IMPORTANT- READ CAREFULLY: ONSTREAM MEDIA CORPORATION, ONSTREAM CONFERENCING, INC. ONSTREAM CONFERENCING CORPORATION AND INFINITE CONFERENCING, INC.,, EACH SEPARATE COMPANIES UNDER THE COMMON OWNERSHIP OF ONSTREAM MEDIA CORPORATION, AND AS A GROUP (HEREINAFTER COLLECTIVELY “ONSTREAM”) PROVIDES INTERNET AND AUDIO TELECONFERENCING AND WEBINAR BASED SERVICES. BY ACCESSING OR USING OUR SERVICES, WHETHER AS A PAID CUSTOMER OR FREE USER, ON BEHALF OF YOURSELF AND/OR YOUR COMPANY, YOU ARE AGREEING TO BE BOUND BY AND ACCEPT THE TERMS CONTAINED HEREIN ALONG WITH THE TERMS OF ONSTREAM’S ACCEPTABLE USE POLICY. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT USE OUR SERVICES, INCLUDING WITHOUT LIMITATION, ANY OF OUR MOBILE APPLICATIONS. YOU ARE ENCOURAGED TO PRINT OR DOWNLOAD THESE TERMS AND TO REGULARLY CHECK THIS WEBSITE TO OBTAIN TIMELY NOTICE OF ANY CHANGES TO TERMS, WHICH MAY OCCUR FROM TIME TO TIME AND AT ANY TIME WITHOUT NOTICE.
1. Services and Pricing
(a) Sale of Services. You will pay for the generally available services provided by Onstream to you, as subscribed by you, including without limitation, any Onstream Services (the “Services”), at the rates and according to these Terms of Service as set forth on your Service Agreement, these Terms of Service or as contained on our website. Any additional terms as set forth in schedules attached hereto or separate service orders, each hereby incorporated herein (the “Schedules” and “Service Orders”, and collectively with these Terms of Service, this “Agreement”). In the event of a conflict between any terms herein and in any Schedule, the terms of the Schedule for the particular service shall control. Charges for use of Services shall be invoiced in such manner as stated on an applicable Schedule, or if not therein provided, shall be invoiced at the end of each billing cycle, and, in all cases, payments are due within thirty (30) days after date of invoice.
(b) Taxes and Other Charges. Onstream reserves the right, in its sole discretion, to change or institute new or additional rates, charges and/or fees for access to or use of the Services or to change its payment terms or billing methods at any time. Onstream may suspend or terminate your Services if Onstream determines, in its sole discretion, that your previous payment record so warrants such suspension or termination. You will pay, and Onstream reserves the right to collect in arrears, all sales, use, consumption, goods and services, excise or other taxes (other than taxes based upon Onstream net income), fees, surcharges, charges for universal support mechanisms (including without limitation any and all federal or state Universal Service Fund charges) or other charges of any nature whatsoever, now or hereafter imposed or assessed on Onstream, by any foreign, federal, state/provincial, county or local government authority upon or with respect to the Services provided. If you claim exemption from charges, you must provide Onstream with a current, valid exemption certificate from the applicable regulatory authority. Once an exemption certificate has been provided to and verified by Onstream it will become effective on a prospective basis. Onstream shall not be liable for refunds or credit for taxes paid by you for periods prior to Onstream’s receipt of a valid exemption certificate. If at any period during your Service Term your exemption certificate should no longer be deemed valid, you will immediately be responsible for all taxes etc. owed until a new and valid exemption certificate is supplied to Onstream.
(c) Credit Cards. Notwithstanding any other provision herein, for any fees and/or charges paid by credit or debit cards, you agree if payment is not received by Onstream from the card issuer or its agents, you will pay all amounts due upon demand by Onstream. Each time you use the Services, or allow or cause the Services to be used, you agree and reaffirm that Onstream is authorized to charge your designated card in connection with the Services. YOU FURTHER AGREE THAT ONSTREAM MAY SUBMIT ADDITIONAL CHARGES FOR USE OF THE SERVICES EACH MONTH, QUARTER OR YEAR, AS APPLICABLE, IN ACCORDANCE WITH THIS AGREEMENT, YOUR SERVICE AGREEMENT OR AS SET FORTH ON ONSTREAM”S WEBSITE, WITHOUT FURTHER AUTHORIZATION FROM YOU, until you provide prior written notice (in accordance with Onstream’s verification procedures, as may be established by Onstream from time to time in its sole discretion) that you terminate this authorization or desire to change your designated card. Such notices will not affect charges submitted before Onstream reasonably could act on such notice. When you provide your card information to Onstream (or its designated licensees or subcontractors), you represent and warrant to Onstream that you are the authorized user of your designated card. You agree to promptly notify Onstream of any changes to your designated card account number, its expiration date or your billing address, as applicable, and you agree to notify Onstream if such designated card expires or is cancelled for any reason. For the avoidance of doubt, the designated card account holder is responsible for all charges incurred, including applicable taxes, and all purchases made by such account holder or anyone that uses the card. WITHOUT LIMITING ANY OTHER REMEDY HEREIN, IF RECURRING FEES ARE NOT PAID IN A TIMELY MANNER, OR IF ONSTREAM IS UNABLE TO PROCESS YOUR TRANSACTION(S) USING THE DESIGNATED CARD INFORMATION PROVIDED, ONSTREAM RESERVES THE RIGHT TO SUSPEND AND/OR TERMINATE THE SERVICES.
(d) Disputes. Past-due balances not reasonably disputed in good faith as herein provided shall be subject to an interest charge of 2% per month computed from the due date of each invoice previously issued, or the maximum rate legally permitted, whichever is less, and you shall pay any collection costs, including reasonable attorneys’ fees, and other expenses incurred by Onstream to collect any such sums due under this Agreement. You must notify Onstream of any charge disputed in good faith, with supporting documentation, within thirty (30) days from the date of invoice, or you will be deemed to agree to such charges and no adjustments to charges or invoices will be made. You remain responsible to pay charges not reasonably disputed in good faith as herein provided by the due date.
(e) Beta Versions. With respect to any Beta version of any of the Services (the “Beta Services”) made available to you for purposes of evaluation and feedback, you acknowledge that the Beta Services may contain bugs, errors and other problems and are provided to you “as-is.” To the extent permitted by law, Onstream disclaims any warranty or liability obligations to you of any kind with respect to the Beta Services. You further acknowledge the importance of communication between Onstream and you during your use of the Beta Services and hereby agree to receive related correspondence and updates from Onstream and its suppliers through email or regular mail. In the event you request to opt-out from such communications, your use of the Beta Services may be canceled. You also hereby acknowledge that Onstream has not made any representations, promises or guarantees that the Beta Services will ever be announced or made available to anyone in the future and that Onstream has no express or implied obligation to you to announce or introduce the Beta Services. With respect to the Beta Services, this subsection shall supersede any other terms and conditions contained herein, but only to the extent necessary to resolve conflict. In addition to and without limiting any other rights or remedies Onstream has, if Onstream determines, in its sole discretion, that you have violated any conditions of and/or limitations on the Beta Services, Onstream reserves the right to immediately terminate the Beta Services.
