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According to Gartner, more businesses are expected to outsource their TEM needs over the next two years to better manage their telecom expenses. Most will select outsourcing rather than buying software and attempting to manage it on their own.

TERMS OF USE

These Terms of Use are part of End User License Agreements ("Agreement") between iTEMize Technologies, LLC. (“iTEMize Technologies”), a Virginia corporation, and its Clients and apply to all services provided under the Agreement. Please read the Agreement and these terms of Use carefully before accessing, or otherwise using the software services. By accessing or otherwise using the Software Services the Client agrees to be bound by the Agreement and these Terms of Use.

Service Description

iTEMize Technologies is a Software as a Service (SaaS) provider, whose services (“Services”) include deploying, hosting, and managing access to a confidential and proprietary software application residing on iTEMize Technologies servers and more commonly known as “iTEMize” (the “software service”) is accessed via an Internet connection using a web browser;

You desire to use the iTEMize application and iTEMize Technologies desires to provide software service in accordance with the terms and conditions contained herein.

Definitions

The Agreement” shall mean the executed End User License Agreement between the client and iTEMize Technologies including these Terms of Use.

iTEMize Web Site” shall mean the web site of iTEMize located at https://www.itemizesoftware.com.

Client Data” shall mean the data and materials in paper invoices, digital format or converted by iTEMize Technologies or Client from a print format to a digital format, and all other information delivered by Client to iTEMize Technologies in the course of the provision of the Services and as updated by the Client from time to time.

Service Commencement Date” shall mean the date as set forth in the Agreement.

iTEMize” shall mean all of the related software (including, without limitation, the Application Software, documentation, instructions, user’s guides, and subsequent updates, modifications and upgrades, if any), supplied by iTEMize Technologies, whether in printed or machine readable form.

Services” shall mean those services described within and also listed in the Agreement.

Total Service Fee” shall mean the amount specified in the Agreement. Capitalized terms not otherwise defined in these Terms and Conditions shall have the same meaning ascribed to such terms in the Agreement.

System Requirements” shall mean the following:

  • A Pentium class personal computer, running one of, Windows 98 SE, Windows ME, Windows NT 4 SP 6, Windows 2000 or Windows XP

  • Internet explorer version 5.5 or higher with 128 bit encryption

  • An Internet connection

Recommended Setup” shall mean the following:

  • A Pentium III class (or higher) personal computer running one of Windows 2000, or Windows XP

  • Internet explorer version 6 or higher with 128 bit encryption

  • A high-speed Internet connection

License to Service Modules

Rights Granted
The End User License Agreement grants to Client a nonexclusive software subscription to use iTEMize solely for Client's own internal use via a telecommunications connection to the Internet or other telecommunications connection as agreed to by the parties. The rights granted herein are restricted for use solely by Client and may not be assigned or transferred to a third party without the prior written permission of iTEMize Technologies. Client may not use iTEMize for commercial time-sharing, rental, or service bureau use. Client agrees not to copy, or cause or permit the reverse engineering, disassembly, or decompilation of iTEMize. By virtue of the Agreement, Client acquires only the right to use iTEMize via the Internet (or other telecommunications connection as agreed to by the parties) and does not acquire any rights of ownership.

All right, title, and interest in and to iTEMize and all derivative works thereof shall at all times remain the property of iTEMize Technologies. Client shall be responsible for ensuring that all employees, agents, and contractors of Client that have access to iTEMize pursuant to the Agreement adhere to the terms of the Agreement applicable to Client. Client shall provide all computer hardware and software necessary to connect Client to the Internet.

iTEMize Technologies shall deliver to Client the Client user ID and an iTEMize access password. Client shall not permit any third party, including other users, to access iTEMize through use of the Client user ID or account. Client is solely responsible for keeping the Client user ID and password confidential. Notwithstanding the foregoing, Client is solely responsible for all activity of any party using the Client user ID and password. Client may grant user ID and password’s to allow authorized users to access and to use iTEMize. All access and use by Client users shall be deemed to be access and use by Client and Client shall be liable for such use on the same basis as if that access and use had actually been carried out by Client itself. Client is responsible to ensure that all use by Client’s users is in compliance with the Agreement.

