TERMS OF SERVICE
a) STREAMON owns and operates an application platform (the “WebEventConsole”) that facilitates the creation and management of (i) broadcasts of streaming audio and/or video over the internet (each a “Webcast”, “Webinar” or “Event”), and (ii) multimedia content hubs, content landing pages, virtual environments, virtual events, and virtual trade shows (each a “Virtual /or other services from STREAMON (collectively, the “Services”) by entering into a Master Environment”). Client can order the provisioning of Webinars, Virtual Environments and Services Agreement, Subscription Agreement, Services Agreement or a similar written agreement with STREAMON that expressly incorporates by reference these Universal Terms and Conditions (such terms and conditions, these “Terms”, and together with one of the foregoing agreements, an “Agreement”). “Work Orders” and “Order Forms” are additional ordering documents that may be executed pursuant to an Agreement for the purchase of Services by Client (and which upon execution form part of such Agreement). These Terms shall remain in full force and effect for so long as any Agreement which incorporates by reference these Terms remains in effect.
2. Use of Services
a) Client may be provisioned one or more accounts on the WebEventConsole (“Accounts”) in accordance with an Agreement. Accounts may only be used by Client and its employees and subcontractors acting on behalf of Client to create and manage Webinars and Virtual Environments to be viewed, accessed or otherwise used by individuals who register for or access Client’s Webinars and/or Virtual Environments (with each of those accessing a particular Webinar or Virtual Environment being an “Attendee” or “Viewer” of the same). Client shall safeguard login credentials to the Accounts and shall be responsible for all use of Services through the Accounts.
b) An Agreement may specify a certain number of Attendees that are authorized to attend a particular Service at no additional charge (the “Included Attendees”). In such a case, should Client run a Service that is attended by more Attendees than the Included Attendees, additional fees may be payable in accordance with such Agreement. In no event shall the number of Attendees connected to a particular Service exceed 2,500 concurrent Attendees for a Live Event (defined below) or 1,000 concurrent Attendees otherwise, unless STREAMON has approved a large event request ticket for an additional number of Attendees in accordance with the process below (in each case such number of Attendees being the “Attendee Limit”). If the total number of Attendees connected to or attempting to connect to a Service exceeds the applicable Attendee Limit (even if the Included Attendees for such Service is larger than the Attendee Limit), then STREAMON shall have the right to deny connections in excess of the Attendee Limit. On each occasion that Client would like to have more Attendees than the Attendee Limit for a Service as specified above, Client shall submit a large event request ticket via its Account at least 10 business days in advance of the applicable Service. If Client timely submits such a ticket, STREAMON will use commercially reasonable efforts to accommodate a reasonable Attendee Limit increase, which accommodation may include proposing to reschedule the applicable Service to a non-peak usage period. To the extent available, (i) additional Attendees over the Attendee Limit amount are to be purchased in blocks of 500 in accordance with the relevant Agreement and (ii) additional Attendees over 10,000 will be priced by quote. The term “Live Experience” means the usage by Client of a Webinar, Virtual Environment or other applicable Service at a specified time and date for a specified duration of time.
3. Use Restrictions
a) Client agrees to use the Platform and Services in compliance with applicable law and shall not and shall ensure Attendees do not: (i) permit any third party to use the Platform or Services except as permitted herein or in an Agreement; (ii) modify, reverse engineer, disassemble, or decompile the Platform, or cause or permit others to do so; (iii) use the Platform or Services in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Platform or Services; (iv) remove or modify any title, trademark, copyright and/or restricted rights notice or label from the Platform or Services; (v) create derivative works based on the Platform or otherwise violate STREAMON’s intellectual property rights; (vi) use Platform or Service on a service bureau basis, or run or perform Services on behalf of a third party; (vii) resell Services (unless pursuant to an Agreement that expressly authorizes Client to resell Services); (viii) use the Platform or Services in any manner inconsistent with these Terms or an Agreement; or (ix) use the Platform or Services to transmit or display any infringing, indecent, or illegal material, including any material that violates the rights of any third party. STREAMON reserves the right to suspend Client’s access to the Platform and Services upon notice to Client if STREAMON reasonably suspects or becomes aware of a breach of an Agreement, including this Section 3, by Client. STREAMON agrees to promptly restore access following its confirmation that there is no active breach by Client.
