1. Services and Payments
Sonic Foundry shall provide to Client the services described in this Agreement and specified in any accepted quotation and/or accepted Client purchase order (collectively, upon acceptance by both parties, the “Addendum”) that are ordered by Client (collectively, the "Services”). In the event of any conflict between the terms of the Addendum and these Terms and Conditions, the provisions set forth in these Terms and Conditions shall govern.
2. Responsibilities
Client Responsibilities: The Client will be responsible for:
(a) all hardware, support, performance, maintenance, technical support, configuration and operation of Client’s videoconferencing system (“System”) used to generate videoconferencing data (“Client Data”);
(b) the generation, configuration, conversion, encoding, storage, and performance of the Client Data prior to transmission to Sonic Foundry;
(c) installing and maintaining communications and interfaces between the Client and Sonic Foundry;
(d) transmitting the Client Data to Sonic Foundry in the format(s) required by Sonic Foundry, as promulgated by Sonic Foundry from time to time;
(e) procurement and maintenance of insurance on the Client Data and the System at levels no less than those customary in Client’s industry; and
(f) input and processing of Client Data prior to transmission to Sonic Foundry.
Sonic Foundry Responsibilities: Sonic Foundry will be responsible for:
(a) providing the Services; and
(b) system security and safeguarding the Client Data upon the terms and for the time periods set forth herein.
3. Term and Termination
This Agreement shall be effective for the period described in the Addendum (the “Initial Term”), unless earlier terminated as otherwise provided in this Agreement. Client shall have the option to extend the Initial Term on the same terms and conditions for additional periods, as agreed, by so-notifying Sonic Foundry in writing at least (30) days prior to the original expiration date and Sonic Foundry accepting such renewal notice (each, a “Renewal Term”). In the event of a termination, Client shall not be entitled to any refund of any payments made to Sonic Foundry by Client and shall pay all fees due up to the effective date of termination. Either party may terminate this Agreement if the other party materially breaches any of its representations, warranties, or obligations under this Agreement and, except as otherwise provided in this Agreement, such breach is not cured within (14) days of receipt of written notice specifying the breach.
4. Relationship and Nature of Agreement
This Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between Sonic Foundry and Client. Neither Sonic Foundry nor Client will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent. The parties agree that this Agreement is a services agreement, and this Agreement does not constitute a lease of any property or license of any software or hardware. Client acknowledges and agrees that it has been granted only the rights set forth in this Agreement, and Client has not been granted any real property interest in any portion of the Sonic Foundry data center. Sonic Foundry acknowledges and agrees that all right, title, and interest in and to the Client Data remains with Client.
5. Client Data
Sonic Foundry shall maintain commercially reasonable operational, managerial, physical and technical measures to protect Client Data against accidental, unauthorized or unlawful destruction, loss, alteration, disclosure or access during the period that Sonic Foundry possesses such Client Data. Sonic Foundry will use Client Data solely in the performance of its obligations under this Agreement. Unless otherwise set forth in an Addendum, the Client Data transmitted to Sonic Foundry shall be limited to a duration of 8 hours per video conference call. Sonic Foundry is hereby authorized by Client to dispose of and/or destroy Client Data in its possession (unless prohibited by law, court order or regulatory body mandate) at any time after 90 days from receipt of such Client Data. Sonic Foundry shall dispose of and/or destroy Client Data in such a manner as to provide Client reasonable protection against unauthorized access to such discarded Client Data.
6. Client Warranties
Client represents and warrants that:
(a) Client has the legal right and authority throughout the term of this Agreement to the Client Data;
(b) Client has the power and authority to enter into and fully perform its obligations under this Agreement;
(c) Client owns or has the legal right to use the System and capture the Client Data;
(d) the System and the Client Data does not infringe the intellectual property rights of any third party including, without limitation, patents, trademarks, copyrights, and trade secrets and Client has the legal right to transmit the Client Data to Sonic Foundry;
(e) The System complies with Sonic Foundry’s system requirements for the Services, as promulgated by Sonic Foundry from time to time;
(f) the Client Data does not contain any material that violates any applicable law, rule, or regulation (including export laws) or that infringes upon any common law or statutory right of any person or entity including, without limitation, any proprietary, contract, moral, privacy or publicity right, copyright, patent, trademark, or trade secret; and
(g) the Client Data does not contain any material that, in Client’s good faith judgment, is obscene, threatening, malicious, defamatory, libelous, slanderous, or pornographic.
