These Applicable Terms and Conditions supplement the Pricing Agreement/Order executed between Customer and FoxDen, and form an integral part of the Agreement between FoxDen and the Customer identified on the Pricing Agreement/Order. Capitalized terms used but not defined in these Applicable Terms and Conditions shall have the meanings given to them in the Pricing Agreement/Order.
- Following receipt of the Hardware Components, You shall own and be responsible for the Hardware Components; provided, however if Customer is still under Subscription, ReadyTalk will use commercially reasonable efforts to replace such Hardware Component(s) within 72 hours from notice of the damaged Hardware Component(s) and acknowledgement from ReadyTalk that damaged Hardware Component(s) needs to be replaced. All Hardware Components are provided “AS IS” and without any warranty of any kind. ReadyTalk shall have no obligation to provide any support or to replace the Hardware Components following the Service Term.
How to Report Issues relating to FoxDen
- Contact ReadyTalk’s customer support via phone or email
- Troubleshoot the issue(s) with ReadyTalk to see if it resolves the problem
- If during the Service Term issues related to the Hardware Component(s) and cannot be resolved, ReadyTalk will send new Hardware Component(s) to Customer with return slip for the Hardware Component(s) that are not working. Hardware Component(s) returned to ReadyTalk by Customer transfer ownership of such Hardware Components back to ReadyTalk from Customer.
- Video & Web Conferencing Services
- During the Service Term, ReadyTalk agrees to provide Customer with the Service and grants to Customer a non-exclusive, non-transferable and non-sublicensable right to use the Service, including any software provided by ReadyTalk in connection with the Service, solely pursuant to the terms and conditions of this Agreement. Customer receives no right to modify or reproduce any of the software provided as part of the Service. ReadyTalk reserves the right to vary the technical specifications of, and make changes, additions or replacements to, the Service where necessary for operational reasons or as required to comply with any applicable safety, statutory or legal requirement. ReadyTalk reserves the right to temporarily suspend the Service as necessary to conduct maintenance and upgrades to the Service.
- Customer is solely responsible for the acquisition, operation and maintenance of all hardware, equipment and software, including, but not limited to, computers, telephones and related equipment and connections, other than the Hardware Components procured pursuant to the Pricing Agreement/Order and any software which ReadyTalk may choose, in its sole discretion, to provide in order to enable the Video & Web Conferencing Services. Customer shall use the Service only for meetings in which a Host User is an active participant and for Customer’s internal business purposes, and Customer shall not resell sublicense or redistribute the Service to any third party or use the Service on a timeshare or service bureau basis or to operate a website or otherwise generate income from the Service. Customer agrees to ensure that each person using Customer’s account to use the Service (i) uses the Service pursuant to the terms and conditions of this Agreement and (ii) uses the Service only for lawful purposes. Customer shall ensure that no person using Customer’s account uses the Service to (i) violate ReadyTalk’s network security or any third party’s system or network security by any method, including unauthorized interference with any user, host, system or network or unauthorized access to, use of or monitoring of data, systems or networks or (ii) send, receive, store, distribute, transmit, post, upload or download any materials that are designed to violate ReadyTalk’s network security or any third party’s system or network security.
- Except as this Agreement expressly permits, Customer shall not, and shall not permit any other person or entity to (i) copy the Service, in whole or in part; (ii) modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of any Service; (iii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Video & Web Conferencing Services any third person or entity, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (iv) reverse engineer, disassemble, decompile, decode or adapt the Service, or otherwise attempt to derive or gain access to the source code of the Service, in whole or in part; (v) bypass or breach any security device or protection used for or contained in the Service or its documentation; (vi) remove, delete, efface, alter, obscure, translate, combine, supplement or otherwise change any trademarks, terms of the documentation, warranties, disclaimers, or intellectual property rights, proprietary rights or other symbols, notices, marks or serial numbers on or relating to any copy of the Service or its documentation; (vii) use the Service for purposes of: (A) benchmarking or competitive analysis of the Service; (B) developing, using or providing a competing software product or service; or (C) any other purpose that is to ReadyTalk’s detriment or commercial disadvantage; (E) use the Service in any manner not permitted by this Agreement.
- During the Service Term, ReadyTalk will provide to Customer ReadyTalk’s standard customer support services in accordance with ReadyTalk’s service support schedule then in effect, a current copy of which is available at www.readytalk.com/contact (the “Support Schedule”). ReadyTalk may amend the Support Schedule from time to time in its sole discretion.
