TERMS AND CONDITIONS
These terms and conditions (“TC”) apply to all products and services (collectively referred to as “Services”) provided to the Client by Streamlined Communications and its related body corporates (collectively referred to as “Provider”) or by a company whose services the Provider is allowed to resell (“Partner”) in consideration of payment based on the charges and fulfilment of the specific conditions set out in the service order form (“Form”) executed by the Client.
The Client may not resell the Services or otherwise generate income from the Services.
1. Creation of Contract
The Contract shall form the entire agreement between the parties, and supersedes any previous agreement relating to its subject matter. In case of any conflict between the TC and the Form, the Form shall prevail. In any case, the STU prevail on any contradictory terms of any other contractual document concerning the resold Services. By signing the Form, the Client acknowledges that it has read and accepted the TC and if applicable, each and every additional STU.
The Contract shall not be modified or amended except in writing and shall require the signature of the duly authorized representatives of both parties.
The Contract shall commence on the date on which the Contract is signed between both parties (“Effective Date”).
2.Charges, Invoicing and Methods of Payment
2.1 Charges. The Client shall pay the charges for the Services as set out in the Form, Annexures to the Form or in a superseding quotation accepted by the Client. All charges are exclusive of any applicable taxes and regulatory fees now or hereafter attributable to the Services and included in the invoice. If products or hardware are sold, the Provider retains title and lien until full payment is made by Client who is responsible for all costs of shipping, transportation and insurance as well as applicable customs duties and taxes.
The Client acknowledges that the Provider may increase the charges to the Client by giving to the Client no less than fourteen (14) days’ notice. In the event that a third party provider (including Partners) modifies their charges related to international rates, and this results in an increase in the costs incurred by the Provider in providing the Services, the Client acknowledges that the Provider may increase the charges to the Client without notice.
2.2 Invoicing. The Services are invoiced electronically or otherwise monthly and in a currency as set out in the Form (by default, in Euro).
2.3 Methods of payment.Net payment of invoices, in full and in cleared funds duly received by the Provider, shall be due as set out in the Form and by default fourteen (14) days starting from the date of the invoice. Any invoice not disputed within fourteen (14) days following its issuance date shall be considered to have been accepted by the Client.
Moreover, the Provider may also recover reasonable compensation from the Client for any recovery expenses incurred by the Provider to collect any sums properly due by the Client under this Contract.
Client shall not be entitled to set off or otherwise withhold any amount due to the Provider under this Contract.
Unless the term is set out in the Form, the initial term of the Contract shall commence on the Effective Date and continue for a period of two (2) years. Thereafter, the Contract shall automatically renew from year to year unless the Client gives written notice of termination to the Provider at least one (1) month prior to the end of the initial or renewal term.
4.Software License Terms (“SLT”)
4.1. Notwithstanding any other provision of the Contract, when the Client downloads any software application, including any conferencing Add-on software together with any documentation to use the Provider’s proprietary services (altogether referred as “Software”), the Client is entitled to use the Software insofar as this is necessary for the proper and lawful utilization of Services and only as expressly permitted in this Contract and for the duration of the Contract. The Partner’s(and other non-Provider’s) proprietary services are subject to the SLT stated under their respective STU.
4.2. The Provider grants the Client, for the duration of the present license a worldwide, non-transferable, non-exclusive and personal right to use, in object code form, the Software.
4.3. All rights, title, ownership rights, and Intellectual Property Rights in the Software are protected by applicable copyright laws or other laws and are held by the Provider or its licensors and all are reserved.
4.4. The Client must comply with any limitations of the SLT that only allow using the Software in certain ways and in particular, may not (i) copy the program or the source code of the Software, or (ii) use the Software for any purpose other than use of the Services, or (iii) create copies of the Software for any purpose that is not directly related to the Services or make more copies of the Software than specified in these SLT or allowed by applicable law despite this limitation, or (iv) modify, translate, adapt, reverse engineer, decompile, disassemble (except and only to the extent that applicable law expressly permits, despite this limitation), incorporate the Software into any other software or create derivative works based upon the Software, or (v) resell, rent, lease or make any commercial use of the Software or transfer the Software or these SLT to any third party, (vi) use the documentation but for internal and reference purposes, or (vii) remove any proprietary notices or labels from the Software, or (viii) export, re-export, divert or disclose any portion of the Software or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.