7. Sonic Foundry’s Warranties
Sonic Foundry represents and warrants that:
(a) Sonic Foundry has the power and authority to enter into and fully perform its obligations under this Agreement;
(b) all Services to be provided by this Agreement will be performed in a professional, industry standard, competent, and timely manner; and
(c) there are no existing or threatened legal proceedings against Sonic Foundry that would have an adverse effect on its ability to perform its obligations under this Agreement, or on its financial condition or operations.
SONIC FOUNDRY DOES NOT WARRANT THAT THE SERVICES PROVIDED WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. SONIC FOUNDRY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ALL SERVICES PROVIDED PURSUANT TO THIS AGREEMENT ARE PROVIDED OR PERFORMED ON AN "AS IS" BASIS, AND CLIENT’S USE OF THE SERVICES IS SOLELY AT ITS OWN RISK.
8. LIMITATION OF LIABILITY
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR:
(A) LOST PROFITS, LOSS OF BUSINESS, LOST REVENUES, LOST DATA (INCLUDING DUE TO VIRUSES OR OTHERWISE), DELAYS, OR LOSS OF TECHNOLOGY, RIGHTS, OR SERVICES;
(B) CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, EXEMPLARY, OR PUNITIVE DAMAGES; OR
(C) ANY OTHER TYPE OF DAMAGES, OTHER THAN DIRECT DAMAGES, ARISING OUT OF OR RELATED TO THIS AGREEMENT (AND WITH DIRECT DAMAGES, ONLY TO THE EXTENT PERMITTED IN THIS AGREEMENT).
TO THE EXTENT PERMITTED BY LAW, SONIC FOUNDRY WILL NOT HAVE ANY LIABILITY FOR ANY HARM OR PERSONAL INJURY TO CLIENT, ITS PRESENT OR FORMER OWNERS, PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, AGENTS, OR CLIENT’S AUTHORIZED PERSONS, UNLESS SUCH INJURY OR HARM IS CAUSED BY SONIC FOUNDRY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. ALL LIMITATIONS SET FORTH IN THIS SECTION APPLY TO ALL CAUSES OF ACTION AND CLAIMS.
SONIC FOUNDRY DOES NOT CONTROL, NOR CAN IT CONTROL, THE FLOW OF DATA TO OR FROM INTERNET SERVICE PROVIDERS, TELECOMMUNICATIONS PROVIDERS, AND OTHER PORTIONS OF THE INTERNET OR THE CLIENT’S OWN INTERNAL SYSTEMS, INCLUDING INTRANETS AND OTHER WIDE AND/OR LOCAL AREA NETWORKS (COLLECTIVELY, “IN-TERNAL SYSTEMS”) AND ACCESS SYSTEMS. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET AND INTERNAL SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES INCLUDING, WITHOUT LIMITATION, THE CLIENT (COLLECTIVELY, FOR THE PURPOSES OF THIS DISCLAIMER, “THIRD PARTIES”). AT TIMES, ACTIONS OR INACTION CAUSED BY SUCH THIRD PARTIES MAY PRODUCE SITUATIONS IN WHICH A PARTY’S CONNECTIONS TO THE INTERNET, ACCESS SYSTEM, OR INTERNAL SYSTEMS (OR PORTIONS THEREOF) MAY BE IMPAIRED OR DISRUPTED, AND SONIC FOUNDRY CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, SONIC FOUNDRY DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS. SONIC FOUNDRY SHALL NOT BE LIABLE TO THE CLIENT, ANY AUTHORIZED USER, OR ANY OTHER THIRD PARTY FOR ANY CLAIMS OR DAMAGES THAT MAY BE SUFFERED BY THE CLIENT, ANY AUTHORIZED USER, OR ANY SUCH THIRD PARTY INCLUDING, BUT NOT LIMITED TO, LOSSES OR DAMAGES OF ANY NATURE RESULTING FROM THE LOSS OF DATA, INABILITY TO ACCESS THE INTERNET OR INTERNAL SYSTEMS, OR INABILITY TO TRANSMIT OR RECEIVE INFORMATION CAUSED BY, OR RESULTING FROM, DELAYS, NON-DELIVERY, OR SERVICE INTERRUPTIONS, WHETHER OR NOT CAUSED BY THE FAULT OR NEGLIGENCE OF SONIC FOUNDRY. SONIC FOUNDRY SHALL NOT BE RESPONSIBLE FOR THE SERVERS NOT BEING ACCESSIBLE ON THE INTERNET OR ON ITS INTERNAL SYSTEMS DUE TO CIRCUMSTANCES NOT IN THE DIRECT CONTROL OF SONIC FOUNDRY INCLUDING, WITHOUT LIMI-TATION, THE CLIENT’S OR ANY OTHER THIRD PARTY’S EQUIPMENT CAPABILITIES, INCLUDING THOSE OF AN INTERNET SERVICE PROVIDER.
