These Subscription Terms (these "Terms") set forth the terms and conditions that apply to your access and use of the subscription services and Subscription Information made available to you by LTC IT Solutions, Inc. d/b/a LTC Software Solutions ("LTC"). These Terms may be incorporated into one or more order forms referencing LTC (each, an "Order"). Each Order together with these Terms shall form the "Agreement" by and between the person or entity identified in the Order ("Customer") and LTC. Any capitalized terms that are not defined herein shall have the meaning given in the applicable Order. These Terms with the applicable Order are the "Agreement".
1. Acceptance of Terms
By agreeing to an Order referencing these Terms, you hereby represent that you have read, understood, and accepted these Terms. If you are purchasing Services on behalf of a company or other entity, you affirm that you have the legal authority to bind any such company or entity to these Terms. You may not order or obtain Services from LTC if you are not at least 18 years of age. These Terms shall govern in the event of any conflict between the Terms and any provision contained in or incorporated by reference into any purchase order or similar document submitted by Customer, the terms of which, whether conflicting, supplemental, or otherwise, are expressly rejected and superseded by these Terms. In the event of a conflict between these Terms and an Order provided by LTC, the Order shall govern. If you choose not to accept these Terms, you may not use the Services.
2. Scope
Customer may use (and permit its Authorized Users to use) the subscription services provided by LTC and identified as the services in the Order (the "Services") only in the ordinary course of Customer's internal business operations and only in accordance with the Agreement and all applicable laws. Customer shall be liable for any breach of the Agreement by any persons given access to the Services or Subscription Information by Customer.
3. Platform Terms
The following provisions in this Section 3 apply to use of LTC's hosted platform described in an Order ("Platform Services"). For the avoidance of doubt, this Section 3 and any terms contained herein referencing the Platform Services shall only apply to the extent Platform Services are included on the applicable Order.
a. Platform Services. LTC shall supply the Platform Services as described and for the term specified in the Order. Subject to the terms and conditions of the Agreement, LTC grants to Customer a non-exclusive, non-transferable, non-sublicensable, limited right to use the Platform Services in accordance with the Order during the Order Term solely for Customer's internal purposes.
b. Access. If Customer suspects or learns of unauthorized access to the Platform Services, Customer will promptly notify LTC. LTC may suspend access to the Platform Services without advance notice if LTC reasonably believes the Platform Services are being used or accessed in an unauthorized, illegal, or disruptive manner, provided that LTC will use commercially reasonable efforts to notify Customer of such suspension.
c. Customer Data. Customer shall be responsible for ensuring that Customer Data is accurate and complete. Customer warrants to LTC that Customer has the full legal right for Customer, LTC, and its agents to use Customer Data as necessary to provide the Services and meet its obligations under the Agreement. Customer hereby grants and assigns to LTC and its agents, successors, and affiliates a worldwide, non-exclusive, royalty-free, transferable, and sublicensable right and license to use, share, reproduce, distribute, prepare derivative works of, publicly display, host, cache, route, transmit, store, reformat, or modify any Customer Data that is collected, inputted, hosted, or transmitted through the Platform Services. In order to improve LTC's products and services, LTC may use such Customer Data in an aggregated and de-identified format.
d. Modifications. From time to time, LTC shall be entitled to interrupt or modify the Platform Services to: (i) perform repairs and other maintenance and install enhancements on LTC's equipment, software, and/or other systems that are required for the provision of Platform Services; or (ii) make adjustments to its infrastructure and thereby cause a disruption in the provision of Platform Services. Except in the case of emergency repairs, maintenance, or adjustments, LTC will use commercially reasonable efforts to give Customer reasonable prior notice of the interruption if the Platform Services shall not be available for an extended period of time during standard business hours Monday through Friday, excluding holidays.
e. Open-Source Software Components. The Platform Services may utilize Open-Source Software. Open-Source Software is licensed under the terms of the open-source license that accompanies or is made available with such Open-Source Software. Nothing in the Agreement limits Customer's rights under, or grants Customer rights that supersede, the terms and conditions of any applicable license for such Open-Source Software. Open-Source Software shall not be deemed to be part of the Platform Services under the Agreement, and LTC shall have no liability relating to such Open-Source Software.