- Notwithstanding the Support Schedule, ReadyTalk has no obligation to provide Support Services relating to errors or performance failures that cannot be reproduced by ReadyTalk or that, in whole or in part, arise out of or result from any of the following (each a “Service Exception”): (i) Hardware Components, Video & Web Conferencing Services or the media on which it is provided, that is modified or damaged by Customer or any third party (ii) any operation or use of, or other activity relating to, the Service other than as specified in the documentation, including any incorporation in the Service of, operation or use of the Service in or with, any technology (including any software, hardware, firmware, system or network) or service not specified for Customer’s use in the documentation; (iii) any third party materials; (iv) any negligence, abuse, misapplication or misuse of the Service Components; (v) the operation of, or access to, Customer’s or a third party’s system or network; (vi) any beta software, software that ReadyTalk makes available for testing or demonstration purposes, or temporary software modules; or (vii) any Force Majeure Event (including abnormal physical or electrical stress).
Ownership of Intellectual Property Rights
- Nothing in this Agreement transfers any ownership rights to any intellectual property.
- Customer owns and retains all right, title and interest in and to the content of any archived files (sound and/or presentation content) created by Customer (“Customer Materials”), and Customer hereby grants ReadyTalk a license to use the Customer Materials to perform the Service and ReadyTalk’s other obligations under this Agreement.
- Except with respect to Hardware Components that transfer pursuant to this Agreement, the Service, documentation, hardware and other materials used in provision of the Service or on ReadyTalk’s website (collectively, the “ReadyTalk Materials”) are proprietary to and the property of ReadyTalk, and, as between the parties, all right, title and interest in and to the ReadyTalk Materials (including, but not limited to, patents, copyrights, trademarks, service marks, rights to logos, trade secrets and trade names, including without limitation third-party names, product names and brand names, and all other intellectual property and proprietary rights) remain in and shall be the exclusive property of ReadyTalk
- This Section 5 survives any termination or expiration of the Service Term.
Privacy and Security
- Although ReadyTalk uses reasonable security safeguards with respect to the Service, ReadyTalk cannot guaranty the security or privacy of any transmissions or communications through the Service. Customer acknowledges that Customer is solely responsible for all content and information sent, received, stored, distributed, transmitted, posted, uploaded or downloaded using the Service. ReadyTalk reserves the right to delete any content or information sent, received, stored, distributed, transmitted, posted, uploaded or downloaded using the Service which violates any provision of this Agreement.
- Customer shall not disclose ReadyTalk’s Confidential Information (defined below), other than to Customer’s employees and contractors who need to know such information to carry out the purposes of this Agreement or as required by law, and Customer will not use ReadyTalk’s Confidential Information except for purposes of this Agreement. Customer shall protect ReadyTalk’s Confidential Information using at least the same care with which it protects its own Confidential Information of like nature, but at all times shall use at least reasonable care. Customer agrees to provide ReadyTalk notice of all legal requests for ReadyTalk’s Confidential Information prior to disclosure.
- For purposes of this Agreement, “Confidential Information” means all documentation and Video & Web Conferencing Services provided to Customer in connection with the Service or this Agreement, and all account numbers, passwords, personal identification numbers and any necessary conference codes provided to Customer by or on behalf of ReadyTalk in connection with the Service.
- Upon termination or expiration of the Service Term, Customer shall return to ReadyTalk or destroy, at ReadyTalk’s option, all Confidential Information. The parties acknowledge that any threatened or actual breach of this Section 6 shall constitute immediate and irreparable harm to ReadyTalk for which equitable remedies shall be awarded by a court of competent jurisdiction.
- This Section 7 survives any termination or expiration of the Service Term.
- Disclaimer of Warranties. CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT THE SERVICE, INCLUDING ANY HARDWARE COMPONENTS, IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND ACCESS TO AND/OR USE OF THE SERVICE BY CUSTOMER OR ANY OTHER PERSON USING CUSTOMER’S ACCOUNT IS AT CUSTOMER’S SOLE RISK. READYTALK DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. READYTALK MAKES NO WARRANTY THAT THE SERVICE WILL MEET THE REQUIREMENTS OF CUSTOMER OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE, NOR DOES READYTALK MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR THAT ANY DEFECTS IN THE HARDWARE OR VIDEO & WEB CONFERENCING SERVICESSERVICE RELATED TO THE SERVICES WILL BE CORRECTED. THE ENTIRE RISK ARISING OUT OF USE OF THE SERVICE REMAINS WITH CUSTOMER. NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM READYTALK OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. This Section 8 survives any termination or expiration of the Service Term.
