1. Services and Pricing.
(a) Sales to Customer. Customer will pay AFFINITY for the Conferencing Solutions provided (the "Services"), according to the terms of service and at the listed rates as set forth in the schedules attached to and hereby incorporated into this Agreement (the "Schedules"). In the event of a conflict between any terms herein and in any Schedule for Web conferencing and collaboration services resold by AFFINITY or for which AFFINITY is a fulfillment agent for third party suppliers, the terms of the Schedule for the particular service shall control. Charges for use of Services are invoiced at the end of each month, and payments are due upon receipt of invoice. Past-due balances shall be subject to an interest charge of 1.5% per month computed from the due date of each invoice previously issued, or the maximum rate legally permitted, whichever is less. Customer shall pay any collection costs, including reasonable attorneys' fees, and other expenses incurred by AFFINITY to collect any sums due under this Agreement. Customer must notify AFFINITY of any charge disputed in good faith, with supporting documentation, within 30 days from the date of invoice, or Customer will be deemed to agree to such charges and no adjustments to charges or invoices will be made. Customer remains responsible to pay undisputed charges by the due date.
(b) Credit Checks; Taxes and Other Charges. The provision of Services under this Agreement is subject to credit verification and acceptance by AFFINITY. AFFINITY reserves the right, in its sole discretion, to change or institute new or additional charges and/or fees for access to or use of Services (including for ancillary services) at any time. Further, AFFINITY may, in its sole discretion, request advanced payment, in whole or in part, from Customer or change its payment terms at any time. AFFINITY may cancel or re-schedule orders if AFFINITY determines, in its sole discretion, that Customer's financial condition or previous payment record so warrants such change. Customer shall pay, and AFFINITY reserves the right to collect in arrears, all sales, use, excise or other taxes, fees or charges of any nature whatsoever, now or hereafter imposed or assessed on AFFINITY, by any federal, state, county or local government authority upon or with respect to the Services provided.
(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, AFFINITY 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 conferencing and collaboration services shall be applicable to the Minimum Commitment.
2. Term and Termination.
(a) Term. Unless a different term is specified by the parties, in writing, Services shall commence upon the Service Commencement Date as agreed upon by the parties, in writing, and shall continue for a minimum term of twelve (12) months ("Initial Term"), with one (1) year renewal terms continuing indefinitely thereafter (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 60 days prior to the end of such term. At the commencement of any Renewal Term, the rates for Services provided pursuant to this Agreement shall automatically adjust to AFFINITY' then-standard rates.
(b) 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 30 days after receipt of written notice of such breach. Notwithstanding the foregoing, AFFINITY 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 AFFINITY to prevent interruption or disruption to AFFINITY' network, its business or other customers; if any portion of an invoice remains unpaid when due (including without limitation any Minimum Commitment shortfall amount); or for breach, not subject to cure. AFFINITY shall not be liable to Customer or any third party should AFFINITY exercise its right to discontinue Services, in whole or in part, or terminate this Agreement pursuant to this Section 2(b).
(c) Early Termination by Customer. In the event that Customer terminates this Agreement (not due to breach by AFFINITY) or if AFFINITY terminates on account of Customer's breach, Customer shall pay to AFFINITY as liquidated damages, but not as a penalty and representing a reasonable estimate of the probable loss to AFFINITY, 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.
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 AFFINITY. 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 person 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 AFFINITY and its suppliers (the "Marks") during the term of this Agreement without express written consent from AFFINITY. Despite prior approval, Customer will immediately cease and desist using the Marks upon notice from AFFINITY or upon termination of this Agreement for any reason. Any use by Customer of the 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, AFFINITY may terminate this Agreement. If AFFINITY elects to issue a press release pertaining to this Agreement, AFFINITY 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 AFFINITY to name Customer as a client of AFFINITY in any marketing material AFFINITY may create from time to time. AFFINITY will not use Customer Marks, other than the corporate name of Customer, in any such 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 AFFINITY and/or its suppliers.
