Terms

AUDABILITY TERMS & CONDITIONS

1. Termination. Audability may terminate this agreement: (i) upon thirty (30) written day’s prior written notice to the Client if the Client defaults in payment of any amount payable to Audability under this agreement and such default continues for a period of thirty (30) days or longer; (ii) immediately if the Client ceased to carry on business in the normal course; (iii) upon ten (10) days’ prior written notice to the Client if the Client is otherwise in default of this agreement and such default has been cured to the sole satisfaction of Audability within ten (10) days of written notice being sent by Audability to the Client describing the nature of the default of this agreement by the Client; (iv) anytime upon thirty (30) days’ prior written notice to the Client; and (v) immediately if the Client seeks protection under any bankruptcy, receivership, trustee, creditors arrangement, composition or comparable proceeding or if any such proceeding is instituted against the Client.

2. Notice. Notice of Client initiated termination must be received in writing ninety (90) days prior to the end of the agreement term. All notices must be sent to:

Audability Inc.
c/o Legal Department
5915 Airport Road, Suite 700
Mississauga, ON L4V 1T1
support@audability.com

3. Force Majeure. Any delay or failure of either party to perform its obligations under this agreement, except the obligation to make payments, shall be excused if, and to the extent, that the delay or failure is caused by an event or occurrence beyond the reasonable control of the affected party and without its fault or negligence, such as, by the way of example and not by way of limitation, acts of God, action by any governmental authority (whether valid or invalid), fires, floods, wind storms, explosions, riots, natural disasters, wars, sabotage, labour problems (including lock-outs, strikes and slow-downs), inability to obtain power, material, labour, equipment or transportation, or court injunction or order; provide that written notice of delay (including the anticipated duration of the delay) shall be given by the affected party to the other party within ten days of the affected party first becoming aware of such event. During the period of delay or failure to perform by Audability pursuant to this section, the Client, at its option, may purchase the Services from other sources and reduce its Annual or Monthly Minimum Commitment by the amount paid for services purchased from other sources, without liability to Audability, or have Audability provide the Services from other sources in quantities and at times requested by the Client and at the prices determined by Audability. The affected party shall take all reasonable steps to avoid or remove such cause of non-performance and shall resume performance hereunder with dispatch whenever such causes are removed.

AUDIO CONFERENCING: REQUEST DELIVERY TIMELINES

All timelines start from the time of final client submission unless otherwise noted.

  • Event booking: 2 business days
  • Event participant list: 6 business hours from event completion
  • Event digital recording: 4 business hours from event completion
  • Event phone replay: 2 business hours from event completion
  • New company setup: 2 business days
  • New conferencing account setup to existing company: 1 business day
  • Video room rental reservation: 1 business day

WEB CONFERENCING: ADOBE

By executing the Customer Service Agreement, Customer is deemed to have acknowledged and agreed to all terms and conditions set forth herein, including without limitation all terms for payment for the Adobe Services.

  • This Quotation is an offer to sell Customer licenses to the software, and is expressly conditioned upon Customer’s acceptance of the terms of the applicable end user license agreement(s), (EULAs) (available at http://www.adobe.com/products/eula/). Any Adobe Connect family hosted services provided by or on behalf of Adobe shall be governed by and subject to the Adobe Connect Terms and Conditions (available at www.adobe.com/products/connect/term).
  • Any other deliverable or service described in this quotation shall be governed by the agreement, if any, under which such deliverable or service is provided (“Other Agreement”). Adobe offers different levels of support services for its products, based on the product ordered. Descriptions of these offerings are available online at www.adobe.com. Additional information on Support and Maintenance and Subscriptions Renewals can be found at http://www.adobe.com/support/programs/policies.html
  • If Adobe enterprise products are so ordered, term based support services would be effective for the term, as processed by Adobe and renewable by prepayment annually. With Adobe desktop products, Adobe offers the Upgrade Plan, formerly known as Maintenance, which entitles customers to receive future versions of software product –upgrades – that are covered under the Upgrade Plan, if ordered. Under Upgrade Plan, customers receive any update, upgrade, and bug fix made available by Adobe during the term of Upgrade Plan coverage.
  • Adobe is not willing to enter into a transaction with Customer if Customer is not willing to accept the license terms. Notwithstanding anything to the contrary in Customer’s purchase order or any other document provided by Customer, any sale made or license granted by Adobe to Customer in connection with a purchase order related to this quotation is conditioned upon Customer’s acceptance of the terms of the applicable Adobe EULA(s), and Adobe hereby objects to any additional, conflicting or different terms proposed by Customer.
  • Recordings can be stored on your Adobe site, or locally on your desktop. Additional charges may apply if Adobe site storage exceeds capacity.
  • Subject to the execution of an addendum, Client may add additional Committed Minutes. Committed Minutes may not be decreased during the Order Term. All termination and non-renewal notices must be sent in writing to Audability, using the contact information found in the section 2 Notice from the Audability Terms & Conditions.

