IMPORTANT PLEASE READ CAREFULLY: BY CLICKING “I AGREE” AND/OR BY
CREATING AN ACCOUNT AND/OR BY UTILIZING THE ICARE SOFTWARE SERVICE
AND/OR BY TAKING ANY OTHER ACTION INDICATING YOUR ACCEPTANCE OF THIS
AGREEMENT YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. IF
YOU ARE AN AGENT OR EMPLOYEE OF THE INTENDED SUBSCRIBER OR USER, YOU
INDIVIDUALLY REPRESENT AND WARRANT TO ORGAMATION THAT YOU ARE
AUTHORIZED TO BIND THAT PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE
TO ANY TERM OF THIS AGREEMENT, DO NOT USE THE SERVICES AND EXIT
IMMEDIATLEY.
This software as a service subscription agreement (this “
Agreement“)
governs your use of the System (as defined below) and any related
services provided by Orgamation Technologies, Inc., a Massachusetts
corporation (“
Orgamation“) to you, the “
Customer.”
- Orgamation is the owner of certain proprietary computer
software known as “iCare,” an enterprise management solution for
childcare centers, Montessori preschools, afterschool care,
enrichment programs, and camps.
- Orgamation provides and sells subscriptions for subscribers
to access and use the Software via www.icaresoftware.com,
or any
website notified to the subscribers from time to time.
- Customer desires to use the System for Customer’s internal
business purposes, including, specifically, use by owners and
providers of childcare services, their administrators and
teachers, and the parents of children enrolled in a Customer’s
childcare programs.
- Orgamation is willing to provide access to the System for
Customer’s internal business use pursuant to the terms and
conditions set forth herein.
- Orgamation and Customer acknowledge and agree that this
Agreement shall be effective and in force immediately upon the
date that Customer clicks “I Agree” (the “Effective
Date”).
NOW THEREFORE, in consideration for the mutual promises contained
herein and other good and valuable consideration, the parties agree
as follows:
-
Definitions
- “Components” means the
individual modules or
products that make up the System, including iCare, iCare
Next Gen, iCare Door, iCare Lobby, Parent Portal and
Teacher Portal. From time to time, new Components or
features will be introduced to the System, and those
Components or features may be restricted to specific
Editions.
- “Customer Data” means any of
Customer’s information,
documents, or electronic files that are provided to
Orgamation hereunder.
- “Documentation” means the online
documentation provided
at www.icaresoftware.com or through
the System.
- “Error” means any reproducible
material failure of the System to function in accordance
with its Documentation.
- “Maintenance Windows” means
collectively, standard
maintenance and emergency maintenance. Standard
maintenance windows will be published in advance on
Orgamation’s website at least 48 hours in advance of the
start of the standard maintenance window. Emergency
maintenance will occur as needed. Orgamation will make
reasonable efforts to publish emergency maintenance
windows on Orgamation’s website in advance of the
emergency maintenance window, but it is possible that
advanced notification of an emergency window may not
occur.
- “System” means the software
service for which
Customer has paid, including any Updates relating
thereto that may be provided hereunder or thereunder,
and any derivative works of the foregoing. The System is
made up of its individual Components.
- “Service Administrator” means
the person(s) that
Customer designate(s) to purchase on behalf of Customer
usage of the Service, authorize Users under the
Agreement, create accounts for additional Users and
otherwise administer Customer’s use of System.
- “Support” means the ongoing
services by Orgamation to support the System as defined
in Section 3 below.
- “Update” means any patch, bug
fix, release, version, modification or successor to the
System.
- “User” means a named individual
to whom Customer has
granted access to use the System on Customer’s behalf,
regardless of whether the User accesses the Software.
Users may be Customer’s employees, consultants,
contractors or agents and/or Customers clients
(generally parents or guardians of children enrolled in
a Customer childcare program).
- “Edition” means the named
configuration of the System
that has been licensed to the Customer. An Edition
defines what Components, features, limits, and/or usage
restrictions are placed on the System licensed to the
Customer. From time to time, new Components or features
will be introduced to the System, and those Components
or features may be restricted to specific Editions. New
named Editions may also be introduced from time to time.
