Digitech Computer Software Prevents Unauthorized
2d 984(2008) DIGITECH COMPUTER, INC., Plaintiff,DigiTech Computer & IT Services has been serving WA community for a over 7 years now. File Name:USB-Monitor.zip.583 F. USB drive tracking application alert administrator by beeps sound in case of any USB device is attached or removed from client computer USB port. Network USB port monitor software prevents unauthorized USB port access on windows local area network. System USB Monitor Software v.2.0.1.5. Digitech Computer Usb Software.
("Trans-Care") filed a Response on September 22, 2008. Defendant Trans-Care, Inc. Hussmann, Jr., United States Magistrate Judge, on Plaintiff Digitech Computer, Inc.'s ("Digitech") Motion for Summary Judgment filed August 20, 2008.
If, after 90 days you are not completely satisfied with the integrated system, you owe none of the monthly charges and are free to go, having paid only the minimal custom programming charges, if any. During this 90 day period you will only be billed for programming charges at $75.00 per hour. During the first 90 days of the contract we will work closely with your organization to make sure that all of our systems are fine-tuned exactly as you would like to see them. The "satisfaction guarantee" and 90-day trial period was proposed as follows: Satisfaction Guaranteed We've built our business on the satisfaction of our clients. Included in the Formal Proposal was a 90-day "satisfaction guarantee" provision which is at the center of this contractual dispute. (Deposition of Gabriella Rubino ("Rubino Dep.") at 8, 20-21).After the trade show meeting, on February 3, 2006, McNellis provided Trans-Care owner Russell Ferrell ("Ferrell") with an unsigned formal proposal ("the Formal Proposal") detailing the services that Digitech could supply to Trans-Care.
Q Was it an inducement that was normally not offered to other potential new customers of Digitech, based on your knowledge? A I had not offered it to other customers. Was added to the Trans-Care proposal? A At the time, it was an inducement. McNellis admitted that this language was specifically used to solicit Trans-Care's business: Q Do you know why it was, that the satisfaction guaranteed language. Once you've had 90 days to evaluate the completed system and assuming you decided to stay with us, we will then either begin implementation of our E-PCR into your system, or integrate any other field data collection system you might choose.According to Ward, the "satisfaction guarantee" provision "was a determinative factor in Trans-Care's decision to enter into the Agreement to license and use the Digitech software and related services." (Ward Aff. We're only happy when our customers are happy and this policy ensures your complete satisfaction.( Id.) The Formal Proposal further provided that the 90-day "satisfaction guarantee" would start after the completed Digitech software system had been placed in operation, *988 as provided at page 5 of the Formal Proposal: Our suggestion is to utilize our E-PCR, which is included in the monthly all-inclusive fee, after the completion of our risk free 90 day trial period which is explained below.
Digitech president Mark Schiowitz ("Schiowitz") admits that the Formal Proposal was the only formal proposal submitted by Digitech. (Deposition of Mark Schiowitz ("Schiowitz Dep.") at 43). The 90-day "satisfaction guarantee" was offered to Trans-Care because it was a current Zoll customer. McNellis ("McNellis Dep.") at 35). Q An inducement for what? A For them to buy our software.(Deposition of Martin P.
However, an examination of these e-mail communications from McNellis to Ferrell reveals the following language: All installation, training and programming charges will be billed monthly as they accrue over the initial 90 days of the contract. Digitech claims that this alleged proposal no longer contained the "satisfaction guarantee." ( See Plaintiff's Brief in Support of Motion for Summary Judgment at Ex. At 67, 69).Despite admissions that there was only one formal proposal, Digitech argues that a second proposal was sent to Trans-Care by McNellis in an exchange of e-mail messages. Schiowitz claims he could not recall whether the "satisfaction guarantee" had been discussed at this meeting. At 38).At a Februmeeting between the parties at Digitech's Briarcliff Manor, New York offices, Schiowitz reiterated to Ward and Ferrell that there was a 90-day "satisfaction guarantee," exclaiming that "f you don't like it in 90 days, give it back to us." (Ward Aff. Nor did he know of anyone at Digitech who had ever done so.
For the specification and application of this system. Trans-Care has relied exclusively upon the advice and expertise of Digitech Computer, Inc. Any Deviation from this purchase order and/or the above and below referenced attachments must be approved in advance by the President of Trans-Care or his designee. Specifically, the Purchase Order contained the following conditions: 1. Within the Purchase Order was a paragraph that incorporated the Formal Proposal. 8 (emphasis added)).On May 10, 2007, Trans-Care prepared and forwarded to Digitech a Purchase *989 Order for the Digitech software.
The "contract" appears to consist of two separate, independently-signed agreements. (Deposition of Faril Ward ("Ward Dep.") at 86).At the same time, Digitech submitted to Trans-Care a contract for Trans-Care to purchase/license Digitech's software. This Purchase Order was not signed by Digitech. 1 (emphasis added) see also Ward Aff.). The Proposal and clarifications of Digitech are attached to this purchase order and incorporated herein.(Response at Ex. That the system installed will meet all specifications of the system proposed by Digitech and will fulfill all requirements and specifications as represented in the Agreement, proposal and clarification of Digitech Computer, Inc.
( Id.) The Business Associate Agreement runs from pages 11 to 18, with signature lines contained at the bottom of page 18. The second agreement is labeled as "Rider B-Business Associate Agreement." It addresses issues regarding the sharing of confidential patient information under the Health Insurance Portability and Accountability Act of 1996 ("HIPPA"). This first agreement ("the Product/Services Agreement") contains the actual provisions for the sale and licensing of the Digitech software to Trans-Care for a period of three years.
Additionally, the Business Associate Agreement contains a paragraph entitled "Primacy" that explains: "To the extent that any provisions of this Agreement conflict with the provisions of any other agreement or understanding between the parties, this Agreement shall control with respect to the subject matter of this Agreement." ( Id. No provision of this Agreement shall be deemed waived, amended or modified by either party unless such waiver, amendment or modification be in writing, signed by the party against whom it is sought to *990 enforce the waiver, amendment or modification.(Complaint at Ex. At 66-67).Section VI A of the Product/Services Agreement provides: A. ( Id.) Both the Product/Services Agreement and Business Associate Agreement were prepared by Digitech, who used its own attorneys.
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