Customer Representations and Warranties. Customer hereby warrants, represents and covenants to ReadyTalk as follows:
- Customer (if not a natural person) is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.
- Customer has full power and authority to enter into this Agreement; the execution, delivery and performance of this Agreement by Customer have been duly authorized by all necessary actions on the part of Customer; and this Agreement, when duly executed by ReadyTalk and Customer, will constitute a valid, binding and enforceable obligation of Customer, except as such enforceability may be affected by the application of the rights of creditors generally and the principles of equity.
- During the term of this Agreement, any content or material Customer or any person using Customer’s account sends, receives, stores, distributes, transmits, posts, uploads or downloads in connection with the Service shall not in any way (i) violate any laws, rules or regulations, (ii) be obscene, indecent, immoral, defamatory, slanderous, libelous or harassing, (iii) infringe upon, violate or misappropriate any intellectual property or proprietary rights of any third party, including, without limitation, any copyright, trademark, trade secret or patent, (iv) violate any rights of publicity or privacy of any third party, or (v) damage ReadyTalk’s property or interfere with or disrupt ReadyTalk’s systems or other users. Customer is solely responsible for all content and information sent, received, stored, distributed, transmitted, posted, uploaded or downloaded using Customer’s account.
- This Section 9 survives any termination or expiration of the Service Term.
- Marketing. For the purpose of this Agreement, Customer shall grant to ReadyTalk a limited, non-exclusive, non-transferable, royalty-free license to use the trademarks, logo designs and trade names provided by Customer (collectively, the “Customer Marks”) subject to the terms of this Agreement. Use of the Customer Marks by ReadyTalk is strictly limited to identifying Customer as a ReadyTalk customer on its website and in ReadyTalk promotional materials – provided any such use has been pre-approved, not be unreasonably withheld, by Customer. ReadyTalk hereby acknowledges that validity of Customer’s ownership of the entire right, title and interest in and to the Customer Marks; that their use by ReadyTalk shall not create for ReadyTalk any right, title or interest in or to any of the Customer Marks.
- Indemnification. Customer agrees to defend, indemnify and hold harmless ReadyTalk, its directors, officers, employees, sublicensees and agents from and against all claims, suits, proceeding, liabilities, damages and/or costs (including, but not limited to, attorneys fees) arising from: (i) use of the Service by Customer or any other person using Customer’s account; (ii) violation of this Agreement by Customer or any other person using Customer’s account; (iii) Customer’s infringement, or infringement by any other person using Customer’s account, of any intellectual property or other right of any person, organization or entity; (iv) the Customer Materials; or (v) the negligence or willful misconduct of Customer or any other person using Customer’s account. This Section 11 survives any termination or expiration of the Service Term.
Limitation of Liability
- NO COMMUNICATION SYSTEM IS COMPLETELY ERROR FREE. READYTALK DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, AND CUSTOMER ASSUMES ALL RISKS ASSOCIATED WITH USE OF THE SERVICES BY CUSTOMER AND ANY OTHER PERSON USING CUSTOMER’S ACCOUNT. READYTALK SHALL NOT BE LIABLE FOR PERFORMANCE DELAYS OR FOR NONPERFORMANCE DUE TO CAUSES BEYOND ITS REASONABLE CONTROL. THE SERVICES ARE NOT DESIGNED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING, WITHOUT LIMITATION, OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT SYSTEMS OR WEAPONS SYSTEMS, AND READYTALK EXPRESSLY DISCLAIMS ALL LIABILITY ARISING FROM USE OF THE SERVICES FOR SUCH PURPOSES.
- THE LIABILITY OF READYTALK AND ITS AFFILIATES, EMPLOYEES, AGENTS AND SUPPLIERS FOR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT RECEIVED FROM CUSTOMER HEREUNDER (IF ANY) IN THE PREVIOUS TWELVE (12) MONTHS. IN NO EVENT SHALL READYTALK OR ITS AFFILIATES, EMPLOYEES, AGENTS OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS, REVENUE, DATA OR GOODWILL, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL THEORY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- This Section 12 survives any termination or expiration of the Service Term.