4. Billing and Payment
a) Client shall pay all fees specified in an Agreement as well as the fees payable for any additional Services ordered or used by Client. All fees shall be paid in U.S. Dollars, unless another currency is specified in the applicable Agreement.
Client understands and agrees that Client incurs the obligation to pay fees by the purchase, not the usage, of Services. Payment obligations are non-cancelable, and except as expressly specified in Exhibit A hereto, paid fees are non-refundable.
c) The fees payable for a Service shall be as set forth in the applicable fee schedule included in the applicable Agreement (each a “Fee Schedule”).
d) Should Client order or use a Service not listed on a Fee Schedule, the price for such Service shall be STREAMON’s then-current standard price, which Client hereby agrees to pay.
e) All fees are exclusive of taxes, levies, or duties that may be imposed by taxing authorities. Other than taxes based on STREAMON’s income, Client shall be responsible for paying all taxes, levies, or duties applicable to its purchases from STREAMON, even if such amounts are not listed in an Agreement. Client shall not be responsible for paying the same to the extent Client has provided STREAMON with a valid tax exemption or direct pay certificate that exempts Client from such payment. Client shall reimburse STREAMON for any taxes paid on behalf of Client.
f) If an Agreement does not include billing and payment terms, then with respect to that Agreement (i) STREAMON shall invoice Client for all fees payable thereunder upon its execution, and (ii) Client shall pay all fees within 30 days of receipt of invoice. Client is responsible for providing complete and accurate billing and contact information to STREAMON and for notifying STREAMON of any changes to such information. Client must provide STREAMON with written notice of any dispute or disagreement with invoiced fees within 30 days of the date of the applicable invoice.
g) Any amounts invoiced that are not received by STREAMON by their due date are subject to a finance charge of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, plus all reasonable expenses of collection incurred by STREAMON, including attorneys’ fees and other legal expenses. Client agrees that STREAMON may apply monies paid by Client to any amounts owed by Client under any Agreement.
h) If any amount owed by Client is overdue, STREAMON may, without liability and without limiting its other rights and remedies, accelerate Client’s unpaid fee obligations under such Agreement so that all such obligations become immediately due and payable, and suspend Services under such Agreement until such amount is paid in full.
5. Confidential Information
a) “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of the Client includes Attendee Data (as defined below). Confidential Information of STREAMON includes the Services, the Platform, and pricing and other terms related to Services presented to Client by STREAMON. These Terms and all Agreements shall be Confidential Information of each party. The Receiving Party shall not use or disclose any Confidential Information of the Disclosing Party except to perform its obligations or exercise its rights under an Agreement or otherwise with the prior written consent of the other party or as required by law.
b) These Terms impose no obligation upon the Receiving Party with respect to the Disclosing Party’s Confidential Information which the Receiving Party can establish: (i) was, prior to its receipt from the Disclosing Party, in the possession of, or rightfully known by, the Receiving Party, without an obligation to maintain its confidentiality; (ii) is or becomes generally known to the public without violation of these Terms or without a violation of an obligation of confidentiality owed to the Disclosing Party; (iii) is obtained by the Receiving Party in good faith from a third party having the right to disclose it without an obligation of confidentiality; or (iv) is independently developed by the Receiving Party without reference to Confidential Information of the Disclosing Party.
c) Each party understands that the Disclosing Party’s Confidential Information constitutes valuable business assets of the Disclosing Party and the unauthorized disclosure of Confidential Information may irreparably harm the Disclosing Party. In the event of breach or threatened breach of obligations pertaining to Confidential Information by the Receiving Party, the Disclosing Party shall be entitled to seek injunctive relief and any other remedy available at law or equity.
d) Client shall not publish the results of any benchmark of the Services’ performance, except with STREAMON’s prior written consent.