- “Effective Date” is the date on
which the Customer’s
subscription to the licensed Edition of the System
starts, unless otherwise agreed, upon the date that
Customer clicks “I Agree.”
-
Use Rights
- Use Rights. During the term and subject
to the terms
of this Agreement, Orgamation hereby grants to Customer
a nonexclusive, nontransferable, nonsublicensable
right to permit Customer and Customer’s Users to use the
licensed Edition of the System for Customer’s business
purposes. The use right in the preceding sentence is
limited to use by the number of Users for which Customer
has paid. Said use rights are nontransferable, except
in the event of a voluntary transfer of substantially
all assets by Customer to a transferee that executes
Orgamation’s form of agreement agreeing to be bound by
all the terms and conditions of this Agreement. All
rights in and to the System not expressly granted herein
are reserved to Orgamation.
- License and Use Restrictions. Customer
shall not,
directly, indirectly, alone, or with another party, (i)
copy, disassemble, reverse engineer, or decompile the
System; (ii) modify, create derivative works based upon,
or translate the System; (iii) license, sell, rent,
lease, transfer, grant any rights in or otherwise
commercially exploit the System in any form to any other
party, nor shall Customer attempt to do any of the
foregoing or cause or permit any third party to do or
attempt to do any of the foregoing, except as expressly
permitted hereunder. You acknowledge and agree that
Orgamation shall own all right, title and interest in
and to all intellectual property rights (including all
derivatives or improvements thereof) in the System and
any suggestions, enhancement requests, feedback,
recommendations or other information provided by
Customer or any of Customer’s Users relating to the
System.
- System Administrator; User Access.
Customer shall
designate one or more System Administrators. System
Administrators shall be responsible for managing User
access, including adding and subtracting Users. The
System Administrator shall ensure that multiple Users do
not share a password or user name. Customer acknowledges
and agrees that it is prohibited from sharing passwords
and/or user names with unauthorized persons.
- Customer Data. Customer owns all right,
title and
interest in the Customer Data. Customer hereby grants to
Orgamation, a nonexclusive, nontransferable (except as
set forth in Section 9(d) below), nonsublicensable
right and license to use, copy, transmit, modify and
display the Customer Data solely for purposes of
Customer’s and its Users’ use of the System. Orgamation
shall not use the Customer Data except as necessary to
perform its obligations hereunder and/or to improve the
System, its utility, efficiency, effectiveness, and
outcomes.
- Customer Responsibilities. Customer
assumes all risk
arising from use of any sensitive information with the
System, including protected health information under
HIPAA, credit card numbers, financial account numbers,
or other similarly sensitive personal information, and
including the risk of any inadvertent disclosure or
unauthorized access thereto. Customer is responsible for
ensuring that Customer and Customer’s Users’ use of the
System is in compliance with all applicable laws and
governmental regulations and Customer acknowledges that
Customer assumes all risk arising from any such use that
is not compliant with applicable laws and regulations.
- Security. Customer is solely
responsible for
maintaining the security of all user names and passwords
granted to it, for the security of its information
systems used to access the System, and for its Users’
compliance with the terms of this Agreement. Orgamation
will act as though any electronic communications it
receives under Customer’s user names have been sent by
Customer. Customer will immediately notify Orgamation if
it becomes aware of any loss or theft or unauthorized
use of any of Customer’s passwords or user names.
Orgamation has the right at any time to terminate or
suspend access to any User or to Customer if Orgamation
believes in good faith that such termination or
suspension is necessary to preserve the security,
integrity, or accessibility of the System or
Orgamation’s network.
-
Support
- Services Generally. Subject to the
terms of this
agreement, Orgamation shall use commercially reasonable
efforts to make the System available to Customer.
- Updates. Orgamation shall deliver
Updates to the
System that apply to the Customer’s currently licensed
Edition at no additional charge. From time to time, new
Components or features may be released that are applied
selectively to different Editions of the System. Only
those Updates that apply to the Customer’s currently
licensed Edition will be delivered automatically to the
Customer at no additional charge.