9. Indemnification
Each party agrees to indemnify, defend, and forever hold the other (and each of its affiliates, and all of their respective present and former officers, members, shareholders, directors, employees, representatives, attorneys, insurers, and agents, and the successors, heirs, and assigns of any of these) harmless from any and all losses, liabilities, claims, costs, damages, and expenses (including, without limitation, fines, forfeitures, attorneys’ fees, disbursements, and administrative or court costs) arising directly or indirectly out of any breach of its representations, warranties or covenants under this Agreement. The Indemnified Party shall promptly provide the Indemnifying Party with written notice of any claim which it believes falls within the scope of this paragraph and shall cooperate with Indemnifying Party in the investigation and defense of the same. The Indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that the Indemnifying Party shall control such defense and all negotiations relative to the settlement of any such claim and that any settlement intended to bind the Indemnified Party shall not be final without the Indemnified Party’s written consent, which shall not be unreasonably withheld.
10. Force Majeure
Neither party shall be deemed in default, or otherwise liable, under this Agreement due to its inability to perform its obligations (except for the obligation to pay amounts owed under this Agreement) by reason of any fire, earthquake, flood, hurricane, tornado, substantial snowstorm, epidemic, accident explosions, casualty, strike, lockout, labor controversy, riot, civil disturbance, act of public enemy, embargo, war, act of God, or any municipal, county, state or national ordinance or law, or any executive, administrative or judicial order (which is not the result of any act or omission which would constitute a default hereunder), or any failure or delay of any transportation, power, or communications system or any other, or similar cause beyond that party’s reasonable control provided, however, that if Sonic Foundry is unable to provide the Services for a period of ten (10) days or longer due to any of the foregoing events, Client shall have the right to terminate this Agreement, and receive a pro-rata refund of payments made by Client to Sonic Foundry promptly upon notice.
11. IP Addresses
Sonic Foundry will provide an Internet Protocol (“IP”) address to allow Client to transmit the Client Data to Sonic Foundry. Sonic Foundry reserves the right to change the IP address, and Sonic Foundry will give Client reasonable notice of any such renumbering. Client agrees that it will have no right to IP Addresses upon termination of this Agreement, and that any renumbering required of Client after termination shall be the sole responsibility of Client.
12. Payment Terms
Sonic Foundry will issue its invoices for each Initial Term and Renewal Term in advance. Client shall pay such invoices within (30) days of receipt, unless otherwise determined by Sonic Foundry based on its credit evaluation. A late fee of one and one-half percent (1.5%) per month may be charged on any balance more than (30) days past due. Any objections by Client to an invoice must be made to Sonic Foundry within (30) days after receipt of the invoice. Client shall pay or reimburse Sonic Foundry for all sales, use, transfer, privilege, excise, and all other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the performance by Sonic Foundry under this Agreement; excluding, however, income taxes on Sonic Foundry profits which may be levied against Sonic Foundry.
13. Sonic Foundry Infrastructure Unavailability Credits and Termination Rights
Sonic Foundry guarantees that the Sonic Foundry system that supports the Client Data and Services will be available 99.5% of each calendar month, as described in this Agreement. If Sonic Foundry fails to meet this guarantee due to “Sonic Foundry Infrastructure Unavailability”, such failure shall not be deemed a breach of this Agreement. However, Sonic Foundry will credit the Client’s account as follows:
- For each cumulative hour of Sonic Foundry Infrastructure Unavailability (or fraction thereof) within a calendar month, Client’s account shall be credited with one day’s worth of “Services Fees”.
- Fees will be calculated on a pro rata basis from the actual fees billed at the end of the calendar month in which the Sonic Foundry Infrastructure Unavailability occurred.
