INC may change the amount of the monthly basic service and other fees to be paid by SUBSCRIBER by giving at least forty-five (45) days prior written notice thereof to paying SUBSCRIBER.
16. Financial Information. All financial information submitted via Simple Sales Tracking by SUBSCRIBER shall at no time be the responsibility of PTEC GROUP, INC in any fashion whatsoever and may be shared with such financial institution as may be required.
17. Credit Card Information. PTEC GROUP, INC does not store the credit card information of USERS.
18. Manner of Giving Notice. Any notice required or permitted under this Agreement may be by e-mail properly addressed to the intended recipient. Notice under paragraph 14 may also be given by posting notices or bulletins on simplesalestracking.com.
19. Non-Waiver. The failure by either party at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, shall not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this Agreement. The waiver of any default by either party shall not be deemed a continuing waiver, but shall apply solely to the instance to which such waiver is directed.
20. Severability and Choice of Law. Every provision of this Agreement shall be construed, to the extent possible, so as to be valid and enforceable. If any provision of this Agreement so construed is held by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such provision shall be deemed severed from this Agreement, and all other provisions shall remain in full force and effect. This Agreement shall in all respects be governed by and interpreted, construed and enforced in accordance with the laws applicable in New Zealand, and the parties hereto irrevocable submit to the exclusive jurisdiction of the courts of New Zealand.
21. Assignment and Binding Effect. PTEC GROUP, INC may assign, delegate and/or otherwise transfer this Agreement or its rights and obligations hereunder to any person or entity. SUBSCRIBER may not assign, delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of PTEC GROUP, INC. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
22. Entire Agreement. This Agreement sets forth the entire agreement and understanding between PTEC GROUP, INC and SUBSCRIBER regarding the subject matter hereof and supersedes any prior representations, advertisements, statements, proposals, negotiations, discussions, understandings, or agreements regarding the same subject matter. This Agreement may not be modified or amended except by a writing signed by the party against whom the same is sought to be enforced.