4. Use Restrictions
Except to the extent specifically authorized by the Agreement, Customer shall not, and shall not permit any third party, to: (i) use any of the Services or Subscription Information for any purpose or in any manner not specifically authorized by the Agreement; (ii) make or retain any copy of any of the Platform Services; (iii) create or recreate the source code for the Services, or re-engineer, reverse engineer, decompile or disassemble the Services; (iv) modify, adapt, translate, or create derivative works based upon the Services, or combine or merge any part of the Services with or into any other software or documentation except to the extent specifically permitted by LTC; (v) refer to, disclose or otherwise use any Services or Subscription Information as part of any effort either: (1) to develop a program having any functional attributes, visual expressions or other features similar to those of the Services or (2) to compete with LTC; (vi) remove, erase or tamper with any copyright or other proprietary notice printed or stamped on, affixed to, or encoded or recorded in any Services or Subscription Information, or fail to preserve all copyright and other proprietary notices in any copy of any Services or Subscription Information made by Customer; (vii) sell, market, license, sublicense, distribute, or otherwise grant to any third party, including any outsourcer, vendor, sub-contractor, consultant, or partner, any right to use any Services or Subscription Information or allow such other person to use or have access to any Services or Subscription, whether on Customer's behalf or otherwise; or (viii) use the Services or Subscription Information to conduct any type of application service provider, service bureau, or time-sharing operation or to provide remote processing, network processing, network telecommunications, or similar services to any third party, whether on a fee basis or otherwise. LTC may suspend any Authorized User's access to the Services if LTC reasonably determines that such Authorized User is breaching the Agreement or is a security risk to LTC or any other third party.
5. Fees
Customer shall pay to LTC the fees stated in an applicable Order in accordance with the payment terms stated below. Except as otherwise specified in the Order, your payments shall be due within thirty (30) days of the invoice date. A late payment fee at the rate of 2% interest monthly service charge (or, if lower, the maximum rate permitted by applicable law) shall accrue on any amounts thirty (30) days past due and unpaid by Customer to LTC. On an annual basis, LTC may increase recurring fees for the Services or other products and services stated in the Order. Except as otherwise provided herein, all fees and other amounts paid by Customer under the Agreement are non-refundable. Customer shall reimburse LTC for all costs (including reasonable attorneys' fees) associated with collecting any amounts past due under the Agreement. Customer shall reimburse LTC for reasonable travel, living, and other out-of-pocket expenses incurred by LTC personnel in connection with all Services.
a. Taxes. All charges and fees to be paid by Customer to LTC under the Agreement do not include any taxes, duties, levies, fees, or similar charges or surcharges of any jurisdiction that may be assessed or imposed in connection with the transactions contemplated by the Agreement ("Taxes"). Customer shall: (i) be responsible for the payment of all such Taxes; (ii) directly pay any such Taxes assessed against it; and (iii) promptly reimburse LTC for any such Taxes that LTC is required by law to collect or pay on behalf of Customer. Taxes do not include withholding tax based on the income of LTC.
b. Suspension for Non-payment. If Customer fails to pay to LTC, within thirty (30) days of notice of non-payment by LTC, any past-due amount payable under the Agreement (including any applicable late payment fee), LTC may, in its sole discretion and without further notice to Customer, suspend Customer's access to the Services and performance of any or all of LTC's obligations under the Agreement. Such suspension is in addition to all other rights and remedies which LTC may have under the Agreement.
