IMPORTANT- READ CAREFULLY: CUSTOMER'S USE OF WWW.SKY-CONFERENCING.COM ("THE WEBSITE") AND THE SERVICES ARE CONDITIONED UPON CUSTOMER'S COMPLIANCE AND ACCEPTANCE OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE WITH THE TERMS OF THIS AGREEMENT, DO NOT USE THE SERVICES. CUSTOMER IS ENCOURAGED TO PRINT OR DOWNLOAD THESE TERMS AND CONDITIONS AND SAVE THEM FOR CUSTOMER'S RECORDS.
This Agreement (the "Agreement") is between the individual or legal entity using, purchasing or opening an account for Services ("Customer") and the SkyConferencing related entity which invoices Customer for the Services ("SkyConferencing"). Please read this Agreement carefully before installing, accessing, or otherwise using the Services. By installing, accessing, or otherwise using Services, Customer agrees to be bound by this Agreement. Please maintain a copy for Customer's records. If Customer does not agree with the terms of this Agreement, do not use the Services.
1. Service Description This Agreement governs the purchase and use of audio, video and web conferencing services and related products and services of SkyConferencing ( the "Services") and its third party suppliers ("Third Party Services") (the SkyConferencing Services and Third Party Services are referred to collectively as the "Services"). SkyConferencing may alter, expand, or reduce the features of the Services from time to time without notice to Customer. Customer agrees that SkyConferencing's obligation to provide Services is conditioned upon Customer providing all information and assistance reasonably required to perform the Services and Customer hereby agrees to timely provide all such information and assistance. SkyConferencing reserves the right to reclaim any dial-in numbers at any time. Customer acknowledges that not all Services can be guaranteed from all locations including, but not limited to via mobile telephones, pay phones or satellite phones due to various in-country, carrier or other restrictions.
2. Term The Term of this Agreement shall remain in effect until terminated in accordance with the provisions of this Agreement (the "Term"). This shall not prevent certain provisions which are by their very nature intended to extend their effect beyond the termination of this Agreement to remain in effect after such termination. Without limiting the foregoing, such provisions include sections 15, 16, 18, 24 and 25.
3. Free Trial Term If Customer subscribes for Services pursuant to a promotional offer granting a free trial for Services ("Free Services"), Customer will receive use of the Free Services solely for a limited period of time and all use of all Free Services shall be subject to the terms herein and any and all other restrictions, limitations and conditions identified with the specific Free Services offer to Customer on the Website or otherwise. SkyConferencing reserves the right, at all times and in its sole discretion, to terminate any Free Services at any time without notice, including without limitation for any abuse of the Free Services. As a condition to receive any Free Services, SkyConferencing may request that a service chare will be pre-authorized against customer's credit card. Details of such requirement will be provided to Customer when it will sign up for the Free Services.
4. Termination for Convenience Each party may terminate this Agreement by providing written notice to the other party of such termination. All terminations by Customer pursuant to this section shall become effective on that last day of the billing cycle in which the termination occurs, provided the notice was provided 10 days prior to the end of this cycle. Otherwise, the termination shall become effective on the last day of the following billing cycle.
5. 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. All terminations by Customer pursuant to this section shall become effective on that last day of the billing cycle in which the termination occurs. Notwithstanding the foregoing, SkyConferencing may terminate this Agreement and/or suspend the provision of Services immediately for: illegal, fraudulent, improper or abusive use of the Services
6. Effect of Terminations If Customer terminates this Agreement for cause: (a) Customer will pay for all Services rendered up to the date of termination; (b), SkyConferencing will reimburse Customer for any amounts prepaid by Customer for Services not rendered; and (c) Customer shall be relieved of any future payments due, notably with respect to a minimum commitment arrangement. Otherwise, upon any termination of this Agreement, Customer shall pay for: (a) all Services rendered up to the date of termination; and (b) any minimum shortfall or future amounts due under this Agreement including the current renewal thereof, if applicable. All use of Services after termination shall be billed at standard rates.
7. Effect of termination for Customer with minimum commitment In the event that Customer has agreed to a minimum commitment, if Customer terminates this Agreement (not due to breach by SkyConferencing) or if SkyConferencing terminates it for cause, Customer shall pay to SkyConferencing, upon receipt of invoice, the shortfall equal to the difference between the Minimum Commitment during the applicable term less any payments for actual usage made by Customer during such applicable period during the term of the Agreement.
