Conferencing & Collaboration Solutions Terms & Conditions for Premiere Conferencing (Canada) Limited
IMPORTANT- READ CAREFULLY: CUSTOMER'S USE OF SERVICES IS CONDITIONED UPON CUSTOMER'S COMPLIANCE WITH, AND CONFIRMS CUSTOMER'S AGREEMENT TO BE BOUND BY AND ACCEPTANCE OF, THESE TERMS & CONDITIONS, INCLUDING WITHOUT LIMITATION ALL SCHEDULES (THIS "AGREEMENT"). IF CUSTOMER DOES NOT AGREE WITH THE TERMS OF THIS AGREEMENT, DO NOT USE THE SERVICES. CUSTOMER IS ENCOURAGED TO PRINT OR DOWNLOAD THESE TERMS AND CONDITIONS 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.
(b) Taxes and Other Charges. PGi 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 at any time. PGi may cancel or re-schedule orders if PGi determines, in its sole discretion, that Customer’s previous payment record so warrants such change. Customer will pay, and PGi reserves the right to collect in arrears, all sales, use, consumption, goods and services, excise or other taxes (other than taxes based upon PGi net income), fees, 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 PGi, by any foreign, federal, state/provincial, county or local government authority upon or with respect to the Services provided. If Customer claims exemption from charges, Customer must provide PGi with a current, valid exemption certificate from the applicable regulatory authority.
(c) Minimum Commitment. In the event Customer agrees to a minimum commitment for use of the Services during the term of the Agreement ("Minimum Commitment") and does not meet its Minimum Commitment in any given month, quarter or year, as applicable, PGi shall invoice for, and Customer shall pay, upon receipt of invoice, the shortfall equal to the difference between the Minimum Commitment during each applicable term less any payments for actual usage made by Customer 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 Services as Customer actually used during the applicable period. Only the per minute usage of the PGi meeting solutions shall be applicable to the Minimum Commitment.
(d) Credit Cards. Notwithstanding any other provision herein, for any fees and/or charges paid by credit or debit cards, Customer agrees if payment is not received by PGi from the card issuer or its agents, Customer will pay all amounts due upon demand by PGi. Each time Customer uses the Services, or allows or causes the Services to be used, Customer agrees and reaffirms that PGi is authorized to charge Customer's designated card in connection with the Services, and Customer must refer to such agreement (not this Agreement) with respect to Customer's rights and liabilities as a cardholder. CUSTOMER FURTHER AGREES THAT PGi MAY SUBMIT ADDITIONAL CHARGES FOR USE OF THE SERVICES EACH MONTH, WITHOUT FURTHER AUTHORIZATION FROM CUSTOMER, until Customer provides prior written notice (in accordance with PGi's verification procedures, as may be established by PGi from time to time in its sole discretion) that Customer terminates this authorization or desires to change its designated card. Such notices will not affect charges submitted before PGi reasonably could act on such notice.
2. Term and Termination.
(a) Term. Services shall commence upon the Service Commencement Date as agreed upon by the parties, in writing (or via click-thru acceptance), and shall continue, unless different terms are specified by the parties, in writing (or via click-thru acceptance), 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 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 (or via click-thru acceptance).