6. Warranties and Limitations
a. Services Warranty. LTC warrants that it will use commercially reasonable efforts to provide the Services in accordance with the Order. Should any Services not comply with the foregoing warranty, Customer will provide written notice of a breach of this warranty within thirty (30) days of such non-compliance and LTC shall use commercially reasonable efforts to bring such Services into compliance. This remedy shall be the sole and exclusive remedy of Customer for any breach of the warranty set forth in this Section 6.a.
b. Compliance with Laws. LTC shall comply with all laws and regulations applicable to it as the provider of Services under the Agreement. Customer shall comply with all laws and regulations applicable to it as the recipient and user of Services and Subscription Information under the Agreement.
c. Disclaimer. EXCEPT AS STATED IN THIS SECTION 6, THE SERVICES, SUBSCRIPTION INFORMATION, AND DOCUMENTATION ARE PROVIDED "AS IS," WITH NO OTHER REPRESENTATIONS, WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, QUALITY OF INFORMATION, QUIET ENJOYMENT, OR OTHERWISE (INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INTERFERENCE, OR NON-INFRINGEMENT) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. USE OF THE SUBSCRIPTION INFORMATION IS AT CUSTOMER'S OWN RISK. THERE IS NO WARRANTY THAT THE SUBSCRIPTION INFORMATION WILL BE ACCURATE OR ERROR FREE OR WILL PROVIDE THE RESULTS DESIRED.
7. Intellectual Property
a. Subscription Information. Subject to the Agreement, LTC grants Customer a non-exclusive, non-transferable, limited license to use the Subscription Information (as defined in the applicable Order) solely for Customer's internal business purposes. Customer is solely responsible for its use of Subscription Information and compliance with all privacy and marketing laws applicable to Customer's use of the Subscription Information. LTC may alter or discontinue providing any Subscription Information upon notice to Customer if the Subscription Information is no longer available to LTC.
b. LTC Materials. LTC and its licensors reserve and retain all right, title, and interest in and to the LTC Materials, including the Platform Services, including without limitation any modifications, improvements, enhancements, derivative works thereof, and all intellectual property rights inherent therein (including, without limit, all inventions, patents, trade secrets, trademarks, trade names, copyrights, and all other proprietary rights pertaining thereto), whether or not based upon information provided pursuant to the Agreement. All rights not expressly granted in the Agreement are reserved by LTC and its licensors. Except as provided herein, Customer will not use any trademark, trade name, logo, or corporate name of LTC or any contraction, abbreviation, or simulation thereof without the prior written permission of LTC.
c. Feedback. Customer may, from time to time, provide LTC with Feedback regarding the Services. Customer grants to LTC a nonexclusive, irrevocable, perpetual, transferable right and license, without the payment of any royalties or other compensation of any kind and without the right of attribution, for LTC and LTC's licensors to make, use, sell, and create derivative works incorporating or using the Feedback.
d. Marketing. LTC shall have the right to use Customer's name, mark, and logo for LTC's marketing purposes to list Customer as a customer of LTC. Upon request, Customer will provide LTC with the approved logo and brand usage guidance.
8. Indemnification
Customer shall indemnify, defend, and hold harmless LTC against any third-party claim relating to LTC's use or provision of Customer Data in accordance with the Agreement or any claim brought against LTC due to Customer's use of the Services or Subscription Information. Customer's obligation under this Section 8 is contingent upon LTC: (i) promptly giving notice to Customer after the date LTC first receives notice of the applicable claim; (ii) allowing Customer to have sole control of the defense and settlement of the claim; (iii) reasonably cooperating with Customer during defense and settlement efforts; and (iv) not making any admission, concession, consent judgment, default judgment or settlement of the applicable infringement claim or any part thereof (unless otherwise agreed by Customer in writing).
9. Exclusion for Unauthorized Actions
LTC is not liable under any provision of the Agreement for any performance problem, claim of infringement, or other matter to the extent attributable to any unauthorized or improper use or modification of the Services by or on behalf of Customer, any combination of the Services with other software or services, Customer's failure to implement corrections or changes to the Services provided by LTC, any Open Source Software, or any negligence or wrongful act or omission by Customer or its affiliates, including any breach of the Agreement.