Changes to iTEMize
iTEMize Technologies may change the iTEMize software from time to time in its absolute discretion, including but not limited to the addition or removal of minor functionality. Client hereby acknowledges and agrees that some of these changes may require that users learn how to use the updated software and systems.

Services

Changes to iTEMize
iTEMize Technologies may change the iTEMize software from time to time in its absolute discretion, including but not limited to the addition or removal of minor functionality. Client hereby acknowledges and agrees that some of these changes may require that users learn how to use the updated software and systems.

Hosting Services
iTEMize Technologies shall provide all the computer hardware and communications software necessary to host the Application Software and the Client Data, to provide access to the Service Modules, and to connect the iTEMize Web Site to the Internet (or other telecommunications connection as agreed to by the parties) (the “Hosting Services”) for the term of the Agreement and any renewal thereof. Client acknowledges and agrees (a) that the primary function of the Hosting Services is to facilitate the compilation, storage of and access to the Client Data on the iTEMize Web Site; (b) that iTEMize Technologies has no proprietary, financial, or other interest in the Client Data; and (c) that Client is solely responsible for the content, quality, performance, and all other aspects of the Client Data, including the compliance with all laws relating to the transmission, maintenance, retention, transfer, or access to the Client Data, and the equipment and facilities used by Client in connection with the Client Data. The Client Data shall be accessible to each concurrent user only by entering a personal User ID and password on the iTEMize Web Site configured in accordance with the security specifications provided to iTEMize Technologies by Client. iTEMize Technologies will ensure that appropriate firewalls and other security measures are in place to ensure that iTEMize is secure against unauthorized access in accordance with industry standards. However, Client acknowledges and agrees that applications, systems and data that are made available over the Internet are inherently insecure against motivated individuals and iTEMize Technologies shall have no obligation or liability for any breach of such firewalls or security measures as a result of same.

iTEMize Technologies Maintenance Responsibilities
iTEMize Technologies agrees that it will reasonably maintain the iTEMize Technologies computer hardware necessary for iTEMize Technology’s provisioning of the Hosting Services, iTEMize and the telecommunications connections necessary for iTEMize Technologies to provide access to the iTEMize Web Site via the Internet (or other telecommunications connection as agreed to by the parties).

Term and Termination

Term
This Agreement shall remain in full force and effect for a period of one year from the Service Commencement Date (the “Initial Term”), unless the Agreement is terminated sooner by either party as provided herein. This Agreement shall automatically renew for additional one (1) year periods at the end of the Initial Term and each subsequent term at iTEMize Technologies then applicable rates, unless either party delivers a written notice of termination at least 30 days prior to the end of the applicable term. The Initial Term will commence no later than 45 days after execution of the Agreement, unless otherwise agreed to by the parties in writing.

Terms of Use
From time to time iTEMize Technologies reserves the right to change the Terms of Use contained on www.itemizetech.com. The Terms of Use will be effective as of the Initial Term of this Agreement; any changes to The Terms of Use will be in effect upon the renewal of this Agreement. The Client will be notified in writing of changes to the Terms of Use thirty (30) days prior to the renewal of the Agreement and will have the opportunity to terminate the Agreement if the Client so chooses.

Termination
Either party may terminate the Agreement upon written notice to the other party if the other party:

A. materially breaches its obligations hereunder and such breach remains uncured for two business days following written notice to the breaching party. In the event the default is the failure to pay any fee due hereunder when due, and thirty (30) days in all other cases;

B. becomes insolvent or bankrupt, admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; or the other party applies for or consents to the appointment of any receiver, trustee or similar officer for it or for all or any substantial part of its property (or such receiver, trustee or similar officer is appointed without its consent); or the other party institutes any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, dissolution, liquidation or similar proceeding relating to it under the laws of any jurisdiction, or any such proceeding is instituted against the other party and is not dismissed within ninety (90) days; or any judgment, writ, warrant or attachment or execution of similar process is issued or levied against a substantial part of the property of the other party and remains unsatisfied for ninety (90) days.