5.Client’s Warranties and Acknowledgments
5.1. The Client warrants that it shall:
(a) provide the Provider with all the information necessary to the supply of the Services and update the Provider in writing with any changes in such information (especially any change of address, user, or otherwise). The Client shall be solely responsible for any consequences caused by failure or delay in providing or updating such information;
(b) be responsible for ensuring that its own systems and equipment comply with the technical requirements (as amended from time to time) that are necessary to use the Services and prevent itself from the risk of losing data, files and programs by making regular backups and using antivirus software updated regularly;
(c) only use the Services in accordance with directions given by the Provider from time to time for better management of the Services or for security purposes;
(d) provide content and data in accordance with all applicable local laws and regulations, make all necessary disclosures and obtain any necessary authorisations, before using the Services, regarding such use of the Service, the collection and the use of identifying information about Services participants;
(e) restrict knowledge and maintain the confidentiality of all telephone access numbers, PIN Codes, logins, passwords and personal identification numbers used in connection with the Services and generally safeguard such information to ensure that there is no unauthorized use of the Services;
(f) be exclusively liable for (i) the use of the Services, especially in the case of Client’s use after termination of the Contract whatever the cause, and for illegal, fraudulent or immoral use by the Client and (ii) the content and the transmission of any conference communications; and
(g) authorize the Provider, solely for the purpose of providing the Services to host, record, copy, cache and display transmission content.
5.2. The Client acknowledges that:
(a) the Services depends on the reliability, availability and continuity of connections by various third parties and external factors (such as telecom carriers, public internet, Client’s equipment) and the Provider cannot be liable for a service interruption outside of its control;
(b)the Provider makes no warranty express or implied that all security threats and breaches and vulnerabilities will be detected;
(c) the Provider may be required to reduce or suspend Services for a short period (i) to enable technical or maintenance operations to be improved, upgraded or conducted, or (ii) to avoid an imminent threat of material or financial harm to the Provider or to anyone else, (iii) or in the event of a Force majeure. In all such cases, the Provider will use reasonable efforts to minimize any inconvenience to the Client caused by such reduction or suspension of Services; and
(d)the Provider may provide all updates, supplements, add-on components, features, or other functionality, including without limitation increases, decreases, and alterations of functionality, features, storage, security, availability, content, and other information relating to the Software or Services that the Provider may make available to the Client after the date that Services commence, subject to any additional terms and conditions provided by the Provider applicable to such updates, including for Services the Provider is allowed to resell.
5.3. The Provider may audit the Client’s use of the Services to ensure compliance with this Contract, under conditions to be agreed between the parties.
6.1. This clause sets out the entire liability of the Provider to the Client in respect of any claims relating to (i) any breach of this Contract or (ii) any use made by the Client of the Services or (iii) any representation, statement or tortious act or omission (including negligence) of the Provider arising under or in connection with this Contract and provided that the Provider’s liability has been proven by a competent jurisdiction. In no event shall either party be liable to the other whether in tort, contract, innocent misrepresentation or in any other legal theory, for (i) any special, indirect, incidental or consequential loss, costs, damages, charges or expenses; or (ii) loss of profits, or (iii) loss of business, contracts, goodwill, business opportunities; or (iv) loss of income, anticipated savings; or (v) loss or corruption of data or information; or (vi) any degradation which occurs in relation to the network or associated software or hardware of the Client.
6.2. The Client understands and agrees that the Services and the Software is provided “asis” and “as available”, and where permitted by law, the Provider expressly disclaims all warranties of any kind, expressed or implied, including without limitation any warranty of merchantability or fitness for a specific purpose.