8. Payments, Rates and Credit check Customer will pay SkyConferencing for the Services according to the terms and conditions herein (this "Agreement") and at the listed rates and for those activation fees and/or other charges as set forth in this Website and on any schedules following these Terms & Conditions or provided to Customer by SkyConferencing and hereby incorporated into this Agreement (the "Schedules"). All rates, unless otherwise stated, are calculated on a per minute participant basis. In the event of a conflict between any terms herein and in any Schedule, the terms of the Schedule for the particular service shall control. Charges for use of Services are invoiced at the end of each billing cycle, and payments are due upon receipt of invoice.
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, SkyConferencing shall invoice for, and Customer shall pay, upon receipt of invoice, the shortfall equal to the difference between the Minimum Commitment during the applicable term less any payments for actual usage made by Customer during such applicable period during the term of the Agreement. Credit Checks: The provision of Services under this Agreement is subject to credit verification and acceptance by SkyConferencing. SkyConferencing may, in its sole discretion, request advanced payment, in whole or in part, from Customer or change its payment terms at any time. SkyConferencing may cancel or re-schedule orders if SkyConferencing determines, in its sole discretion, that Customer's financial condition or previous payment record so warrants such change.
Credit Cards: Notwithstanding any other provision herein, for any fees and/or charges paid by credit or debit cards, Customer agrees if payment is not received by SkyConferencing from the card issuer or its agents, Customer will pay all amounts due upon demand by SkyConferencing. Each time Customer uses the Services, or allows or causes the Services to be used, Customer agrees and reaffirms that SkyConferencing is authorized to charge your designated card in connection with the Services.
9. Invoices, Payments and Interests SkyConferencing will invoice Customer electronically free of charge or via paper invoice for a fee ($10.00). Customer agrees to make payment for all Services upon receipt of invoice, or such later date if specified on the invoice, to the location and in the manner directed on the invoice. Invoices not paid on a timely basis will be subject to an interest 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 must notify SkyConferencing of any disputed charges within thirty (30) days from the date of the invoice, otherwise Customer will be deemed to agree to such charges and SkyConferencing will not be subject to making adjustments to charges or invoices. Customer acknowledges and agrees, that: (1) unless indicated otherwise, Services are charged by multiplying all inbound or outbound legs of all conferences by the applicable per minute rate; (2) Service rates specifically negotiated by Customer and agreed to by SkyConferencing as indicated on SkyConferencing's invoices to Customer shall be deemed "Negotiated Rates;" (3) Services that are not subject to Negotiated Rates, including conference legs to or from a location outside the host country and all taxes, fees, and surcharges, will be charged at SkyConferencing's standard rates ("Standard Rates"); (4) Customer may obtain SkyConferencing's Standard Rates through Customer's sales or account representative or in some cases through Customer's web account.
10. Price Changes CUSTOMER ACKNOWLEDGES AND AGREES THAT STANDARD RATES ARE SUBJECT TO CHANGE AT ANY TIME WITHOUT SKYCONFERENCING PROVIDING SPECIFIC NOTICE TO CUSTOMER BY SKYCONFERENCING POSTING NEW STANDARD RATES. CUSTOMER THEREFORE AGREES TO CHECK SKYCONFERENCING'S STANDARD RATES FROM TIME TO TIME AND IN EACH CASE PRIOR TO USING ANY SERVICES SUBJECT TO STANDARD RATES. NEGOTIATED RATES ARE SUBJECT TO CHANGE AT ANY TIME ON THIRTY (30) DAYS PRIOR WRITTEN NOTICE TO CUSTOMER. CUSTOMER AGREES THAT EITHER OR BOTH OF NEGOTIATED RATES AND STANDARD RATES MAY BE INCREASED BY SKYCONFERENCING BY 15% EACH YEAR WITHOUT PRIOR NOTICE TO CUSTOMER. IN LIGHT OF THE PRICE CHANGING POLICIES HEREIN, CUSTOMER THEREFORE AGREES TO CAREFULLY REVIEW EACH INVOICE PRIOR TO MAKING PAYMENT AND TO NOTIFY SKYCONFERENCING OF ANY RATE DISPUTES WITHIN THIRTY (30) DAYS FROM THE DATE OF THE INVOICE, OTHERWISE CUSTOMER WILL BE DEEMED TO AGREE TO SUCH RATES AND TO HAVE WAIVED ANY RIGHTS TO DISPUTE THEM IF NOT RAISED WITHIN THIRTY (30) DAYS FROM THE DATE OF THE INVOICE.