Warranties, Remedies, Limitaion of Liability

Infringement Indemnity
iTEMize Technologies will defend and indemnify Client against a claim that iTEMize furnished and used within the scope of the Agreement infringes a registered United States copyright or issued United States patent (but excluding any infringement contributory caused by Client or Client Data or Client-supplied equipment), provided that: (a) Client notifies iTEMize Technologies in writing within 30 days of the claim, (b) iTEMize Technologies has sole control of the defense and all related settlement negotiations, and (c) Client provides iTEMize Technologies with the assistance, information, and authority necessary to perform the above; reasonable, out-of-pocket expenses incurred by Client in providing such assistance will be reimbursed by iTEMize Technologies. iTEMize Technologies shall have no liability for any claim of infringement based on the combination, operation, or use of any Service Module(s) furnished under the Agreement with programs or data not furnished by iTEMize Technologies if such infringement would have been avoided by the use of iTEMize without such programs or data. In the event iTEMize is held or are believed by iTEMize Technologies to infringe, iTEMize Technologies shall have the option, at its expense, to (a) modify iTEMize to be non-infringing, (b) obtain for Client a license to continue using iTEMize, or (c) terminate the license for the infringing Service Module(s). This Paragraph 5.1 states iTEMize Technologies entire liability for infringement.

Client assume the sole responsibility for its content and use of the iTEMize Web Site including, without limitation, compliance with all governmental requirements related to Client and its business. Client shall indemnify, defend and hold harmless iTEMize Technologies, its directors, officers, employees and agents, and defend against any action brought against the same with respect to any and all losses, claims, liabilities, causes of action, debt, damages and expenses of any nature, including, without limitation, attorneys’ fees, arising out of Client’s use of the iTEMize Web Site, the content, quality, performance and all other aspects of the Client Data, including the transmission, maintenance, retention, transfer or access to the Client Data or the equipment and facilities used by Client or Client’s other use of the Internet.

Warranties and Disclaimers

A. Warranties

(i.) Service Module(s) Warranty. iTEMize Technologies warrants for the term of the Agreement that iTEMize, unless modified by Client or used by Client contrary to the requirements of the Agreement, will perform substantially in accordance with the documentation provided by iTEMize Technologies when operated in accordance with such documentation. iTEMize Technologies will undertake to correct any reported error condition in accordance with its then current technical support policies.

(ii.) Service Level Warranty. iTEMize Technologies will take commercially reasonable steps to ensure that the computer hardware, Service Module(s) and its telecommunications network are running twenty-four hours per day, every day of the year, except for reasonable downtime, including, but not limited to, general maintenance, hardware, Service Module upgrades, power and telecommunications outages not attributable to the actions or omissions of iTEMize Technologies. iTEMize Technologies, to the extent reasonably possible, agrees that scheduled downtime will be performed during minimum usage periods. iTEMize Technologies will notify the Client of upgrades to Service Module(s), if any, that will be installed by iTEMize Technologies on the iTEMize Web Site prior to such installation. iTEMize Technologies shall not be responsible for Client’s telecommunications connections to the Internet (or other telecommunications connection as applicable) or Client’s computer hardware and software. EXCEPT AS SET FORTH IN THIS SECTION CLIENT EXPRESSLY AGREES THAT USE OF ITEMIZE AND ANY OTHER SERVICES PROVIDED BY ITEMIZE TECHNOLOGIES ARE AT CLIENT’S SOLE RISK. NEITHER ITEMIZE TECHNOLOGIES NOR ANY OF ITS UNDERLYING SERVICE PROVIDERS, LICENSORS, EMPLOYEES, OR AGENTS WARRANT THAT ITEMIZE WILL BE UNINTERRUPTED, ERROR FREE OR COMPLETELY SECURE; NOR DOES ITEMIZE TECHNOLOGIES OR ANY OF ITS UNDERLYING SERVICE ITEMIZE TECHNOLOGIESS, LICENSORS, EMPLOYEES, OR AGENTS MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF ITEMIZE AND ANY OTHER SERVICES PROVIDED BY ITEMIZE TECHNOLOGIES.