2. Term and Termination
(a) Term. Services shall commence upon the Service Commencement Date as agreed upon by the parties, in writing, and shall continue, unless different terms are specified by the parties in a Schedule, for a minimum term of twelve (12) months (“Initial Term”), with renewal terms continuing indefinitely thereafter at lengths equal to the Initial Term (each a “Renewal Term”). Without limiting the foregoing, if the term of any Services described in a Schedule or Service Order extends beyond the expiration or termination of this Agreement, the terms of this Agreement shall apply to such Services even after expiration or termination of the Agreement. Either party may terminate this Agreement at the end of a term by providing written notice to the other party of such termination at least sixty (60) days prior to the end of such term or as the parties otherwise agree, in writing.
(b) Promotional Term; Free Term. If you use Services pursuant to a promotional offer granting Free Services, which may include without limitation the waiver of certain fees and/or other charges for a designated period of time as defined by a particular promotional offer (“Free Services”), you will receive use of the Free Services solely for that limited period of time and all use of all Free Services shall be subject to the terms herein and any and all other restrictions, limitations and conditions identified or communicated to you with the specific Free Services offer, including without limitation, you are and will remain liable for all charges not otherwise designated as specifically and expressly waived pursuant to the applicable promotional offer. Which shall include, but not limited to Sales/Use Taxes and Universal Services for contributors. Notwithstanding any other provision in this Agreement, all Free Services are provided solely as an accommodation to you, and Onstream reserves the right, at all times and in its sole discretion, to terminate or modify any Free Services at any time without notice, including without limitation for any abuse of the Free Services and/or your failure to pay fees and charges not otherwise designated as specifically and expressly waived pursuant to the applicable promotional offer. TO THE EXTENT YOU SIGN UP TO PAY FOR SERVICES BY CREDIT OR DEBIT CARDS, YOU ACKNOWLEDGE AND AGREE THAT AS A CONDITION TO RECEIVE ANY FREE SERVICES, A FEE AND/OR CHARGE, AS APPLICABLE, WILL BE PRE-AUTHORIZED AGAINST YOUR CREDIT CARD OR DEBIT CARD LIMIT (MEANING THE AMOUNTS PRE-AUTHORIZED WILL NOT BE CONSIDERED AVAILABLE CREDIT OR DEBIT FUNDS IN SUCH ACCOUNT) AND, UNLESS THE PARTIES EXPRESSLY AGREE OTHERWISE, WILL BE IMMEDIATELY CHARGED TO YOUR CREDIT OR DEBIT CARD, WITHOUT FURTHER AUTHORIZATION FROM YOU, UPON THE EXPIRATION OF THE FREE SERVICE PERIOD, UNLESS YOU TERMINATE SERVICES IN ACCORDANCE WITH THE TERMS OF THE SPECIFIC PROMOTION AND/OR THIS AGREEMENT. FOR THE AVOIDANCE OF DOUBT AND NOTWITHSTANDING ANY OTHER PROVISION HEREIN, IN THE EVENT ANY PROMOTION HAS RATES AND/OR FEES NOT IMPLEMENTED UNTIL AFTER THE END DATE FOR FREE SERVICES (“RATE IMPLEMENTATION DATE”) AND ONSTREAM AGREES TO MAKE AVAILABLE ANY FREE SERVICES TO YOU PRIOR TO SUCH RATE IMPLEMENTATION DATE, UNLESS THE PARTIES OTHERWISE EXPRESSLY AGREE IN WRITING, YOUR INITIAL APPLICABLE TERM FOR SERVICES SHALL BE EXTENDED BY THE LENGTH OF THE FREE SERVICES PERIOD; PROVIDED, HOWEVER, IF SUCH FREE SERVICES PERIOD WOULD RESULT IN YOUR INITIAL APPLICABLE TERM ENDING IN THE MIDDLE OF A BILLING CYCLE, THEN SUCH TERM SHALL BE EXTENDED TO THE LAST DAY OF SUCH BILLING CYCLE.
(c) Termination for Cause. Either party may terminate this Agreement at any time in the event that the other party breaches any provision of this Agreement in any material respect and fails to cure such breach within thirty (30) days after receipt of written notice of such breach. Notwithstanding the foregoing, Onstream may terminate this Agreement and/or suspend the provision of Services immediately: (i) for illegal, fraudulent, improper or abusive use of the Services (including without limitation your use of the Services in contravention of Section 5, to be determined in Onstream’s sole discretion); (ii) if deemed reasonably necessary by Onstream to prevent interruption or disruption to Onstream’s network, its business or other customers; (iii) if any portion of an invoice not timely and reasonably disputed in good faith as herein provided remains unpaid when due (including without limitation any minimum commitments); or (iv) for breach, not subject to cure. All terminations by Onstream shall be effective as of the date designated in the termination notice, and Onstream shall not be liable to you or any third party should Onstream exercise its right to discontinue Services, in whole or in part, or terminate this Agreement pursuant to this Section 2(c).
(d) Effect of Termination. In the event of any termination, you remain responsible for any and all fees and charges due and incurred through the termination effective date and will not be entitled to any partial month credits or refunds of any kind, including without limitation if you elect to not use the Services prior to the termination effective date. To the extent your agreement has a minimum monthly commitment, you will be liable for the months remaining under this commitment multiplied by the amount of the monthly commitment.
(e) Effect of Termination for Free Services. In addition to and without limiting any other rights or remedies Onstream has herein or otherwise identified or communicated to you with the specific Free Services offer, if Onstream determines, in its sole discretion and whether or not it has conducted an audit, that you have violated any conditions of and/or limitations on the Free Services or any associated software, Onstream reserves the right to immediately terminate the Free Services and to charge and to collect from you the amount you would have been required to pay for the Free Services as a retail customer (applying then-current list rates and/or Standard Charges, as applicable) during the period of your non-compliance. You agree to pay this amount to Onstream, plus the cost of conducting any associated audits by Onstream that in the sole discretion of Onstream reveal non-compliance.
3. Proprietary Information and Non-Disclosure
Each party acknowledges that, in the course of performing its duties under this Agreement, it may obtain information relating to the business, the Services and to the other party that is of a confidential and proprietary nature (“Proprietary Information”). Such Proprietary Information may include, but is not limited to, trade secrets, know-how, inventions, techniques, processes, computer programs, schematics, data, customer lists, financial information and sales and marketing plans. Without limiting the foregoing, this Agreement and the pricing terms referenced herein shall be considered Proprietary Information of Onstream. Each party and its employees and agents shall at all times, during the term of this Agreement and thereafter, keep in trust and confidence all Proprietary Information and shall not use such Proprietary Information other than in the course of their duties under this Agreement, nor shall either party or its employees and agents disclose any of such Proprietary Information to any individual or entity without the other party’s prior written consent. Each party acknowledges that any such Proprietary Information received by the other party shall be received as a fiduciary of the other party. Each party further agrees to immediately return to the other party or destroy all Proprietary Information in its possession, custody or control in whatever form held upon termination of this Agreement or at any time, or from time to time, upon the request of the other party.
