JournalEngine™ Software is a wholly owned subsidiary of FOM Inc., herein referred to as “FOM“.
- Scope: In accordance with and subject to the provisions of this Agreement, FOM agrees to license access to and use of its JournalEngine™ software to the Licensee, and in return, the Licensee agrees to pay FOM the fees specified in this Agreement.
- Definition: “Product” means the JournalEngine™ software application developed by FOM, in executable format only. The JournalEngine™ software application is a web-based journaling and social networking tool that is designed to enhance a coaching process through coach-client on-line communication, automated assignment delivery, content management and delivery, and social networking. Licensee shall be granted all Product upgrades, equal to their fee-based level of Product, for the life of the Product at no extra cost as long as their account is in good standing.
- License: FOM hereby grants to the Licensee a non-exclusive, personal, non-transferable license, without any right to sub-license, during the Term: (a) to access the Product hosted on FOM’s servers; and (b) to use the Product for the purposes for which it is intended, specifically, but not limited to, its definition as set out in 2. Definition.
- Hosting Service: FOM shall host the Product on its servers or on third party servers arranged for by FOM (collectively “FOM’s servers“). FOM shall take reasonable commercial steps to make access to the Product available to the Licensee and its authorized users 7 days a week, 24 hours a day, subject to routine maintenance.
- Customer Service: FOM shall provide technical customer support Monday – Friday, 9am – 5pm EST, excluding holidays. FOM shall take reasonable measures to address Licensee inquiries in a timely fashion.
- Fees and Fair Usage: A Monthly License Fee shall be paid by Licensee to FOM in accordance with the plan purchased, and add-on modules selected. Such License Fee will be charged via recurring payments on a month-to-month basis. An increase in Members or Staff above the limits set out in the plan shall result in a change to the Licensee’s Monthly License Fee in accordance with next level of plan pricing at that time. Licensee shall be provided a link with which to create a recurring payment process via Paypal subsequent to the 14 day Trial Period, said charge to occur on the monthly anniversary of date of Registration. Failure to register the License and/or create the recurring payment procedure post-trial can result in the License being revoked or suspended.
(a) The Licensee is held responsible to advise FOM promptly of any change of information regarding their account;
(b) All fees shall be charged by FOM to Licensee and paid by the Licensee to FOM in U.S. Dollars.
(c) FOM shall add to the fees and the Licensee shall pay, all applicable taxes, if any
(d) Note to Canadian clients: HST (13%) and/or other applicable taxes will be incorporated into your monthly License Fee
- Intellectual Property. Licensee acknowledges that the Product is proprietary to FOM and that FOM retains all right, title, and interest in and to the Product, including without limitation all rights to copyright, patent and other proprietary rights. FOM acknowledges that all Licensee data and content is proprietary to Licensee and cannot be used by FOM without expressed written consent from Licensee.
- Restrictions on Use: Any rights not expressly granted to the Licensee are reserved by FOM. The Licensee agrees not to modify, adapt, change, reverse engineer, reverse compile, or otherwise disassemble the Product, or attempt to do so, or permit any third party to do so or to attempt to do so. The Licensee also agrees not to use any element of the Product in any way whatsoever other than as part of the complete Product, unless agreed to in writing by FOM, Inc..
- User Access: (a) The Licensee shall be fully responsible for the issuance, control and maintenance of secrecy over access IDs and other authentication devices intended for itself and its users. The Licensee shall indemnify FOM from and against any and all claims resulting from the use or misuse of any access ID or other such authentication device. (b) The Licensee shall not allow users to include any objectionable content or introduce viruses to the service, to the best of its ability, and shall institute such security procedures and safeguards as FOM deems necessary to prevent the posting, uploading or inclusion of any objectionable content or viruses to the service. The Licensee acknowledges and agrees that FOM does not monitor and exercises no control over any user content posted on or through the service. (c) The Licensee shall have access to only their database of end user clients and shall be restricted access to any end user client or end user client information that is using the software as a result of FOM, other licensing users, or any other means.
- End User Security: FOM will maintain the integrity of all end user information in accordance with all laws under the Province of Ontario, Canada, and the state of Texas, USA (the physical location of FOM servers). FOM will not sell any end user information to any third party under any circumstance. All end user information will be kept within the database of the licensee and will not be used by FOM or exposed to any other licensing user unless such information is permitted, by the end user and in writing, to be shared.
- Disclaimer of Warranties: (a) FOM MAKES THE PRODUCT AVAILABLE TO THE LICENSEE ON AN “AS IS” BASIS. DESPITE ANY OTHER PROVISION OF THIS AGREEMENT, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS IN RELATION TO THE PRODUCT OR ANY SERVICE REFERRED TO IN THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR THAT THE PRODUCT OR THE SERVICES WILL MEET THE LICENSEE’S NEEDS, WILL BE AVAILABLE FOR USE AT ANY PARTICULAR TIME OR WILL BE ERROR-FREE. (b) The Licensee acknowledges and agrees that despite security measures implemented to secure the service and user data, such measures may not prevent unauthorized electronic intruders from accessing the servers. FOM shall not be liable to the Licensee and hereby disclaims responsibility with respect to any action, destructive or otherwise, by any unauthorized electronic intruder or as a result of any electronic intrusion.