Client shall indemnify, defend and hold harmless iTEMize Technologies, its officers, directors, agents, employees, affiliates and subsidiaries from any and all damages, claims, losses, expenses and costs (including any legal costs on a solicitor and his own client basis) that may arise in any manner whatsoever as a result of Client’s use of iTEMize or associated services.

B. Limitations on Warranties

EXCEPT AS SET FORTH IN SECTIONS 5.2(A)(i) and 5.2(A)(ii) ABOVE, THE SERVICES AND THE SERVICE MODULE(S) ARE DISTRIBUTED ON AN "AS IS", "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE. CLIENT ACKNOWLEDGES THAT IT HAS INSPECTED THE SPECIFICATIONS OF ITEMIZE AND SERVICES AND THAT IT RELIES ON THAT INSPECTION AND ITS OWN SKILL AND JUDGEMENT AS TO THE UTILITY OF ITEMIZE AND SERVICES FOR THE PURPOSES TO WHICH IT INTENDS TO APPLY IT.

C. Disclaimer of Actions Caused by and/or Under the Control of Third Parties.

ITEMIZE TECHNOLOGIES DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM ITEMIZE TECHNOLOGIES’S DATA CENTERS AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS CAUSED BY THESE THIRD PARTIES CAN PRODUCE SITUATIONS IN WHICH ITEMIZE TECHNOLOGIES’S CLIENTS’ CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF) MAY BE IMPAIRED OR DISRUPTED. ALTHOUGH ITEMIZE TECHNOLOGIES WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, ITEMIZE TECHNOLOGIES CANNOT GUARANTEE THAT THEY WILL NOT OCCUR. ACCORDINGLY, ITEMIZE TECHNOLOGIES DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.

Exclusive Remedies

For any breach of the warranties contained within, Client's exclusive remedy, and iTEMize Technologies entire liability, shall be the correction by iTEMize Technologies of defects in iTEMize, or the service levels or, if after repeated efforts iTEMize Technologies is unable to make the Service Module or the service levels operate in accordance with the warranty, then Client may terminate the Agreement with no further obligations by either party.

Limitation of Liability

NEITHER ITEMIZE TECHNOLOGIES NOR ANY OF ITS UNDERLYING SERVICE PROVIDERS, LICENSORS, EMPLOYEES, OR AGENTS SHALL HAVE ANY LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL DAMAGES, LOST CLIENT DATA, LOST CLIENT DATA, LOST REVENUE OR LOST PROFITS SUFFERED BY CLIENT OR ANY OTHER PARTY AS A RESULT OF THE OPERATION OR MALFUNCTION OF ITEMIZE AND/OR THE SERVICES, REGARDLESS OF WHETHER OR NOT SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, CLIENT’S SOLE AND EXCLUSIVE REMEDY UNDER THE AGREEMENT SHALL BE THE TERMINATION OF THE AGREEMENT. The provisions of this Article allocate the risks under the Agreement between iTEMize Technologies and Client and iTEMize Technologies pricing reflects this allocation of risk and the limitation of liability specified herein.

Payment Provisions

Invoices for the payment of the Subscription Fee and any other fees specified in the Agreement shall be payable in advance and are non-refundable. Fees will be invoiced at the beginning of each month. All other applicable fees shall be payable when invoiced. All fees shall be deemed overdue if they remain unpaid 31 days after they become payable. If Client fails to pay any charges when due, Client agrees that iTEMize Technologies will have the right to invoice Client and Client will pay a late payment charge of 1-1/2 percent per month, but in no event more than the lawful maximum, on the past due balance. If Client fails to pay the Total Service Fee, iTEMize Technologies shall have the right to deny access to the Application Software to Client, in addition to all other rights and remedies iTEMize Technologies may have hereunder.