4. Intellectual Property
(a) The Services provided under this Agreement and all associated intellectual and proprietary rights are the sole property of Onstream and/or its suppliers. Further, except as required for use of the Services, you have no right or license to use any of the trademarks or trade names owned by, licensed to or associated with Onstream and its suppliers (the “Onstream Marks”) during the term of this Agreement without express written consent from Onstream. Despite prior approval, you will immediately cease and desist using the Onstream Marks upon notice from Onstream or upon termination of this Agreement for any reason. Any use by you of the Onstream Marks other than as described above will constitute a breach of this Agreement for which, in addition to any other remedies available at law or in equity, Onstream may terminate this Agreement. If Onstream elects to issue a press release pertaining to this Agreement, Onstream and you agree to cooperate in a joint press release, subject to both parties’ prior review and approval, announcing the execution of this Agreement. You agree to allow Onstream to name you as a client of Onstream in any marketing material Onstream may create from time to time. Onstream will not use your trademarks or trade names, other than the corporate name and/or logo or solely to the extent used in Onstream’s internal business communications and/or presentations, in any marketing materials without your prior written consent, which shall not be unreasonably withheld.
(b) Onstream welcomes feedback regarding many areas of Onstream’s Services, including its web sites. Any ideas, suggestions, comments and/or other feedback you provide to Onstream (“Feedback”) shall be deemed to be non-confidential and Onstream shall be free to use such information on an unrestricted basis. You should only provide specific Feedback on Onstream’s existing Services and should not include any ideas that Onstream’s policy will not permit it to accept or consider. Onstream or any of its employees do not accept or consider unsolicited ideas of any kind, including ideas for new or improved services, products or technologies, enhancements or new service names. The following terms shall apply to submissions of all Feedback: You agree that: (i) all submissions and their contents will automatically become the property of Onstream, without any compensation; (ii) Onstream may freely and irrevocably use, disclose, reproduce, license, sublicense, distribute or redistribute and otherwise commercialize the submissions and their contents for any purpose and in any way throughout the world, without royalty; (iii) there is no obligation for Onstream to review the submission; and (iv) there is no obligation to keep any submissions confidential. For the avoidance of doubt, you will not submit any Feedback to Onstream that (i) you have reason to believe is subject to any patent, copyright, or other intellectual property claim or right of any third party; or (ii) that is subject to license terms that seek to require any Onstream product incorporating or derived from any Feedback, or other Onstream intellectual property, to be licensed to or otherwise shared with any third party.
5. Your Compliance and Indemnification
(a) You acknowledge that Onstream has no control over the content of information published, posted, uploaded, exchanged, recorded or otherwise transmitted through the Services (whether visual, written or audible) and that Onstream does not examine the use to which you put the Services or the nature of the information you or your users send or receive. You shall comply with and agree it is solely your responsibility to ensure the Services are used in accordance with all applicable foreign, federal, state/provincial and local laws relating to use of the Services under this Agreement (including without limitation, export and control laws and regulations and laws relating to the use of VoIP-based services). Without limiting the foregoing, you agree that the use of the Services is subject to U.S. and local export control laws and regulations. You represent that you are not a citizen of an embargoed country or a prohibited end user under applicable U.S. or local export and anti-terrorism laws, regulations and lists. You are responsible: (i) for any and all activities that may occur under your account, including without limitation, ensuring no content published, posted, uploaded, exchanged, recorded or otherwise transmitted through the Services infringes any third party’s intellectual property rights or is unlawful, threatening, abusive, harassing, libelous, deceptive, fraudulent, invasive of another’s privacy, vulgar, obscene or otherwise contains objectionable material of any kind or nature; and (ii) to maintain the confidentiality and security of your Host ID and/or access numbers, keys and passwords/passcodes. You agree to notify Onstream immediately if there has been an unauthorized use of any Host ID and/or access numbers, keys and/or passwords/passcodes or any other breach of security and you shall be liable for unauthorized charges until such time as you have notified Onstream to suspend any compromised Host IDs, access numbers, keys and/or passwords/passcodes. You acknowledge that Onstream may from time to time monitor bridge activity relating to the Services for quality assurance and fraud detection and may further gather system data. Further, and notwithstanding confidentiality provisions herein, Onstream may disclose information about your use of Services to satisfy any law, regulation, government agency request, court order, search warrant, subpoena or other legal process.
(b) You acknowledge that Onstream does not provide traditional telephone service, and the services are not intended to support or carry any emergency calls to any emergency services of any kind. You need to make additional arrangements in order to access emergency services. Additionally, use of conference recording or taping any use of the Services may subject you to penalties for violations of laws or regulations which can include monetary penalties or physical incarceration. You acknowledge and agree that you may not record or tape any Web, video or telephone conversation in connection with the services unless you are in compliance with all laws relating to the recording of communications and protecting the privacy of communication for all parties to the conversation. Onstream has not and is not expected to provide you with any analysis, interpretation or advice regarding your compliance with the above, and you are solely responsible and obligated to provide any required notifications to participants prior to commencement of conferences.
(c) You shall indemnify, defend and hold Onstream, its officers, directors, employees, affiliates and its suppliers harmless from any claims, losses, damages, penalties or costs (including without limitation reasonable attorneys’ or expert witness fees) arising out of your (or any individual or entity accessing the Services through you or your account): (i) use of the Services; (ii) violation or alleged violation of any applicable laws or regulations 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 termination or suspension of the Services contemplated herein, the expiration or termination of this Agreement and final payment.
