NATIONAL PROFESSIONAL PROCESS SERVER NETWORK, INC. CASE MANAGER SOFTWARE LICENSE & RENTAL AGREEMENT
WHEREAS, NPPSN owns, operates and maintains a Membership oriented online service for professional process server and is also the developer and provider of Process Server Software known as “Case Manager” (hereinafter “Software Program”); and WHEREAS, NPPSN licenses its Case Manager Software Program to professional process servers and others on a monthly basis, and provides technical support for same; and WHEREAS, USER licenses NPPSN’ Case Manager Software under the terms and conditions of this License Agreement; and WHEREAS, NPPSN has agreed to license its Case Manager Software Program to USERS on a monthly basis,
1. APPLICATION OF LICENSE AGREEMENT
This License Agreement applies to the most recent release of, all previous releases of, and all future releases of the NPPSN Software Program, without regard to the name under which the Software Program is marketed, any and all modules and components of the Software Program. USER understands that the terms of this License Agreement also apply to the Software Program components, modules, and documentation, which are collectively referenced herein as the “NPPSN Property”.
SOFTWARE PROGRAM LICENSE The Case Manager Software license and monthly usage (rental) fee REQUIREMENTS for NPPSN Members are indicated below:
1. The license and usage fee is provided to user at time of purchase and must be paid in full prior to software installation.
2. User agrees to pay the Monthly Usage Fee , or fee in effect at time of renewal. (Monthly payments will automatically be charged to the USER’S credit card or checking account that USER provided to NPPSN.
3. The monthly usage fee is automatically charged to USER’S credit card unless other payment method is agreed to in writing. This usage fee is required whether or not USER uploads records to an online Case Information Search Database. The usage fee remains constant, regardless of the number of records USER enters into the Software Program database on its local computer or network. An Online Case Information Search Database is fully installed by NPPSN if requested by USER, at a setup cost of $150, It is NPPSN’ policy to have the USER purge records that reside in the online database on a periodic basis so that no more than 50,000 records reside in the online database during any given 30 day time period (hereinafter “quota”). This purging is conducted by NPPSN on advice by USER, and does not place an unusual burden on USER. By maintaining this policy, NPPSN is able to maintain databases of this type at no added cost to USERS. If USER unfairly violates the online database quota policies, NPPSN reserves the right to charge USER $1.50 per 1,000 records uploaded to the database in excess of the quota.
4. SOFTWARE SUPPORT Technical Support
Software support for Case Manager is provided to USER at no cost
if the software itself is found to be corrupt (not including database corruption caused by USER. Support for issues such as database corruption caused by user is provided at a cost of $50 per hour.
5. ACKNOWLEDGEMENTS BY USER AND NPPSN a) USER will be required to make payment for the Software Program License and Set-Up fees , prior to software installation.
Once NPPSN pays for the software and NPPSN approves the USER’s Case Manager Application, NPPSN will install the Software Program on Users main computer and workstations (if any). Upon request by USER, NPPSN can install and configure an optional private Online Case Information Search database for USER, accessible at a password protected internet address where USER and/or its clients will be able to view Process Serving Records, as posted by USER in the software program installed on its computer and uploaded to the password protected internet database.
The Case Manager Software Program requires registration of an “authentication” date, which activates the Software Program. This process is fully automated and takes place online when NPPSN first installs the Software Program.
6. SUSPENSION OF ACCOUNT USER
If USER is delinquent in the payment of any fees due , or is in breach of this License Agreement, access to the NPPSN Property will be suspended until such matters are resolved. To resolve any such matters, USER will be required to contact NPPSN Software Customer Service Department during its normal business hours (9am to 5PM EST).
7. REFUND POLICY
When the Software Program is ordered from NPPSN and payment for same is submitted, NPPSN shall be required to configure the software program and “security features” for use by the USER and/or to install an optional Case Information Search Database on the internet for USER to enable USER and its clients to access Process Service Data, as entered into the software program database by USER. As such, once the License is approved by NPPSN, the software program configuration fee paid on this agreement is final and non-refundable.
8. TERMS OF PAYMENT
NPPSN shall have the option of directly debiting USER’S bank account (checking account) or Credit card for fees due, including recurring Monthly Usage Fees. If a credit card debit payment does not clear USER’s bank USER will be required to pay the Monthly Usage Fee plus a late fee of $25.00. Additionally, if any checks are returned unpaid from the bank, regardless of reason, USER agrees to pay a return fee of $30.00. NPPSN reserves the right to deny any technical support to USER or suspend access to the NPPSN Property, including the private online database, until USER fulfills any and all outstanding payment obligations to NPPSN. If USER has not made a payment for an outstanding balance due to a failed debit, by the tenth (10th) day of the month following the month in which the payments were due, NPPSN reserves the right to take any action possible to remove the NPPSN Property and/or disable the use of the NPPSN Property from the hard drive of USER’S computer, and to disable the private online database. If NPPSN is ultimately unsuccessful in collecting the outstanding balance via a credit card or checking account direct debit, USER understands that NPPSN will immediately set USER’s account to inactive. All delinquent sums due hereunder shall accrue interest at the rate of 1.5% per month or the prevailing rate at time collection action takes place.