6.3. Notwithstanding anything to the contrary, the Provider maximum aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or any other legal theory for damages arising out of or relating to this Contract (including the SLT) shall not exceed the aggregate amount of the previous three (3) months of billings immediately prior to the incident arising, in relation to the affected Services, as set out in the Form.
6.4. Certain legislation may imply warranties or conditions or impose obligations upon the Provider which cannot be excluded, restricted or modified or cannot be excluded, restricted or modified except to a limited extent. This Contract must be read subject to these statutory provisions. If these statutory provisions apply, to the extent to which the Provider is entitled to do so, the Provider limits its liability in respect of any claim under those provisions to:
(a) in the case of products, at the Provider’s option (i) the replacement of the products or the supply of equivalent products, or (ii) the repair of the products, or (iii) the payment of the cost of replacing the products or of acquiring equivalent products, or (iv) the payment of the cost of having the costs repaired; and
(b) in the case of services, at the Provider’s option (i) the supplying of the services again, or (ii) the payment of the cost of having the services supplied again.
6.5. Nothing in this Contract excludes or limits the liability of one party (i) for death or personal injury caused by negligence, or (ii) for fraud or fraudulent misrepresentation, or (iii) any other liability which cannot be excluded or limited by law.
6.6. The parties declare that the price agreed in the Contract reflect the distribution of the risk as negotiated in between the parties and resulting from the limited liability provisions as defined hereof and that the limitation of liability as mentioned above is an essential condition leading the signature of the Contract.
The Client and Provider irrevocably agrees to indemnify, defend and hold the Provider and client its employees, officers, directors, consultants and agents, harmless from and against any claims, damages, liabilities, costs and expenses (including without limitation, legal fees and expenses including any applicable taxes) arising out of or related to (i) the use of the Services, including content of any conference communications held by the Client and Provider (such as confidential communication and disclosures made through the use of the Services) and transmission content (such as application sharing, document sharing, file transfer), or (ii) the Client’s and Provider breach of any provision of this Contract (including the SLT), or (iii) the Client’s and Provider infringement of any Intellectual Property Rights or other rights of any person or entity caused by the use of the Services including the use of any Software.
In an event of force majeure, the affected party shall notify the other party as soon as practicable. Neither party shall be in breach of this Contract, nor liable for any failure or delay in performance of any obligations under this Contract arising from or attributable to force majeure, which shall include, but not be limited to, events that are unpredictable, unforeseeable or irresistible, such as any severe weather, earthquake, fire, epidemic, acts of terrorism, biological warfare, outbreak of military or civil hostilities, explosions, strikes or other labor unrest, sabotage, expropriation by governmental authorities or interruption of service due to telecom carriers or Partner events.
9.1. The Provider may terminate the Contract immediately if (i) the Client is in breach of any provision of this Contract (including the SLT) and the Client is incapable of having the breach remedied, or (ii) the Client is in breach of any provision of this Contract (including the SLT) and the Client does not remedy the breach within seven (7) days of being notified of the breach by the Provider, or (iii) a receiver or administrator is appointed over the Client or its assets, or if the Client otherwise becomes insolvent.
9.2. The Client may terminate the Contract immediately if (i) the Provider is in breach of any provision of this Contract (including the SLT) and the Client does not remedy the breach within three (3) weeks of being notified of the breach by the Client, or (iii) a receiver or administrator is appointed over the Client or its assets, or if the Client otherwise becomes insolvent.
9.3. The Provider may, at its sole discretion, terminate the Contract by giving one (1) month notice to the Client.
9.4. As set out in clause 3, the Client may terminate the Contract by giving one (1) month written notice to the Client, provided that the notice is provided at least one (1) month prior to the end of the initial or renewal term in accordance with clause 3.
9.5.On termination of the Contract, the Client agrees that it shall:
(a) immediately pay the Provider any amounts owed under the Contract, including but not limited to all of the Provider’s outstanding unpaid invoices and interest as well as any invoices which will fall due for Services provided to the Client prior to the date of termination;
(b) remain liable to pay all fixed monthly subscription fees until the end of the subscription period specified in the Form; and
(c) immediately cease using the Services and the associated Software.