10. Limitation of Liability
a. Limitations Cap. LTC'S TOTAL AGGREGATE LIABILITY UNDER OR RELATED TO THE AGREEMENT SHALL UNDER NO CIRCUMSTANCES EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO LTC UNDER THE APPLICABLE ORDER FOR THE SERVICES WHICH ARE THE SUBJECT MATTER OF THE CLAIM DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT THAT IS THE BASIS FOR THE CLAIM.
b. Damage Exclusion. UNDER NO CIRCUMSTANCES SHALL LTC (OR ANY OF ITS AFFILIATES PROVIDING THE SERVICES UNDER THE AGREEMENT) BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, WHETHER BASED IN WARRANTY, CONTRACT, INDEMNITY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT CUSTOMER OR LTC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSSES OR DAMAGES FOR: (i) LOST REVENUES OR ANTICIPATED SALES; (ii) LOST PROFITS; (iii) LOSS OF BUSINESS; (iv) TRADING LOSSES; OR (v) LOST DATA OR INACCURATE SUBSCRIPTION INFORMATION.
11. Confidentiality
The party receiving Confidential Information ("Receiving Party") of the other ("Disclosing Party") shall not and shall cause its Authorized Recipients not to use Confidential Information for any purpose except as necessary to implement, perform, or enforce the Agreement. Receiving Party will use the same reasonable efforts as it uses to protect its own proprietary information and data (but in any event not less than a reasonable standard of care) to: (i) keep all Confidential Information of Disclosing Party strictly confidential; and (ii) not disclose the Confidential Information of Disclosing Party to anyone other than as directed by Disclosing Party or to its Authorized Recipients on a need-to-know basis. Either party may disclose the other party's Confidential Information to the extent required by law or by order of a court or governmental agency; provided, however, the Receiving Party of such Confidential Information must give the Disclosing Party prompt notice and make a reasonable effort to obtain a protective order or otherwise protect the confidentiality of such Confidential Information prior to disclosure, all as directed by and at such Disclosing Party's cost and expense.
12. Term and Termination
The term of each Order and any renewal terms are specified in the Order ("Order Term"). Either party may terminate the Agreement by giving notice of termination to the other party if the other party breaches any of its material obligations under the Agreement and does not cure the breach within thirty (30) days of receiving notice describing the breach in reasonable detail. LTC may terminate the Services for any reason (or no reason) upon thirty (30) days' notice to Customer provided LTC refunds Customer a pro-rata refund for pre-paid fees for Services not provided. Upon termination of the Agreement or any applicable Order, Customer shall immediately pay all fees due to LTC for the period up to the point of termination. Upon termination of the Agreement, whether under this Section 12 or otherwise, or upon the expiration or termination of an Order Term, Customer shall: (i) discontinue all use of the affected Services and documentation provided by LTC; and (ii) promptly return or destroy to LTC all copies of the affected LTC Materials in Customer's possession. Any provisions that by its nature is intended to survive shall survive termination of the Agreement. To the extent LTC provides Customer with Services free of charge for a trial period, LTC may terminate or suspend Customer's access to the Services at any time.
13. Assignment
Customer shall not assign the Agreement or any of its rights hereunder, nor delegate any of its obligations hereunder, without LTC's prior written consent, except such consent shall not be required in the case of an assignment of the Agreement (but not of any individual rights or obligations hereunder) to: (i) a purchaser of or successor to substantially all of Customer's business; or (ii) an affiliate of Customer. The Agreement shall bind, benefit, and be enforceable by and against LTC and Customer and their respective permitted successors and assigns.
14. Notice
All notices required or permitted to be given by one party to the other under the Agreement will be sufficient if sent by certified mail, return receipt requested, to the parties at the respective addresses first set forth in the Order or any other address as the party to receive the notice has designated by notice to the other party pursuant to this paragraph.
15. Governing Law
The Agreement shall be governed by and construed under the laws of the State of Wisconsin, without reference to rules governing choice of law. Any disputes arising from or related to the Agreement shall be venued in the state or federal courts located in La Crosse County, Wisconsin as the sole and exclusive venue, and the parties waive any defenses or objections to such venue including, without limitation, defenses of forum non-conveniens.