Term and Termination
- ReadyTalk may terminate this Agreement (i) immediately if Customer materially breaches any of its obligations under this Agreement, or (ii) immediately if Customer becomes insolvent, voluntarily files or is subject to a petition under the United States Bankruptcy Code, including a petition for Chapter 11 reorganization as set forth in the United States Bankruptcy Code.
- Customer may terminate this Agreement following 30 days notice to ReadyTalk of a material breach of this Agreement, if ReadyTalk fails to substantially cure the material breach within such 30-day period.
- Any expiration or termination of this Agreement shall not relieve either party from any obligations hereunder due and owing prior to such expiration or termination. Upon expiration or termination of this Agreement for any reason, all rights and licenses granted to Customer hereunder shall terminate.
- Assignment. This Agreement may not be assigned, in whole or in part, by either party without the prior written consent of the other party, except that ReadyTalk may (i) subcontract any of its obligations under this Agreement, and (ii) assign this Agreement, and Customer hereby consents to any successor entity in any merger or corporate reorganization, or to the purchaser of all or substantially all of the assets related to ReadyTalk or the Service. Any attempted assignment in violation of the foregoing will be void. This Agreement shall be binding upon and inure to the benefit of each party and its permitted successors and assigns.
- Notices. Any notice under this Agreement shall be in writing, and shall be sent (i) if by Customer then by Registered or Certified Mail, postage prepaid and return receipt requested to ReadyTalk’s address as identified below (or such other address as ReadyTalk may designate by giving notice hereunder, or (ii) if by ReadyTalk then to Customer’s e-mail or street address identified in the Pricing Agreement/Order.
If to ReadyTalk:
1900 Sixteenth Street
Denver, CO 80202
Attention: Contracts Department
If to Customer: See Pricing Agreement/Order
- Severability. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable in any respect, such provision shall be severed or modified as may best preserve the intent of the parties, and the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
- Amendments and Modifications. The Service and this Agreement, or any of its provisions, may be amended or modified by ReadyTalk from time to time, at ReadyTalk’s sole discretion, without prior notice to Customer. Any amendment or modification to the Service or this Agreement shall be effective upon the earliest to occur of (i) a posting on ReadyTalk’s website or (ii) written notice to Customer as provided in this Agreement. By continuing to use the Service after any amendment or modification, Customer accepts and agrees to be bound by such amendment or modification.
- Independent Contractors. ReadyTalk is an independent contractor, and nothing contained in this Agreement shall be construed to (i) give either party the power to direct and control the day-to-day activities of the other party, (ii) constitute the parties as partners, joint venturers, co-owners, agents, franchisee or franchisor or otherwise, or (iii) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever. Neither party is an employee of the other, nor is either party entitled to employee benefits from the other party. All financial and other obligations associated with each party’s business are the sole responsibility of such party.
- Force Majeure. ReadyTalk shall not be responsible for any failure or delay in the performance of any obligation hereunder if such failure results, directly or indirectly, from fire, explosion, strike, freight embargo, weather, act of God, war, civil disturbance, terrorism, act of government or any agency or official thereof, labor shortage, severe weather, failure of vendors, manufacturers, suppliers or subcontractors or any other event beyond ReadyTalk’s control (“Force Majeure Event”).
- Section Headings. Section headings in this Agreement are for convenience only and shall not be considered in the interpretation of this Agreement.
- Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, without giving effect to conflicts of law principles.
- Actions arising out of this Agreement; Venue. No action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than two (2) years after the cause of action has arisen, or in the case of an action for non-payment, more than two (2) years from the date the last payment was due. The exclusive jurisdiction and venue for any claim or action arising out of or relating to this Agreement shall be in the state and federal courts located in Denver County, Colorado, and the parties hereby submit to the exclusive jurisdiction of such courts with respect to such claims. The parties agree to waive any objection they may now or in the future have to the venue set forth in this paragraph. CUSTOMER EXPRESSLY WAIVES ITS RIGHTS TO A JURY TRIAL.
- Entire Agreement. This Agreement and any documents, exhibits and attachments referenced herein contain the entire agreement between the parties concerning the subject matter hereof, and any representations or agreements, oral or otherwise, not embodied herein are superseded by the terms hereof and shall be of no force or effect.
- This Section 14 survives any termination or expiration of the Service Term.