Anti-Virus Software Standard Terms and Conditions

By accepting any order or quote (“Quote”) for the purchase of any Anti-Virus Software Licenses from KeyCentrix, LLC, a Kansas limited liability company (“KeyCentrix”), you (“Customer”) by accepting the Quote, expressly agree to be bound by these Anti-Virus Software Standard Terms and Conditions (“Standard Terms”). Each Quote is subject to KeyCentrix’s acceptance and may be accepted or rejected by KeyCentrix in its sole discretion. Further, these Standard Terms and any Quote that subsequently refers to these Standard Terms are intended to and shall, collectively constitute one agreement (“Agreement”). It is understood that each Quote will specify the current charges and costs for the Anti-Virus Software to be provided by KeyCentrix under this Agreement.

1. Definitions

For purposes of this Agreement, the following defined terms shall have the following definitions:

(a) “Anti-Virus Software” means that certain anti-virus software indicated on a Quote that is owned by the third-party Software Developer.

(b) “Computers” means the hardware, including personal computers, laptops, workstations or other electronic devices, in which the Anti-Virus Software will be installed for, and utilized by, an End User.

(c) “Documentation” means the user and operational documentation for the Anti-Virus Software as provided by Software Developer.

(d) “End User” means an authorized individual of Customer who utilizes the Anti-Virus Software on his or her Computer pursuant to a License.

(e) “License” means a non-exclusive license purchased by Customer pursuant to a Quote which authores one (1) End User to utilize the Anti-Virus Software on his or her Computer.

(f) “License Fees” means the amounts charged by KeyCentrix to Customer for the Software Licenses as set forth on the Quote.

(g) “Software Developer” means the third-party software developer that owns all right, title and interest to the Anti-Virus Software.

2. Licenses

(a) Subject to the terms, conditions, and limitations of this Agreement, KeyCentrix grants to Customer during the Term (as defined hereafter) of this Agreement the number of limited, personal, non-exclusive, non-transferable, non-refundable, and internal Licenses indicated on the Quote for purposes of allowing Customer’s End Users’ to install and utilize the Anti-Virus Software on his or her Computers. The License Fees will be based on the number of Licenses purchased by Customer pursuant to the Quote. All Licenses are being sold to Customer on a per seat basis, meaning each License will authorize one (1) End User of Customer to download, install and utilize the Anti-Virus Software on his or her Computer during the Term of this Agreement. Further, it is acknowledged by Customer that KeyCentrix is an authorized reseller of Software Developer, and all Licenses being sold by KeyCentrix to Customer to utilize the Anti-Virus Software are expressly subject to the third-party licensing terms of Software Developer (“Developer Licensing Terms”), and such Developer Licensing Terms must be accepted by each End User (or the Customer on behalf of each End User) prior to an End User being granted access to, installing or using the Anti-Virus Software on any Computer. Customer acknowledges and agrees to be bound by the Developer Licensing Terms, which may be modified by Software Developer from time to time.

(b) All right, title and ownership of the Anti-Virus Software, and corresponding Documentation and all copies thereof, shall remain at all times the exclusive property of KeyCentrix or Software Developer. Except as explicitly provided otherwise in this Agreement, Customer shall not itself or allow any other person to: (i) sell, resell, make available, distribute, or use for the benefit of any third party all or part of the Anti-Virus Software or Documentation, whether by assignment, sublicense, or by any other means; (ii) copy, adapt, reverse engineer, decompile, disassemble, prepare derivative works, or modify, in whole or in part, any of the Anti-Virus Software or Documentation; (iii) modify, alter, or circumvent the Anti-Virus Software’s configuration, data files or libraries, or functionality; or (iv) use the Anti-Virus Software to operate in or as a time-sharing, outsourcing, or software bureau environment, or in any way allow third party access to the Anti-Virus Software.

(c) Customer acknowledges and agrees that no anti-virus related software is error-free, and Customer is advised to back up the Computer with the frequency and reliability suitable to Customer. In addition, there may be technological measures utilized in the Anti-Virus Software that are designed to prevent unlicensed or illegal use of the Anti-Virus Software, and Customer expressly agrees that KeyCentrix may use these measures to protect KeyCentrix and its third party licensors against piracy.

3. Payment Terms

(a) Customer shall pay to KeyCentrix the License Fees set forth in the Quote, and such fees shall be remitted to KeyCentrix in accordance with the payment terms set forth in the applicable Quote.