6. Warranty and Limitation of Liability
ALL SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND ONSTREAM SHALL NOT HAVE ANY LIABILITY TO ANY PARTY, INCLUDING BUT NOT LIMITED TO YOU, FOR THE CONTENT OF INFORMATION TRANSMITTED BY YOU THROUGH THE SERVICES OR ANY LOSS, DELAY, INTERRUPTION, OR INACCURACY OF SUCH COMMUNICATIONS. ONSTREAM DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES OR COVENANTS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT REGARDING THE SERVICES. WITHOUT LIMITING THE FOREGOING, ONSTREAM MAKES NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, AND ANY MATERIAL, AND/OR DATA DOWNLOADED, UPLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. ONSTREAM ALSO DOES NOT MAKE ANY WARRANTY OR GUARANTEE FOR ANY PRODUCTS OR SERVICES PROVIDED BY VENDORS SUGGESTED BY ONSTREAM. NEITHER ONSTREAM NOR ONSTREAM’S 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, RECORDINGS, COMPUTER TIME OR VOICE TRANSMISSIONS; ALTERATION OR ERRONEOUS TRANSMISSION OF DATA; ACCURACY OF DATA; INABILITY TO USE THE SERVICES TO CONTACT EMERGENCY SERVICES; UNAUTHORIZED ACCESS TO OR USE OF VOICE OR DATA PROCESSED OR TRANSMITTED BY, TO OR THROUGH THE SERVICE; OR PROGRAM ERRORS) EVEN IF ONSTREAM IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. ONSTREAM SHALL NOT BE LIABLE FOR ANY FAILURE TO PERFORM, OR DELAY IN PERFORMANCE OF, ITS OBLIGATIONS UNDER THIS AGREEMENT CAUSED BY REASONS BEYOND ONSTREAM’s CONTROL. IN NO EVENT SHALL ONSTREAM’S TOTAL LIABILITY TO YOU ARISING UNDER THIS AGREEMENT, WHETHER SUCH THEORY OF LIABILITY IS BASED ON CONTRACT, TORT OR OTHERWISE, EXCEED AN AMOUNT EQUAL TO THE CHARGES (CALCULATED ON A PRO-RATED BASIS FOR ADVANCED PAYMENTS OF ALL CHARGES) BY ONSTREAM TO YOU FOR THE PARTICULAR SERVICE PERFORMED BY ONSTREAM DURING THE ONE MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF EVENT, ACT OR OMISSION GIVING RISE TO THE LIABILITY. In the event some or all of the foregoing limitations in this Section 6 may not be effective in the applicable jurisdiction or to the extent the applicable law mandates a more extensive warranty, the applicable law will prevail over these terms.
Notices to you for billing or account management purposes will be addressed to the address provided to Onstream. Notifications to Onstream shall be addressed to: Infinite Conferencing, Inc. P.O. Box 836, Short Hills, New Jersey 07078 United States. Any notice required or permitted to be given under this Agreement must be written in English and shall be deemed given and effective upon delivery if sent by personal delivery or by facsimile transmission (with confirmation of successful delivery), two (2) days after deposit with a nationally-recognized overnight delivery service or five (5) days after posting if sent by certified United States mail, return receipt requested, with postage pre-paid and addressed as above-provided or to such other addresses as may be designated by notice from one party to the other. You hereby grant Onstream express consent to contact all individual account holders and moderators to communicate information regarding Onstream’s services and products, including without limitation, upgrades, enhancements, end-of-life, modifications and/or other feature changes. Without limiting the foregoing, you grant Onstream express consent to periodically contact you and/or to forward to the e-mail address(es) related to your account on file information regarding Onstream’s services and products, including without limitation, upgrades, enhancements, end-of-life, modifications and/or other feature changes and/or various promotional and advertising materials regarding other Onstream’s products, services, marketing plan and other business related items.
This Agreement 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. Captions/headings are for convenience only and not to be used in construing this Agreement. If any provision herein is held by a court to be illegal, invalid or unenforceable, the remaining terms 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 a party to comply with 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, and except for Onstream’s 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. Onstream 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 Onstream or as a consequence of merger, acquisition, change of control or asset sale. You may not assign your rights and obligations under this Agreement without Onstream’s express written consent. All sections in this Agreement intended to survive any cancellation, termination, expiration or suspension of this Agreement will so survive. This Agreement shall be governed by, and construed and enforced in accordance with the laws of the State of Florida applicable to agreements made and to be performed therein, without regard to any conflicts or choice of law rules. The parties agree to submit to the exclusive jurisdiction of Broward County, Florida to resolve any disputes arising hereunder. The English language version of this Agreement controls. Agreements provided in languages other than English are provided for ease of reference only. If you are in Canada, it is the express wish of both parties that this Agreement, and any associated documentation, be written and signed in English.
9. Entire Agreement
This Agreement, including all Schedules attached hereto, constitutes the final, complete and entire agreement between the parties with respect to the subject matter hereof, and supercedes any previous proposals, negotiations, agreements or arrangements, whether verbal or written made between the parties with respect to such subject matter. There are no other verbal agreements, representations, warranties, undertakings or other agreements between the parties. If you require use of a non-Onstream-form purchase order in connection with any of the Services to be performed hereunder, you hereby acknowledge and agree 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 Onstream and you. Without limiting any other rights in this Agreement, Onstream may amend at any time the provisions of this Agreement by, at Onstream’s election: (i) posting revised terms and conditions (“Amended Terms”) on www.onsm.com (the “Onstream Web Site”); (ii) delivering the Amended Terms to you at the address, fax or e-mail address provided herein (such delivery may be included in invoices for the Services delivered to you); or (iii) by other reasonable means as permitted by applicable laws. All Amended Terms shall automatically be effective the earlier of: (i) the date indicated on the Onstream Web Site or (ii) your next billing cycle following posting or delivery to you. YOU AGREE TO BE SOLELY RESPONSIBLE FOR REGULARLY REVIEWING THE ONSTREAM WEB SITE TO OBTAIN TIMELY NOTICE OF ANY SUCH AMENDED TERMS AND ONSTREAM’s THEN-CURRENT TERMS AND CONDITIONS. BY USING THE SERVICES AFTER POSTING OR DELIVERY OF AMENDED TERMS, YOU WILL BE DEEMED TO HAVE ACCEPTED AND BE BOUND BY SUCH AMENDED TERMS. No such amendment by Onstream shall serve to constitute a default or termination by Onstream of this Agreement, nor shall such amendment serve to be a basis for your termination of this Agreement. Except as otherwise provided in this Agreement or any Schedule hereto, this Agreement may only be amended or modified, in whole or in part, by a written instrument signed by the parties to this Agreement.