- Support Options and Procedures.
Orgamation shall
provide general support to the Customer as set forth on
the Support Section of the System for the Customer’s
currently licensed Edition. Different Editions of the
System will be entitled to different levels of support.
In addition, Orgamation may offer premium support
options to Customer at an additional charge.
- Error Correction. Orgamation shall use
commercially
reasonable efforts to correct all Errors or to provide a
reasonable workaround as soon as is possible using its
reasonable efforts during Orgamation’s normal business
hours. Customer shall provide such access, information,
and support as Orgamation may reasonably require in the
process of resolving any Error. This paragraph is
Customer’s sole and exclusive remedy for Errors.
- Support Exclusions. Orgamation is not
obligated to
correct any Errors or provide any other support to the
extent such Errors or need for support was created in
whole or in part by:
- the acts, omissions, negligence or willful
misconduct of Customer or its Users, including
any unauthorized modifications of the System or
its operating environment;
- any failure or defect of Customer’s, a
User’s or a third party’s equipment, software,
facilities, third party applications, or
internet connectivity (or other causes outside
of Orgamation’s firewall);
- Customer’s use of the System other than in
accordance with the System’s Documentation; or
- a Force Majeure Event.
- Support Fees. Orgamation has the right
to bill
Customer at its standard services rates for any support
issues excluded by Section 3(e) above that have been
preapproved in writing (including in an email) by
Customer.
- Limitation of Remedies. Correction of
Errors as
defined in this Agreement are Customer’s sole remedies
for any Errors in the System.
-
Financial Terms
- Fees. In return for the products,
services and use
rights to the System provided by Orgamation to Customer
hereunder, Customer shall pay to Orgamation the
subscription fees in the amount set forth, and for the
duration that Customer has entered and agreed pursuant
to the sign-up page for this Agreement. All dollar
amounts refer to U.S. dollars.
- Payment Terms. Customer shall pay for
the products,
services and rights to use the System as selected by
Customer by automatic debit or charge to the payment
method entered by Customer in its account settings.
Customer may access its account at any time in order to
change or update its selected products and/or services
plan(s) and/or its preferred payment method. If customer
requires active invoicing, such an arrangement may be
agreed with Orgamation on a case-by-case basis. If
Customer is delinquent in payment of any amount due
hereunder, Orgamation may, in addition to any other
remedies it may have, including termination, suspend
access to the System and/or provision of all services to
Customer. Customer agrees to pay interest on delinquent
amounts at the rate of 1½% per month (or, if lower, the
maximum amount permitted by law) that a payment is
overdue.
- Taxes. Customer shall pay or shall
reimburse Orgamation for all
sales taxes and other taxes, however characterized by
the taxing authority, based upon the license fees or
other charges under this Agreement or otherwise incurred
on account of Customer’s use of the System, except for
any taxes based upon Orgamation’s net income or gross
receipts or for any franchise or excise taxes owed by
Orgamation. If Customer is a tax-exempt organization,
then, upon Orgamation’s receipt of proof of such status,
then Orgamation shall not charge Customer for any taxes
from which Customer is exempt.
- Pricing Changes. Customers selecting
annual pricing will receive notice of changes in pricing
at least 45
days before each anniversary of the Effective Date.
Customers selecting monthly pricing will receive notice
of changes in pricing at least 45 days before the month
in which the change in pricing will take effect.
- Autopay Terms. If Customer has elected
the automatic
billing and payment option upon sign-up, Customer shall
provide a valid credit card, ACH payment system
information, bank account information authorized for
automatic bill paying, or other acceptable method of
payment to Orgamation and shall take all necessary steps
to authorize automatic payment of the subscription fees.
By agreeing to this Agreement, Client hereby authorizes
Orgamation to automatically charge said method of
payment for all subscription periods during the term of
this Agreement. If, for any reason, automatic payment
shall be denied, then Customer shall pay the applicable
subscription fee together with a $50.00 late fee, to
Orgamation within five (5) days of notice.