9. DURATION OF AGREEMENT
This License Agreement is for a 12 month period, renewable under the terms herein, and may be cancelled by USER, provided USER is current in all of USER’s obligations to NPPSN.
10. RIGHT TO RENEW LICENSE ANNUALLY
User shall have the right to renew the Case Manager Software license annually (at no cost).
USER understands that this is not a finance contract or a lease-to-own agreement. USER is purchasing a “right to use” license hereunder, which must be renewed on an annual basis at USER’s option.
12. ADDITIONAL LICENSES FOR USE OF NPPSN PROPERTY Should USER desire to pay for additional licenses to use the NPPSN Property, USER agrees to sign a separate “NPPSN Software License and Monthly Rental Agreement” for EACH additional software license for use of the NPPSN Property. Also, if USER plans to provide a separate bank account for each software license for direct debit purposes, USER agrees to sign a separate NPPSN Software License and Monthly Usage Agreement for EACH license. If, however, USER provides ONE bank account for direct debit purposes for ALL licenses, USER may sign one NPPSN Software License and Monthly Usage Agreement that authorizes NPPSN to directly debit the sum total of all licenses rented. USER understands that as long as USER is paying to use the NPPSN Property, and desires to attain additional licenses to use the NPPSN Property, USER cannot purchase the additional licenses outright, as they must be renewed each year and each license is for a 1 year period, renewable under the terms indicated herein.
13. CHANGES TO USER CONTACT INFORMATION If there are any changes to USER’s name, mailing address, physical address where NPPSN Property is used, or USER’s telephone numbers during the course of this License Agreement, USER agrees to notify NPPSN of such changes. Notification can be submitted in writing to NPPSN using the “NPPSN Software Address Change Form”, which form may be requested by contacting the NPPSN Software Support Department by email or telephone.
If USER decides to cancel this License Agreement following installation of Case Manager Software, USER agrees to:
a) Complete a “License Agreement Cancellation Request” form, which can be obtained by contacting the NPPSN software support department.
b) Refrain from further use of the NPPSN Property.
c) Remove the Software Program and Components and Modules from the hard drive of the USER’S main computer (server) and any workstations (if on a network).
d) Destroy all copies of the Software Program and documentation. e) After cancellation, if USER desires to make the license active again, USER will be required to pay a $100.00 reinstatement fee, and to sign a new License Agreement.
e) Allow NPPSN to access USER’s Main Computer and all workstations at which time NPPSN shall delete all Case Manager
info from the registry on USER’s main computer and workstations.
and delete all Case Manager software files. If USER fails or refuses to allow NPPSN to access its computers to delete
Case Manager info located in the registry(s) and Case Manager software files, for any reason, then NPPSN shall bill user
for the retail cost of the Case Manager software.
15. INDEMNIFICATION OF NPPSN FOR SHIPPING RELATED DAMAGE AND LOSSES USER expressly indemnifies and holds harmless NPPSN for any and all losses that may occur during shipping of items to or from NPPSN.
16. LICENSE TRANSFER
USER understands that this License Agreement is non-transferable or assignable by USER without the prior written consent of NPPSN. USER understands that NPPSN will consider approval for the transfer once the following documents are provided to NPPSN:
a) The “Request to Transfer Customer Software signed by the USER, indicating the name(s) of the proposed new licensee, and the proposed new guarantor, if applicable.
b) A “License Agreement ” signed by the proposed new licensee.
c) A nonrefundable payment of $50 to cover the cost of transfer, plus a payment for any outstanding balances owed to NPPSN by the USER prior to the date of transfer. If the transfer is NOT approved by NPPSN, USER understands that USER is still the responsible party under this License Agreement.
17. NPPSN’S HOURS OF OPERATION
USER understands that the hours of operation for the Sales, Training, and Customer Service Departments, are Monday through Saturday from 11:00 a.m. to 10:00 p.m. Pacific Standard Time, excluding all holidays, and the hours of operation for the Technical Support Department are Monday through Saturday from 11:00 a.m. to 10:00 p.m. Pacific Standard Time, excluding all holidays. USER understands NPPSN’ hours of operation are subject to periodic change.
18. TECHNICAL SUPPORT
Software support for Case Manager is provided to USER at no cost if the software itself is found to be corrupt (not including database corruption caused by USER. Support for issues such as database corruption caused by user is provided at a cost of $50 per hour.
