SUPPLIER PROPRIETARY SERVICES
(v April 2020)
"Employee(s)" refers to all the Client's employees and representatives, located in the country in which the Client is registered, unless otherwise stated in the SOF.
"Named License" refers to any individual license ordered by the Client for a named Moderator.
"Software" refers to the software applications and their updates, including any "add-on" extension modules except for those developed under open source license as well as any documentation relating to the use of the Services.
"Active User" refers to a Moderator having opened a conference during the reference period.
2. SOFTWARE LICENSE TERMS
2.1 In the event of downloading and installation of the Software, Supplier grants the Users a limited, personal, non-exclusive, non-assignable and non-transferable license for the use of the Software as an integral part of the Service, subject to the terms of any Open Source licenses if applicable. The license is granted for the License Initial Term or for its License Renewal Term. Any Software supplied shall be supplied as object code only.
2.2 All the rights and titles including but not limited to Intellectual property rights in the Software are protected by law as well as by any other applicable regulations. Supplier warrants that it is the holder of the appropriated rights and is able to grant the license to the Users.
2.3 Users undertake not to (i) attempt to access or copy the Software's source code forms; (ii) use the Software for other purposes than those of using the Services; (iii) create copies of the Software for other purposes that would not be directly related to the Services or generate a number of copies of the Software greater than that authorized under the applicable law; (iv) modify, translate, adapt, reverse engineer, decompile, disassemble (except and only insofar as the applicable law expressly authorizes it), or incorporate the Software into other software or create derivative works based on the Software; (v) resell, rent, or make any commercial use of the Software, or assign or grant the Software or the license terms to any third party; (vi) use the documentation for purposes other than internal; (vii) remove any notice or label included on the Software; (viii) export, re-export, misappropriate or disclose any part of the Software or any technical information relating thereto, directly or indirectly, in violation of applicable laws; or (ix) carry out intrusion tests or attempt to obtain a denial of service in connection with the Services.
2.4 Client understands that the Software is provided "as is". Supplier expressly disclaims all warranties of any kind (express or implied), including but not limited to, any warranties of merchantability and fitness for a particular purpose or use.
3. CLIENT'S OBLIGATIONS
3.1 The Client undertakes to use the Services in accordance with the written instructions issued by Supplier, particularly in the "welcome pack" for security purposes and better management of the Services.
3.2 The Client expressly authorizes Supplier, for the sole purpose of supplying Services to (i) host, record the Content and copy such Content on back-up servers if a Moderator or the Client selects the recording or storage option, (ii) cache the Content during conferences for web-conference services and (iii) display and transmit the Content to Users pursuant to Client’s instruction.
3.3 The Client is responsible for providing internet access, connectivity, as well as communications equipment. Establishing the online connection to the Supplier platform and operating the User devices are Client’s responsibility.
4. SUPPLIER’S OBLIGATIONS
4.1 Security - Supplier agrees that the Services will be provided in compliance with the security rules and principles as described in the Supplier security white paper available at the following address:
4.2.1 Subject to any limitations and restrictions set out in the STC, Supplier indemnifies and defends (or, at its discretion, negotiates and settles) the Client against any action brought against Client on the grounds that Client’s use of Supplier Material in connection with the Services infringes the Intellectual Property rights of a third party, to the extent that such action is not attributable (i) to the use or possession of the Supplier Material other than in compliance with the provisions of the Contract, (ii) to the combination of Supplier Material with one or more services not supplied by Supplier or Supplier’s Partners, or (iii) to the use of an outdated version of any Supplier Material despite an updated version having been supplied by Supplier, or (iv) to modifications or additions made to Supplier Material upon request from the Client, (v) to software which contains open source code and/or free software components. Client shall (a) inform Supplier immediately in writing and cooperate reasonably with Supplier for the purposes of defending against such action and (b) not negotiate or settle with the third party having brought the action for infringement. Supplier shall manage and control the defense.
4.2.2 Supplier’s obligation will be to pay all proven direct damages and expenses awarded by a court or arbitrator or agreed by Supplier in a settlement of the claim..
Upon becoming aware of or reasonably suspecting an infringement claim that threatens the continued use of the Services or any Supplier Material related thereto, Supplier shall be entitled, at its own expense and option, to: a) obtain for Client a license for the continued use of the infringing the
Supplier Material; b) replace the infringing material with non-infringing material that is substantially equivalent in functionality; c) repair or make those modifications to the infringing material that may be necessary to remove the alleged infringement; or d) if there is no way of remedying the infringement, terminate the Contract under which the infringing material is provided, in whole or in part, on notice to the Client, and Client will be entitled to a pro-rata refund of any part of the Charges it has paid for the Services to be supplied after the date of termination under such Contract.