(b) Promotional Term; Free Trial Term. If Customer uses Services pursuant to a promotional offer granting free Services and/or a free trial for Services ("Free Services"), Customer will receive use of the Free Services solely for a 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 Customer with the specific Free Services offer. Notwithstanding any other provision in this Agreement, all Free Services are provided solely as an accommodation to Customer, and PGi reserves the right, at all times and in its sole discretion, to terminate any Free Services at any time without notice, including without limitation for any abuse of the Free Services. CUSTOMERS SIGNING UP TO PAY FOR SERVICES BY CREDIT OR DEBIT CARDS, ACKNOWLEDGE AND AGREE THAT AS A CONDITION TO RECEIVE ANY FREE SERVICES, A SERVICE CHARGE WILL BE PRE-AUTHORIZED AGAINST CUSTOMER'S 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 CUSTOMER'S CREDIT OR DEBIT CARD, WITHOUT FURTHER AUTHORIZATION FROM CUSTOMER, UPON THE EXPIRATION OF THE FREE SERVICES PERIOD, UNLESS CUSTOMER TERMINATES 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 CUSTOMER RATES NOT IMPLEMENTED UNTIL A DATE FOLLOWING CUSTOMER'S SERVICE COMMENCEMENT DATE ("RATE IMPLEMENTATION DATE") AND PGi AGREES TO MAKE AVAILABLE ANY FREE SERVICES TO CUSTOMER PRIOR TO SUCH RATE IMPLEMENTATION DATE, CUSTOMER'S INITIAL TERM FOR SERVICES SHALL BE EXTENDED BY THE LENGTH OF THE FREE SERVICES PERIOD; PROVIDED, HOWEVER, IF SUCH FREE SERVICES PERIOD WOULD RESULT IN CUSTOMER'S INITIAL TERM ENDING IN THE MIDDLE OF A BILLING CYCLE, THE INITIAL 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, PGi may terminate this Agreement and/or suspend the provision of Services immediately for: illegal, fraudulent or improper use of the Services (including without limitation Customer’s use of the Services in contravention of Section 6) or if deemed reasonably necessary by PGi to prevent interruption or disruption to PGi’s network, its business or other customers; if any portion of an invoice not reasonably disputed in good faith as herein provided remains unpaid when due (including without limitation any Minimum Commitment shortfall amount); or for breach, not subject to cure. PGi shall not be liable to Customer or any third party should PGi 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 by Customers with Minimum Commitment. If Customer has agreed to a Minimum Commitment and In the event that Customer terminates this Agreement (not due to breach by PGi) or if PGi terminates on account of Customer's breach, Customer shall pay to PGi as liquidated damages, but not as a penalty and representing a reasonable estimate of the probable loss to PGi, the shortfall resulting from Customer's failure to meet any Minimum Commitment for the term of this Agreement, which amount shall equal the difference between the Minimum Commitment multiplied, as applicable, by the number of months, quarters or years in the term less any payments for actual usage made by Customer during the term of this Agreement; provided, however, no payments over and above the 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, Minimum Commitment or the overall shortfall amount for the term of this Agreement.
(e) Effect of Termination for Free Services. In addition to and without limiting any other rights or remedies PGi has herein or otherwise identified or communicated to Customer with the specific Free Services offer, if PGi determines, in its sole discretion and whether or not it has conducted an audit, that Customer has violated any conditions of and/or limitations on the Free Services or any associated software, PGi reserves the right to immediately terminate the Free Services and to charge and to collect from Customer the amount Customer would have been required to pay for the Free Services as a retail customer (applying Standard Charges) during the period of Customer's non-compliance. Customer agrees to pay this amount to PGi, plus the cost of conducting any associated audits by PGi that in the sole discretion of PGi 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 PGi. 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 (including all copies of all written documents relating to that) upon termination of this Agreement or at any time, or from time to time, upon the request of the other party.
4. Trademarks and Trade Names. Except as required for use of the Services, Customer has no right or license to use any of the trademarks or trade names owned by, licensed to or associated with PGi and its suppliers (the “PGi Marks") during the term of this Agreement without express written consent from PGi. Despite prior approval, Customer will immediately cease and desist using the PGi Marks upon notice from PGi or upon termination of this Agreement for any reason. Any use by Customer of the PGi 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, PGi may terminate this Agreement. If PGi elects to issue a press release pertaining to this Agreement, PGi and Customer agree to cooperate in a joint press release, subject to both parties’ prior review and approval, announcing the execution of this Agreement. Customer agrees to allow PGi to name Customer as a client of PGi in any marketing material PGi may create from time to time. PGi will not use Customer trademarks or trade names, other than the corporate name and/or logo of Customer or solely to the extent used in PGi’s internal business communications and/or presentations, in any marketing materials without the prior written consent of Customer, which consent shall not be unreasonably withheld.