-
Term and Termination
- Term. The term of this Agreement
commences on the Effective Date hereof.
- Minimum length of contract: The contract is
a minimum of one year, which will renew
automatically for another year at the
anniversary of the running year.
Customer may discontinue the use the
Software upon thirty- (30) days prior
written notice to Orgamation. Such
discontinuation will apply to all the terms
excepting for the purpose of usage and the
payment terms.
Upon discontinuance, Customer shall not be
entitled to a refund or credit with regard
to any fees or charges already paid or
accrued. If Customer is paying on a monthly
basis, the payments will continue until the
end of the term; discontinuance will not
stop the payment liability.
- Longer term contracts: If Customer signs up
for longer than one-year, whether prepaid or
on a payment plan, then within that period
the subscription cannot be cancelled.
Whichever term the Customer has selected, at
the end of that term, the contract will
automatically renew for additional term of
the same length, in accordance to the
initial contract, unless either party gives
the other party written notice of its
intention not to renew at least 30 days in
advance of the then current term.
- Termination for Cause.
- Orgamation may terminate this Agreement if
Customer fails to pay Orgamation any delinquent
amounts owed to Orgamation hereunder within 10
days of written notice by Orgamation specifying
the amounts owed;
- Orgamation may terminate this Agreement
immediately with written notice upon any breach
by Customer of Section 2(b) and/or Section 2(e)
above;
- either party may terminate this Agreement
immediately with written notice upon any breach
of any confidentiality obligations owed to such
party by the other party;
- either party may terminate this Agreement
if a party has committed any other material
breach of its obligations under this Agreement
and has failed to cure such breach within 30
days of written notice by the nonbreaching
party specifying in reasonable detail the nature
of the breach (or, if such breach is not
reasonably curable within 30 days, has failed to
begin and continue to work diligently and in
good faith to cure such breach); or
- either party may terminate this Agreement
immediately with written notice upon the
institution of bankruptcy or state law
insolvency proceedings against the other party,
if such proceedings are not dismissed within 30
days of commencement.
- Obligations Upon Termination. Upon
termination of this Agreement:
- if Customer has paid all amounts owed to
Orgamation hereunder, Orgamation shall, upon
written request received within 30 days of
termination, provide Customer access to the
System for a period of 24 hours for the limited
purpose of exporting Customer Data;
- Orgamation shall immediately terminate access to
the System by Customer; and
- Customer shall immediately pay Orgamation
any amounts payable or accrued but not yet
payable to Orgamation, including any deferred
payments or payments originally to be made over
time.
CUSTOMER ACKNOWLEDGES THAT IF CUSTOMER IS USING ANY
EDITION OF THE SYSTEM, UPON TERMINATION OF THIS
AGREEMENT, ORGAMATION IS UNDER NO OBLIGATION TO
EITHER MAINTAIN CUSTOMER DATA OR TO PROVIDE CUSTOMER
WITH ACCESS TO OR A COPY OF THE CUSTOMER DATA. DATA
INCLUDES ANYTHING ENTERED INCLUDING PHOTOS AND
FILES.
-
Confidentiality
- Confidential Information.”Confidential
Information“
means any and all tangible and intangible information
(whether written or otherwise recorded or oral) of a
party that: (A) derives independent economic value,
actual or potential, from not being generally known to,
and not being readily ascertainable by proper means by,
other persons who can obtain economic value from its
disclosure or use and is the subject of efforts that are
reasonable under the circumstances to maintain its
secrecy; or (B) the disclosing party designates as
confidential or, given the nature of the information or
the circumstances surrounding its disclosure, reasonably
should be considered as confidential. Confidential
Information includes, without limitation: (i) nonpublic
information relating to a party’s technology, customers,
business plans, promotional and marketing activities,
finances and other business affairs; (ii) third-party
information that Customer or Orgamation is obligated to
keep confidential; (iii) the material terms and
conditions of this Agreement; and (iv) any nonpublic
information relating to any activities conducted
hereunder.
