This agreement (the “Agreement”) is entered into by and between ”The Customer” on behalf of itself and its affiliates (“The Customer” or “You”) and VCEverywhere, Ltd. (“VCEverywhere”), with offices at The Maidstone TV Studios, Vinters Park, Maidstone, Kent. ME14 5NZ
2. EXCLUSIVE TO THE SERVICE
This Agreement applies only to the Service specified in this Agreement. VCEverywhere may have other Terms and Conditions regarding the use of other Web sites and products. For purposes of this Agreement, the term “Service” shall mean VCEverywhere’s video conference service, related software and other such materials as may be listed and described in an accompanying Order.
3. LICENSE GRANT/ACCEPTABLE USE
- Subject to this Agreement, VCEverywhere grants The Customer and its Users a limited, non-exclusive, non-transferable license to use and display the Service in The Customer’s business or as otherwise specified in the applicable Order (“Permitted Purpose”). “User” means The Customer, its affiliates, its subcontractors or their affiliates and any of their respective personnel who are licensed to use the Service.
- You may not use the Service for anything other than its Permitted Purpose. Regardless of the location from where the Service is used or accessed, you agree to comply with all applicable laws, regulations, statutes and ordinances in connection with the use of the Service.
- By offering the Service, VCEverywhere does not undertake any obligation to monitor, regulate or otherwise control User provided Content and expressly disclaims all liability and responsibility for such User provided Content.
- You may not knowingly:
- interfere with another user’s use and enjoyment of the Service or another individual’s or entity’s use and enjoyment of similar services;
- violate any party’s proprietary, publicity, privacy, or other right;
- misuse or disclose a party’s confidential or proprietary information;
- transmit, store, or knowingly receive any obscene or pornographic material including displays of nudity and/or sexual activities or engage in any misleading, torturous, defamatory, libellous, or offensive activity;
- transmit or upload any material that contains software or other material protected by intellectual property laws, rights of privacy or publicity or any other applicable law unless you own or control the rights thereto or have received all necessary consents;
- attempt to gain unauthorized access to the Service, other accounts, computer systems or networks connected to the Services, through password mining or any other means;
- disrupt the Service, Users, and/or connected services through the use of methods such as viruses, Trojan horses, worms, time bombs, cancel bots, denial of service attacks, flooding, or spamming;
- resell, rent or lease the Service without written consent from VCEverywhere Ltd:
- advertise, solicit, or promote any services that are in competition with VCEverywhere Ltd.
- harvest or otherwise collect information about others without their consent;
- create a false identity for the purpose of misleading others as to the identity of the user;
- permit or authorize others to use the Service in connection with the design, development, production, stockpiling or use of any chemical or biological weapons.
- An agreed trial period is free of charge and an invoice will not be generated. The Customer can continue the service post agreed trial period and agrees to make payment to VCEverywhere for all services consumed at the rate described in the Services Schedule attached to an applicable Purchase Order. Flexi30, Team50/100 and Business150 are 12 monthly subscriptions invoiced monthly in advance. Invoices will be generated on receipt of a purchase order, with services prorated for the current month, then the first business day of each month thereafter.
- Fair Usage Policy (Unless otherwise agreed on purchase order):
Flexi30 – inclusive of 1500 Participant Minutes
Team50 – inclusive of 1500 Participant Minutes
Team100 – inclusive of 2200 Participant Minutes
Business150 – unlimited Participant Minutes
- “Pay as You Go” (PAYG) and “Overage” are charged in “Participant Minutes”. Participant minutes are the cumulative number of minutes consumed in a meeting within the Service by all participants combined. If you exceed the number of minutes allotted for your subscription plan, you will incur overage charges, as set forth in more detail in the Service schedule. Pay as You Go and Overage charges will be billed in the following payment cycle.
- This agreement is effective throughout the duration of the “Service”. All accounts are for a 12 month term except Pay as You Go (PAYG) but may be upgraded to a higher plan at any time.