5. Intellectual Property. The Services provided under this Agreement (including any custom application(s) developed for Customer and results from a collaboration) and all associated intellectual and proprietary rights are the sole property of PGi and/or its suppliers. Without limiting the foregoing, PGi welcomes feedback regarding many areas of PGi’s Services. Any ideas, suggestions, comments and/or other feedback Customer provides to PGi (“Feedback”) shall be deemed to be non-confidential and PGi shall be free to use such information on an unrestricted basis. Customer should only provide specific Feedback on PGi’s existing Services and should not include any ideas that PGi’s policy will not permit it to accept or consider. PGi 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: Customer agrees that: (1) all submissions and their contents will automatically become the property of PGi, without any compensation; (2) PGi 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; (3) there is no obligation for PGi to review the submission; and (4) there is no obligation to keep any submissions confidential. For the avoidance of doubt, Customer will not submit any Feedback to PGi that (1) Customer has reason to believe is subject to any patent, copyright, or other intellectual property claim or right of any third party; or (2) that is subject to license terms that seek to require any PGi product incorporating or derived from any Feedback, or other PGi intellectual property, to be licensed to or otherwise shared with any third party.
6. Compliance and Indemnification. Customer acknowledges that PGi has no control over the content of information transmitted by Customer through the Services (whether visual, written or audible) and that PGi does not examine the use to which Customer puts the Services or the nature of the information Customer or Customer’s users send or receive. Customer shall comply 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). Customer agrees not to transmit content through use of the Services that infringes any third party’s intellectual property rights or that 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. Customer is responsible: (i) for any and all activities that may occur under Customer’s account and (ii) to maintain the confidentiality and security of its Services’ Host ID and/or access numbers, keys and passwords/passcodes. Customer agrees to notify PGi 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 Customer shall be liable for fraudulent charges until such time as Customer has notified PGi to suspend any compromised Host IDs, access numbers, keys and/or passwords/passcodes. Customer acknowledges that PGi 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, PGi may disclose information about Customer’s use of Services to satisfy any law, regulation, government agency request, court order, search warrant, subpoena or other legal process.
Customer acknowledges that PGi is not a traditional telephone service, and the services are not intended to support or carry any emergency calls to any emergency services of any kind. Customer needs to make additional arrangements in order to access emergency services. Additionally, use of conference recording or taping any use of the Services may subject Customer to laws or regulations. Customer acknowledges and agrees that: (i) Customer may not record or tape any Web, video or telephone conversation in connection with the services unless Customer is in compliance with all laws relating to the recording of communications and protecting the privacy of communication for all parties to the conversation. PGi has not and is not expected to provide Customer with any analysis, interpretation or advice regarding Customer's compliance with the above, and Customer is solely responsible and obligated to provide any required notifications to participants prior to commencement of conferences.
Customer shall indemnify, defend and hold PGi, 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 Customer’s (or any individual or entity accessing the Services through Customer or Customer’s 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.
7. Warranty and Limitation of Liability. ALL SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND PGi SHALL NOT HAVE ANY LIABILITY TO ANY PARTY, INCLUDING BUT NOT LIMITED TO CUSTOMER, FOR THE CONTENT OF INFORMATION TRANSMITTED BY CUSTOMER THROUGH THE SERVICES OR ANY LOSS, DELAY, INTERRUPTION, OR INACCURACY OF SUCH COMMUNICATIONS. PGi DISCLAIMS ANY AND All REPRESENTATIONS, WARRANTIES OR COVENANTS, FOREGOING, 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, PGi 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. PGi ALSO DOES NOT MAKE ANY WARRANTY OR GUARANTEE FOR ANY PRODUCTS OR SERVICES PROVIDED BY VENDORS SUGGESTED BY PGi. NEITHER PGi NOR PGi’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 PGi IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. PGi shall not be liable for any failure to perform, or delay in performance of, its obligations under this Agreement caused by reasons beyond PGi’s control, which shall include without limitation, power and carrier outages or internet service disruption. In no event shall PGi’s total liability to Customer arising under this Agreement, whether such theory of liability is based in contract, tort or otherwise, exceed an amount equal to THE charges (CALCULATED ON A PRO-RATED BASIS FOR ADVANCED PAYMENTS OF ALL CHARGES) by PGi to customer for the particular service performed by PGi 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 7 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
8. Counterparts. 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.
9. Captions and Section Headings. Captions and section headings are for convenience only, are not a part of this Agreement and may not be used in construing it.
10. Severability. 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.
11. Waivers. 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.
12. No Agency. 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.
13. No Third Party Beneficiaries. Each party enters into this Agreement solely for its own benefit and purpose. Except for PGi’s suppliers and/or affiliates as expressly provided herein, including in any Schedule, 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.