Schedules of Additional Terms of Service
In addition to the above term and conditions, by using any of the following Services (including any Trial or promotional/free use): Audio Conferencing, Webcasting Services), you shall be deemed to have agreed to such Services’ applicable Additional Terms of Service. PRIOR TO USING ANY SUCH SERVICES, YOU AGREE (i) TO BE SOLELY RESPONSIBLE FOR REGULARLY REVIEWING ONSTREAM’S ADDITIONAL TERMS OF SERVICE, WHICH ARE AVAILABLE ON ONSTREAM’S WEBSITE, VIA THE LINKS BELOW, AND/OR UPON REQUEST FROM ONSTREAM SALES REPRESENTATIVES, AND (ii) TO OBTAIN TIMELY NOTICE OF ANY CHANGES TO SUCH TERMS. In the event of a conflict between any terms herein and in any Schedule, the terms of the Schedule for the particular service shall control. Schedule of Additional Terms of Service for Licensed Services Schedule of Additional Terms of Service for Audio conferencing Services. Schedule of Additional Terms of Service for Webcasting Services
Schedule of Additional Terms of Service for Licensed Services
Subscription Fee. You will pay Onstream a subscription fee (“Subscription Fee”) per Named User (as below defined) in addition to any additional fees or charges for use of Onstream Meetings and Onstream Webinars (each a “Licensed Service” and, collectively, the “Licensed Services”), including without limitation any overages fees and per-minute fees (including toll free, dial out and local access per minute rates or measured metered services) and other fees or charges associated with use of the Licensed Services provided and not otherwise designated as specifically and expressly waived pursuant to an applicable promotional offer. For the purposes hereof, a “Named User” is an individual designated and identified by you as an organizer/administrator who is authorized to schedule conferences using the Licensed Services. You will be billed for and you shall pay all invoices, in their entirety, for each applicable period during the term of this Agreement. All Subscription Fees are prepaid and non-refundable, and audio minutes not included in subscription plans are billed in arrears, with payments due within thirty (30) days after the date of invoices; provided, you may pay your Subscription Fees in monthly installments for the number of Named Users provided, beginning as of the Service Commencement Date, subject to and conditioned upon: (i) Onstream expressly agreeing to such installment payments in a written Schedule; (ii) you being and remaining current on all fees and charges to Onstream; and (iii) in the event you are delinquent in payment at any time for such installment payments, Onstream may immediately terminate the monthly installments and the remainder of the Subscription Fee(s) per the applicable Schedule shall be paid in full by you. For the avoidance of doubt, you are not and will not be entitled to any partial month billing or credits or refunds of any kind, including without limitation in the event you elect to not use the Licensed Services during any billing period. You further acknowledge and agree that Onstream reserves the right to change pricing or modify or discontinue any or all of Licensed Services and any related Dial-In numbers or other methods of access at any time for any reason, without notice. Without limiting the foregoing, Onstream reserves the right, in its sole discretion, to change or institute new or additional charges and/or fees for access to or use of Licensed Services (including for ancillary services, new or additional features and/or “APPS”) at any time as provided in this agreement. Increasing Named Users. For so long as Onstream supports such selections, you may increase your number of Named Users, at any time, by submitting your selections on your account page (“Account Page”). All selections for increases in Named Users by you will become an integral part of this Agreement, increase your Total Subscription Fee and be subject to automatic renewal. You will be billed for such increase in Named Users, beginning as of the date of selection. For the avoidance of doubt, all selections and resulting increases in Named Users shall be subject to Onstream’s terms and conditions, including without limitation, these Terms of Service for use of the Licensed Services, you are fully responsible and liable for any and all selections made on Account Page, submission of selections to Onstream using Account Page will be deemed your signature and authorization for such orders, and Onstream has no obligation to investigate or confirm whether the party submitting an order via Account Page has authority to bind you.
Where permitted by Onstream, at its sole discretion and subject to you meeting all pre-conditions identified or communicated to you for the upgrade offer to you, you may upgrade subscription plans for Licensed Services. You are and shall remain responsible for all fees and charges due and incurred for Licensed Services provided under an existing subscription plan through the upgrade effective date and you are not and will not be entitled to any partial months’ credits or refunds of any kind as a result of the upgrade. After any upgrade effective date, you shall be responsible for the increased fees and charges associated with the upgrade, including without limitation any new and/or additional charges associated therewith, which may include without limitation, for any overages. For the avoidance of doubt, nothing herein shall be deemed to require Onstream to permit and/or allow any upgrades.
In the event of any termination, you remain responsible for any and all fees and charges due and incurred through the termination effective date. Subscription Fees are prepaid (unless Onstream has agreed to installment payments to the extent and pursuant to the conditions above-provided) and non-refundable. You will not be entitled to any partial month credits or refunds of Subscription Fees, including without limitation any installment payments, of any kind. For the avoidance of doubt, Onstream has the right, at all times and in addition to all other termination rights permitted by this Agreement, to terminate the Licensed Services and/or this Agreement, for its convenience and without liability by providing at least sixty (60) days’ prior written notice (invoice stuffers and emails permitted) to you, with such terminations effective as of the date designated in the applicable termination notice. If the termination is made for any reason other than convenience on the part of Onstream, you shall remain responsible to Onstream for an early termination penalty equal to the months remaining under the Agreement Term multiplied by the Monthly Subscription Fee.
Intellectual Property; Marketing; Images and Links
You are being granted a limited, non-exclusive, non-transferable, non-sublicensable revocable right to use the Licensed Services, and any software associated with the Licensed Services in accordance with the provisions herein during the Subscription License Term. All other rights are reserved by Onstream, and you agree that you shall not remove, obscure or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed to or contained within the Licensed Services. You acknowledge and agree that all third-party information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) which you may have access to as part of, or through the use of the Licensed Services are the sole responsibility of the individual or entity from which such content originated (“Third-Party Content”). Such Third-Party Content may be protected by intellectual property rights that are owned by the sponsors or advertisers who provides such Third-Party Content to Onstream (or by other individuals or entities on their behalf). You may not modify, rent, lease, loan, sell, distribute or create derivative works based on this Third-Party Content (either in whole or in part). Onstream reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Third-Party Content from the Licensed Services. Onstream may also provide tools (but has no obligation) to filter out explicit content, and you understand that by using the Licensed Services, you may be exposed to Third-Party Content that you may find offensive, indecent or objectionable. You use the Licensed Services at your own risk. You understand that by using the Licensed Services with a webcam or other photographic or video device and/or a microphone, you will transmit images and audio to users. You hereby release, discharge and agree to hold harmless Onstream, its officers, directors, employees, affiliates and its suppliers from and against any and all claims and demands, including but not limited to, any claims for copyright infringement, defamation, invasion of privacy or right of publicity, arising out of or in connection with any use of the images and/or audio. The Licensed Services may include links to other web sites (“Linked Sites”). You acknowledge and agree that such links are provided for convenience only and do not reflect any endorsement by Onstream with respect to the providers of the Linked Sites or the quality, reliability or any other characteristic or feature of the Linked Sites. Onstream is not responsible in any manner (including without limitation with respect to any loss, damage or injury you may suffer) for any matter associated with the Linked Sites, including without limitation, the content provided on or through the Linked Sites or your reliance thereon. ONSTREAM MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY LINKED SITES: YOUR USE OF ANY LINKED SITE IS SUBJECT TO THE TERMS AND CONDITIONS APPLICABLE TO THE LINKED SITE AND SOLELY AT YOUR OWN RISK AND EXPENSE.