6. Ownership; Client Information
a) “Intellectual Property” means patents, copyrights, trademarks, service marks, trade names, trade dress, domain names, know-how, technology, inventions, methods and processes, trade secrets, and all other intellectual property and proprietary rights, and all developments, enhancements, derivatives, improvements, modifications or extensions thereof, anywhere in the world.
b) As between STREAMON and Client, STREAMON retains all right, title and interest in and to the Platform, the Services, all other Intellectual Property owned, acquired or developed by STREAMON, and any improvement or modification thereto. STREAMON’s licensors and suppliers own all right, title and interest to Third Party Applications (as defined below) that STREAMON may make available as part of or in connection with the Platform or Services.
c) If Client or any Attendee provides any suggestions, ideas, feedback, improvements, or recommendations to STREAMON relating to the Platform or other STREAMON proprietary rights (collectively, “Submissions”) Client hereby grants STREAMON a nonexclusive, perpetual, sublicensable license to exercise all Intellectual Property rights in such Submissions.
d) As between STREAMON and Client, Client retains all right, title and interest in and to all materials and data it enters into the Platform or otherwise provides to STREAMON under an Agreement, including slides, audio files, video files, branding elements, recordings generated from a Webinar, and photographs (“Client Materials”), any contact information or other personally identifiable information of Attendees of Client’s Webinars and Virtual Environments (“Attendee Data”) and all other Intellectual Property of Client (together with the Client Materials and Attendee Data, the “Client Information”).
e) Client hereby grants STREAMON the right to use Client Information to the extent needed by STREAMON to provide the Services to Client. Client acknowledges that STREAMON does not exercise any control over the content of Client Information. Client shall bear the sole responsibility to ensure that all Client Information, and Client’s use and collection thereof, complies with all applicable laws and regulations. STREAMON has no obligation, and expressly disclaims any obligation to review Client Information for accuracy or for any other reason.
f) Client agrees that STREAMON may de-identify or aggregate Client Information and other data related to the Services to render it Anonymous Data, which may then be used for the purposes of operating and improving STREAMON’s services and operations, and other research, analytics, marketing and related purposes. STREAMON may maintain Anonymous Data as part of its own records and information and such data shall no longer be subject to these Terms or an Agreement. “Anonymous Data” means data that has been de-identified and/or aggregated with other data to such an extent that Client and Attendees are no longer identifiable, and individuals are no longer identified, identifiable, linked or linkable, or otherwise ascertainable by reference to or combination with other datasets.
g) STREAMON has implemented commercially reasonable safeguards to protect the Platform and the Client Information (defined above) that STREAMON processes via the Platform. The parties acknowledge, however, that the security of transmissions over the internet cannot be guaranteed. STREAMON shall not be responsible for Client’s access to the internet, for any interception or interruption of any communications through the internet, or for changes to or losses of data through the internet.
h) Client may access and download Client Information related to a Webinar that is stored in the Platform by accessing their account during the period in which such Webinar is made available on an on-demand basis as listed in the applicable Agreement (“On-Demand Access Period”). Client acknowledges that STREAMON may maintain in its backup archive unaltered copies of Client’s Webinars, but shall have (i) no obligation to store any Client Information beyond the On-Demand Access Period, and (ii) no liability for the deletion or destruction of Client Information thereafter.
7. Privacy & Security
Client will post and make available any necessary privacy notice and obtain any necessary consent from individuals or third parties regarding the collection, use, processing and transfer (including any cross-border transfer) of Client Information relating to the Services and use of the Platform. Client acknowledges that it may make a privacy notice available through the Platform, and may incorporate custom consent statements, as part of the Webinar creation and setup through the Platform.
a) STREAMON and Client each warrant that it has validly entered into these Terms and each Agreement and has the legal power to do so.
b) STREAMON warrants that it will provide the Services in a professional manner, consistent with generally accepted industry standards and in material conformance with any descriptions thereof in the applicable Agreement. Client must notify STREAMON of any warranty deficiencies within 30 days from performance of the relevant Services in order to receive any warranty remedies. In the case of a breach by STREAMON of an express warranty set forth above in this subsection, Client’s exclusive remedy shall be the re-performance of the deficient Services. The foregoing warranties in this subsection shall not apply to any Third Party Applications.
c) Except as expressly set forth in these terms or the applicable agreement, the platform and services are provided “As is” and “As available” without any representation or warranty of any kind, and client’s use of the platform and services is at client’s own risk, and streamon makes no other representation or warranty, express or implied by operation of law or otherwise, including any implied or statutory warranty of non-infringement, title, quiet enjoyment, merchantability or fitness for a particular purpose or any implied warranty arising out of course of conduct, usage or trade practice, and streamon does not warrant that the platform and services will be provided error-free, uninterrupted, secure or virus-free. Streamon shall have no liability whatsoever for the accuracy, completeness or timeliness of any client information. Streamon neither warrants that client, in using the platform and services will obtain the results that client intends, not the platform and services will be adequate for or achieve the business purposes and requirements of client. Streamon makes no warranties of any kind with respect to any third party applications.