The fees listed in the Agreement do not include taxes. If iTEMize Technologies is required to pay sales, use, property, value-added, or other federal, state, or local taxes (other than taxes based on iTEMize Technologies income) based on the licenses granted in the Agreement or on Client's use of Service Modules or the Services performed hereunder, then such taxes shall be billed to and paid by Client.

General Terms

Confidentiality & Nondisclosure

By virtue of the Agreement, the parties may have access to information that is confidential to one another ("Confidential Information"). Confidential Information shall be limited to the Service Modules and all information clearly marked as confidential. A party's Confidential Information shall not include information which: (a) is or becomes a part of the public domain through no act or omission of the other party; or (b) was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; or (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (d) is independently developed by the other party as evidenced by its written records. Non-identifiable information which is not Confidential Information of Client may be used by iTEMize Technologies in its business, provided that such non-identifiable information cannot be linked to Client. The parties agree this Section 7.1 shall survive any termination or expiration of the Agreement for a period of five years, provided with respect to Confidential Information that constitutes a trade secret under applicable law, including without limitation, the Service Modules, the parties obligations under this Section 7.1 shall survive for the longer of five years or so long as such Confidential Information remains a trade secret under applicable law. The parties agree not to make each other's Confidential Information available in any form to any third party or to use each other's Confidential Information for any purpose other than, with respect to Confidential Information received by iTEMize Technologies, to implement the Agreement, and, with respect to Confidential Information received by Client, to use the Service Modules as provided herein. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the provisions of the Agreement.

Governing Law; Jurisdiction

The Agreement shall be governed by the laws of the Commonwealth of Virginia, and shall be deemed to be executed in the Commonwealth of Virginia. In any legal action relating to the Agreement Client agrees (a) to the exercise of jurisdiction over it by a state or federal court in or for Fairfax County, Virginia; and (b) that if Client brings the action, it shall be instituted in one of the courts specified in subparagraph (a) above. iTEMize Technologies may institute legal action in any appropriate jurisdiction.

Notice

All notices, including notices of address change, required to be sent hereunder shall be in writing delivered by registered or certified mail or by Federal Express (or similar reputable express courier) to the first address listed in the relevant Order Form (if to Client) or to the iTEMize Technologies address on Attachment A (if to iTEMize Technologies). Notices may be changed upon written notice sent in accordance with this Section 7.3. Notices shall be effective upon receipt.

Severability

In the event any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect.

Force Majeure

Except for obligations of confidentiality and payment hereunder, neither party shall be in default by reason of any failure in performance of the Agreement if such failure arises, direct or indirectly, out of causes reasonably beyond the direct control or foresee ability of such party, including but not limited to, default by subcontractors or suppliers, acts of God or of the public enemy, U.S. or foreign governmental acts in either a sovereign or contractual capacity, terrorist acts, labor, fire, flood, epidemic, restrictions, and/or strikes.

No Joint Venture

Nothing herein shall be deemed or construed to create a partnership or joint venture between the parties. Except as expressly described herein, neither party shall have any power whatsoever to obligate or bind the other party hereto in any manner.

Entire Agreement
The Agreement constitutes the complete agreement between the parties and supersedes all previous Agreements or representations, written or oral, with respect to iTEMize and Services specified herein. The Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party hereto. The waiver by either party of any default or breach of the Agreement shall not constitute a waiver of any other or subsequent default or breach.

Waiver

The waiver by either party of any default or breach of the agreement shall not constitute a waiver of any other or subsequent default or breach. Except for actions for nonpayment no action, regardless of form, arising out of the agreement may be brought by either party more than one year after the cause of action has accrued.

Counterparts and Exchanges by Fax

The agreement may be executed simultaneously in two (2) or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument. The exchange of a fully executed agreement (in counterparts or otherwise) by fax shall be sufficient to bind the parties to the terms and conditions of the agreement.

Headings

The captions and headings appearing in the Agreement are for reference only and shall not be considered in construing the Agreement.