- Exclusions. Notwithstanding the above,
the term
“Confidential Information” does not include any
information that is either: readily discernible from
publicly available products or literature; or approved
for disclosure by prior written permission of an
executive officer of the disclosing party.
- Use of Confidential Information. Each
party shall
only use Confidential Information furnished to it
hereunder in furtherance of the activities contemplated
by this Agreement, and, except as authorized in this
Agreement, it shall not disclose the Confidential
Information to any other persons without the disclosing
party’s express written authorization.
- Required Disclosures. A receiving party
may disclose
Confidential Information of the disclosing party as
required to comply with binding orders of governmental
entities that have jurisdiction over it or as otherwise
required by law, provided that the receiving party (i)
gives the disclosing party reasonable written notice to
allow it to seek a protective order or other appropriate
remedy (except to the extent compliance with the
foregoing would cause the receiving party to violate a
court order or other legal requirement), (ii) discloses
only such information as is required by the governmental
entity or otherwise required by law, and (iii) and uses
its best efforts to obtain confidential treatment for
any Confidential Information so disclosed.
- Return of Information. Except as set
forth otherwise
in the specific provisions concerning Customer Data set
forth in Section 5(c) above, if a disclosing party so
requests at any time, the receiving party shall return
promptly all copies, extracts, or other reproductions in
whole or in part of the Confidential Information in its
possession.
- Survival. The parties hereto covenant
and agree that
this Section 6 will survive the expiration, termination,
or cancellation of this Agreement for a period of 3
years, except for Confidential Information constituting
a trade secret, with respect to which this Section will
survive the expiration, termination, or cancellation of
this Agreement for so long as such Confidential
Information remains a trade secret.
-
Indemnification
- Indemnification by Orgamation. FOR A
CUSTOMER USING ONLY
A FREE EDITION OF THE SYSTEM, THIS SECTION 7(A) DOES NOT
APPLY AND CUSTOMER ACKNOWLEDGES THAT CUSTOMER IS NOT
ENTITLED TO ANY INDEMNIFICATION FROM ORGAMATION. For
Customers using an Edition of the System on a monthly or
annual payment plan, Orgamation shall defend, indemnify
and hold harmless Customer from and against all damages,
liabilities, losses and expenses, including reasonable
attorneys’ fees and expenses, resulting from any
third-party claim, suit or proceeding that arises from
Customer and/or the Customer’s Users’ use of the System
in accordance with this Agreement that, to Orgamation’s
knowledge, infringes or misappropriates any U.S. trade
secret, trademark, or copyright. Orgamation will have no
indemnity obligation to Customer if the alleged
infringement or misappropriation is based on (i) any
combination, operation, or use of the System with
products, services, information, materials,
technologies, business methods or processes not
furnished by Orgamation to the extent the infringement
or misappropriation is based on such combination,
operations or use; (ii) any modification (other than by
Orgamation) to the System to the extent the infringement
or misappropriation is based on such modification; or
(iii) the Customer’s failure to promptly install any
Update that is provided by Orgamation that would have
eliminated the actual or alleged infringement or
misappropriation. Indemnification pursuant to this
Section is Customer’s sole remedy for any third-party
claim against Customer in the nature of intellectual
property infringement or misappropriation.
- Indemnification by Customer. Customer
shall defend,
indemnify and hold harmless Orgamation, its officers,
directors, employees and agents from and against all
damages, liabilities, losses and expenses, including
reasonable attorneys’ fees and expenses, resulting from
any thirdparty claim, suit or proceeding that arises
from Customer’s breach of this Agreement and/or the
Customer’s and/or the Customer’s Users’ use of the
System (other than to the extent indemnified by
Orgamation under Section 7(a) or, in the case of a
Customer using only a free Edition of the System, other
than to the extent the third-party claim would have been
subject to indemnification by Orgamation under Section
7(a) if Section 7(a) applied to Customer).