14. Successors and Assigns; Assignment. This Agreement shall be binding upon and inure to the benefit of the parties' successors, legal representatives and authorized assigns. PGi 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 PGi 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 PGi, which shall not be unreasonably withheld.
15. Notices. Customer notices for billing or account management purposes will be addressed to the address provided to PGi. Notifications to PGi shall be addressed to Premiere Conferencing (Canada) Limited Attn: General Manager, Canada, 225 King St. W., Suite 900, Toronto, ON, M5V 3M2Gi at the address first set forth on this Agreement, with an additional required copy to Premiere Conferencing (Canada) Limited, Attn: Legal Services Department, 3280 Peachtree Road NE, Suite 1000, Atlanta, GA 30305-2422 USA. 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. Customer hereby grants PGi express consent to contact all individual account holders and moderators to communicate information regarding PGi’s services and products, including without limitation, upgrades, enhancements, end-of-life, modifications and/or other feature changes. Without limiting the foregoing, Customer grants PGi express consent to periodically contact Customer and/or to forward to Customer’s e-mail address(es) on file information regarding PGi’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 PGi’s products, services, marketing plan and other business related items.
16. Survival of Terms. Articles 3, 6, 7 and 18 shall survive cancellation, termination, expiration or suspension of this Agreement.
17. Governing Law; Languages. This Agreement shall be interpreted and governed by the laws of the Province of Ontario without regard to its rules governing conflicts of law. The parties agree to submit to the exclusive jurisdiction of the provincial or federal courts located in or with responsibility for Toronto, Ontario 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 Customer is in Canada, it is the express wish of both parties that this Agreement, and any associated documentation, be written and signed in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
18. 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 Customer requires use of a Customer-form purchase order in connection with any of the Services to be performed hereunder, 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 PGi and Customer. Without limiting any other rights in this Agreement, PGi may amend at any time the provisions of this Agreement by, at PGi’s election: (i) posting revised terms and conditions (“Amended Terms”) on www.pgi.com (the “PGi Web Site”); (ii) delivering the Amended Terms to Customer at the address, fax or e-mail address provided herein (such delivery may be included in invoices for the Services delivered to Customer); 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 PGi Web Site or (ii) Customer’s next billing cycle following posting or delivery to Customer. CUSTOMER AGREES TO BE SOLELY RESPONSIBLE FOR REGULARY REVIEWING THE PGi WEB SITE TO OBTAIN TIMELY NOTICE OF ANY SUCH AMENDED TERMS AND PGi's THEN-CURRENT TERMS AND CONDITIONS. BY USING THE SERVICES AFTER POSTING OR DELIVERY OF AMENDED TERMS, CUSTOMER WILL BE DEEMED TO HAVE ACCEPTED AND BE BOUND BY SUCH AMENDED TERMS. For the avoidance of doubt, and notwithstanding the foregoing or any other provision herein or in any Schedule hereto, no notice of any kind, written or otherwise, is required for changes to Standard Charges or Customer Rates as each is defined in Section 1(a) to this Agreement. No such amendment by PGi shall serve to constitute a default or termination by PGi of this Agreement, nor shall such amendment serve to be a basis for Customer’s 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. For the avoidance of doubt, and notwithstanding the foregoing or any other provision herein or in any Schedule hereto, no notice of any kind, written or otherwise, is required for changes to Standard Charges as provided in Section 1(a) to this Agreement.
License Grant. PGi 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. Customer may not rent, lease, grant a security interest in, or otherwise transfer any rights in the use of the Services. Customer is prohibited from reselling or acting as a service bureau for any of the Internet Services provided by PGi. Customer shall not reverse engineer, modify, decompile, disassemble, translate or otherwise attempt to derive source code from any part of the Internet Services or associated software. Customer shall not remove, alter or obscure in any way any proprietary rights notices (i.e., copyright notices).
User Content. Customer warrants and represents 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 photographs, caricatures, illustrations, designs, icons, articles, text, audio clips, and video clips (collectively, “Customer Content”).
