1. Services; Agreement.
(a) Services. The services to be provided by Glowpoint to Customer (the “Services”) are described in the applicable service order(s) (each, an “Order”) and/or service schedule(s) (each, a “Schedule”).
(b) License Grant. If Services include Internet Services, then subject to compliance with the terms and conditions in this Agreement, Glowpoint grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable right to use Internet Services for web conferencing and collaboration and any software associated with such Internet Services for the limited purpose of conducting or attending meetings and presentations only. In addition to its obligations in Section 7, Customer shall not (i) rent, lease, grant a security interest in, or otherwise transfer any rights in or to the Services, (ii) resell or act as a service bureau for any of the Internet Services, (iii) reverse engineer, modify, decompile, disassemble, translate or otherwise attempt to derive source code from any part of the Internet Services or associated software, or (iv) remove, alter or obscure in any way any proprietary rights or notices (e.g., copyright notices) associated with Internet Services.
(c) Third Party Services. To the extent the Services include services provided by a third party (“Third Party Services”), Glowpoint makes no representations, warranties or promises with respect to any such Third Party Services and Glowpoint’s sole obligation with respect to such Third Party Services shall be to pass through any terms and conditions provided by such third party for pass through to Customer.
(d) Agreement. These Terms of Service, together with the applicable Orders and Schedules, constitute the agreement between Glowpoint and Customer (the “Agreement”). In the event of any irreconcilable conflict between the Terms of Service and any Order or Schedule, the Terms of Service shall prevail.
2. Pricing; Payment.
(a) Pricing. Customer shall pay Glowpoint the Service rates set forth in the applicable Order, as may be adjusted in accordance with Sections 2(a) and 3(a). The Service rates are established based on existing taxes and regulatory charges, and Glowpoint may increase Service rates solely to reflect changes in taxes or regulatory charges outside Glowpoint’s control upon thirty (30) days advance written notice to Customer.
(b) Payments. Invoices shall be paid by Customer within thirty (30) days from the date of invoice. Any amount not paid by the applicable due date shall be subject to an interest charge of the lesser of (i) 1.5% per month or (ii) maximum rate legally permitted. If any amount and accrued interest thereon are not paid within sixty (60) days following the applicable due date, then Customer shall pay any collection costs, including reasonable attorneys’ fees, and other expenses incurred by Glowpoint to collect such balance. Any charges not disputed within thirty (30) days from the date of invoice shall be deemed irrevocably accepted by Customer.
(c) Credit. Customer authorizes Glowpoint to conduct credit checks and verification of Customer prior to providing Services and from time to time during the Agreement. If Glowpoint determines, in its sole discretion, that Customer’s financial condition or performance requires additional security, Glowpoint may require advanced payment, in whole or in part, from Customer, may modify payment terms, may suspend Services or may cancel or re-schedule Orders.
(d) Taxes. Customer shall pay, and Glowpoint reserves the right to collect in arrears, all sales, use, excise or other taxes, fees or charges of any nature whatsoever, now or hereafter imposed or assessed on Glowpoint, by any federal, state, county or local government authority upon or with respect to the Services provided, except for taxes measured by Glowpoint’s income.
(e) Minimum Commitment. If Customer agrees to a minimum commitment for use of the Services (“Minimum Commitment”) and does not meet its Minimum Commitment in any applicable period, Glowpoint shall invoice Customer for, and Customer shall pay, the shortfall equal to the difference between the Minimum Commitment and the amounts actually paid by Customer for such period.
3. Term and Termination.
(a) Term. Unless otherwise agreed in writing in an Order and unless earlier terminated in accordance with this Agreement, the term for Services shall commence on the date identified as the Service commencement date (in the Order or otherwise) and shall continue for twelve (12) months thereafter (“Initial Term”), and shall renew thereafter for successive one (1) year periods until one party provides at least sixty (60) days prior written notice to the other party of such party’s intent to terminate at the end of the then-current annual period (each, a “Renewal Term”, and together with the Initial Term, the “Term”). At the commencement of any Renewal Term, the rates for Services provided pursuant to this Agreement shall automatically adjust to Glowpoint’s then-standard rates for the applicable Services.
(b) Termination for Cause. Notwithstanding Section 3(a), this Agreement may be terminated earlier as follows: (1) either party may terminate this Agreement if the other party breaches this Agreement in any material respect and fails to cure such breach within thirty (30) days after receipt of written notice of such breach from the non-breaching party, or (2) Glowpoint may terminate this Agreement and/or suspend the provision of Services immediately if (A) Customer has breached Section 7, (B) Glowpoint deems it reasonably necessary to prevent interruption or disruption to Glowpoint’s network, its business or other customers; and (C) any portion of an invoice remains unpaid when due (including without limitation any Minimum Commitment shortfall amount). Glowpoint shall not be liable to Customer or any third party should Glowpoint exercise its right to suspend or discontinue Services, in whole or in part, or terminate this Agreement in accordance with this Section 3(b).