Named Users, Content and Conduct/Use
To use the Licensed Services, you must be 18 years or older, if an individual, and must complete the sign-up/registration process, which includes, without limitation, providing a valid email address, agreeing to be bound by Onstream’s required terms applicable to the use of the Licensed Services and meeting such other requirements as Onstream directs. You agree to maintain and update your registration information as required to keep it current, complete and accurate. If Onstream discovers that any of your registration information is inaccurate, incomplete or not current, Onstream may suspend and/or terminate your right to access and receive the Licensed Services. Onstream further retains the right to reject a registration application in its sole discretion and without a requirement to provide a reason. Without limiting the foregoing, Onstream may refuse the Licensed Services to any individual or entity who has cancelled any number of previous accounts. Only Named Users (as below defined) may schedule conferences using the Licensed Services, and there may be only one user/employee assigned to any Named User licenses to be used in connection with the Licensed Services. For the avoidance of doubt, Named User licenses cannot be shared among multiple individuals and separate Named User licenses must be purchased for each individual. Named Users may only include up to the total number of Maximum Meeting Participants in any single conference. For the purposes of this provision and the Licensed Services, “Maximum Meeting Participants” means the maximum number of meeting participants, including the Named User, that may be in a conference using the Licensed Services at the same time as designated by Onstream. Only one conference using the Licensed Services may occur at any given time (i.e. no concurrent meetings) per licensed Named User. Named Users may not combine with other Named Users or otherwise expand a conference using the Licensed Services scheduled by a Named User to allow more than the Maximum Meeting Participants. For each conference using the Licensed Services scheduled by a Named User, the Named User must (1) initiate or schedule the conference; (2) host the conference by entering as a presenter; and (3) act as an organizer of the conference through use of their organizer identification. You are at all times responsible for monitoring and maintaining the use of the Named User licenses within the forgoing parameters, and you shall indemnify Onstream in the event a claim is brought or damages are incurred due to a Named User’s or your misuse of the Named User license. A Named User designation may not be transferred to another employee except upon (a) termination of the Named User’s employment with you, or (b) in all other instances, Onstream’s express prior written approval. You acknowledge that Onstream has no control over the content of information transmitted by you through the Licensed Services (whether visual, written or audible) and that Onstream does not examine the use to which you put the Licensed Services or the nature of the information you or your users send or receive. You acknowledge and agree that Onstream shall have no liability for the deletion or failure to store any information, content or data transmitted using the Licensed Services. Further, you expressly agree: (i) to comply with all applicable foreign, federal, state/provincial and local laws relating to use of the Licensed Services under this Agreement (including without limitation, export and control laws and regulations); (ii) not to upload, post, email or otherwise transmit content through use of the Licensed Services that (1) infringes any third-party intellectual property or other proprietary rights or rights of publicity or privacy; (2) is unlawful, threatening, abusive, harassing, tortuous, libelous, defamatory, deceptive, fraudulent, invasive of another’s privacy, vulgar, obscene, hateful or discriminatory or otherwise contains objectionable material of any kind or nature; (3) violates any law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination or false advertising); (4) is profane, indecent, obscene, harmful to minors or child pornographic; (5) contains any viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information or property of another; (6) that includes any unsolicited or unauthorized advertising or marketing; or (7) is materially false, misleading or inaccurate or that you do not have the right to transmit under any law or under contractual or fiduciary relationships; (iii) not to: (1) impersonate any person or entity, falsely or otherwise misrepresent your affiliation with a person or entity, or forge headers or otherwise manipulate identifiers in order to disguise the origin of any content uploaded, posted, emailed or otherwise transmitted; (2) harvest or otherwise collect information about others, including e-mail addresses, without their consent; (3) use, download or otherwise copy, or provide (whether or not for a fee) to a person or entity that is not a user of the Licensed Services any directory of other users or usage information or any portion thereof other than in the context of your use of the Licensed Services; (4) reproduce, duplicate, copy, sell, trade or resell the Licensed Services for any purpose, including you may not act as a service bureau for the Licensed Services or rent, lease, grant a security interest in, or otherwise transfer any rights in the use of the Licensed Services; (5) use or exploit any portion of the Licensed Services to provide commercial services to third parties or otherwise generate income from the Licensed Services, resell the licensed services or use the services for the development, production or marketing of a service or product substantially similar to the Licensed Services; (6) interfere with, damage, disable, overburden, impair or disrupt hardware, software or networks connected to the Licensed Services, or any other users of the Licensed Services, or violate the regulations, policies or procedures of any networks; (7) attempt to gain unauthorized access to the Licensed Services, other accounts, computer systems or networks connected to the Licensed Services, through password mining or any other means; (8) reverse engineer, modify, decompile, disassemble, translate or otherwise attempt to derive source code from any part of the Licensed Services or associated software; or (9) use the Licensed Services for illegal purposes (including without limitation, gambling or betting); and (iv) you are solely responsible for any and all activities that may occur under your account and to maintain the confidentiality and security of any Host ID, access numbers, keys and passwords/passcodes. You agree to notify Onstream immediately if there has been an unauthorized use of any Host ID and/or any access numbers, keys and/or passwords/passcodes or any other breach of security, and you shall remain liable for unauthorized charges until such time as you have notified Onstream to suspend any compromised Host IDs, access numbers, keys and/or passwords/passcodes. You acknowledge that Onstream may from time to time monitor for quality assurance and fraud detection and may further gather system data. Further, and notwithstanding confidentiality provisions herein, Onstream may disclose information about your use of Licensed Services to satisfy any law, regulation, government agency request, court order, search warrant, subpoena or other legal process.
Schedule of Additional Terms of Service for Audio Conferencing Services By using the Audio Services
(as below defined, including any Trial or promotional/free use), you agree to the following Additional Terms of Service for Audio Services. Billing
Customer Rates & Standard Charges
You will pay Onstream for the audio conferencing services provided (the “Audio Services”) at the “Customer Rates” and “Standard Charges” (as below defined) and according to the terms of this Agreement and this Schedule of Additional Terms of Service for Audio Services. For purposes of this Agreement, Customer Specific Rates are those specifically negotiated by you and agreed to by Onstream, and Standard Charges are for those Audio Services not subject to Customer Specific Rates and/or rates included at list and all taxes, fees and surcharges. PRIOR TO USING ANY AUDIO SERVICES, YOU AGREE (i) TO BE SOLELY RESPONSIBLE FOR REGULARLY REVIEWING ONSTREAM’s STANDARD CHARGES, WHICH ARE AVAILABLE UPON REQUEST FROM ONSTREAM SALES REPRESENTATIVES, OR CAN BE FOUND ON ONSTREAM’S WEBSITE AT http://www.onstreammedia.com. AND (ii) TO OBTAIN TIMELY NOTICE OF CURRENT STANDARD CHARGES, INCLUDING ANY INCREASES OR OTHER CHANGES. For the avoidance of doubt, and notwithstanding any other provision herein or in any Schedule or this Agreement, no notice of any kind, written or otherwise, is required for changes to Standard Charges or Customer Specific Rates as each is defined above.
