Software Terms

Click here to download the ItemPath Terms of Service.

Last updated: January 31, 2024

The Terms of Service constitutes a contract between ItemPath and you, the Customer. The Terms include the provisions set forth in this document and in the ItemPath Privacy Policy (all of which we collectively refer to as the "Terms of Service" or "Terms"). By purchasing and installing the ItemPath software, you are agreeing to the Terms set forth in these documents.

Definitions

The Customer is the company purchasing the License for the Services.

The Services is the software solution, either hosted on the Customer’s hardware, or on ItemPath Inc. hardware, depending on the terms of the agreement.

The Provider is the company supplying and holding the copyright for the Services (in this case, ItemPath, Inc.)

The Reseller is the company offering the Services to the Customer, if applicable, and if this company is not ItemPath, Inc.

Data means any information that is collected by the Services during the normal use and operation, apart from general usage information such as logging, errors reporting.

Fees is the monetary amount paid or owing to the Provider for the License to use the Services, along with any other additional services provided, including but not limited to: Consulting and training, software development.

Effective Date is the date set forth in the License, where the Customer has initiated of setting up or using the Services.

Services

On or from the Effective Date and during the License, the Provider agrees to provide the Services in accordance with the terms of this Agreement.

The Customer agrees the Provider owns or holds the applicable licences to all Intellectual Property Rights including but not limited to copyright in the Software and Services and any documentation provided with the Services by the Provider to the Customer including any Customer configuration documentation.

The Provider reserves the right to change or remove features of the Services from time to time. Where there is any material alteration to the Services in accordance with this clause, the Provider will provide the Customer with twenty (20) Business Days’ notice and the Customer agrees that any material alteration is at the Provider’s sole discretion. The Parties agree that the Provider:

  • will supply the Services on a non-exclusive basis;
  • does not make any warranty or representation as to the ability of the facilities or services of any third-party suppliers; and
  • is not liable for any failure in, fault with or degradation of the Services if that failure, fault or degradation is attributable to or caused by any failure of the Customer Environment or the facilities or services of any third party.

The Provider reserves the right to refuse any request in relation to the Services that it deems inappropriate, unreasonable or illegal.

Fees & Payment

If the Customer purchased the Services directly from the Provider, the Provider shall invoice Customer the subscription fees for the Service in advance. Services will not be provided until the fees have been received.

Customer shall make all payments to the Provider according to the Payment Term without offset or deduction. If Customer fails to make any payment when due, without limiting the Provider’s other rights and remedies:

  • Provider may charge interest on the past due amount at the rate of up to 1.5% for each month calculated daily and compounded monthly or, if less, the highest rate permitted under applicable law;
  • Customer shall reimburse the Provider for all costs incurred by the Provider to collect any late payments or interest, including attorneys' fees, court costs, and collection agency fees.

If Customer purchased the Services through a reseller, Customer shall pay the reseller the reseller’s charges according to payment terms Customer has agreed with the reseller.

If the Provider does not receive timely payment from Customer (or reseller if Customer purchased through a reseller), without limiting the Provider's other rights and remedies, the Provider may suspend or terminate the Services and Customer’s and its Authorized Users’ access to the Services until the Provider is paid (with the caveat that The Provider shall first provide Customer with at least ten (10) days written notice and an opportunity to pay the Provider the applicable overdue fees).

License

In consideration for payment of the Fees, the Provider grants to the Customer a non-exclusive, non-transferable (except as otherwise permitted under this Agreement), revocable, licence to access and use the Services in accordance with the Service Provider’s intended purpose for the Services.

The Customer agrees that the Licence:

  • commences from the Effective Date or the day the Customer is granted access to the Services by the Provider, whichever occurs first;
  • permits the Customer to use the Services only up to the amount that is specified in the License and amount paid in Fees, bearing in mind any restrictions;
  • permits the Customer to use the Services in accordance with the Services’ normal operating procedures; and
  • permits the Customer to provide access and use of the Services to Authorized Users by embedding the Services into Customer’s computer hardware to its customers, if allowed by the License.

Ownership

The Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP. The applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Content.

Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer grants to Provider a non-exclusive, royalty-free license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts reasonably required for Provider to provide the Services to Customer.