Adobe Disclaimer UNLESS CUSTOMER HAS ANOTHER AGREEMENT DIRECTLY WITH ADOBE THAT CONTROLS OR ALTERS CUSTOMER’S USE OF THE ADOBE SERVICES, THE TERMS AND CONDITIONS OF THOSE APPLICABLE LICENSE AGREEMENTS APPLY TO CUSTOMER.

WEB CONFERENCING: CISCO WEBEX

MEETINGCENTER NAMED HOST CAPACITY 25

By executing the Customer Service Agreement, Customer is deemed to have acknowledged and agreed to all terms and conditions set forth herein, including without limitation all terms for payment for the Cisco WebEx Services.

  • All services and fees will be invoiced monthly.
  • Each individual Named Host has the ability to host a meeting with up to 25 attendees on the Cisco WebEx Hosted platform.
  • Named Hosts can hold an unlimited number of meetings, provided that each Named Host may hold no more than one (1) meeting at any point in time.
  • Each Named Host can only use their license and a license cannot be shared.
  • Any participants over the 25 capacity will be invoiced $30 per quarter hour (15 minutes) per participant.
  • SSL encryption is included.
  • 1 GB of recording storage is included. Recording overage will be invoiced $30 per GB, per month. Additional committed recording storage can be purchased at a reduced rate upon the execution of an addendum.
  • At the end of the initial Term, this Order Form shall automatically renew without interruption for successive twelve (12) month periods, unless either party gives written notice of its intent not to renew the Order Form at least forty five (45) days before the beginning of the next Order Form Renewal Term. Subject to the execution of an addendum, Client may add additional Named Host licenses. Named Host licenses may not be deleted during the Order Term. All termination and non-renewal notices must be sent in writing to Audability, using the contact information found in the section 2 Notice from the Audability Terms & Conditions.

WEB CONFERENCING: UNIFIED MEETING

By executing the Customer Service Agreement, Customer is deemed to have acknowledged and agreed to all terms and conditions set forth herein, including without limitation all terms for payment for the Unified Meeting Services.

  • All services and fees will be invoiced monthly.
  • Each individual Named User License has the ability to host a meeting with up to 125 attendees on the Unified Meeting platform.
  • Named Users can hold an unlimited number of meetings, provided that each Named User may hold no more than one (1) meeting at any point in time.
  • Each Named User can only use their license and a license cannot be shared.
  • Recordings can be stored on your Unified Meeting site, or locally on your desktop. Additional charges may apply if Unified Meeting site storage exceeds capacity.
  • SSL encryption is included.
  • Subject to the execution of an addendum, Client may add additional licenses. Licenses may not be decreased during the Order Term. All termination and non-renewal notices must be sent in writing to Audability, using the contact information found in the section 2 Notice from the Audability Terms & Conditions.
  • At the end of the initial Term, this Order Form shall automatically renew without interruption for successive twelve (12) month periods, unless either party gives written notice of its intent not to renew the Order Form at least forty five (45) days before the beginning of the next Order Form Renewal Term. Subject to the execution of an addendum, Client may add additional Named Host licenses. Named Host licenses may not be deleted during the Order Term. All termination and non-renewal notices must be sent in writing to Audability, using the contact information found in the section 2 Notice from the Audability Terms & Conditions.

VIDEO CONFERENCING: STARLEAF

By executing the Customer Service Agreement, Customer is deemed to have acknowledged and agreed to all terms and conditions set forth herein, including without limitation all terms for payment for the StarLeaf Services.