10.1. The Client agrees that all intellectual property rights, confidential know-how, trade secrets, graphics, logos and trade names used by the Provider in performing its obligations under this Contract (“Intellectual Property Rights”) are, and will remain, the property of the Provider (or the Partners) and nothing in this Contract or the Provider’s performance of it will be deemed to transfer to the Client any such Intellectual Property Rights of the Provider or any Partner. The allocation of access numbers, PIN Codes, logins, passwords, personal identification numbers and telephone numbers shall not involve any transfer of ownership to the benefit of the Client.
10.2. The Provider may reference the names, trademarks, trade names and corporate logos of the Client on marketing literature, website and commercial representations and in any list of Client references subject to Client’s prior consent, which shall not be unreasonably withheld.
11.Confidentiality and privacy
11.1 Confidentiality. Each party and their employees, agents, consultants, subcontractors or any other persons for whom they are responsible undertake to keep strictly confidential any information that they may have mutually exchanged during the performance of the Contract including passwords or access keys to the Services. Confidential information includes, in particular (non-exhaustive list) trade secrets, customer lists, software plans or any other product or projects in development, marketing or business plans, or financial information, pricing, and all documents/access information for the Services. Neither party shall use or disclose any information to a third party for any purpose other as may be reasonably necessary for the performance of the respective duties of each party under this Contract.
This obligation shall not apply to information which is (i) in the public domain other than in breach of the Contract, or (ii) in the possession of the receiving party before such disclosure has taken place, or (iii) obtained from a third party who is free to disclose the same, or (iv) legally required to be disclosed.
11.2 Privacy. By entering into this Contract, Clients will be providing personal information. The personal information to be collected from Clients will be used for the following purposes (i) to assess an application to enter into the Contract by the Client, or (ii) to notify other credit providers of a default by the Client, or (iii) to exchange information with other credit providers as to the status of the Client’s account with the Provider where the Client is in default with other credit providers, or (iv) to assess the credit worthiness of the Client, or (v) for all other purposes as required by law from time to time. If the Provider is obliged to do so by law, personal information will be passed on to other parties. The Provider’s privacy statement may be found and consulted on the Provider’s website.
12.Assignment and Sub-contracting
Each party may assign or transfer any of its rights or obligations under this Contract, in whole or in part, only with the consent of the other party provided it shall inform the other party in writing prior to the assignment or the transfer, except in case of assignment or transfer intragroup, in which case the only information of the non-assigning party shall be required.
In case of transfer or assignment as mentioned above, the assignee will be fully subrogated to all of the rights and obligations of the assignor under the present Contract and will be deemed as the signatory of the present Contract without necessary Contract changes or amendment.
This clause shall not be construed as limiting the Provider right to use subcontractors to carry out any of its obligations under this Contract, provided that the Provider shall remain liable for any such Services provided by a subcontractor.
13.Applicable law and jurisdiction
Unless otherwise agreed upon by in the Form, this Contract shall be governed by the law of Hong Kong and the courts of Hong Kong shall have exclusive jurisdiction.
14.1. Failure by a party to enforce any clause of the Contract, whether temporarily or permanently shall under no circumstance be construed as a waiver of the rights of such party under the said clause.
14.2. Each party warrants that it has the necessary rights, licenses and permissions to enter into and perform its obligations under the terms of the Contract.
14.3.If any provisions of this Contract be held as void, invalid, unlawful or unenforceable to any extent, the validity and enforceability of the remainder of the Contract shall not be affected.
14.4.In connection with any actions or activities associated with this Contract or in connection with the relationship between the parties,
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 following respective meanings:
1.1. “Scheduled Maintenance Window” is the time during which the Services are not required to be available in accordance with the following schedule, which schedule Streamlined Communications may change from time to time upon reasonable notice to Client:
Period Duration of Scheduled Downtime Time Period
weekly 6 hours Saturdays 6 pm-12 midnight Pacific Time
Streamlined Communications is relieved of its duty to provide the Services only if it has elected to schedule maintenance during the Scheduled Maintenance Window.