USER understands that technical support refers to the guidance provided by an NPPSN representative to its registered customers over the telephone, by email or on any NPPSN support forum. Upon initial delivery of the software to USER NPPSN, at USER’s request, shall conduct a comprehensive installation and training session by telephone.
If USER requires guidance in areas not related to the NPPSN Property or “specialty hardware items” purchased from NPPSN, such as guidance on USER’s actual computer hardware, or the configuration of USER’s computer’s settings (changing the time or adding a new printer driver), USER understands that USER must
contact USER’s hardware vendor b) hire a computer consultant, or, request extended technical support from NPPSN, as outlined in this License Agreement.
There are numerous variables involved in networking, such as the operating system, computer hardware, etc. NPPSN will attempt to install Case Manager on USER’s workstations in addition to USER’s main computer, and provide networking support, or troubleshoot the loss of network connections and configurations between USER’s computers. However,the USER understands that Networking is a “specialty” that requires on-site (hands-on) review of the USER’S contemplated network or problem to effect a proper installation or cure, and as such, if NPPSN cannot network USER’s multiple computers, and USER does not have an IT person on its staff, NPPSN will retain a third party vendor to conduct the networking at a cost to USER charged by the vendor..
19. DATA CORRUPTION
In the event that any function in Case Manager fails to operate due to data corruption caused by USER then NPPSN shall make every effort to determine what is causing the database corruption and advise USER of its findings. NPPSN is not responsible to repair corrupt databases….this must be done by user’s IT staff or a company that
specializes in repairing corrupt ACCESS databases. NPPSN can refer USER to such a company. If NPPSN spends any time analyzing
failures of Case Manager functions due to database corruption then
use must pay $50 per hour for this analysis time.
20. EXTENDED TECHNICAL SUPPORT USER may request NPPSN to provide extended technical support, which would involve assisting USER in areas that are not related to the NPPSN Property or not related to “specialty hardware items” purchased from NPPSN Software (if any), with the exception of networking issues. Such support is available at a fee of $50.00 per hour, limited to the hours of operation for the Technical Support Department.
21. AFTER HOURS SUPPORT USER understands that technical support can be provided AFTER its normal office hours and during holidays, but that a fee of $50.00 per incident will be charged. This after hours rate may change from time to time. USER agrees that the daily “after hours” fee of $50.00 per incident is final and non-refundable.
NPPSN reserves the right to limit its obligations herein, to provide technical support and/or data corruption support to USER in support of a specific release of the NPPSN Property to a period of FIVE YEARS from the date the Software Program or upgrade thereof was delivered to USER by NPPSN.
23. THIRD-PARTY CONSULTANT If USER employs the services of a third-party computer consultant or other technical personnel, for whatever reason, USER agrees that NPPSN will not be held liable for any costs incurred as a result of such employment.
24. THIS SOFTWARE PROGRAM, ARE PROVIDED “AS IS”. THE ENTIRE RISK AS TO RESULTS AND PERFORMANCE OF THE SOFTWARE PROGRAM, IS ASSUMED BY USER. NEITHER NPPSN, NOR AGENTS OF NPPSN, GUARANTEE THE RESULT TO BE OBTAINED WITH THE SOFTWARE PROGRAM, IN TERMS OF CORRECTNESS, RELIABILITY OR LEGALITY.
THE ABOVE IS THE ONLY WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF THE MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
THE LIABILITY OF NPPSN OR ANY AGENT OF NPPSN WITH RESPECT TO THE SOFTWARE PROGRAM, UNDER THE LIMITED WARRANTY SET FORTH ABOVE, SHALL BE LIMITED TO AND NOT EXCEED THE AMOUNT PAID BY USER FOR THE PROGRAM SOFTWARE MEDIA AND RELATED DOCUMENTATION. IN NO EVENT SHALL NPPSN, OR ANY AGENT OF NPPSN, BE LIABLE FOR ANY LOSS OF PROFITS OR ANY OTHER DAMAGES INCLUDING BUT NOT LIMITED TO SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES. SOME STATES DO NOT ALLOW LIMITATIONS OR EXCLUSIONS OF LIABILITY OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO USER.
25. USER understands that his/her Casemanager License Agreement may not be assigned by NPPSN or USER.
26. USER understands that his/her License Agreement shall be governed by the laws of the state of New York and California.
CONTINUED USE GUARANTEE In the unlikely event of any permanent interruption of its business and/or services, NPPSN shall permanently unlock the Case Manager Software Program to enable USER to continue to utilize the software for an “unlimited period of time”, and also provide USER with access to the “source code”, and there shall be no further License fees (if any due) or Monthly Usage Fees due and owing to NPPSN.