  • All non-hardware subscriptions have a minimum duration of 12 months. Services auto-renew every 12 months thereafter.
  • Where multiple licences are acquired by the same organization at different dates, initial periods will be pro-rated to the anniversary of the first activated licence.
  • Breeze Licenses must be purchased for all employees within the organization using the StarLeaf service or technical support and support agreements for those licenses are null and void. There is no limit to the number of Breeze users who may be registered to any organization, or to the number of point to point calls made.
  • Virtual Conference Rooms are a license to hold one (1) meeting with up to 17 connections. Includes updates, upgrades and technical support. Organizations with StarLeaf Hardware Endpoints have access to a discounted rate. To be eligible for the discounted Virtual Conference Room rate, the end user organization must own at least one (1) connected StarLeaf hardware endpoint of any model other than the PT Mini range, in which case the end user organization must own at least two (2) connected StarLeaf PT Minis.
  • Audability will perform a monthly review on the Client’s usage records to ensure Client’s compliance on Breeze Licenses and Virtual Conference Rooms. Audability will pay the cost of the review unless it is found that Client is exceeding the number of purchased Breeze Licenses or Virtual Conference Rooms. Any Breeze Licenses or Virtual Conference Rooms used in excess of the contracted amount shall be prorated for the remainder of the contract term. Client agrees to pay the prorated invoice value immediately upon any discovery. Client administrators are provided access to proactively monitor their Breeze License and Virtual Conference Room usage.
  • Replacement Warranty includes extended warranty and advanced hardware replacement. Manufacturer’s Level 3 on-line and remote diagnostic support is provided with all Hardware Endpoint Services.
  • Hardware Endpoint Services are dedicated to a single hardware endpoint. Includes registration, firewall traversal / H.460 firewall traversal, directories, video mail, point-to-point calling, H.323/SIP calling, Guest Invites, Presence, Cloud Management, 4 digit dialing, updates, upgrades and technical support.

VIDEO CONFERENCING: VIRTUAL CONNECT

By executing the Customer Service Agreement, Customer is deemed to have acknowledged and agreed to all terms and conditions set forth herein, including without limitation all terms for payment for the Virtual Connect Services.

  • All subscriptions have a minimum duration of 12 months. Services auto-renew every 12 months thereafter.
  • Where multiple ports are acquired by the same organization at different dates, initial periods will be pro-rated to the anniversary of the first activated port.
  • There is no limit to the number of unique account credentials who may be registered to any organization, or to the number of calls made.
  • A Virtual Connect port allows one (1) endpoint to connect to any meeting being hosted within the Client’s Virtual Connect environment. Endpoint capacity is limited to the number of ports that the Client purchases.
  • Ports provide connectivity for H.323, SIP, URI, IP, Lync, ISDN, and WebRTC endpoints.
  • The Virtual Connect service includes updates, upgrades and technical support.
  • Audability will work with the client to suggest best practices for port management, capacity management, and testing to bring Virtual Connect services online successfully in the Client environment.

VIDEO CONFERENCING: VIRTUAL PRESENCE

By executing the Customer Service Agreement, Customer is deemed to have acknowledged and agreed to all terms and conditions set forth herein, including without limitation all terms for payment for the Virtual Presence Services.

  • Rates are listed in CDN.
  • All subscriptions have a minimum duration of 12 months. Services auto-renew every 12 months thereafter.
  • Where multiple services are acquired by the same organization at different dates, initial periods will be pro-rated to the anniversary of the first activated service.
  • There is no limit to the number of unique account credentials who may be registered to any organization, or to the number of calls made.
  • The Virtual Presence service includes updates, upgrades and technical support.
  • Audability will work with the client to suggest best practices for port management, capacity management, and testing to bring Virtual Presence services online successfully in the Client environment.
  • Due to the nature of service technology, Audability reserves the right to deem the service unavailable to the customer upon site inspection by the carrier.
  • The Customer agrees to provide access to its premises immediately upon Audability’s reasonable request at no charge where Audability requires such access in order to remedy or restore the service.
  • All services provided by any third party provider must adhere to Audability engineering specifications.
  • Features initiated on a per request basis will be invoiced in monthly arrears, in addition to the contracted monthly service charges.
  • If the Customer relocates the Service during the Term or any Renewal Term, the Customer will pay to Audability, in one single payment, as a genuine estimate of liquidated damages and not as a penalty, an amount equal to all costs that Audability is liable to pay to any third-party(ies) in respect of terminating the Services at the existing location, and the Customer shall be required to pay Audability the then current installation charges (and those of any applicable third parties such as local exchange carriers) to install the Services at the new location.
  • The Customer will indemnify and hold Audability and its officers harmless against any and all damages, liabilities, costs and expenses, including legal fees, suffered or incurred by Audability relating to: (a) the Customer’s unlawful or improper use of the services, Audability equipment or the Customer’s equipment; (b) the Customer’s failure to comply with these Terms and Conditions; (c) property damage, personal injury or death claims caused by the Customer’s acts or omissions, or arising from the Customer’s use of the services; and/or (d) the Customer’s or it’s users’ content transmitted through the service, and such indemnifications shall extend to the actions of any individual who accesses the services through the Customer’s account(s).