11. Unpaid Charges In the event charges due are not timely paid in full for any reason, SkyConferencing shall have the right to suspend all or any portion of the Services until such time as all charges and applicable interest amounts and/or late fees have been paid. Such suspension shall not relieve Customer of any payment liability. Customer agrees to reimburse SkyConferencing for any costs, expenses, or fees expended by SkyConferencing in connection with any collection efforts against Customer, including reasonable internal and outside attorneys' fees.
12. Taxes, Fees and Surcharges In addition to the rates for the Services, Customer shall pay all applicable fees, duties, tolls, administrative assessments, surcharges, or taxes now or hereafter attributable to the Services and included on Customer's invoice. For Customers located in the United States, SkyConferencing is required by the Federal Communications Commission to contribute to the federal Universal Service Fund (USF), which subsidizes telecommunications services to low-income customers and customers in rural areas, as well as discounts on Internet access for eligible schools, libraries and rural health care providers. SkyConferencing assesses federal USF charges on invoices for audio conferencing services to recover the cost of its federal USF contributions. The charge for federal USF will reflect the applicable quarterly contribution factor, and SkyConferencing will not provide advance notice of any change in this quarterly contribution factor, except as required by law. This fee is not a tax or government-required charge.
13. Responsibility for Customer's Accounts Customer is responsible for maintaining the confidentiality of Customer's accounts, owner numbers, conference codes, passwords and personal identification numbers used in conjunction with the Services and for all uses of the Services in association with Customer's accounts whether or not authorized by Customer. SkyConferencing does not sell products or services for children. Customer will not allow children under 18 to use the Services without the involvement of a parent or guardian. Customer agrees to immediately notify SkyConferencing of any unauthorized use of Customer's account of which Customer become aware.
14. Responsibility for Communications Customer is the sole owner of content and solely responsible for the content of all communications (visual, written or audible) using Customer's accounts. Customer shall comply with all laws while using the Services; shall not transmit any communication that violates any law, court order, or regulation; shall not violate any third party rights in using the Services; and shall not use the Services in any way that damages SkyConferencing's property or interferes with or disrupts SkyConferencing's system or other users. Although SkyConferencing is not responsible for any such communications, SkyConferencing may suspend any such communications of which SkyConferencing is made aware. Use of conference recording or taping any use of the Services by Customer may subject Customer to laws or regulations and Customer is solely responsible for and obligated to provide any required notification to participants prior to commencement of said conference. Customer acknowledges and agrees that SkyConferencing has not and is not expected to provide Customer with any analysis, interpretation or advice regarding Customer's compliance with the above and does not control Customer's content nor guarantee the accuracy, integrity, security or quality of Customer's content.
17. Limited Warranty ALL SERVICES ARE PROVIDED "AS IS" AND "WITH ALL FAULTS" AND WITHOUT ANY WARRANTY. CUSTOMER UNDERSTANDS AND AGREES THAT SKYCONFERENCING'S SERVICES AND THE WEBSITE ARE PROVIDED "AS IS" AND "AS AVAILABLE". SKYCONFERENCING AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SKYCONFERENCING MAKES NO WARRANTY OR REPRESENTATION REGARDING ANY INFORMATION, MATERIALS, GOODS OR SERVICES OBTAINED THROUGH SKYCONFERENCING'S SERVICES OR WEBSITES, OR THAT THE SERVICES WILL MEET ANY OF CUSTOMER'S REQUIREMENTS, OR BE UNITERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF THE SERVICES AND WEBSITE ARE AT CUSTOMER'S SOLE RISK. SKYCONFERENCING IS NOT LIABLE FOR ACTS OR OMISSIONS OF OTHER SERVICE PROVIDERS, FOR INFORMATION OR CONTENT OF COMMUNICATIONS, THIRD PARTY SERVICES, EQUIPMENT FAILURE OR MODIFICATION, OR CAUSES BEYOND SKYCONFERENCING'S REASONABLE CONTROL.
18. Indemnification Customer shall indemnify, defend and hold SkyConferencing, its suppliers, their affiliates and their officers, directors, employees (the "SkyConferencing Indemnitees") harmless from any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including reasonable attorneys' fees, which arise out of or relate to: (1) Customer's use of the Services (including without limitation, any person accessing the Services using Customer's account); (2) any actual or alleged violation of this Agreement, any Order Form or any applicable law, rule or regulation by Customer or any person accessing the Services using Customer's account; (3) or any actual or alleged infringement or violation by Customer or any person accessing the Services using Customer's account of any intellectual property or privacy or other right of any person or entity.