- In any calendar month, credits provided to Client with respect to Sonic Foundry Infrastructure Unavailability may not exceed one month’s “Service Fee”.
Sonic Foundry Infrastructure Unavailability is defined as the number of minutes during which the Client Data is electronically unreachable either from outside or within the Sonic Foundry local network, but does not include any unavailability attributable to:
(a) scheduled maintenance (whether by Sonic Foundry, a vendor, including telecommunications carriers, or by Client);
(b) acts or omissions of Client or any user of the Client Data authorized by the Client; or
(c) any of the force majeure events set forth in Section 10 of the Agreement.
In order for the Client to receive credit for Sonic Foundry Infrastructure Unavailability, claims by Client must be submitted by the Client’s authorized technical contact within (10) calendar days of the end of the month in which the Sonic Foundry Infrastructure Unavailability occurred. All claims are subject to review and verification by Sonic Foundry prior to any credits being granted. Credit requests should be e-mailed to hostingcreditrequest@sonicfoundry.com. Sonic Foundry will acknowledge receipt of credit requests within (2) business days of receipt and will inform Client via e-mail or U.S. Postal Mail within (10) days of this acknowledgment whether the claim request is approved or denied. Approved credits will appear on the Client’s next Services renewal.
In the event that Sonic Foundry Infrastructure Unavailability exceeds (30) hours in any calendar month, Client shall have the right to terminate this Agreement without penalty, effective upon (14) days prior written notice to Sonic Foundry.
14. Miscellaneous
14.1. This Agreement, any Addendum and any attached exhibits, all of which are (or which will be when executed if subsequently executed) incorporated herein by reference into this Agreement, constitute the complete and entire agreement between the parties with respect to the subject matter of this Agreement, and supersede and replace any and all prior or contemporaneous discussions, negotiations, understandings, and agreements, written or oral, regarding such subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective, unless approved in writing by both parties.
14.2. This Agreement will be binding upon and inure to the benefit of all successors and permitted assigns of Sonic Foundry and Client, who will be bound by all of the obligations of their predecessors or assignors. Neither party may assign its rights or obligations under this Agreement without the written consent of the other party, except that if either party merges or consolidates with or into or transfers substantially all of its assets to another entity, this Agreement may be assigned to such successor. Without limiting the foregoing, under no circumstances will either party sublicense any or all of its rights and obligations under this Agreement.
14.3. The failure of either party at any time to enforce any of the provisions of this Agreement shall in no way be construed as a waiver of such provisions and shall not affect the right of either party thereafter to enforce each and every provision in accordance with its terms.
14.4. Notwithstanding anything in this Agreement to the contrary, Sonic Foundry may use the name and identity of Client as a Sonic Foundry Client in advertising, publicity, or similar materials.
14.5. This Agreement shall be construed in accordance with, and governed by, the laws of the state of Wisconsin, without reference to the choice of law provisions thereof.
14.6. All of Sections 6, 7, 8, and 9 of the Agreement will survive the termination of this Agreement. In addition, all provisions of this Agreement that can only be given proper effect if they survive the termination of this Agreement will survive the termination of this Agreement. This Agreement will be valid as to any obligation incurred prior to termination of this Agreement. Without limiting the foregoing, Client must pay all amounts owed to Sonic Foundry under this Agreement including, without limitation, any amounts that are not due until after the expiration or early termination of this Agreement.
14.7. Each party has reviewed, and has had an opportunity to have reviewed, this Agreement, and it is the parties’ intent that this Agreement will not be construed against either party. The section headings throughout this Agreement are for convenience and reference only, and will not be used to construe this Agreement.
14.8. Any notice, approval, request, authorization, direction, or other communication under this Agreement shall be given in writing to the persons identified by Client as their principal point of contact, in the case of Client, and shall be deemed to have been delivered and given for all purposes:
(a) on the delivery date if delivered personally to the party to whom the same is directed or sent by e-mail;
(b) on the delivery date if sent by confirmed facsimile, followed up with an original sent by one of the other methods set forth herein;
(c) one business day after deposit with a commercial overnight carrier, with written verification of receipt; or
(d) five business days after the mailing date, if sent by U.S. mail, return receipt requested, postage and charges
repaid, or any other means of rapid mail delivery for which a receipt is available.