(c) Effect of Termination. Except for a termination by Customer in accordance with Section 3(b), upon termination of this Agreement, all amounts that would be payable by Customer for the balance of the Term (as if the Agreement had not been terminated) shall become immediately due and payable by Customer without further notice, demand or presentation of any kind by Glowpoint. If Glowpoint has the right to terminate this Agreement, Glowpoint may suspend Services in lieu of termination of the Agreement. Termination of this Agreement shall not modify any rights or remedies available to a party. Sections 3(c), 4, 5, and 7-11 shall survive termination of this Agreement.
4. Confidentiality and Non-Use.
Each party acknowledges that, in the course of performing this Agreement, it may receive or observe business, financial, technical or other confidential or proprietary information of the other party or such other party’s suppliers, partners or customers (“Confidential Information”), which Confidential Information may include, but is not limited to, trade secrets, know-how, inventions, techniques, processes, computer programs and other technology, schematics, data, customer lists, financial information and sales and marketing plans. Without limiting the foregoing, this Agreement, the Services and the pricing terms referenced herein shall be considered Confidential Information of Glowpoint. Each receiving party and its employees and agents shall at all times, during the Term and thereafter, keep in trust and confidence all Confidential Information of the disclosing party and shall not use disclosing party’s Confidential Information other than in the course of performing this Agreement, nor shall receiving party or its employees and agents disclose any of such disclosing party’s Confidential Information to any person without the disclosing party’s prior written consent. Each receiving party agrees to immediately return to the disclosing party (or destroy upon disclosing party’s request) all Confidential Information in receiving party’s possession, custody or control in whatever form held (including all copies of all written documents relating to such Confidential Information) upon termination of this Agreement or at any time upon the request of the other party. The receiving party’s obligations above shall not apply to any portion of disclosing party’s Confidential Information that receiving party can demonstrate: (a) was in the public domain or entered the public domain not as result of breach of this Agreement by receiving party; (b) was in receiving party’s possession free of any obligation of confidence at the time it was communicated to the receiving party by disclosing party; or (c) was developed receiving party independently of and without reference to any of disclosing party’s Confidential Information.
5. Intellectual Property.
(a) Trademarks. Except solely for use of the Services, Customer has no right or license to use any trademarks or trade names of Glowpoint or its suppliers (the “Marks”). Any use of the Marks insures to Glowpoint’s benefit. Glowpoint may use Customer’s name in marketing or press releases, but any further use of Customer’s trademarks requires Customer’s prior written consent.
(b) Services IP. All intellectual property rights, proprietary rights and all modifications or developments thereof remain the sole and exclusive property of Glowpoint and/or its suppliers (“Services IP”). Except for the limited license in Section 1, this Agreement does not license or transfer any Services IP to Customer or any third party.
(c) Claims. Customer acknowledges that the Services include software, hardware, applications and Services IP that are the property of third parties. As such, in the event a third party sues Customer alleging that the Services IP infringes such third party’s intellectual property rights (“IP Claim”), (i) Customer may immediately discontinue use of the Services and terminate this Agreement, without penalty, and (ii) if and only if Glowpoint receives indemnification from the third party whose intellectual property gives rise to such Infringement Claim and is entitled to pass such indemnification through to Customer, Glowpoint will do so.
6. Customer Content.
Customer represents and warrants that it is the owner or licensee of any content that it uploads, records or otherwise transmits through the Services including, but not limited to, voice, photographs, caricatures, illustrations, Web links, designs, icons, articles, text, audio clips and video clips (collectively, “Customer Content”).
7. Customer Responsibilities; Acceptable Use Policy.
(a) Customer Responsibility. Customer is responsible for: (i) any and all activities that may occur under Customer’s account, whether such activities result from authorized or unauthorized users of Customer’s account, and (ii) for compliance with this Agreement, including without limitation, the Acceptable Use Policy, by all users of Customer’s account.