d) Client represents and warrants that: (i) its use of the Platform and Services, including the transfer of Client Information to STREAMON and display of Client Information via the Services will not violate any rule, law or regulation; (ii) it will not use the Platform and Services in any manner that could damage, disable, overburden, impair or otherwise interfere with STREAMON’s operation of the Platform; (iii) it will comply with all laws and regulations applicable to bulk or commercial email, as well as other electronic communications, including all local or national laws applicable to the regions where Client has business operations or where the recipients of their electronic communications are located; and (iv) Client will comply with its obligations set forth in Section 7 (Privacy & Security), and Client has or will secure whatever legal authority or consent may be necessary for use, storage, processing, display and transfer by STREAMON, including international cross-border transfer, of Client Information as contemplated by these Terms. Client acknowledges that STREAMON will not be processing, or reviewing for legality any Client Information but will merely be offering and enabling the transmission of Client Information. Client acknowledges that STREAMON may remove or disable any Client Materials that it reasonably deems to be pornographic, libelous, offensive, illegal or otherwise objectionable, but that this right shall not excuse Client from full responsibility arising from any such material.
a) Subject to these Terms, STREAMON shall defend Client against any and all claims, suits, or proceedings (“Claims”) made or brought against Client by a third party alleging that the Platform or Services as provided to Client in accordance with these Terms or an Agreement infringes the intellectual property rights of a third party and STREAMON shall pay any damages and costs (including reasonable attorney’s fees and legal costs) finally awarded by a court against Client or agreed to by STREAMON in a settlement as a result of a Claim under this subsection, provided that Client (i) promptly gives written notice of the Claim to STREAMON; (ii) gives STREAMON sole control of the defense and settlement of the Claim; and (iii) provides to STREAMON, at STREAMON’s reasonable cost, reasonable assistance. The foregoing obligations of STREAMON shall not apply with respect to third party Claims of infringement that arise in whole or in part in connection with, as a result of, or that are directed at: (A) any modifications of the Platform or Services not made by or on behalf of STREAMON; (B) any bundling, combination, or integration of the Platform or Services with any non-STREAMON products, processes, software, hardware or materials by Client, if the applicable infringement claim would have been avoided absent such bundling, combination or integration; (C) use of the Platform or Services other than in accordance with these Terms or an Agreement; or (D) any Client Materials. In the event of a Claim under this subsection, or if STREAMON has a reasonable belief that a Claim is likely, STREAMON may, at its option and expense, (1) procure for Client the continued right to use the Platform or Services; (2) provide alternate services that provide capabilities similar to those of the Platform or Services, as applicable; or (3) terminate the applicable Agreement and refund all prepaid fees for Services that remain undelivered at the time of termination. STREAMON’s obligations under this subsection shall not apply to any Third Party Applications. THIS SUBSECTION STATES STREAMON’S ENTIRE OBLIGATION AND LIABILITY, AND CLIENT’S SOLE RIGHT AND REMEDY FOR ANY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION, AND FOR THE AVOIDANCE OF DOUBT, ANY AMOUNTS TO BE PAID BY STREAMON UNDER THIS SUBSECTION SHALL CONSTITUTE DIRECT DAMAGES FOR PURPOSES OF THE LIMITATION OF LIABILITY SECTION BELOW.