1.2. “Unscheduled Maintenance” means maintenance performed, (i) when, in Streamlined Communications commercially reasonable discretion, it is necessary to avoid loss of Services or (ii) during any downtime mutually agreed to with Client to correct a situation that endangers Client ability to utilize the Services.
1.3. “Standard Business Hours” means the time on business days between 6 am and 6 pm Pacific Time for North America Events, and between 8 am and 6 pm GMT for EMEA Events.
1.4. “Failed Webcast Event” means,
(a). with respect to a live Webcast Event,
(i). Greater than 50% of the total Webcast Viewers experiences media streams that are unavailable to them for six consecutive minutes or
(ii). The presenter, in using the interface to control the presentation, experiences a lag time between a command’s initiation and its response of greater than 30 seconds continuously for more than five minutes, and
(b). with respect to an On-Demand Webcast Event that is scheduled to be broadcast at a set point in time, greater than 50% of the total Webcast Viewers experiences media streams that are unavailable to them for six consecutive minutes.
1.5. “Full Live Day Failure” means,
(a). with respect to the live day component of a Virtual Environment (“Live Day”),
(i). Greater than 50% of the total Live Day attendees cannot access the Application, or the Critical Application Functionality for more than ten percent (10%) of the scheduled Live Day duration.
(ii). Greater than 50% of the total Live Day attendees cannot access the Supporting Application Functionality for more than fifteen percent (15%) of the scheduled Live Day duration.
1.6. “High Impact Live Day Failure” means,
(i). Greater than 50% of the total Live Day attendees cannot access the Application, or the Critical Application Functionality for more than five percent (5%) of the scheduled Live Day duration.
Streamlined Communications 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 measurement period, excluding from total hours any scheduled maintenance. System Availability is measured on a calendar year-to-date basis based on data gathered by Streamlined Communications monitoring systems via a process by which verifiable attempts shall be made periodically to access a standard URL within the Streamlined Communications system. If such access test succeeds, then the system shall be deemed as available.
In any case where the Client independently determines that System Availability has been measured at less than the Service Guarantee, the Client may communicate this problem in writing to Streamlined Communications, stating in detail the exact nature of the problem. Streamlined Communications will provide to the Client a plan of remedy (the “Remedy Plan”), within 15 (fifteen) business days from its receipt of such notice. The Client will have the right to review and discuss the Remedy Plan with Streamlined Communications for a reasonable period of time. Upon mutual agreement to the Remedy Plan, Streamlined Communications will then execute that Remedy Plan.
If Streamlined Communications should fail to provide a Remedy Plan within that time period, the Client may provide written notice to Streamlined Communications stating that the Client believes Streamlined Communications has materially breached (the “Breach”) its Terms with the Client. Client may then terminate these Terms only if Streamlined Communications fails to remedy the Breach within 30 (thirty) business days from the date that Streamlined Communications confirms receipt of such written notice from the Client of the Breach.
Streamlined Communications “LIVE” Webcast Viewer Policy
(a). All live Webcast events over 2,500 attendees require advance notification. Notifications for Full Service clients should be made to your Streamlined Communications Webcast Manager. Notifications for Self-Service clients should be made electronically to the Streamlined Communications Platform Support Team.
(b). Notifications must be received no later than 10 (ten) days prior to event date and require commitment of reserved audience capacity.
(c). Additional Webcast viewers over 2,500 must be purchased in blocks of 500. Additional Webcast viewers over 5,000 must be purchased in blocks of 1,000. Additional Webcast viewers over 10,000 will be priced by quote.
(d). Actual attendance over the reserved audience capacity will be billed at 150% of currently published rates for all webcast viewers exceeding reserved capacity.
(e). All Non-Streaming Webcast event profiles are limited to 2,500 attendees.