(b) Acceptable Use Policy. The following covenants constitute the “Acceptable Use Policy.” Customer and all user of Services under Customer’s account: (i) are solely responsible and liable for the accuracy, quality, integrity, and legality of any Customer Content (or other content or information) transmitted by Customer through the Services and all acts and omissions made through the Services; (ii) shall maintain the confidentiality and security of any Services’ access numbers, keys, user names and passcodes (“Customer Credentials”) and prevent unauthorized access to or use of the Services; (iii) shall not use any network or Services in violation of any applicable laws, regulations, rules and standards or in any manner that Glowpoint determines may be harmful or potentially harmful to its network, the Services or its customers, operations, facilities, reputation, goodwill or customer relationships or to any third party; (iv) shall promptly notify Glowpoint if Customer becomes aware of or reasonably suspects any security breach, including any loss, theft, or unauthorized disclosure or use of Customer Credentials; (vi) comply with all laws, regulations, rules and standards applicable to Customer or use of the Services; (vi) shall not reverse engineer, de-compile, hack, disable, interfere with, disassemble, copy, or disrupt the integrity or the performance of the Services, or make the Services available to anyone other than Customer’s authorized users or otherwise transfer or resell use of or access to the Services; (vii) shall not, and shall not use the Services to, upload, store or transmit any Customer Content that may be infringing, defamatory, trade libelous, unlawfully threatening, unlawfully harassing, profane, indecent, obscene, harmful to minors or child pornographic, tortious, unlawful or that contain a virus, Trojan horse, worm, time bombs, cancelbots, corrupted files or other programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information or property of another; (viii) shall not interfere with any third party’s use of the Services or spoof, phish or otherwise engage in any harassing, deceptive or fraudulent behavior; (ix) shall not access the Services in order to build a comparable or competitive product or service or copy any ideas, features, functions, or graphics of the Services; (x) shall not transmit any spam, advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or other unsolicited commercial communication; (xi) shall not attempt to gain unauthorized access to the Services or its related systems or networks; or (xii) shall not knowingly authorize, permit, or encourage any third party to do any of the above.
(c) Control; Monitoring. Customer acknowledges and agrees that Glowpoint has no control over the Customer Content (or other data or information) transmitted by Customer or its users through the Services. Customer hereby authorizes Glowpoint to monitor the Services (and Customer Content transmitted through the Service) for quality assurance, fraud detection, and compliance with the Acceptable Use Policy. Notwithstanding Section 4, Glowpoint may disclose information about Customer’s use of Services to satisfy any law, regulation, government agency request, court order, subpoena or other legal process.
(d) Export and Import; Governmental Agencies. Customer shall not export or re-export any aspect of the Services, without prior written approval from Glowpoint. Use of the Services and any associated software by the United States Government or other governmental agencies shall be as “restricted computer software” or “limited rights data” as set forth in “Rights in Data – General” at 48 CFR 52.227-14, or as “commercial computer software” or “commercial computer software documentation” under DFARS 252.227-7015, or under such other similar applicable terms and conditions to prevent the transfer of rights in and to the technology to the government other than under normal commercial licensing terms and conditions.
(e) Indemnification. Customer shall indemnify, defend and hold Glowpoint, its officers, directors, employees, affiliates and its suppliers harmless from any third-party claims, investigations or orders and associated losses, damages, liabilities, penalties, fines, expenses and costs (including without limitation reasonable attorneys’ and expert witness fees) arising out of: (i) Customer’s or its users’ use of the Services and violation of this Agreement; (ii) Customer’s or its users’ violation or alleged violation of any applicable laws, regulations, rules and standards with respect to the Services; or (iii) infringement of any intellectual property rights of any third party. The obligations contained in this paragraph shall survive any suspension of the Services or termination of the Agreement.
8. Disclaimer of Warranty; Limitation of Liability.
(a) All Services provided under this Agreement are provided on an “AS IS” and “AS AVAILABLE” basis. GLOWPOINT DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. GLOWPOINT MAKES NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES. ANY CUSTOMER CONTENT OR OTHER MATERIAL DOWNLOADED, UPLOADED, OBTAINED OR TRANSMITTED THROUGH THE USE OF THE SERVICES IS AT CUSTOMER’S OWN DISCRETION AND RISK. GLOWPOINT EXPRESSLY DISCLAIMS ANY RESPONSIBILITY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR CUSTOMER’S ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
(b) NEITHER GLOWPOINT, NOR ITS SUPPLIERS, SHALL IN ANY EVENT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT OR OTHER MONETARY LOSS; LOSS OR INTERRUPTION OF DATA, COMPUTER TIME OR VOICE TRANSMISSIONS; ALTERATION OR ERRONEOUS TRANSMISSION OF DATA; ACCURACY OF DATA; UNAUTHORIZED ACCESS TO OR USE OF VOICE OR DATA PROCESSED OR TRANSMITTED BY, TO OR THROUGH THE SERVICE; OR PROGRAM ERRORS) EVEN IF GLOWPOINT IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. GLOWPOINT SHALL NOT BE LIABLE FOR ANY FAILURE TO PERFORM, OR DELAY IN PERFORMANCE OF, ITS OBLIGATIONS UNDER THIS AGREEMENT CAUSED BY FORCE MAJEURE OR REASONS BEYOND GLOWPOINT’S REASONABLE CONTROL. IN NO EVENT SHALL GLOWPOINT’S TOTAL LIABILITY ARISING UNDER OR ASSOCIATED WITH THIS AGREEMENT, WHETHER SUCH THEORY OF LIABILITY IS BASED IN CONTRACT, TORT OR OTHERWISE, EXCEED AN AMOUNT EQUAL TO THE AMOUNTS PAID BY CUSTOMER TO GLOWPOINT FOR THE PARTICULAR SERVICE DURING THE THREE MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF EVENT, ACT OR OMISSION GIVING RISE TO CUSTOMER’S CLAIM.