b) Subject to these Terms, Client shall defend STREAMON against any and all Claims made or brought against STREAMON by a third party alleging that Client Information or use of the Platform or Services by Client in violation of these Terms infringes the intellectual property rights of a third party and Client shall pay any losses, damages and costs (including reasonable attorney’s fees and legal costs) finally awarded by a court against STREAMON or agreed to by Client in a settlement as a result of a Claim under this subsection, provided that STREAMON (i) promptly gives written notice of the Claim to Client; (ii) gives Client sole control of the defense and settlement of the Claim (except that Client may not settle or defend any Claim unless it unconditionally releases STREAMON of all liability); and (iii) provides to Client, at Client’s cost, reasonable assistance. In the event of a Claim under this subsection, STREAMON will no longer have any obligation to provide Client with access to the Platform or any Services and may terminate all Webinars and Virtual Environments that may be related to the Claim. THIS SUBSECTION STATES CLIENT’S ENTIRE OBLIGATION AND LIABILITY, AND STREAMON’S SOLE RIGHT AND REMEDY FOR ANY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION, AND FOR THE AVOIDANCE OF DOUBT, ANY AMOUNTS TO BE PAID BY CLIENT UNDER THIS SUBSECTION SHALL CONSTITUTE DIRECT DAMAGES FOR PURPOSES OF THE LIMITATION OF LIABILITY SECTION BELOW
10. Limitation of Liability.
a) In no event shall either party be liable to the other party for any indirect, incidental, special, consequential or punitive damages or damages arising from or related to these terms, including lost profits or revenues or data, or for any indirect, special, incidental, consequential, cover or punitive damages however caused, or costs of procuring substitute services, whether in contract, tort or under any other theory of liability, and whether or not the party has been advised of the possibility of such damages.
b) Except for payment obligations and violations of section 3 (use restrictions), neither party shall be liable for cumulative, aggregate damages for all claims arising out of or related to an agreement in an amount greater than (a) the amount of fees actually paid to streamon under such agreement by client during the twelve (12) month period immediately prior to the date of any claim, event, act or omission, less (b) amounts in satisfaction of any prior claims.
11. Modifications; Features; Third Party Applications
a) From time to time after the date of these Terms, STREAMON may make available new releases to the Platform that add, enhance or change the features and services of the Platform. Additional charges may or may not be applicable for new features and services, but in no case will Client be required to pay additional charges for any such features and services without Client’s express prior approval. STREAMON reserves the right to (i) make modifications to Services in order to maintain the stability, availability, security, and integrity of the Platform or to generally update and enhance the platform and the Services, and (ii) withdraw, suspend, modify or discontinue any functionality or feature of the Platform. STREAMON shall have no liability for actions taken in accordance with this subsection.
b) Client hereby elects, and expressly requests and consents, to participate in the STREAMON Business Interest Cloud feature, as part of the Services, and agrees to the STREAMON Business Interest Cloud Terms.
c) Through its use of the Services, Client may have access to certain third party applications, such as plugins and websites (collectively, “Third Party Applications”). STREAMON does not maintain control over Third Party Applications, and shall not be responsible for their content, operation or use. Third Party Applications may be modified or disabled at any time, and STREAMON shall not be under any obligation to provide notice of any such modifications. By linking or otherwise providing access to Third Party Applications, STREAMON does not provide any representation, warranty or endorsement, express or implied, with respect to the legality, accuracy, quality or authenticity of information or services provided by such Third Party Applications. STREAMON hereby disclaims any and all responsibility and liability for any harm resulting from Client’s use of Third Party Applications, and Client hereby irrevocably waives any claim against STREAMON with respect to all Third Party Applications. This subsection does not apply to any third party services which Client may purchase from STREAMON for a fee.
a) Termination. i) For Material Breach. Either party may terminate an Agreement in the event of a material breach by (A) providing written notice of an intent to terminate to the other party which sets forth a detailed description of the breach; and (B) thereafter providing written notice of termination if such breach is not cured by the breaching party within 30 days of receiving the notice of intent to terminate. Any notice shall be provided by the method(s) described in this Section 12. ii) For Insolvency. Either party may terminate an Agreement, with written notice if: (A) the other party (1) becomes insolvent, (2) voluntarily commences any proceeding or files any petition under the bankruptcy laws of The Republic of India, (3) becomes subject to any involuntary bankruptcy or insolvency proceedings under the laws of The Republic of India, which proceedings are not dismissed within 90 days thereafter, (4) makes an assignment for the benefit of its creditors, or (5) appoints a receiver, trustee, custodian or liquidator for a substantial portion of its property, assets or business; or (B) the other party passes a resolution for its winding up, liquidation or dissolution, or a court of competent jurisdiction makes an order for such other party’s winding up, liquidation or dissolution. iii) Upon any termination or expiration of an Agreement, Client’s right to access and use the Platform or Services covered by that Agreement shall immediately terminate.