16. Force Majeure
Except for Customer's payment obligations, neither party shall be liable for any failure to perform its obligations under the Agreement if prevented from doing so by acts of God or the public enemy, fires, floods, storms, pandemic, epidemic, earthquakes, riots, strikes, third-party network outages, internet issues, lockouts, labor shortages, wars or war operations, restraints of government or other cause or causes that could not, with the exercise of reasonable diligence, have been mitigated, controlled, or prevented by the party.
17. Miscellaneous
A determination that any provision of the Agreement is invalid or unenforceable shall not affect the other provisions of the Agreement. Section headings are for convenience of reference only and shall not affect the interpretation of the Agreement. The relationship between the parties created by the Agreement is that of independent contractors and not partners, joint venturers, or agents. The failure by any party to exercise any right or remedy provided for herein will not be deemed a waiver of any right or remedy hereunder. Except as provided above, the Agreement is intended to be the sole and complete statement of the obligations of the parties as to all matters covered hereunder and thereunder, and supersedes all previous understandings, agreements, representations, promises, or conditions in connections with or in respect to the subject matter hereof and thereof. Unless stated otherwise herein, neither the Agreement nor any rights or duties hereunder shall be altered or modified in any way whatsoever except by way of written instrument identifying and referring to the Agreement and signed by a duly authorized representative of each party.
18. Definitions
a. "Authorized Recipient" means: (i) with respect to Customer, Customer, any Authorized User and any employee of Customer; and (ii) with respect to LTC, LTC, its affiliates and their respective contractors, licensors, and subcontractors.
b. "Authorized User" means a Customer's employee, including any employee that is a designated recipient of Subscription Information on the applicable Order.
c. "Customer Data" means data uploaded to the Services by or on behalf of Customer or its Authorized User; provided that aggregated data shall not be deemed Customer Data nor Customer's Confidential Information.
d. "Confidential Information" means all business or technical information disclosed by Disclosing Party to Receiving Party in connection with the Agreement that is reasonably considered confidential. Confidential Information includes, without limitation: (i) Customer Data; (ii) the LTC Materials; and (iii) the terms of the Agreement. Confidential Information does not include information that: (1) prior to the receipt thereof under the Agreement, had been developed independently by Receiving Party, or was lawfully known to Receiving Party, or had been lawfully received by Receiving Party from other sources, provided such other source did not receive it due to a breach of an agreement with Disclosing Party and Receiving Party knew of such breach or ought to have reasonably known of such breach; (2) is publicly known at or after the time either party first learns of such information, or is generic information or knowledge which either party would have learned in the course of its work in the trade, business, or industry; or (3) subsequent to the receipt thereof under the Agreement: (aa) is published by Disclosing Party or is disclosed generally by Disclosing Party to others without a restriction on its use and disclosure; or (bb) has been lawfully obtained by Receiving Party from other sources which Receiving Party reasonably believes lawfully came to possess it.
e. "Feedback" means any suggestions or recommendations for improvements or modifications to the Services made by or on behalf of Customer, including designs, plans, or specifications, improvements, works or other material for inclusion in, or making modifications to, the Services, the documentation, or any other deliverables.
f. "Open-Source Software" means computer software made generally available at no charge by the copyright holder under a license which provides the right to modify and distribute the software to anyone for any purpose at no charge.
g. "LTC Materials" means any of the following: the Services, Subscription Information, and documentation provided by LTC, the object code and the source code for the Services, the visual expressions, screen formats, report formats, and other design features of the Services and Subscription Information, all ideas, methods, algorithms, formulae, and concepts used in developing and/or incorporated into the Services or documentation, all future modifications, updates, releases, improvements, and enhancements of the Services or documentation, all derivative works (as such term is used in the U.S. copyright laws) based upon any of the foregoing and all copies of the foregoing.