This Service and License Agreement (hereinafter referred to as the Agreement) is made and effective the date referenced in your Service Order (the Effective Date) by and between iCohere, Inc. 1220 Oakland Blvd., Suite 210, Walnut Creek, CA 94596 and Your Organization (hereinafter referred to as You or Your or Yours).
Any exception(s) to this Agreement must be stated explicitly in the Service Order. Modifications to this Agreement may be made from time to time. Clients will be notified of any significant changes via the iCohere Users Group communication system.
This Software-as-a-Service (SaaS) subscription license includes:
An Enabled User is defined as a unique login with the capability of accessing one or more sites. The same login can access multiple sites and is counted as a single enabled user. A login can be marked as disabled in the system and, though the user’s previous posts and contributions remain accessible in the site, the disabled login is not counted as an active user for purposes of licensing. Disabled logins can be re-enabled.
For Subscription Fees and One-time Charges: Payment is due upon invoice. All charges not paid within thirty (30) days of our invoice emailed to you shall be subject to a monthly FINANCE CHARGE of 1% per month, which is an annual FINANCE CHARGE of 12% but not to exceed the maximum rate permitted by law. This FINANCE CHARGE will be computed on all outstanding balances at the end of each month. iCohere reserves the right, upon written notice, to disable iCohere sites for any account that has charges which are 30 or more days overdue. iCohere subscriptions renew automatically unless you inform us otherwise in advance by one month before the subscription renewal date.
One (1) iCohere Site Administrator Training course is provided to new clients for up to five (5) iCohere site administrators. The training is delivered over phone/web and consists of about 6 hours training time. Training applies to new licensees only, not to renewals. Coaching and assistance on initial site configuration is included with site administrator training. Live “How-To” technical support is provided to trained iCohere site administrators Monday through Friday between 8:00am – 5:00pm U.S. Eastern time.
iCohere includes several third-party applications that have been integrated with the iCohere platform, including the Cisco WebEx web conferencing system, HTML editor, and Media Player module. iCohere supports these components on a best-effort basis. You understand and agree that these third-party software components are provided to you on an “AS IS” and “AS AVAILABLE” basis. Cisco WebEx meeting technical support is provided to You by Cisco WebEx, not by iCohere.
The parties agree that they will not make use of, disseminate, or in any way disclose Confidential Information pursuant to this Agreement to any person, firm or business, except to the extent necessary for performance of this Agreement. The parties agree that they shall disclose Confidential Information only to those employees who need to know such information and who have previously agreed to be bound by the terms and conditions of this Agreement. The parties agree that they shall treat all Confidential Information with the same degree of care as they accord to their own confidential information and represent that they exercise reasonable care to protect their own confidential information. This agreement for confidentiality will survive termination of this Agreement for any reason. Information shall be considered confidential if it is either (a) marked at the time of disclosure to show its confidential nature, or (b) unmarked (for example, orally or visually disclosed) but described as confidential at the time of disclosure, and designated to show its confidential nature in a written message sent to you within thirty days after disclosure, summarizing the disclosed confidential information sufficiently for identification.
You agree and acknowledge that iCohere does not own or control the Local Circuit Link, Leased Co-Location Space, Leased Space Cross Connects, the networks providing connectivity to iCohere Services, other networks outside of the connectivity, the “Internet”, nor is iCohere responsible for performance (non-performance) within such networks or within non-iCohere Services-operated interconnection points between the connectivity and other networks. Neither party is responsible for any consequences for any delay or failure in performance caused by acts or events beyond iCohere’s reasonable control, including without limitation, acts of God, war vandalism, sabotage, accidents, fires, floods, strikes, labor disputes, mechanical breakdown, shortages, interruption of utility services, acts of subcontractors, acts of any unit of government or governmental agency, or any similar or dissimilar cause.
iCohere shall use commercially reasonable efforts to make the Website available to You with system availability of at least 99% up time excluding scheduled and/or emergency maintenance periods. The security mechanism implemented by the iCohere Software and iCohere’s ASP Services has inherent limitations and Licensee is solely responsible for determining that the software sufficiently meets Licensee’s security and operational needs.
iCohere warrants that, on a best-effort basis, the Company’s Software and updates and/or new releases will not introduce any program, routine, subroutine, or data (including malicious software or “malware,” viruses, worms, and Trojan Horses) that are designed to disrupt the proper operation of the Software or any software or system used by Customer in connection with the Software, or which, upon the occurrence of a certain event, the passage of time, or the taking of or failure to take any action, will cause the Software or any system or software used in connection with the Software to be destroyed, damaged, or rendered inoperable. iCohere warrants that the Software and updates and/or new releases includes industry standard safeguards against the destruction, loss, or alteration of data, reports and other results and against the unauthorized disclosure or access to data, reports, and results.