b) Survival. Should an Agreement be terminated, all provisions herein or therein pertaining to payment obligations, indemnity obligations, IP ownership, confidentiality obligations, warranty disclaimers, the miscellaneous terms, and limitations of liability, and other any other provisions identified in the Agreement as surviving, shall survive such termination.
c) Independent Contractors; Relationship. The parties are independent contractors, and no agency, partnership, franchise, joint venture or employment relationship is intended or created by these Terms. Neither party shall make any warranty or representation on behalf of the other party. Client shall not make, or induce others to make, any defamatory, critical, derogatory or negative statements or comments about STREAMON, its products, services or its employees, orally, in writing, or on the internet on message boards, social media networks, online forums or other websites.
d) No Implied Licenses. These Terms shall not be the source of or give rise to any implied license or right in or to, and STREAMON reserves all rights not expressly granted to Client hereunder.
e) Assignment. Neither party may assign, transfer, or delegate any rights or responsibilities under an Agreement or these Terms, whether by operation of law or otherwise, without prior written consent of the other party (and such consent shall not be unreasonably withheld), except that no consent shall be required in the event of an assignment, transfer or delegation in connection with a merger, acquisition, reorganization, or sale of substantially all of the assets of the party (a “Transfer”), provided, however (i) Client shall not consummate a Transfer that would result in an expansion of the scope of use of the Services ordered, and (ii) if a party consummates a Transfer with a direct competitor of the other party, then such other party may terminate all Agreements without liability upon written notice to the other party.
f) Publicity. Client agrees that STREAMON may use Client’s name, logo, and/or other marks to identify Client as an STREAMON customer.
g) Anti-Corruption. Client affirms that it has not and agrees that it will not, in connection with the purchase of and the use of the Services contemplated by the relevant Agreement or in connection with any other business transactions involving STREAMON, make or promise to make any payment or transfer anything of value, directly or indirectly: (i) to any governmental official or employee (including employees of government corporations or instrumentalities); (ii) to any political party, official or a political party or candidate (or to an intermediary for payment to any of the foregoing); (iii) to any officer, director or employee of STREAMON; or (iv) to any other person or entity if such payment or transfer would violate the laws of the country in which made or jurisdiction in which Client operates or conducts commerce.
h) Force Majeure. Except for payment obligations, either party shall be excused for failure to perform under these Terms where such failure results from circumstances beyond that party’s control including such circumstances as fire, storm, flood, earthquake, strikes, work stoppages or slowdowns, delay or failure of transportation or supplies, acts of the public enemy, acts of God or acts, regulations, priorities or actions of the Republic of India, a state or any local government or agents or instrumentalities thereof.
i) Severability; Interpretation. If any provision of these Terms is held invalid, illegal, or unenforceable, the validity, legality or enforceability of the remaining provisions shall in no way be affected or impaired thereby. The word “including” and its variants as used herein shall be interpreted to mean “including without limitation.” j) Waiver. No failure or delay by either party in exercising any right under an Agreement will constitute a waiver of that right. k) Notices. STREAMON may give notice applicable to STREAMON’s general customer base by means of a general notice on the Platform, and notices specific to Client by electronic mail to Client’s email address on record in STREAMON’s account information. If Client seeks to provide a notice to STREAMON pursuant an Agreement or these Terms, or becomes subject to insolvency or other similar legal proceedings, Client must send a written notice to STREAMON via a nationally recognized delivery service, receipt signature required, at STREAMON, Attn: Legal Department, Office No. 515, 5th Floor, D-Wing, Neelkanth Business Park, Nathani Road, Vidyavihar (W), Mumbai – 400 086 (or to STREAMON’s then current address as may be updated by STREAMON from time to time) together with an email of said notice to mailto:email@example.com l) Entire Agreement, Amendments, Conflicts. These Terms (which include Exhibit A hereto), the DPA, and the applicable Agreement constitute the entire agreement between the parties and supersede all prior and contemporaneous agreements, proposals or representations, whether written or oral, concerning the subject matter of such Agreement. No modification, amendment, or waiver of any provision of an Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. With respect to any conflict or inconsistency between these Terms, the DPA or the Agreement: (i) the DPA shall apply with respect to any terms applicable to or relating to privacy, data protection, or the processing of personal data; (ii) the terms of the Agreement shall control with respect to any other terms. The expiration or termination of one Agreement shall not affect another Agreement. Notwithstanding anything to the contrary therein, no terms or conditions included in a Client purchase order or any other Client documentation shall be deemed incorporated into or form any part of an Agreement, and all such terms or conditions shall be considered inapplicable and null and void. q) Counterparts. An Agreement or these Terms may be executed in one or more counterparts, each of which when so executed and delivered or transmitted by facsimile, email or other electronic means, shall be deemed to be an original and all of which taken together shall constitute but one and the same instrument, each of which when so executed and counterparts. A facsimile or electronic signature shall be deemed an original signature for all purposes.