To be effective, any notices or other communications contemplated hereunder must be in writing, and must be delivered by reputable overnight courier, certified mail or by personal delivery, and if to Customer, to the contact information in the applicable Order or Schedule, and if to Glowpoint, then to: Glowpoint, Inc., Attn: Legal Department, 1776 Lincoln Street, Suite 1300, Denver, CO 80203.
Captions and section headings are for convenience only, are not a part of this Agreement and may not be used in construing it. Should any provision of this Agreement be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining terms of this Agreement shall not be affected or impaired thereby, and the illegal, invalid or unenforceable provision will be deemed superseded by a valid enforceable provision that most closely matches the intent of the original provision and the allocation of risk. Any failure by any of the parties to comply with any of the obligations, agreements or conditions set forth in this Agreement may be waived by the other party, but any such waiver must be in writing signed by the waiving party and will not be deemed a waiver of any subsequent failures or of any other obligations, agreements or conditions contained herein. The parties’ relationship to each other shall be that of independent contractors. Neither party shall or shall be deemed to be an agent, employee, partner of, or joint venturer with the other party. Each party enters into this Agreement solely for its own benefit and purpose. Except for Glowpoint’ suppliers, this Agreement in no way confers any rights upon, or imposes obligations on either of the parties toward, any third party, including but not limited to any recipient of content transmitted through the Services. This Agreement shall be binding upon and inure to the benefit of the parties’ successors, legal representatives and authorized assigns. Glowpoint may assign its rights and obligations under this Agreement to an entity that either now or in the future controls, is controlled by or is under common control with Glowpoint or as a consequence of merger, acquisition, change of control or asset sale. Customer may not assign its rights and obligations under this Agreement without the written consent of Glowpoint, which shall not be unreasonably withheld. This Agreement shall be governed by, and construed and enforced in accordance with the laws of the State of Colorado applicable to agreements made and to be performed therein, without regard to any conflicts or choice of law rules and application of the United Nations Convention on the International Sale of Goods is hereby expressly excluded. The parties hereby submit to the exclusive jurisdiction of the state or federal courts located in Denver County, Colorado to resolve any disputes arising hereunder.
11. Entire Agreement; Counterparts.
This Agreement, including all associated Orders and Schedules, constitutes the final, complete and entire agreement between Glowpoint and Customer with respect to the subject matter hereof, and supersedes any previous proposals, negotiations, agreements or arrangements, whether verbal or written made between the parties with respect to such subject matter. If Customer seeks to use a purchase order in respect of Services, Customer hereby acknowledges and agrees that to the extent such purchase order contains any pre-printed or other terms and conditions, such terms and conditions, whether in addition to or in conflict with this Agreement, shall have no effect whatsoever and this Agreement shall govern the relationship between Glowpoint and Customer. Customer agrees that Glowpoint may modify its Acceptable Use Policy, which shall modify the Acceptable Use Policy contained in Section 7, provided (i) such modifications apply to all or substantially all of Glowpoint’s customers and (ii) Glowpoint has provided written notice of such modifications to Customer or posted the modified Acceptable Use Policy on Glowpoint’s web site. Except for such modifications, any other amendment to this Agreement is effective only by a writing signed by both parties. This Agreement (including any Order or Schedule) may be executed in counterparts, each of which will be deemed an original but all of which together will constitute one and the same document. Signatures may be exchanged by facsimile, .PDF-scanned or other electronic signature page and party agrees that it will be bound by its own facsimiled, .PDF-scanned or other electronic signature page and that it accepts the same of the other Party.