- VCEverywhere shall invoice The Customer PAYG minutes consumed monthly in arrears and any subscription payments not received within the 12 month term, with payment to be due on receipt of an undisputed invoice. Non-payment may result in the termination of the Service. Each invoice shall fairly and accurately describe in reasonable detail the services/products being purchased. You will automatically receive upgrades if and when available. New order/subscriptions will be digitally delivered to the email address corresponding to the same email address provided to the Merchant financial transaction processor.
The following is a non-exhaustive list of practices that would not be considered Legitimate Use:
- Using subscriptions for commercial purposes or commercial gain;
- Re-selling subscription minutes;
- Sharing subscriptions between users whether via a PBX, call centre, computer or any other means;
6. FORCE MAJEURE
All user accounts are provided on a contended service with a guaranteed contention ratio of 20:1 at all times. VCEverywhere will not be responsible for delays and/or defaults in its performance due to causes beyond its reasonable control, including, but without limiting the generality of the foregoing; acts of terrorism, wars, hostilities, revolutions, riots, civil commotion, national emergency, fire or explosion, flood, force of nature, embargoes, accidents, acts of God, or stability or availability of the Internet, the elements; telecommunication system failure; technology attacks, epidemic; quarantine; viruses; strike; lockouts; disputes with workmen or their labour disturbances; total or partial failure of transportation, utilities, delivery facilities, or supplies; acts or request of any governmental authority; or any other cause beyond VCEverywhere control, whether or not similar to the foregoing. The foregoing shall not relieve VCEverywhere of maintaining and implementing disaster recovery and security plans, which shall at all times conform to best industry practice.
VCEverywhere will take commercially reasonable measures to ensure the Service is available without significant interruption, notwithstanding scheduled downtime needed to help maintain effective operation of the Service. However, difficulties with hardware, software, equipment and services supplied by others may result in service interruptions. In such cases, VCEverywhere shall provide The Customer as much notice as is reasonably practicable. In no event will VCEverywhere Ltd. be liable to any party for any loss, cost or damage that results from any period of down time.
8. LIMITATION OF LIABILITY
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR LOST REVENUE, OR FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ANY SCHEDULE OR ANY SOW(S); PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATION OF LIABILITY WILL NOT APPLY TO ANY OF THE FOLLOWING: (A) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT; (B) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT; (C) ANY RECKLESSNESS OR WILLFUL MISCONDUCT BY A PARTY; OR (D) PROPERTY DAMAGE, PERSONAL INJURY OR DEATH.
9. WARRANTIES AND DISCLAIMER OF WARRANTIES
VCEverywhere represents, warrants and covenants as follows:
- it has the full power and right to enter into and perform this Agreement and to make the grant of rights contained herein, including the right to license the Service to The Customer;
- The Service will not infringe, misappropriate or unlawfully use or disclose any intellectual property or other rights of any third party;
- it will maintain and enforce safety and physical security procedures with respect to its access, use, and possession of The Customer’s Confidential Information, including personal data, that are at least equal to industry standards for such types of locations, and which provide reasonably appropriate technical and organizational safeguards against accidental or unlawful destruction, loss, alteration or unauthorized disclosure or access of such information; and
- Any Service, product, system, software or material that interacts with, is transmitted to or otherwise is provided under this Agreement does not and will not contain any code, programs or mechanisms that disrupt, modify, delete, harm or otherwise impede the operation of The Customer’s systems (“Destructive Elements”). Prior to delivery of any of Service, VCEverywhere will test such Service or other materials using the most recent version of a reputable, commercially-available anti-virus software program to ensure that it is free of Destructive Elements.
- Except as expressly set forth in this Agreement, You expressly understand and agree that any and all information contained on or obtained from the Service is provided “as is” and on an “as available” basis. VCEverywhere Ltd. does not warrant that the Service contains accurate information or will be free from bugs, defects or errors, or accessible without interruption. VCEverywhere Ltd. makes no warranties, express or implied, as to the merchantability, fitness for a particular use or purpose, or any other warranty, condition, guaranty, or representation, whether oral, written, or in electronic form, including but not limited to the quality, accuracy, usefulness, timeliness or completeness of any information provided hereon. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.
10. USER INFORMATION AND PRIVACY
- VCEverywhere Ltd. recognizes the importance of protecting the privacy of customer / Users and wishes to provide efficient and relevant information to Users of the Service. In order to serve our customers, VCEverywhere Ltd. collects information provided by you when using the Service.