SERVICE LEVEL SCHEDULE
For purposes of this Service Level Schedule (this “Schedule”), in addition to those terms defined above, the following terms shall have the meanings specified below: a) “Scheduled Maintenance Window” means the time during which the Services are not required to be available in accordance with the following schedule, which STREAMON may change from time to time upon reasonable notice to Client: STREAMON is relieved of its duty to provide the Services if it conducts maintenance during the Scheduled Maintenance Window. b) “Unscheduled Maintenance” means maintenance performed, (i) when, in STREAMON’s commercially reasonable discretion, it is necessary to avoid loss or degradation of Services or (ii) during any downtime mutually agreed to with Client to correct a situation that endangers Client’s ability to utilize the Services. c) “Failed Webinar” means, with respect to a live Webinar, greater than 50% of the Attendees of a Webinar experience media streams that are unavailable to them for reasons attributable to STREAMON for 15% of the intended webinar duration. d) “Virtual Event Failure” means, with respect to the live day component of a Virtual Environment (“Live Day”), greater than 50% of the Live Day Attendees cannot access the environment for reasons attributable to STREAMON for more than 15% of the scheduled Live Day duration.
a) If a Failed Webinar occurs, and Client notifies STREAMON within three business days of the Failed Webinar, then Client will qualify for a credit equal to the value of the charges for the Webinar, but not including any third party expenses that STREAMON or Client incurred with respect to the Webinar. The credit must be applied during the then-current term of the applicable Agreement and will be available to Client exclusively for use on another Webinar under the applicable Agreement, and STREAMON shall have no obligation to refund the value of any unused credit to Client. b) If a Virtual Event Failure occurs, and Client notifies STREAMON within three business days of the Virtual Event Failure, Client will qualify for full (100%) refund of base Live Day fee. c) Client shall not earn any credit if a failure occurs: i) Due to connection errors attributable to the Attendee or Client’s failure to follow best practice guidelines; ii) During a Scheduled Maintenance Window; iii) Whenever STREAMON has the right to suspend Client’s access to Services pursuant to these Terms; iv) As the result of any occurrence, cause or event outside STREAMON’s reasonable control, which includes, but is not limited to, a Force Majeure event under these Terms; v) As the result of Client’s equipment or service or any third party equipment or service not within the sole control of STREAMON; or vi) As a result of the network equipment or network conditions between STREAMON and the Client’s computer or other device. d) Except as specifically expressed in these Terms, this Section 2 of this Schedule states Client’s sole and exclusive remedy for any failure or interruption of Services or for any failure by STREAMON to meet any service level target stated in this Schedule, as well as for any breach or other violation of any warranty or obligation under this Schedule.
3. Operational Availability
a) Client acknowledges that it will not be able to access Platform Services during the Scheduled Maintenance Window on those occasions when maintenance is actually scheduled, or during Unscheduled Maintenance. b) STREAMON shall endeavor to provide advance notice to Client of Unscheduled Maintenance that affects Client and STREAMON shall indicate to Client the reasons for and duration of any Unscheduled Maintenance.
4. Service Guarantee
a) STREAMON warrants that it will make reasonable efforts within industry standards to provide System Availability of at least 99%. “System Availability” is the sum of hours that the system is available divided by total hours in the immediately preceding 12-month period of time, excluding from total hours any Scheduled Maintenance Window. System Availability is based on data gathered by STREAMON’s monitoring systems via a process by which verifiable attempts shall be made periodically to access a standard URL within the STREAMON system. If such access test succeeds, then the system shall be deemed as available.