WEBCASTING: EVENT GUIDELINES

Webcast Event Timeline. The timing of events and deliverables related to the Webcast Event will be provided during or after the kickoff meeting. This Sales Order makes no guarantees about Webcast Event timing or deliverable dates.

  • Signed sales order is provided to Audability
  • Audability receives Client’s Purchase Order (if required)
  • Webcast Producer conducts production kickoff meeting
  • Scheduled Webcast Event & Production
  • Webcast Event archive creation & delivery

Support. Support is provided by Audability to the Client throughout the Webcast Event Timeline. Support is not extended to webcast attendees unless this has been specifically added to the Sales Order. Audability will ensure that the archive remains accessible throughout the archive period outlined in the Sales Order. Support is available from 9 AM – 5 PM Eastern Time from Monday to Friday via telephone or email, and outside of these times if specified in the Sales Order. Audability is committed to helping the Client to make each Webcast Event a successful one.

Grant of Right. Client grants Audability the right and license to use, reproduce, transmit, and distribute all materials supplied by or on behalf of Client, including without limitations, text, graphics, and media (the “Client Assets”). Client Assets shall mean all images, photographs, illustrations, graphics, audio clips, video clips or text that is provided by Client to Audability for use in connection with the Webcast Event, including that which is publicly accessible.

Revisions to Client Assets. After initial receipt of Client Assets, Client is allowed one (1) set of revisions. Clients must provide such revisions at least 2 business days prior to the scheduled Webcast Event start date / time.

Ownership of Assets and Intellectual Property Rights. The Client is the owner of all Client Assets unless otherwise specified. Audability agrees to supply all graphics, text, and digital files created for the production of the Webcast Event to the Client upon request. This does not apply to standard Audability templates, such as media player icons and logos, nor does it apply to source code, website, executables, or other intellectual property of Audability or its partners. All intellectual property rights relating to the Audability platform, including without limitation, all trademarks, copyrights, and patents, shall remain the property of Audability or its partners. The Client acknowledges that Audability owns all right, title and interest in and to Audability software, portions thereof, and software provided through or in conjunction with Audability’s software, including without limitation all Intellectual Property Rights. “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights whether or not capable of registration, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide. Unless in accordance with a provision of the Copyright Act of Canada, Client must not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempts to derive source code from Audability applications, or to extract significant portions of Audability application files for use in other applications. Client agrees to not remove, obscure, or alter Audability’s or any third party’s copyright notice, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through Audability applications. Under no circumstances will Audability release source code to its applications nor does Audability grant the Client the right to host, distribute, or repurpose the deliverables of this Sales Order unless specified elsewhere in this Sales Order.

Invoicing. Webcast Events will be invoiced in accordance with the Sales Order and/or upon completion of the Webcast Event. Actual Webcast Event duration and participant numbers as well as applicable charges for services outlined below (see “Webcast Event & Fee Structure”) will be used to determine invoice amount(s). Unused Webcast Events expire at the end of the Sales Order term and any unused Webcast Events will be invoiced at the end of the Sales Order term.

Webcast Event Guidelines

  • The signed Sales Order must be sent to your Audability Sales representative to indicate acceptance of the Sales Order and to book your event.
  • Webcast Events may be rescheduled or cancelled at any time; however are subject to applicable rescheduling and cancellation fees.
  • Changes to Webcast Event features are not guaranteed if requested less than two (2) business days prior to the scheduled Webcast Event start date / time.
  • Final revision of Client Assets is due no later than two (2) business days prior to scheduled Webcast Event start date / time.
  • Client Assets or other requests received within two (2) business days will be evaluated and implemented if the request is not expected to compromise the successful delivery integrity of the Webcast Event. Should the Client insist that we proceed with the requested change, Audability will make every effort to minimize the associated risk but cannot guarantee that the Webcast Event will not be impacted in some way.
  • The Webcast Event archive will be delivered within one (1) business day of Webcast Event end time provided the archive request is known two (2) business days prior to Webcast Event start time.
  • Webcast Event feature requests made after Webcast Event start time will be evaluated and a deliverable date will be provided within one (1) business day of the request being made.
  • Travel and expenses for on-site production are not included in the Webcast Event fees and, if applicable, will be invoiced separately in accordance with Audability’s Travel & Expense policy.