(b) In addition to the fees set forth in the Quote, KeyCentrix may invoice any additional costs and expenses reasonably incurred by KeyCentrix in the performance of any additional services as incurred. Provided, all fees shall be subject to adjustment by KeyCentrix in its sole discretion effective upon the first day of each renewal Term (defined herein).

(c) KeyCentrix will invoice, and Customer shall also reimburse KeyCentrix for, any such additional costs and expenses reasonably incurred by KeyCentrix in the delivery of the Anti-Virus Software. All payments will be due thirty (30) days from the invoice date commencing on the first calendar month following the execution of this Agreement. Payments will be remitted by Customer, upon receipt of invoice, to KeyCentrix’s address set forth herein or as otherwise directed by KeyCentrix. Provided, Customer may withhold payment of any disputed amount until the resolution of such dispute, but Customer shall nevertheless timely remit all other amounts owed under this Agreement at the time of the dispute. Payments of undisputed amounts will be deemed to be delinquent if not in KeyCentrix’s possession within thirty (30) days from the invoice date. Disputed amounts, once resolved, shall be remitted by Customer within ten (10) days.

(d) Customer shall be responsible for any applicable sales, use, value added, or other taxes payable with respect to the Anti-Virus Software provided pursuant to this Agreement, or arising out of or in connection with this Agreement.

(e) All sales, property, excise and other federal, state and local taxes (other than those taxes based upon KeyCentrix’s net income) will be added to the License Fees paid by Customer.

(f) Past due amounts will be subject to a Anti-Virus Software charge equal to the lesser of one and one-half percent (1½%) per month or the highest interest rate permitted by law. Without limiting any other remedy available to KeyCentrix, in the event any amount owed by Customer is more than sixty (60) days past due, KeyCentrix may suspend the Anti-Virus Software at its sole discretion. Further, in the event any past due amount is placed by KeyCentrix with a third party for collection and/or litigation, Customer shall be responsible for all collection costs, attorneys’ fees and expenses incurred by KeyCentrix. Customer agrees to a charge of not less than $40.00 or the highest rate allowed by law for any returned check.

(g) Customer must notify KeyCentrix within fifteen (15) days from the invoice date of any dispute related to any invoiced amount in order to contest the same. KeyCentrix and Customer will work together in good faith to resolve such dispute in a timely manner.

4. Term

The initial Term of this Agreement will begin on the date indicated on the Quote and continue for the period set forth on the Quote. Upon expiration of the initial Term of this Agreement, this Agreement shall automatically renew for successive periods equal to the initial Term set forth on the Quote, unless written notice of the cancellation is provided by either party in writing by mail or email at least ninety (90) days prior to the last day of the then-current Term. The initial Term and any renewal Term, if applicable, are collectively referred to in this Agreement as the “Term.”

5. Additional Customer Responsibilities

In addition to Customer’s other obligations set forth in this Agreement, Customer shall be solely responsible for the upkeep and maintenance of its internet connection, and shall hold KeyCentrix harmless for any failure of the internet connection. Further, Customer will be solely responsible for the following items: (a) ensuring that the End Users’ Computers are equipped and configured to be compatible with the specifications required by KeyCentrix from time to time in order to provide the Anti-Virus Software; (b) providing KeyCentrix with reasonable access to the Computers in order to permit KeyCentrix to provide the Anti-Virus Software in a manner that is acceptable to KeyCentrix; (c) providing KeyCentrix with reasonable communication channels to contact Customer’s personnel and other resources that may facilitate KeyCentrix’s rendering of the Anti-Virus Software, including all administrative rights, permissions and security passwords necessary for KeyCentrix to provide the Anti-Virus Software; (d) providing a high-speed internet connection, with data transmission speeds of no less than ten (10) MB per second; (e) and maintaining the Computers (including all of its software and hardware systems) in current compliance with KeyCentrix’s then published minimum system standards and requirements.

6. Compliance with Laws; Customer Control

Customer represents and warrants to KeyCentrix that Customer and its End Users will comply with all applicable laws while using the Anti-Virus Software, and Customer expressly assumes the risk of same. Customer has and will retain sole responsibility for: (a) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party software; (b) the security and use of Customer’s and its authorized users’ access credentials; (c) all access to and use of the Anti-Virus Software, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use; and (d) protection and security of Customer’s and its End Users’ access credentials. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Anti-Virus Software; and (b) control the use of the Anti-Virus Software.