19. Governing Law; Exclusive Forum; Jurisdiction This Agreement shall be governed by, and construed and enforced in accordance with the laws of province of Quebec, Canada 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 provincial courts of the Montreal district in the Province of Quebec, Canada to resolve any disputes arising hereunder. The English language version of this Agreement controls. Agreements provided in languages other than English are provided for ease of reference only. If Customer is in Canada, it is the express wish of both parties that this Agreement, and any associated documentation, be written and signed in English. C'est la volonte expresse des parties que la presente convention ainsi que les documents qui s'y rattachent soient rediges en anglais.
20. Force Majeure SkyConferencing will not be responsible for delays and/or defaults in its performance due to causes beyond its reasonable control, including, but without limiting the generality of the foregoing; acts of terrorism, wars, hostilities, revolutions, riots, civil commotion, national emergency, fire or explosion, flood, force of nature, embargoes, accidents, acts of God, or stability or availability of the Internet, the elements; telecommunication system failure; technology attacks, epidemic; quarantine; viruses; strike; lockouts; disputes with workmen or their labor disturbances; total or partial failure of transportation, utilities, delivery facilities, or supplies; acts or request of any governmental authority; or any other cause beyond SkyConferencing's control, whether or not similar to the foregoing.
21. Entire Agreement This Agreement, including all annexes and schedules, if any, constitutes the final, complete and entire agreement between the parties with respect to the subject matter hereof, and supercedes 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 Customer-form 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 SkyConferencing and Customer. SkyConferencing may amend at any time the provisions of this Agreement. A printed version of this Agreement and of any notice given to Customer in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form
22. Notices Notices from SkyConferencing to Customer under this Agreement may be sent by mail, email, fax or other electronic media and will be considered given upon delivery to the physical address, fax number, email address or other contact information provided by Customer for billing or account management purposes. Notices to SkyConferencing must be sent to the address mentioned in SkyConferencing's invoice to Customer or via Email at email@example.com.
23. Modification SkyConferencing may, at any time, amend the provisions of this Agreement by posting revised terms and conditions ("Amended Terms") on its Website and such terms will automatically become effective ten (10) days after they are posted on the Website. By using the Services after such revised terms are posted, Customer agrees to be bound by any such amended provisions. Therefore, Customer agrees to periodically visit the Website to examine the then-current Agreement. By using the services after posting of Amended Terms, Customer will be deemed to have accepted and be bound by such Amended Terms. No such amendment by SkyConferencing shall serve to constitute a default or termination by SkyConferencing of this Agreement, nor shall such amendment serve to be a basis for Customer's termination of this Agreement. Any amendment proposed by Customer may only be accepted by SkyConferencing in a non-electronic writing manually signed by authorized representatives of the parties.
24. 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 SkyConferencing and its suppliers during the term of this Agreement without express written consent from SkyConferencing. Any use by Customer of the SkyConferencing 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, SkyConferencing may terminate this Agreement.
25. Intellectual Property The Services provided under this Agreement and all associated intellectual and proprietary rights are the sole property of SkyConferencing and/or its suppliers.
26. 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. 27. 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.
28. 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.
29. Successors and Assigns This Agreement shall be binding upon and inure to the benefit of the parties' successors, legal representatives and authorized assigns. SkyConferencing 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 SkyConferencing 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 SkyConferencing, which shall not be unreasonably withheld.
30. Miscellaneous License Grant. As applicable, SkyConferencing 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 SkyConferencing 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 Conduct. 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
SkyConferencing 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 to these Terms of Service or may create liability for SkyConferencing or its Suppliers. Quality control: Customer authorizes SkyConferencing's monitoring including recording of calls for the purposes of quality assurance and Customer further consent to SkyConferencing's use of automatic dialing equipment to contact Customer. Ordinances and requests: SkyConferencing's performance of the Services is subject to existing laws and legal process, and nothing contained in this Agreement is in derogation of SkyConferencing's right to comply with governmental, judicial and law enforcement requests or requirements relating to Customer's use of SkyConferencing's Website, the Services or information provided to or gathered by SkyConferencing with respect to such use.
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 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 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. Customer will defend, indemnify, and hold harmless SkyConferencing and its suppliers from and against any violation of such laws or regulations by Customer or any of its agents, officers, directors, or employees.