Minimum Audio Commitment
In the event you agree to a minimum commitment for use of the Audio Services during the term of the Agreement (“Minimum Audio Commitment”) and do not meet your Minimum Audio Commitment in any given month, quarter or year, as applicable, Onstream shall invoice for, and you shall pay, upon receipt of invoice, the shortfall equal to the difference between the Minimum Audio Commitment during each applicable term less any payments for actual usage made by you during each applicable period during the term of the Agreement. For commitments based on minutes, the shortfall amount in dollars shall be calculated based upon pricing using the proportion of Audio Services as you actually used during the applicable period. Only the per minute usage of the Onstream meeting solutions shall be applicable to the Minimum Audio Commitment.
Effect of Termination by you with Minimum Audio Commitment
If you have agreed to a Minimum Audio Commitment and in the event that you terminate this Agreement (not due to breach by Onstream) or if Onstream terminates on account of your breach, you shall pay to Onstream as liquidated damages, but not as a penalty and representing a reasonable estimate of the probable loss to Onstream, the shortfall resulting from your failure to meet any Minimum Audio Commitment for the term of this Agreement, which amount shall equal the difference between the Minimum Audio Commitment multiplied, as applicable, by the number of months, quarters or years in the term less any payments for actual usage made by you during the term of this Agreement; provided, however, no payments over and above the Minimum Audio Commitment for any one month, quarter or year, as applicable, shall apply to or in any way be credited against any other, past or present, Minimum Audio Commitment or the overall shortfall amount for the term of this Agreement.
Schedule of Additional Terms of Service for Webcasting Services
By using the Webcasting services (as below defined, including any Trial use), Customer agrees to the following Additional Terms of Service for Webcasting Services.
Onstream hereby undertakes to produce Webcasting events utilizing its software application platform, Visual Webcaster 4.0 and Web Express (the “Platform”) and various services and tools (the “Webcasting Services”) that Onstream offers Customer for use (a “Webcast Event”). “Terms” shall mean these Terms of Service for Webcasting Services. Customer shall not in any way re-offer or sublicense the Webcasting Services, utilize the Webcasting Services in a manner that allows someone other than Customer or Onstream to manage a Webcast Event or use the Webcasting Services in any manner inconsistent with these Terms.
Onstream (or any Affiliate of Onstream) hereby undertakes to produce webcasting events utilizing the Platform and various services and tools (the “Webcasting Services”) that Onstream offers you for use (a “Webcast Event”).
Onstream hereby grants to you the non-exclusive non-transferable, non-sublicensable, revocable right to access and use the Platform, solely to the extent required to use the Webcasting Services and produce a Webcast Event. You may not rent, lease, grant a security interest in, or otherwise transfer any rights in the use of the Platform or the Webcasting Services. You shall not allow someone other than you or Onstream to manage a Webcast Event. You are prohibited from reselling or acting as a service bureau for any of the Webcasting Services. You shall not reverse engineer, modify, decompile, disassemble, translate or otherwise attempt to derive source code from any part of the Webcasting Services or associated software. You shall not remove, alter or obscure in any way any proprietary rights (i.e., copyright) notices.
Modifications and Releases
From time to time after the date of this Agreement, new releases to the Platform may add, enhance or change the features and services available hereunder. Customers shall be entitled to use, if they choose, any such new features and services but additional charges may apply. Onstream reserves the right to withdraw, suspend or discontinue any functionality or feature of the Webcasting Services.
You warrant and represent that you are the owner or licensee of any content that you upload, record or otherwise transmit through the Webcasting Services.
As between Onstream and you, Onstream alone will own all rights, title and interest, including all related intellectual property, to any suggestions, ideas, feedback, improvements, recommendations or other information created, conceived, or reduced to practice, by or on behalf of you, any viewer or any subscriber to a Webcast Event.
Certain Webcasting Services provide functionality that allows you to record audio and data shared during sessions. You are solely responsible for complying with all federal, state, and local laws in the relevant jurisdiction when using recording functionality. Onstream expressly disclaims all liability with respect to your recording of audio and/or shared data while using the Webcasting Services, and you release and agree to hold Onstream harmless from and against any damages or liabilities related to the recording of any audio and/or data.
Webcast Event Production and Services
Customer acknowledges that production of a Webcast Event will require utilization of various elements of services. Customer shall work with Onstream’s representative to establish which elements Customer requires for each event. For any custom Webcast Event for which additional specifications shall be required, the parties must execute a separate work order setting forth the customer requirements to be agreed upon by the parties in writing (“Work Order”). Utilizing the Work Order, Onstream will commence producing the Webcast Event. Customer acknowledges that because of the difficulties in defining all aspects of a Webcast Event, it will need to work closely with Onstream, including being reasonably available for consultations, if and when any unforeseen issues arise. Customer is fully responsible for providing all aspects of content of each Webcast Event and for making sure that aspects of content are available to Onstream as Onstream may require from time to time in producing the Webcast Event. For the avoidance of doubt, a fee of up to 50% of the quoted production cost will apply in the event of a cancellation by Customer with less than 48 hours notice. Onstream will not be responsible for editing any content provided by Customer.
The Work Order shall also describe in sufficient detail all aspects that Customer requires with respect to allowing viewers to view a Webcast Event, including such matters as the estimated number of viewers that may view the Webcast Event, the registration procedures for viewers, the availability of a Webcast Event after production for on-demand viewing, and any other concern or issue specifically of importance to Customer.
Customer warrants and represents it will not publish, post, upload, record or otherwise transmit any content or materials that knowingly infringe any intellectual property rights of third parties. Without limiting its other obligations, Customer shall indemnify, defend and hold Onstream and its suppliers harmless from any claims, losses, damages, penalties or costs (including without limitation reasonable attorneys’ fees and expert witness fees) arising out of: (i) Customer’s violation or alleged violation of any applicable laws or regulations with respect to use of the Webcasting Services; or (ii) Customer’s infringement of any intellectual property rights of any third party. Notwithstanding any other provision, the indemnity obligations above-provided shall survive any termination or suspension of the Web Conferencing/Internet Services contemplated herein, the expiration or termination of any agreement for such services, shall survive final payment and shall not be subject to any limitation on liability of any kind.
Modifications and Releases
From time to time after the date of this Agreement, new releases may be prepared and installed to the Platform that add, enhance or change the features and services of the Platform. Customers shall be entitled to use, if they choose, any new features and services added to the Platform. Customer shall not be charged for comparable features, but additional charges may or may not be applicable for new features and services. Onstream reserves the right to withdraw, suspend or discontinue any functionality or feature of the Platform and reserves the right to introduce new products that are not part of the current Platform.
As between Onstream and Customer, Onstream alone will own all rights, title and interest, including all related Intellectual Property, to any suggestions, ideas, feedback, improvements, recommendations or other information created, conceived, or reduced to practice, by or on behalf of Customer, any viewer or any subscriber to a Webcast Event relating to the Platform (“Submissions”). “Intellectual Property” shall mean any unpatented inventions, patent applications, patents, extensions, supplementary protection certificates, design rights, copyrights, trademarks, service marks, trade names, trade dress, domain rights, mask work rights, know-how, technology, business processes, Web Event concepts, Web Event experiences and other trade secret rights, and all other intellectual property rights, derivatives thereof, and any forms of protection of a similar nature anywhere in the world. Onstream hereby grants to Customer the non-exclusive right to access and use the Platform, solely to the extent required to use the Webcasting Services and produce a Webcast Event.