- By registering for the Service VCEverywhere provides a username, password and video room link. You may not disclose or share the username or password with any unauthorized third parties or use your username or password for any unauthorized purpose. If you lose control of either your username or password, you may lose control over your sensitive information on the Service and you agree that VCEverywhere Ltd. will not be responsible. If you believe that your username or password has been stolen or otherwise compromised, immediately contact VCEverywhere Ltd. Customer Help Support Desk.
- Except as expressly provided herein, each party agrees to hold all confidential information accessed or otherwise made available to a party pursuant to this Agreement in confidence, that it will not disclose any confidential information to any person (including any entity), other than its directors, officers or employees who have a need to know such information in connection with the Agreement (collectively, “Representatives”), and that it and its Representatives will not use any such confidential information for purposes other than in connection with the Agreement. Each party agrees to inform its Representatives of the confidential and valuable nature of the Confidential Information and of its obligations under this Agreement. Each party shall be responsible and liable for any breach of this Agreement by its Representatives.
- VCEverywhere Ltd. retains all rights with respect to the Service.
- VCEverywhere will defend, indemnify and hold harmless The Customer from and against all claims, damages, losses and expenses, including court costs and reasonable fees and expenses of attorneys, expert witnesses, and other professionals, arising out of or resulting from and against: (a) any action by a third party against The Customer that is based on any claim that any of the Service provided under this Agreement, or The Customer’s use thereof, infringes, misappropriates or violate any intellectual property or other rights of a third party; and (b) any action by a third party that is based on VCEverywhere’s or its personnel’s fraudulent, reckless or willful conduct.
- VCEverywhere will have no liability for any infringement claim of any kind to the extent such claim is directly attributed to: (i) modification of the Service made by The Customer unless such modification is authorized by VCEverywhere; (ii) the combination, operation or use of the Service supplied hereunder with information, processes, equipment, devices, software or technology not supplied by VCEverywhere, other than equipment, devices, software or technology (such as a computer, operating system, drivers or network hardware or software) with which the Service was designed or naturally expected to function to achieve its intended functionality, to the extent such a claim would have been avoided if the Service were not used in such combination; (iii) failure of The Customer to use an updated or modified Service provided by VCEverywhere to avoid infringement; or (iv) compliance by VCEverywhere with designs, plans or specifications originated and furnished solely by or on behalf of The Customer.
13. GOVERNING LAW
This Agreement shall, for all purposes, be construed, governed by and enforced solely and exclusively in accordance with the laws of the United Kingdom without giving effect to its conflict of law provisions or your actual state or country of residence, excluding its choice of law and also excluding the United Nations Convention on Contracts for the International Sale of Goods. Each party hereby agree that the courts and/or arbitrators located in London, England, will constitute the sole and exclusive forum for the resolution of any and all disputes arising out of or in connection with this Agreement and each party hereby irrevocably consent to the personal jurisdiction and venue of such courts and/or arbitrators and irrevocably waive any objections thereto. Each party hereby irrevocably consent to service of process for all actions in such legal proceedings. Any judgments obtained by such courts and/or arbitrators may be entered and enforced against a party in any jurisdiction where it or its assets are located. Any legal action concerning this Agreement or the Services covered by this Agreement must be brought by either party within one (1) year after the claim or cause of action arises.
Neither party may assign its rights or obligations under this Agreement, in whole or in part, without express written consent of the other party and any assignment in violation of the provisions of this Section shall be deemed null and void.
15. SEVERABILITY AND WAIVER
If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be amended so that it is enforceable to the maximum extent allowed under applicable law and the remaining provisions shall be enforced. A party’s failure to act with respect to a breach by the other party does not waive its right to act with respect to subsequent or similar breaches.
16. ENTIRE AGREEMENT
- This Agreement constitutes the entire and final agreement between the parties with respect to the subject matter hereof and replaces any and all prior or contemporaneous understandings or agreements, written or oral, regarding the subject matter.
- No modification or attempted modification of this Agreement by you will be binding on either party unless such modifications are accepted by both parties in writing.