Customer warrants and represents it will not publish, post, upload, record or otherwise transmit Customer Content that: (i) infringes any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (ii) violates any law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination or false advertising); (iii) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (iv) is profane, indecent, obscene, harmful to minors or child pornographic; (v) 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; or (vi) is materially false, misleading or inaccurate.
User Conduct. Customer agrees to comply with applicable United States export laws and regulations regarding the transmission of technical data exported from the United States through the Services. Customer agrees not to: (1) use the Services in connection with chain letters, junk mail, surveys, contests, pyramid schemes, spamming or any duplicative or unsolicited messages, or any use of distribution lists to any person who has not given specific permission to be included in such a process (commercial or otherwise); (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 Services any directory of other users or usage information or any portion thereof other than in the context of Customer’s use of the Services; (4) knowingly interfere with or disrupt networks connected to the Services or violate the regulations, policies or procedures of such networks; (5) attempt to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services, through password mining or any other means; or (6) use the Services for illegal purposes (including without limitation, gambling or betting).
International Sale of Goods, Export and Import Control Laws and Regulations. The application of the United Nations Convention on the International Sale of Goods is hereby expressly excluded. Customer acknowledges that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Services and any associated software. Without limiting the foregoing, Customer understands that the Services and associated software are an "encryption item" subject to controls under the Export Administration Regulations promulgated by the U.S. Department of Commerce. Customer agrees that it will not, and will not cause others to, export or re-export the Services or any associated software in any form in violation of the export laws of the United States or any foreign jurisdiction. Customer will defend, indemnify, and hold harmless PGi and its suppliers from and against any violation of such laws or regulations by Customer or any of its agents, officers, directors, or employees.
Governmental Agencies. 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.
The following terms shall apply exclusively to Web Conferencing Services:
Named User License. A “Named User” is an individual designated and identified by the Customer as an organizer/administrator who is authorized to schedule conferences. There may be only one user / employee assigned to a Named User license. Named User licenses cannot be shared among multiple individuals, and separate Named User licenses must be purchased for each individual. Only one conference may occur at any given time (i.e. no concurrent meetings) per licensed Named User. For each conference scheduled by a Named User, the Named User must: (1) host the conference by entering as a presenter, and (2) act as an organizer of the conference through use of their organizer identification. Customer is at all times responsible for monitoring and maintaining the use of the Named User licenses within the forgoing parameters, and the Customer shall indemnify PGi in the event a claim is brought or damages are incurred due to Customer’s misuse of the Named User license. A Named User designation may not be transferred to another Customer employee except upon (a) termination of the Named User’s employment with Customer, or (b) in all other instances, PGi’s express prior written approval.
1) Webcasting Services
b) 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 PGi to manage a Webcast Event or use the Webcasting Services in any manner inconsistent with these Terms.
2) Webcast Event Production and Services
a) Customer acknowledges that production of a Webcast Event will require utilization of various elements of services. Customer shall work with PGi’s representative to establish which elements Customer requires for each event.
b) 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, PGi 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 PGi, 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 PGi as PGi may require from time to time in producing the Webcast Event. PGi will not be responsible for editing any content provided by Customer.
3) Work Orders
a) 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. 4) Customer Content
a) 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.
b) Without limiting its other obligations, Customer shall indemnify, defend and hold PGi 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.
5) Modifications and Releases
a) 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. PGi 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.
a) As between PGi and/or its suppliers and Customer, PGi and it suppliers 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.
a) PGi 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.
8) 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 LIMITAION ANY ALL WEBCASTING SERVICES; (III) NEITHER PGi, 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 PGi 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 PGi BY CUSTOMER FOR THE THREE (3) MONTHS PRIOR TO THE CLAIM FIRST BEING RAISED TO THE OTHER PARTY; AND (V) PGi 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 PGi 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 PGi IS INDEMNIFIED BY ITS SUPPLIERS FOR WEBCASTING SERVICES.
a) Customer agrees to take all such actions and execute such further documents or instruments as may be reasonably required by PGi 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, PGi 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 PGi) or if PGi terminates on account of Customer’s breach, Customer shall pay to PGi as liquidated damages, but not as a penalty and representing a reasonable estimate of the probable loss to PGi, 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.