You warrant that You have validly entered into this Agreement and have the legal power to do so.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ICOHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
iCohere Indemnity: iCohere agrees to defend, indemnify and hold You harmless from and against any liabilities, claims, suits, proceedings, losses, damages, costs and expenses (including without limitation reasonable attorneys’ fees) made against or incurred by You as a result of
THE FOREGOING INDEMNITY STATES THE SOLE AND EXCLUSIVE REMEDY OF YOU AND THE ENTIRE LIABILITY AND OBLIGATION OF ICOHERE WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS BY ICOHERE, ICOHERE SOFTWARES OR ANY ICOHERE PERFORMANCE OF SERVICES HEREUNDER.
Your Indemnity: You agree to defend, indemnify and hold iCohere harmless from and against any and all liabilities, claims, suits, proceedings, losses, damages, costs and expenses (including without limitation reasonable attorneys’ fees) made against or incurred by iCohere as a result of
THE FOREGOING INDEMNITY STATES THE SOLE AND EXCLUSIVE REMEDY OF ICOHERE AND THE ENTIRE LIABILITY AND OBLIGATION OF You WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS BY YOU, ICOHERE SOFTWARES OR ANY YOU PERFORMANCE OF SERVICES HEREUNDER.
Each party agrees that any dispute between the parties relating to this Agreement will first be submitted in writing to a designated senior executive of both iCohere and You who will promptly confer and, if deemed necessary, meet in person to create a determination reduced to writing and signed by both parties. In the event the executives are unable to resolve any dispute within ten (10) days after submission to them such dispute shall be finally settled by arbitration before JAMS (Judicial Arbitration and Mediation Services, San Francisco, CA). The parties may agree on a retired judge from the JAMS panel. If they are unable to agree, JAMS will provide a list of three available judges, and each party may strike one. The remaining judge will serve as the arbitrator. The parties agree that arbitration must be initiated within one year after the claimed breach occurred and that the failure to initiate arbitration within the one-year period from the date that executives from both parties failed to settle the dispute constitutes an absolute bar to the institution of any new proceedings.
The aggrieved party may initiate arbitration by sending written notice of an intention to arbitrate by registered or certified mail, return receipt requested, to all parties and to JAMS. The notice must contain a description of the dispute, the amount involved, and the remedy sought. If and when a demand for arbitration is made by either party, the parties agree to execute a submission agreement, in a form provided by JAMS, or if the parties cannot reach agreement have the arbitrator issue an order, setting forth the rights of the parties if the case is arbitrated and the rules and procedures to be followed at the arbitration hearing. Any arbitration award must be in writing, contain a concise statement of the reasons supporting the award, and be signed by the arbitrator. Any arbitration instituted under this section shall be conducted in the JAMS offices in the San Francisco, California metropolitan area. The prevailing party in arbitration shall have its costs, attorney’s fees and the costs of the arbitrator paid by the losing party. If the arbitrator determines that neither party has substantially prevailed in its claim against the other party, then each party shall pay its own attorney’s fees and shall equally share the cost of the arbitrator.
This agreement shall be in effect for the period stated in the Subscription Service Order unless other arrangements are made and agreed to by both parties.
This Agreement may be terminated immediately upon the material breach of this Agreement by either party, which breach is not cured to the reasonable satisfaction of the non-breaching party within thirty (30) days of written notice describing the breach. Upon termination of this Agreement for any reason, iCohere shall itemize the work performed to date and shall refund to You or receive from You an appropriate amount of money to cover the work performed up to the date of termination.
iCohere’s policy in regards to cancellations, refunds and credits is as follows:
The parties agree that all work product created by Your personnel shall be the exclusive intellectual property of You, and that all work product created by iCohere pursuant to this Agreement shall be a “work made for hire” within the meaning of U.S. copyright law and shall become the exclusive intellectual property of You. This work product ownership clause shall not extend to any proprietary or third-party software used by iCohere or to any enhancements or modifications to the iCohere platform. Upon termination of this Agreement for any reason, iCohere shall turn over to You all Your work product and other intellectual property and shall keep no copies of the same. The work product pursuant to this agreement does not include existing intellectual property developed by iCohere or the iCohere software platform.
The relationship of iCohere shall be that of an independent contractor, and nothing herein shall be construed to create an employee, partnership or joint venture relationship.
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT. LICENSOR’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE LICENSED SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF HOSTING FEES PAID TO LICENSOR HEREUNDER. LICENSEE ACKNOWLEDGES THAT THE HOSTING FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT LICENSOR WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.