Licence Restrictions

The Customer must not access or use the Services except as permitted by the Licence. Without limiting the foregoing provisions, the Customer agrees and acknowledges that it must not and will not permit any person to:

  • resell, assign, transfer, distribute or provide others with access to the Services;
  • “frame”, “mirror” or serve any of the Services on any web server or other computer server over the Internet or any other network; unless authorized by the License
  • copy, alter, modify, create derivative works from, reproduce, resell, transfer to a third party, reverse assemble, reverse engineer, reverse compile or enhance the Services or Software in any direct or indirect way; or
  • alter, remove or tamper with any trademarks, any patent or copyright notices, or any confidentiality legend or notice, or any numbers, or other means of identification used on or in relation to the Services or Software.

The Customer must not use the Services in any way which is in breach of any statute, regulation, law or legal right of any person within India or the jurisdiction in which the Customer or its Personnel are located.

License Termination

This Agreement, and the License given to the Customer as part of this agreement will terminate on the date set forth by the Terms of the License.

The Customer will be given at least thirty (30) days notice prior to the termination of the license. If the Services were directly purchased by the Customer, the Provider will make an attempt to provide a new draft agreement to the Customer.

If the Services were purchased through a Reseller, the Provider shall give the Reseller at least thirty (30) days notice that the Customer’s License will be expiring, and the Provider will make an attempt to provide a new draft agreement to the Reseller.

Upon termination of this Agreement, the Provider will:

  • immediately stop performing the Services;
  • terminate access to the Services and data after 30 days;
  • delete any data pertaining to the Service after 30 days.

Upon termination of this Agreement, the Customer will immediately:

  • cease and desist from any use of the Services;
  • pay the Fees for all Services completed; and
  • the expiry or termination of this Agreement for any reason will be without prejudice to any rights or liabilities which have accrued prior to the date of expiry or termination of this Agreement.

Customer Responsibilities and Obligations

The Customer will provide all required materials as required by the Provider from time to time for the Provider to perform the Services.

The Customer must, at the Customer’s own expense:

  • provide all reasonable assistance and cooperation to the Provider in order to enable the Provider to supply the Services in an efficient and timely manner including but not limited to obtaining from Authorized Users any consents necessary to allow the Customer and its Personnel to engage in the activities described in this Agreement and to allow the Provider to provide the Services;
  • use reasonable endeavours to ensure the integrity of the data;
  • permit the Provider and its Personnel to have reasonable access to the Customer Environment for the purposes of supplying the Services;
  • make any changes to its Customer Environment that may be required to support the delivery and operation of any Services.

The Customer is responsible for its use of the Services and must ensure that no person uses the Services:

  • to break any law or infringe any person’s rights including but not limited to Intellectual Property Rights;
  • in any way that damages, interferes with or interrupts the supply of the Services.

The Customer acknowledges and agrees that:

  • it is responsible for all users using the Services including its Personnel and any Authorized Users;
  • its use of the Services will be at its own risk;
  • it is responsible for maintaining the security of its account and password. The Provider cannot and will not be liable for any loss or damage from the Customer’s failure to comply with this security obligation;
  • the technical processing and transmission of the Service, including the Customer’s content, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices;
  • if the Provider wishes to alter the delivery of the Services which requires a change to the Customer Environment (including reconfigurations or interface customizations the extent necessary to access or use the Services) the Customer will give any assistance to the Provider or make any such changes to the Customer Environment, that the Provider reasonably requires; and
  • the Provider may cancel the License against the Customer as a result of a breach by the Customer of any provision of this Agreement.

Indemnification

The Customer agrees to indemnify, defend and hold the Provider, our affiliates and licensors, each of the Provider’s and their business partners and each of our and their respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorneys’ fees), arising out of or in connection with any claim arising out of:

  • The Customer use of the Services in a manner not authorized by this Agreement, and/or in violation of the applicable restrictions, AUPs, and/or applicable law;
  • The Customer’s data or the combination of either with other applications, content or processes, including but not limited to any claim involving infringement or misappropriation of third-party rights and/or the use, development, design, manufacture, production, advertising, promotion and/or other data;
  • The Customer’s violation of any term or condition of this Agreement, including without limitation, Your representations and warranties, or
  • The Customer’s employees’ or personnel’s negligence or willful misconduct.

Warranty & Disclaimer

THE SERVICES AND ANY OTHER PROVIDER IP ARE PROVIDED "AS IS, WITH ALL FAULTS" AND THE PROVIDER DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. THE PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR RESULTS OF THE USE OF THE SERVICES WILL MEET CLIENT'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

THIS WARRANTY DISCLAIMER CAN BE ONLY SUPERSEDED BY A SEPARATE AGREEMENT, SUCH AS AN SLA (SOFTWARE LICENSE AGREEMENT).