- Provision of Audio Conferencing Services. Customer acknowledges that the audio conferencing Services subject to this Agreement are provided by PGi (and not Microsoft or its affiliates). Customer must subscribe for, or acquire a license to, Lync Online as a pre-requisite for operation of such Services.
- Permitted Audio Conferencing Countries. Customers that acquire subscriptions for Services outside countries permitted by PGi or its suppliers, as determined in their sole discretion (“Permitted Countries”) may not be able to use the Services in their home country or any other country that is not a Permitted Country. The Services may be restricted or unavailable to a conference participant that accesses a conference from a country that is not a Permitted Country. PGi may suspend or terminate the provision of Services without notice if deemed necessary by PGi to ensure compliance with applicable laws.
- Consent. Customer hereby consents to the provision of Customer information to Microsoft in connection with the Services, and consents to Microsoft’s receipt and use of Customer information in connection with Microsoft’s provision of Lync Online and Microsoft’s fulfillment of all of its obligations in connection with the delivery of Lync Online. Customer hereby grants permission to Microsoft to use Customer information in connection with Microsoft’s provision of Lync Online and support services. In addition, Customer hereby consents to disclosure by Microsoft to PGi of Customer’s call detail records related to Lync Online for billing and technical use.
- Intellectual Property. Customer shall not reverse engineer, modify, decompile, disassemble, translate, separate the components or otherwise attempt to derive source code from any part of Lync Online. Customer shall not remove, alter or obscure in any way any proprietary rights notices (i.e., copyright notices), or cause any part of Lync Online, or any software or materials provided by Microsoft to become subject to the terms of any license that requires as a conditions of use, modification or distribution of software subject to such license, that it or other software combined or distributed with it be (i) disclosed or distributed in source code form; (iii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge. Customer has no right or license to use any of the trademarks or trade names owned by, licensed to or associated with Microsoft during the term of this Agreement.
- User Conduct. Customer has all necessary rights to all data, software programs or services that Customer uses in connection with its access and use of Lync Online, and Customer’s use of any of the foregoing does not infringe intellectual property or other proprietary rights of any third party. Customer warrants and represents it will not publish, post, upload, record or otherwise transmit content that: (i) violates the rights of any third party or subjects Microsoft to any other obligations to Customer or any third party; or (ii) violates any law, statute, ordinance or regulation.
- Microsoft as Third Party Beneficiary. Customer acknowledges and agrees that Microsoft and Microsoft’s affiliates are intended third party beneficiaries under the relevant sections of the Agreement and shall have a direct right of action to enforce the same against Customer.
For the avoidance of doubt, in addition to the foregoing “additional terms,” all terms and conditions set forth in the Agreement do and will apply to Customer’s use of PGi Audio for Lync Online.
Services & Pricing Schedule - Billing Footnotes:
- Services will be billed in U.S. dollars, unless expressly stated otherwise by PGi 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 and exceeding minimums available to Customer pursuant to specific service plans offered from PGi 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. For calls with less than three (3) participants, a minimum connection charge will apply (Connection Charge). Call set-up and disconnect charges also apply to all inbound and outbound legs of all calls. PGi 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 PGi’s Standard Charges, which are available upon request from Customer’s PGi Sales Representative.
- PGi 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, PGi 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, PGi assesses a 2.95% monthly carrier cost recovery fee (CCRF) on audio conferencing services to recover its costs associated with regulatory requirements and compliance, as well as regulatory, compliance and other costs imposed by its underlying telecommunications carriers on PGi. USF charges apply to CCRF. Additionally, PGi imposes a 2.8% service fee (Service Fee) on all pre-tax charges. PGi will not provide advance notice of any change in the quarterly USF contribution factor, USF charges, CCRF or the Service Fee. USF charges, CCRF, and the Service Fee are neither taxes nor government-required charges. PGi applies a per minute surcharge to each toll-free minute originating from Alaska, Hawaii, any US Territory, the Caribbean or Canada. For the avoidance of doubt and notwithstanding the foregoing, the CCRF, Service Fee and Connection Charge will not apply to iMeet Services.
These Terms and Conditions were last revised May 10, 2011 and are subject to periodic revisions and updates. CUSTOMER IS RESPONSIBLE FOR REGULARLY REVIEWING THIS SITE TO OBTAIN TIMELY NOTICE OF ANY AMENDED TERMS.