- Indemnification Process. The
indemnified party shall
promptly notify the indemnifying party in writing of any
third-party claim, stating the nature and basis of the
third-party claim, to the extent known. The indemnifying
party shall have sole control over the defense and
settlement of any third-party claim, provided that,
within fifteen (15) days after receipt of the above
described notice, the indemnifying party notifies the
Indemnified Party of its election to so assume full
control. The foregoing notwithstanding, the indemnified
party shall be entitled to participate in the defense of
such third party claim and to employ counsel at its own
expense to assist in the handling of such claim, except
that the indemnified party’s legal expenses in
exercising this right shall be deemed legal expenses
subject to indemnification hereunder to the extent that
(x) the indemnifying party fails or refuses to assume
control over the defense of the third party claim within
the time period set forth above; (y) the indemnified
party deems it reasonably necessary to file an answer or
take similar action to prevent the entry of a default
judgment, temporary restraining order, or preliminary
injunction against it; or (z) representation of both
parties by the same counsel would, in the opinion of
that counsel, constitute a conflict of interest. The
indemnifying party shall not settle any such third party
claim without the written consent of the indemnified
party, except for a complete settlement requiring only
the payment of money damages to be paid by the
indemnifying party.
-
Service Level Commitments, Disclaimers and Limitations
- Service Level Commitments; Credits.
Orgamation guarantees that the System and all Services
provided on
the System will be accessible to Customer and its
authorized Users 99% of the time in any given calendar
month, excluding Maintenance Windows. Notwithstanding
the foregoing, Orgamation does not guarantee network
availability between Customer and the Orgamation hosting
servers, as such availability can involve numerous third
parties and is beyond the control of Orgamation.
Orgamation will not be liable for nor provide any
service credits hereunder for any downtime caused in
whole or part by a third-party data center provider nor
for any downtime that Customer experiences as a result
of Customer’s or Customer’s Users’ own network
connectivity issues. If Customer experiences a System or
Service outage and is unable to access the System or any
Service, Customer must immediately contact Orgamation’s
help desk, providing any/all necessary information that
may assist Orgamation in determining the cause of the
outage. Orgamation will determine in good faith whether
the outage was within Orgamation’s reasonable control.
If Orgamation determines that a timely reported outage
was attributable to Orgamation, then Orgamation will
credit Customer 1day of Service fees for every 8 hours
of downtime Customer experienced, up to a maximum of
half of that month’s Service fees. This shall be
Customer’s sole remedy, and Orgamation’s sole liability,
for Orgamation’s failure to provide the guaranteed
availability set forth in this Section 8(a).
- Disclaimer of Warranties. EXCEPT FOR
THE LIMITED
SERVICE LEVEL COMMITMENTS SET FORTH IN SECTION 8(A),
ORGAMATION MAKES NO, AND HEREBY DISCLAIMS ANY,
REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR
IMPLIED, WITH RESPECT TO THE SYSTEM, THE SERVICES
PROVIDED OR THE AVAILABILITY, FUNCTIONALITY, PERFORMANCE
OR RESULTS OF USE OF THE SYSTEM. WITHOUT LIMITING THE
FOREGOING, EXCEPT AS SPECIFICALLY SET FORTH IN THE
LIMITED SERVICE LEVEL COMMITMENTS IN SECTION 8(A),
ORGAMATION DISCLAIMS ANY WARRANTY THAT THE SYSTEM, THE
SERVICES PROVIDED BY ORGAMATION, OR THE OPERATION OF THE
SYSTEM ARE OR WILL BE ACCURATE, ERRORFREE OR
UNINTERRUPTED. ORGAMATION MAKES NO, AND HEREBY DISCLAIMS
ANY, IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION,
ANY IMPLIED WARRANTY OF NONINFRINGEMENT,
MERCHANTABILITY, OF FITNESS FOR ANY PARTICULAR PURPOSE
OR ARISING BY USAGE OF TRADE, COURSE OF DEALING OR
COURSE OF PERFORMANCE.
- Disclaimer of Consequential Damages.
ORGAMATION HAS
NO LIABILITY WITH RESPECT TO THE SYSTEM, SERVICES, OR
ITS OTHER OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE
FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR
PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF
PROFITS AND THE COST OF COVER) EVEN IF ORGAMATION HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Limitations of Remedies and Liability.