- Limitations of Liability: (a) In no event shall either party be liable to the other party for any indirect, special, incidental or consequential damages arising from this Agreement or the use or inability to use the Product by Licensee or any third party. (b) IN RESPECT OF ANY CLAIM, DEMAND OR ACTION BY LICENSEE AGAINST FOM OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, INCLUDING A BREACH BY FOM OF ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT (WHETHER OR NOT A FUNDAMENTAL BREACH), LICENSEE’S SOLE AND EXCLUSIVE REMEDY SHALL BE TO RECEIVE FROM FOM PAYMENT FOR ACTUAL AND DIRECT DAMAGES TO A MAXIMUM AGGREGATE AMOUNT EQUAL TO THE FEES PAID BY LICENSEE TO FOM PURSUANT TO THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE CLAIM, DEMAND OR ACTION.
- Indemnity: The Licensee shall indemnify, defend and hold FOM harmless from any and all claims, demands and actions by third parties for damages, losses, liabilities, costs and expenses (including reasonable fees of attorneys and other professionals) arising out of or in connection with the use of the Product and the services under this Agreement.
- Term. The effective date of this Agreement shall be the date of Licensee’s execution and acceptance of the Terms (the “Effective Date“). The Initial Term of the Agreement will be one month and two weeks (14 days) from the Effective Date, and the Agreement shall automatically renew for additional month-to-month or one-year renewal terms, unless terminated by either party by notice in writing to the other party at least 15 days before the end of the Initial Term or any renewal term. The Initial Term and each renewal term are referred to collectively as the “Term“. The word “Term” serves as the time period referenced in certain points in this document.
- Termination of the Agreement. (a) Despite the provisions of section 14, either Party (the “Terminating Party”) may terminate this Agreement without prejudice to enforcement of any other legal right or remedy, immediately upon giving written notice of such termination to the other Party (the “Second Party”) if the Second Party: (i) infringes the intellectual property rights of the Terminating Party; (ii) does not pay any fee when due and owing; (iii) breaches any material provision of this Agreement other than an obligation to pay fees and such breach has not been cured and has continued for a period of at least thirty (30) days after delivery of a written notice by the Terminating Party to the Second Party to correct such breach and such notice includes reasonable detail for the Second Party to identify the breach; (iv) becomes or is adjudicated insolvent or bankrupt or ceases to carry on business in the normal course; or (v) decides that the relationship is no longer in their best interests. (b) Upon termination of this Agreement: (i) the Licensee shall download all of its users’ data no later than 5 days after the effective date of termination and FOM shall no longer be responsible to retain any such data; (ii) the Licensee shall continue to be liable to pay and shall pay on time all fees accruing due prior to the effective date of termination; (iii) the following provisions shall survive: sections 7, 8, 9(a), 11, 12, 13, 15(b), and 17 and any other provisions necessary to their interpretation.
- Suspension of Site. FOM Inc reserves the right to suspend Licensee’s site under the following conditions: (a) at Licensee’s request, said request to be delivered in writing to FOM Inc., no later than 5 days prior to suspension; (b) under terms of section 15, Termination of the Agreement; and/or (c) at FOM Inc.’s sole discretion, the terms of which are to be provided in writing to the Licensee no later than 5 days prior to suspension. It is understood that suspension of a site also temporarily suspends Licensee’s financial obligations as set out in section 6, Fees and Fair Usage. Suspensions will be re-evaluated after no later than 30 days, resulting either in a resumption of Licensee privileges or Termination of this Agreement. It is understood that re-instatement of a Suspended site may be subject to administrative charges, such charges to be added in addition to Licensee’s first resumed monthly payment, at the discretion of FOM.
- Confidentiality. Neither party shall disclose the terms of this Agreement during the Term and for twenty-four (24) months following the termination of this Agreement, except to those of its directors, officers, employees, representatives and professional advisors who have a need to know the terms in order to perform this Agreement or advise the party in respect of the Agreement.
- This Agreement, including its Schedules (if applicable), constitutes the entire Agreement between the parties with respect to its subject matter and supersedes all prior agreements, understandings and representations related to these matters, whether written or oral.
- This Agreement may not be assigned by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. Despite the preceding sentence, either party may assign this Agreement on notice to and without the need for the consent of the other party, to a purchaser of all or substantially all of the assets of the assigning party’s business, or to a third party with which the assigning party is merging or amalgamating.
- The parties are independent contractors and no other relationship is intended. Nothing in this Agreement is to be construed as creating the relationship of joint ventures, partners, employer and employee, franchisor and franchisee, master and servant, or principal and agent.
- If any provision or part of any provision in this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable for any reason, it shall be severed from the Agreement without affecting the validity of the balance of the Agreement.
- The terms of this Agreement may only be amended in writing, dated and signed by both parties.
- The capitalized headings in this Agreement are only for convenience of reference and do not form part of or affect the interpretation of this Agreement. Words importing the singular number include the plural and vice versa and words importing any gender include the masculine, feminine and neuter genders.
- This Agreement binds and benefits the parties and their respective heirs, executors, administrators, personal representatives, successors, and permitted assigns.
- This Agreement shall be governed by the laws of the Province of Ontario, Canada. The parties irrevocably agree that any legal proceeding in connection with this Agreement or the transactions contemplated by this Agreement shall be brought and held exclusively in the courts located in Toronto, Ontario.
- Acceptance of these Terms and Conditions constitutes authorization by Licensee for payment to FOM Inc for the charges as outlined in this Agreement for the Services indicated.