7. Exclusive Warranty

CUSTOMER UNDERSTANDS AND AGREES THAT KEYCENTRIX IS SOLELY AN AUTHORIZED RESELLER OF THE THIRD-PARTY ANTI-VIRUS SOFTWARE OWNED AND DEVELOPED BY THE SOFTWARE DEVELOPER, AND THEREFORE KEYCENTRIX IS LICENSING THE ANTI-VIRUS SOFTWARE TO CUSTOMER ON AN “AS-IS” BASIS WITH ALL FAULTS OF EVERY KIND AND NATURE; PROVIDED HOWEVER, THAT KEYCENTRIX WILL PASS THROUGH TO CUSTOMER ANY WARRANTIES PROVIDED BY SOFTWARE DEVELOPER TO KEYCENTRIX OR OTHERWISE INCLUDED IN THE DEVELOPER LICENSING TERMS. FURTHER, KEYCENTRIX EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND OR NATURE WITH REGARD TO THE USE OF THE ANTI-VIRUS SOFTWARE, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. KEYCENTRIX DOES NOT WARRANT THAT THE ANTI-VIRUS SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE ANTI-VIRUS SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS IN THE ANTI-VIRUS SOFTWARE WILL OR CAN BE CORRECTED.

8. Proprietary Rights and Confidentiality

Customer acknowledges and agrees that all copyright, patent, trade secret, and all other intellectual property rights of every kind and nature related to the Anti-Virus Software are and shall remain the exclusive property of KeyCentrix or Software Developer, and nothing in this Agreement should be construed as transferring any aspects of such rights to Customer or any third party.

9. Limitation of Liability

NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, KEYCENTRIX SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR ATTORNEYS’ FEES AND EXPENSES, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST BUSINESS PROFITS, DISRUPTION OF SOFTWARE, AND LOST, DAMAGED OR DESTRUCTION OF DATA, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT IN THE EVENT OF KEYCENTRIX’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE LIABILITY OF KEYCENTRIX TO CUSTOMER FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT PAID TO KEYCENTRIX BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT OR CAUSE GIVING RISE TO SUCH CLAIM. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION, TO CLAIMS BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. BOTH PARTIES UNDERSTAND AND AGREE THAT THE REMEDIES AND LIMITATIONS HEREIN ALLOCATE THE RISKS OF PRODUCT AND SOFTWARE NONCONFORMITY BETWEEN THE PARTIES AS AUTHORIZED BY THE UNIFORM COMMERCIAL CODE AND OF OTHER APPLICABLE LAWS. THE LICENSE FEES TO BE CHARGED HEREUNDER REFLECT, AND ARE SET IN RELIANCE UPON, THIS ALLOCATION OF RISKS AND THE EXCLUSION OF CONSEQUENTIAL AND SPECIAL DAMAGES SET FORTH IN THIS AGREEMENT.

10. Indemnity

Customer hereby agrees to indemnify and hold harmless KeyCentrix and its affiliates, including their respective owners, officers, directors, and employees from any claim, suit, loss, cost, damage (including consequential damages), expense (including reasonable attorneys’ fees and expenses), or liability of any nature or kind whatsoever arising out of, as a result of, Customer’s use of the Anti-Virus Software or breach of this Agreement, either directly or indirectly, specifically including, but not limited to, any and all claims, valid or spurious, arising from actual or alleged failure of Customer to comply with any requirements of this Agreement or any applicable law.

11. Default and Termination

Customer will be deemed to be in default of its obligations under this Agreement if:

(1) subject to the withholding right under Section 3, Customer: (i) fails to pay any undisputed amount due under this Agreement within thirty (30) days after the same becomes due and payable or fails to pay any disputed amount, once resolved, within ten (10) days; or (ii) fails to timely remit repayment on three (3) or more occasions during any eighteen (18) month period;

(2) Customer breaches Sections 8, 15 or 20, regardless of any purported attempt to cure;

(3) Customer commits a material breach of this Agreement and fails to remedy the breach within thirty (30) days after having been given written notice to do so; or

(4) upon the institution of bankruptcy, receivership, insolvency, reorganization, or other similar proceedings by or against Customer or any affiliate of Customer under any section or chapter of the United States Bankruptcy Code, as amended, or under any similar laws or statutes of any state thereof, if such proceedings have not been dismissed or discharged within thirty (30) calendar days after they are instituted; or the insolvency or making of an assignment for the benefit of creditors or the admission by Customer of its inability to satisfy any debts as they mature or the institution of any reorganization arrangement or other readjustment of debt plan of Customer or the appointment of a receiver for all or substantially all of Customer’s assets or any corporate action taken by the Board of Directors of Customer in furtherance of any of the above actions.