6. Customer Compliance and Indemnification.
Customer acknowledges that AFFINITY has no control over the content of information transmitted by Customer through the Services (whether visual, written or audible) and that AFFINITY 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 and local laws relating to its 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 your account and (ii) to maintain the confidentiality and security of its Services' access numbers, keys and passcodes. Customer agrees to notify AFFINITY immediately if there has been an unauthorized use of any access numbers, keys and passcodes or any other breach of security, and Customer shall be liable for fraudulent charges until such time as Customer has notified AFFINITY to suspend any compromised access numbers, keys and/or passcodes. Customer acknowledges that AFFINITY may from time to time monitor the Services for quality assurance and fraud detection. Further, and notwithstanding confidentiality provisions herein, AFFINITY may disclose information about Customer's use of Services to satisfy any law, regulation, government agency request, court order, subpoena or other legal process.
Customer shall indemnify, defend and hold AFFINITY, 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: (i) Customer's use of the Services; (ii) Customer's 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 shall also survive 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 AFFINITY 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. AFFINITY 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. AFFINITY 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. AFFINITY, nor its suppliers, shall in any event be liable for any special, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT OR OTHER MONETARY LOSS; LOSS OR INTERRUPTION OF DATA, COMPUTER TIME OR VOICE TRANSMISSIONS; ALTERATION OR ERRONEOUS TRANSMISSION OF DATA; ACCURACY OF DATA; UNAUTHORIZED ACCESS TO OR USE OF VOICE OR DATA PROCESSED OR TRANSMITTED BY, TO OR THROUGH THE SERVICE; OR PROGRAM ERRORS) EVEN IF AFFINITY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. AFFINITY shall not be liable for any failure to perform, or delay in performance of, its obligations under this Agreement caused by reasons beyond AFFINITY' control. In no event shall AFFINITY' 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 by Affinity to customer for the particular service performed by Affinity during the one month period immediately prior to the date of event, act or omission giving rise to the liability.
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 AFFINITY' suppliers as expressly provided herein, 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. AFFINITY 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 AFFINITY 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 AFFINITY, which shall not be unreasonably withheld.
15. Notices.
Customer notices will be addressed to the address first set forth on this Agreement. Notifications to AFFINITY shall be addressed to: Affinity VideoNet Inc, Attn: Legal Department, 65 Eastern Avenue, Essex, MA 01929.
16. Survival of Terms.
Articles 3, 6, 7 and 18 shall survive cancellation, termination, expiration or suspension of this Agreement.
17. Governing Law.
This Agreement shall be governed by, and construed and enforced in accordance with the laws of the State of Colorado applicable to agreements made and to be performed therein, without regard to any conflicts or choice of law rules. The parties agree to submit to the exclusive jurisdiction of the state or federal courts located in or with responsibility for Denver County, Colorado to resolve any disputes arising hereunder.
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 supersedes 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 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 AFFINITY and Customer. AFFINITY may amend at any time the provisions of this Agreement by, at AFFINITY' election: (i) posting revised terms and conditions ("Amended Terms") on www.affinityvideo.net (the "AFFINITY Web Site") or (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). All Amended Terms shall automatically be effective 30 days after such amendment is posted on the AFFINITY Web Site or delivery to Customer as provided above. Customer agrees to be responsible for regularly reviewing the AFFINITY Web Site to obtain timely notice of ANY SUCH AMENDED TERMS AND AFFINITY' 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. No such amendment by AFFINITY shall serve to constitute a default or termination by AFFINITY 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 Section 18, this Agreement may only be amended or modified, in whole or in part, by a written instrument signed by the parties to this Agreement.
Schedule of Terms of Service for Internet Services
License Grant. AFFINITY 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 AFFINITY. 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).
AFFINITY or its suppliers may, at their discretion and upon reasonable belief, take any reasonable action they deem necessary, if Customer's conduct fails to conform with these Terms of Service or may create liability for AFFINITY or its Suppliers.
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 AFFINITY 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.