ORGAMATION’S
TOTAL AGGREGATE LIABILITY TO CUSTOMER FOR ANY REASON AND
UPON ANY CAUSE OF ACTION INCLUDING WITHOUT LIMITATION,
BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY,
MISREPRESENTATIONS, AND OTHER TORTS, IS LIMITED TO (1)
IN THE CASE OF CUSTOMER ON A MONTHLY PAYMENT PLAN, ALL
FEES PAID TO ORGAMATION BY THE CUSTOMER IN RESPECT OF
USER LICENSES FOR THE SYSTEM DURING THE THREE MONTHS
IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE
LIABILITY; (2) IN THE CASE OF CUSTOMER ON AN ANNUAL
PAYMENT PLAN, ALL FEES PAID TO ORGAMATION BY THE
CUSTOMER IN RESPECT OF USER LICENSES FOR THE SYSTEM
DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE
EVENTS GIVING RISE TO THE LIABILITY; OR (3) IN THE CASE
OF CUSTOMER USING ONLY A FREE EDITION OF THE SYSTEM, ONE
HUNDRED UNITED STATES DOLLARS ($100.00).
-
General
- Notices. Notices regarding this
Agreement to
Orgamation shall be in writing and sent by first class
mail or overnight courier at the address provided at
that time on Orgamation’s website or within the System.
Orgamation may give notice by means of posting notice on
the System, by electronic mail to Customer’s email
address on record with Orgamation, or by written
communication sent by first class mail or overnight
courier to Customer’s address on record in Orgamation’s
account information. All notices shall be deemed to have
been given three days after mailing or posting (if sent
by first class mail), upon delivery in the case of
courier (as evidenced in the courier’s delivery
records), or 12 hours after either sending by email or
posting on the System.
- Promotional Materials. Either party may
include
statements, and may use the other party’s name and
logos, in its website, commercial advertisements and
promotional materials for the sole and limited purpose
of indicating that Customer is a user of the System.
- Force Majeure. “Force Majeure Event”
means any act
or event that (a) prevents a party (the “Nonperforming
Party”) from performing its obligations or satisfying a
condition to the other party’s (the “Performing Party”)
obligations under this Agreement, (b) is beyond the
reasonable control of and not the fault of the
Nonperforming Party, and (c) the Nonperforming Party has
not, through commercially reasonable efforts, been able
to avoid or overcome. “Force Majeure Event” does not
include economic hardship, changes in market conditions,
and insufficiency of funds. If a Force Majeure Event
occurs, the Nonperforming Party is excused from the
performance thereby prevented and from satisfying any
conditions precedent to the other party’s performance
that cannot be satisfied, in each case to the extent
limited or prevented by the Force Majeure Event. When
the Nonperforming Party is able to resume its
performance, or satisfy the conditions precedent to the
other party’s obligations, the Nonperforming Party shall
immediately resume performance under this Agreement. The
relief offered by this paragraph is the exclusive remedy
available to the Performing Party with respect to a
Force Majeure Event.
- Assignment. Orgamation may assign any
of its rights
or obligations under this Agreement at any time;
provided, however, that Orgamation shall not assign the
rights granted to Customer Data in Section 2(d) except
in connection with the sale (whether by merger, asset
sale, equity sale or otherwise) of (i) Orgamation, (ii)
the System or (iii) a portion of Orgamation or the
System that would reasonably require the acquirer of
said portion to be assigned such rights to the Customer
Data. Customer shall not assign any of its rights under
this Agreement, except with the prior written approval
of Orgamation, which shall not be unreasonably withheld.
The preceding sentence applies to all assignments of
rights, except in the event of a voluntary transfer of
substantially all assets by Customer to a transferee
which executes Orgamation’s form of agreement agreeing
to be bound by all the terms and conditions of this
Agreement. Any change of control transaction is deemed
an assignment hereunder. Any purported assignment of
rights in violation of this Section is void.