Warranty Disclaimers; Liability Limitations
NOTWITHSTANDING ANY OTHER PROVISION HEREIN OR IN ANY OTHER AGREEMENT BETWEEN THE PARTIES: (I) ALL WEBCASTING EVENTS, INCLUDING WITHOUT LIMITATION ALL WEBCASTING SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ANY AND ALL REPRESENTATIONS, WARRANTIES OR COVENANTS, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY EXPRESSLY DISCLAIMED; (II) NO SERVICE LEVELS SHALL APPLY TO THE PROVISION OF WEBCASTING EVENTS, INCLUDING WITHOUT LIMITATION ANY ALL WEBCASTING SERVICES; (III) NEITHER ONSTREAM, NOR ITS SUPPLIERS, SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR DAMAGES ARISING FROM LOST DATA, INTERRUPTED COMMUNICATIONS, LOST REVENUE, LOST PROFITS, LOST TECHNOLOGY, LOSS OF RIGHTS OR COSTS OF PROCURING SUBSTITUTE SERVICES OR ANY OTHER SUBSTITUTION OR SOLUTION, HOWEVER ARISING, EVEN IF THE PARTY AGAINST WHICH THE CLAIM IS MADE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (IV) IN NO CASE SHALL THE AGGREGATE OF ONSTREAM AND ALL OF ITS SUPPLIER’S TOTAL LIABILITY ARISING OUT OF OR RELATING TO OR IN ANY WAY CONNECTED WITH THE RELATIONSHIP OF THE PARTIES, THIS AGREEMENT, ITS NEGOTIATION OR TERMINATION, OR THE PROVISION OR NON-PROVISION OF SERVICES, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE AMOUNT OF FEES ACTUALLY PAID TO ONSTREAM BY CUSTOMER FOR THE THREE (3) MONTHS PRIOR TO THE CLAIM FIRST BEING RAISED TO THE OTHER PARTY; AND (V) ONSTREAM SHALL ONLY AND SOLELY BE RESPONSIBLE TO INDEMNIFY THE USER RELATING TO THE WEBCASTING EVENTS, INCLUDING WITHOUT LIMITATION WEBCASTING SERVICES, TO THE SAME EXTENT AND SUBJECT TO THE SAME TERMS AS ONSTREAM SHALL ONLY AND SOLELY BE RESPONSIBLE TO INDEMNIFY THE USER RELATING TO THE WEBCASTING EVENTS, INCLUDING WITHOUT LIMITATION WEBCASTING SERVICES, TO THE SAME EXTENT AND SUBJECT TO THE SAME TERMS AS ONSTREAM IS INDEMNIFIED BY ITS SUPPLIERS FOR WEBCASTING SERVICES.
Customer agrees to take all such actions and execute such further documents or instruments as may be reasonably required by Onstream to support the provision of the Webcasting Services, including without limitation a Work Order. In the event Customer agrees, in Work Order, to a separate minimum commitment for use of the Webcasting Services (“Webcasting Services Minimum Commitment”) and does not meet such Webcasting Services Minimum Commitment in any given month, quarter or year, as applicable, Onstream shall invoice for, and Customer shall pay, upon receipt of invoice, the shortfall equal to the difference between the Webcasting Services Minimum Commitment during each applicable term less any payments for actual usage made by Customer during each applicable period during the term of the Work Order. In the event Customer terminates the Webcasting Services (not due to breach by Onstream) or if Onstream terminates on account of Customer’s breach, Customer shall pay to Onstream as liquidated damages, but not as a penalty and representing a reasonable estimate of the probable loss to Onstream, the shortfall resulting from Customer’s failure to meet its Webcasting Services Minimum Commitment for the term of such services, which amount shall equal the difference between the Webcasting Services Minimum Commitment multiplied, as applicable, by the number of months, quarters or years in the term for services less any payments for actual usage made by Customer during such term; provided, however, no payments over and above the Webcasting Services Minimum Commitment for any one month, quarter or year, as applicable, shall apply to or in any way be credited against any other, past or present, Webcasting Services Minimum Commitment or the overall shortfall amount due and payable. For the avoidance of doubt, only the usage of Webcasting Services shall be applicable to the Webcasting Services Minimum Commitment and no usage for Webcasting Services shall apply to any other minimum commitment previously agreed upon for other services by the parties. Any use of the Webcasting Services (including any Trial use) affirms, and any continued use of the Webcasting Services reaffirms, Customer’s acceptance of and agreement to be bound by these Additional Terms of Service for Webcasting Services.
Services & Pricing Schedule Billing Footnotes, Charges & Fees:
The following billing footnotes apply to the Services:
- Services will be billed in U.S. dollars, unless expressly statedotherwise by Onstream or agreed upon by the parties in writing.
- Without limiting any other applicable fees and charges, Customer will be charged overage fees for minutes used that exceed allotted minutes available to Customer pursuant to specific service plans offered from Onstream and agreed to by Customer.
- International rates and surcharges apply on a per minute basis for all calls originating outside the non-contiguous United States and/or international dial-out.
- Call set-up and disconnect charges also apply to all inbound and outbound legs of all calls.
- Onstream rounds completed calls to the next full minute on a per participant basis and rounds the price of the call to the nearest whole cent. Services that are not listed herein, including Enhanced Services such as moderator set-up, cancellation, rescheduling and no-show fees for Operator Assisted calls, are subject to Onstream’s Standard Charges, which are available upon request from Customer’s Onstream Sales Representative or can be found at www.onstreammedia.com.
- Onstream is required by the Federal Communications Commission (FCC) to contribute to the federal Universal Service Fund (USF), which subsidizes telecommunications services in high cost and rural areas and services to low income consumers, schools, libraries and rural health care providers. To recover the cost of its federal USF contributions, Onstream assesses federal USF charges equal to the then-applicable quarterly contribution factor (as established by the FCC) times the portion of your invoice subject to federal USF charges.
- In addition, Onstream assesses up to10.9% monthly Administrative Fee on audio conferencing and other services to recover its costs associated with regulatory requirements and compliance and other costs imposed by its underlying telecommunications carriers on Onstream. USF charges apply to the Administrative Fee. Onstream will not provide advance notice of any change in the quarterly USF contribution factor, USF charges, the Telecommunications Surcharge or the Service Fee. USF charges, the Telecommunications Surcharge, and the Service Fee are neither taxes nor government-required charges.
These Terms and Conditions were last revised June, 2015 and are subject to periodic revisions and updates. YOU ARE RESPONSIBLE FOR REGULARLY REVIEWING THIS SITE TO OBTAIN TIMELY NOTICE OF ANY AMENDED TERMS.
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