4.2.4 This clause states Supplier’s entire liability and Client’s sole remedy for any infringement claim related to the Services and any associated Supplier Material.
Subject to article 9 of the STC, Supplier's full liability to the Client, its officers, directors, representatives, employees, or agents is limited, all damages and service credits included, to six (6) times the monthly average billing invoiced by Supplier to the Client from the date of signing the Service Order Form until the date of the event giving rise to the claims in respect of the service(s) from which it originated. This limitation of liability is accumulative rather than per-incident.
6. INTELLECTUAL PROPERTY
The issuance by Supplier of PIN codes, usernames, passwords, personal identification numbers and telephone numbers does not result in any transfer of ownership to Users. Supplier may mention in its communications that it is the Client's preferred supplier of the Services.
7. SERVICE USE POLICY
7.1 Limitation of Capacity. For the use of the Services, the Client undertakes to inform its Moderators of the limits of capacity associated with the Moderator licenses. These limits are referenced in the related Service Order Form and apply to all Participants and the Moderator of the conference.
7.2 Fair Use. The Services are subject to a fair use policy of which the details are conveyed to the Client upon signing the Contract. The Client undertakes to inform its Moderators of and to ensure their compliance with Supplier's fair use policy. In the event of exceeding the limit by an Active User, Supplier shall inform the Client in order that the Client can make any necessary adjustment to the consumption of the Moderator in question.
7.3 The Client undertakes to ensure that the Moderators comply with use of the Service limited to one meeting at a time.
7.4 The identification of the Moderator with a Named License shall be unique and associated with the named Moderator. The Named License assigned to a particular Moderator shall not be shared with other employees or Users. Client shall provide written authorization to Supplier to reassign a Named license to another employee or User.
7.5 Any unauthorized use or any use exceeding the use limits by the Moderators shall be billed by Supplier based on the Standard Charges.
7.6 Supplier reserves the right to modify the Standard Charges relating to access to and use of the Services subject to notifying in writing the Client sixty (60) days in advance. The Client, if it refuses this change, shall be entitled to terminate by registered letter with acknowledgement of receipt, the affected Service(s) without any penalty, within thirty (30) days from the date of receipt of said notification. Cancellation shall take effect on the date of application of the new Standard Charges. Nonetheless for firm subscriptions or in the event of a minimum undertaking by the Client, termination shall be effective only on the date of the end of these subscriptions or undertaking.
7.7 Service Charges include the time connection to the conference, actual conference time, waiting time and time for connection to any Supplier assistance service, in particular to the client assistance service (*0) as well as potential disconnection costs. The Service Charges are calculated for the consumption share per minute, in full minutes, on a per Participant and Moderator basis (inbound or outbound legs), in full minute increments from the initial call connection to the termination of all conferences.
8. ACTIVE HOST LICENSE
The active host license is a model of Named License as detailed below.
8.1 By choosing the active hosted license model, the Client agrees to a period of at least two (2) years.
8.2 Upon signature, the Client undertakes to notify Supplier of the number of Moderators that are expected to benefit from an active host license (henceforth referred to as "Declared Users").
8.3 The Client may update its active host license calculation base to increase the number of Declared Users by signing a Service Order Form referring to the Contract.
8.4 For the first year use of the Services from the Contract's Effective Date, the Client shall pay for a number of licenses equal to the higher of (i) a percentage (as mentioned in the Service Order Form) of the number of Declared Users on the date of signing of the Contract; or (ii) a minimum number of licenses as mentioned in the Service Order Form. For the following years, the Client shall pay for a number of licenses equal to the higher of (i) a percentage (as mentioned in the Service Order Form) of the number of Declared Users on the Contract's anniversary date; (ii) a minimum number of licenses as mentioned in the Service Order Form; or (iii) the average number of Active Users over the last three (3) months preceding the Contract's anniversary date.
8.5 In case of full deployment licenses, the Client undertakes to convey to Supplier as Declared Users the full list of its Employees on the date of activation of the Service and to order a number of licenses equal to this number.
The parties agree that Supplier may conduct, at its expense, audits on the Users’ use of the Services to ensure their compliance with the contractual provisions. These audits may be conducted remotely or on the Client's premises. Supplier shall inform in writing the Client with prior notice of ten (10) days. Audits shall be conducted during the Client's office hours and an audit report shall be issued to the Client. In the event that the audit report reveals non-conformance of the Client's obligations, Client shall undertake to resolve such non-conformance within ten (10) days.