In the event of Customer’s default under this Section 11(a), KeyCentrix may terminate this Agreement, effective upon written notice to Customer.

(b) KeyCentrix will be deemed to be in default of its obligations under this Agreement if:

(1) KeyCentrix commits a material breach of this Agreement and fails to remedy the breach within thirty (30) days after having been given written notice to do so; or

(2) upon the institution of bankruptcy, receivership, insolvency, reorganization, or other similar proceedings by or against KeyCentrix or any affiliate of KeyCentrix under any section or chapter of the United States Bankruptcy Code, as amended, or under any similar laws or statutes of any state thereof, if such proceedings have not been dismissed or discharged within thirty (30) calendar days after they are instituted; or the insolvency or making of an assignment for the benefit of creditors or the admission by KeyCentrix of its inability to satisfy any debts as they mature or the institution of any reorganization arrangement or other readjustment of debt plan of KeyCentrix or the appointment of a receiver for all or substantially all of KeyCentrix’s assets or any corporate action taken by the Board of Directors of KeyCentrix in furtherance of any of the above actions;

In the event of KeyCentrix’s default under this Section 11(b), Customer may terminate this Agreement, effective upon written notice to KeyCentrix.

(c) Customer acknowledges that the amounts of License Fees stated in this Agreement are based on KeyCentrix’s expectation that Customer shall utilize and pay for such fees associated with the Anti-Virus Software for the full length of the initial Term and any renewal Term, and that it would be very difficult to calculate the damages associated with KeyCentrix’s loss of such License Fees if Customer terminates this Agreement prior to the end of the Term of this Agreement. Therefore, Customer agrees to pay KeyCentrix the total amount of the average License Fees (calculated for the prior 12-months or portion thereof if this Agreement terminates prior to the end of the first 12 month period) that would have otherwise become due during the balance of the applicable initial Term or during any renewal Term in the event that Customer or KeyCentrix terminates this Agreement early.

(d) Upon termination, cancellation, or expiration of this Agreement, Customer shall cease using the Anti-Virus Software and Documentation and promptly return to KeyCentrix all copies of the Anti-Virus Software and Documentation in its possession or control. Customer shall delete all copies of such materials residing in on-line or off-line computer memory. Customer shall, within five (5) days from the effective date of the termination, certify in writing by an officer or director of Customer that all copies of the Anti-Virus Software and Documentation have been returned, deleted and/or destroyed.

12. Status

The relationship between KeyCentrix and Customer is that of independent contractors and that relationship shall continue as such throughout the Term. It is further agreed that nothing contained in this Agreement shall be construed to constitute either party as being a partner, joint venturer, or agent of the other.

13. Expenses of Enforcement

Subject to Section 9, in the event litigation or arbitration is instituted to enforce this Agreement, the prevailing party will be entitled to recover from the other party such sum as the arbiter or court, as the case may be, may judge reasonable as attorneys’ fees and expenses at trial and upon appeal, in addition to all other sums provided by law.

14. Arbitration

In the event of any dispute or controversy arising out of or related to this Agreement, including the interpretation of any provision of this Agreement, which cannot be resolved informally by the parties, such dispute will be resolved by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules then in effect, except as such rules may be modified by this Agreement or by the mutual consent of the parties. Any arbitration proceeding conducted hereunder shall be held in Wichita, Kansas and will be enforceable in any court of competent jurisdiction. BEFORE INSTITUTING ARBITRATION, CUSTOMER AGREES TO PROVIDE KEYCENTRIX WITH AN OPPORTUNITY TO RESOLVE THE CLAIM BY SENDING A WRITTEN DESCRIPTION OF THE CLAIM TO KEYCENTRIX. IF KEYCENTRIX IS UNABLE TO RESOLVE THE CLAIM WITHIN THIRTY (30) DAYS AFTER RECEIPT OF NOTICE, THEN CUSTOMER MAY INITIATE ARBITRATION.

15. Successor Interests

KeyCentrix may assign or subcontract, in whole or in part, KeyCentrix’s performance hereunder. Otherwise, this Agreement may not be assigned absent the consent of the non-transferring party. Any such attempt by Customer to assign in violation of the foregoing restriction shall be null and void. Subject to any limitation upon assignment expressly contained herein, this Agreement will be binding upon and inure to the benefit of the successors, subcontractors, and assigns of the parties.