- Governing Law; Venue. The laws of the
State of
Massachusetts (without giving effect to its conflict of
laws principles) govern all matters arising out of or
relating to this Agreement and the transactions it
contemplates, including, without limitation, its
interpretation, construction, performance, and
enforcement. Each party waives, to the fullest extent
permitted by law, any objection that it may now or later
have to (i) the laying of venue of any legal action or
arbitration proceeding arising out of or relating to
this Agreement brought in Boston, Massachusetts; and
(ii) any claim that any action or proceeding brought has
been brought in an inconvenient forum.
- Disputes; Related Costs.
- In the event of any dispute arising out of, or
relating to this Agreement, Orgamation and
Customer shall seek to settle the dispute first
via direct discussions. If a dispute cannot be
settled amicably through direct discussions
within 30 days from commencement of such
discussions, the parties agree to first endeavor
to settle the dispute via voluntary non-binding
mediation. A mediator will be selected by
voluntary agreement of both parties, or in the
event both parties cannot agree on a mediator, a
mediator will be selected in accordance with the
rules of the American Arbitration Association.
Each party shall bear its own costs and expenses
and an equal share of the administrative and
other fees associated with such mediation.
- Any dispute that remains unresolved
following mediation may be settled by binding
arbitration before a single arbitrator
administered by the American Arbitration
Association in Boston, Massachusetts accordance
with its Commercial Arbitration Rules, at the
election of either party. Judgment upon the
award rendered by the arbitrator(s) may be
entered in any court having jurisdiction
thereof. The arbitrator(s) shall award to the
prevailing party, as determined by the
arbitrator(s), all its costs and fees, including
all reasonable pre-award expenses of the
arbitration, including the arbitrators’ fees,
out-of-pocket expenses, court costs, witness
fees, and reasonable attorneys’ fees. In
rendering the award, the arbitrator(s) shall
determine the rights and obligations of the
parties according to the substantive and
procedural laws of the Commonwealth of
Massachusetts.
- The forgoing shall not apply to a dispute
or controversy involving either party’s
Confidential Information or intellectual
property. In the event of such a dispute or
controversy, either may immediately seek any
legal and/or equitable remedies it deems
necessary. Any mediation or arbitration or
litigation proceeding relating to or arising out
of this Agreement shall be held in Boston,
Massachusetts.
- Entire Agreement. This Agreement
constitutes
the final agreement between the parties. It is
the complete and exclusive expression of the
parties’ agreement on the matters contained in
this Agreement. All prior and contemporaneous
negotiations and agreements between the parties
on the matters contained in this Agreement are
expressly merged into and superseded by this
Agreement. The provisions of this Agreement
cannot be explained, supplemented or qualified
through evidence of trade usage or a prior
course of dealings. In entering into this
Agreement, neither party has relied upon any
statement, representation, warranty or agreement
of any other party except for those expressly
contained in this Agreement. There are no
conditions precedent to the effectiveness of
this Agreement, other than any that are
expressly stated in this Agreement.
- Headings. The paragraph headings in
this Agreement
are for convenience only and they form no part of the
Agreement and shall not affect the interpretation
thereof.
- Waiver. The delay or failure of either
party to
exercise any right under this Agreement or to take
action against the other party in the event of any
breach of this Agreement shall constitute a waiver of
such right, or any other right, or of such breach, or
any future breaches, under this Agreement.
- Amendments. The parties can amend this
Agreement
only by a written agreement of the parties that
identifies itself as an amendment to this Agreement.
- No Construction Against the Drafter. In
the
interpretation of this Agreement, the ‘contra
proferentem’ rule of contract construction shall not
apply, this Agreement being the product of negotiations
between commercially sophisticated parties, and
therefore shall not be interpreted in favor of or
against any party by the sole reason of the extent to
which such party or its professional advisors
participated or did not participate in the drafting of
this Agreement.
- Survival of Certain Provisions. Each party hereto
covenants and agrees that the provisions in Sections 1,
2(b), 5(c), 6, 7, 8, and 9 in addition to any other
provision that, by its terms, is intended to survive the
expiration or termination of this Agreement, shall
survive the expiration or termination of this Agreement.