16. Notices

All notices or other non-operational communications required to be given hereunder shall be in writing and delivered either personally, or by email transmitted to Customer at the physical address or email address set forth in the Quote or transmitted to KeyCentrix at lrodriguez@keycentrix.com or by U.S. mail, certified, return receipt requested, postage prepaid, and addressed as provided in the Quote. Any notices delivered personally shall be effective upon delivery and notices delivered by mail shall be effective upon their receipt by the party to whom they are addressed. Communication may also be transmitted via email provided that the transmitting party retains a record of when and to whom the communication was electronically transmitted. Customer shall designate a person as Customer’s authorized point of contact for purposes of resolving any Anti-Virus Software issue. KeyCentrix shall designate a person as KeyCentrix’s authorized point of contact and contract administrator for purposes of Customer notifying KeyCentrix of any contractual concerns, including any actual or alleged breach of this Agreement by KeyCentrix. In addition, KeyCentrix shall designate a person as KeyCentrix’s authorized point of contact and Anti-Virus Software manager for purposes of discussing Anti-Virus Software problems, quality issues and any other Anti-Virus Software concerns that Customer might have from time to time.

17. Force Majeure

Neither party shall be under any liability for any loss or for any failure to perform any obligation hereunder due to causes beyond its control including without limitation industrial disputes of whatever nature, power loss or fluctuations, telecommunications failure, hacker attacks, internet slowdowns, acts of God, or any other cause constituting force majeure, provided, however, that the foregoing does not excuse or delay Customer’s payment obligations hereunder.

18. Limitation of Actions

No actions, regardless of form or basis, arising out of transactions related to this Agreement, including the Anti-Virus Software performed or to be performed may be brought by either party more than one (1) year after the cause of action has first accrued except that an action for nonpayment may be brought within two (2) years after the date of last payment owed by Customer under this Agreement. Customer acknowledges and understands, after having consulted with its legal counsel, that the purpose of this Section 18 is to shorten the period within which Customer would otherwise have to raise such claims, demand, rights or defenses under applicable laws.

19. Waiver

Waiver of any breach of this Agreement committed by either party will not constitute a waiver of any other or future breach. Specifically, KeyCentrix may elect to continue performance notwithstanding a breach committed by Customer but KeyCentrix’s performance will not constitute a waiver of such breach nor otherwise limit the exercise of KeyCentrix’s remedies.

20. Solicitation

Customer shall not solicit the employment of nor employ any KeyCentrix personnel during the Term of this Agreement and for a period of two (2) years from the effective date of termination, cancellation, or expiration of this Agreement.

21. Governing Law

This Agreement shall be deemed to have been executed in the State of Kansas and will be governed by and construed in accordance with the laws of the State of Kansas, without reference the rules governing conflicts of law. The parties hereby agree on behalf of themselves and any person claiming by or through them that the sole and exclusive jurisdiction and venue for any litigation arising from or relating to this Agreement shall be an appropriate federal or state court located in Sedgwick County, Kansas.

22. Numbers and Headings

As used herein, the singular will include the plural, and the plural, the singular. All captions are intended solely for convenience and will in no way be deemed to limit or explain any of the provisions of this Agreement.

23. Severability

If any provision of this Agreement is held invalid, such invalidity will not affect any other provisions which can be given effect without the invalid provision.

24. Survival

Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 18, 20, 21, 24, 25 and 26 shall survive the expiration or termination of this Agreement for any reason, as well as any other provision which is intended by its context or nature to survive such expiration or termination.

25. Entire Agreement

This Agreement (as defined above) contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. This Agreement may not be amended, except by a writing signed by both parties. In the event of a conflict between or among the terms set forth in these Standard Terms, and any Quote, or any other document made a part hereof, the documents shall control in the following order: these Standard Terms shall control unless a Quote expressly provides otherwise by reference to these Standard Terms and the contradicting statement or section of these Terms and Conditions, and in such event the Quote with the latest date shall control, and then these Standard Terms if the Quote satisfies the foregoing condition, and then any other documents.

26. Publicity

Customer shall not refer to the existence of this Agreement in any press release, advertising or materials distributed to prospective customers, without the prior written consent of KeyCentrix. This obligation will survive the cancellation or other termination of this Agreement. KeyCentrix shall have the right to issue press releases identifying Customer as a business customer.

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