Webcast Event Support & Fee Structure

  • 50% deposit is due upon signed sales order, when signed sales order is provided more than five (5) business days prior to Webcast Event start time.
  • 100% deposit is due upon signed sales order, when signed sales order is provided with five (5) or less business days prior to Webcast Event start time.
  • Webcast Event Support Hours: Audability’s Webcast Production Group supports Webcast Events and Event-related professional services between 9 AM and 5 PM Local Time, Monday thru Friday. Webcast Events and/or professional services work which occurs outside general support hours will be subject to an additional charge:
  • $225 per hour “Evening” rate applies to Monday to Friday, 6 AM thru 9 AM and 5 PM thru 8 PM.
  • $300 per hour “Overnight / Weekend” rate applies to weekdays from 8 PM thru 6 AM, and all day Saturdays and Sundays.
  • Rescheduled Webcast Events must be rescheduled within three (3) months.
  • Rescheduling and Cancellation Policy:
    More than five (5) business days = 50% of scheduled charges
    Five (5) business days or less = 100% of scheduled charges

DIGITAL SIGNAGE SOLUTIONS

GENERAL TERMS AND CONDITIONS

  1. Prices. All shipments are F.O.B. Destination Freight Prepaid and Allowed unless specified otherwise. Title and risk of loss passes to the Customer upon delivery to Customer ship-to location. Shipment dates provided by Seller are estimates only, and are subject to delays by the carrier. Applicable provincial taxes will be charged based on the ship-to location of the Customer.
  2. Purchase Orders. Buyer will initiate all orders for Products or Services by written Purchase Orders sent to Seller, or by executing Seller’s quotation or an Order Form; where an Order Form is used, any reference to a Purchase Order in these Terms shall refer instead to the Order Form. Seller must accept an order in writing before it is binding. Buyer’s Purchase Order shall include, at a minimum, a description of the Products and/or Services to be delivered, quantities, prices, and required dates for shipment of Products or completion of Services, and a shipping destination (“Ordering Information”). Buyer’s submission of its Purchase Order to Seller shall constitute Buyer’s acceptance of these Terms. Other than (i) any policies or procedures referenced in and made a part of these Terms, or (ii) any Ordering Information contained in a Purchase Order, Order Form or any statement of work entered into by the parties in connection with certain Services, any additional, different or pre-printed terms appearing on or incorporated into any Buyer documents, statement of work, purchase order, or other written or verbal communications between Buyer and Seller are expressly objected to and shall not apply. Seller reserves the right, for any reason or no reason, not to accept any Purchase Order received from Buyer. Buyer may not cancel accepted Purchase Orders.
  3. Packaging. Unless otherwise specified in the Purchase Order, packaging for commercial shipment of Products is included in the quoted price. When any other packaging is specified, involving a greater expense than the cost of commercial shipment packaging, Seller will add a charge to cover such extra expense.
  4. Inspection and Acceptance. Products furnished by Seller shall be deemed accepted by Buyer upon delivery. Notwithstanding the foregoing, Buyer may inspect Products it receives, and shall promptly (and in any event within ten (10) days of arrival) give written notice to the Seller of any claims for damages or shortages. Seller shall only be responsible for any loss or damage to Products when directly caused by Seller’s gross negligence or willful misconduct. Acceptance (express or implied) shall not limit Seller’s express warranties in these Terms.
  5. Early/Partial Delivery. Buyer authorizes Seller, at Seller’s discretion, to make early and or partial deliveries of the Products under any Purchase Order. Seller may make such deliveries at no additional cost to Buyer other than the Purchase Order price and shipping charges.
  6. No Return Policy. Products are not returnable except for Products returned to Seller as a result of warranty provisions in these Terms or as a result of support and maintenance Services purchased by Buyer under a Purchase Order.
  7. Invoices/Terms of Payment.
    1. Seller shall issue invoices as follows: (i) for the Products, at the time of shipment; (ii) for all fixed-price Services, in advance of performance of the Services; upon completion of a milestone, or monthly if the Services are provided on a time and materials basis, all as set forth in the applicable Purchase Order or Statement/Scope of Work; and (iii) for any down payments, upon receipt of Buyer’s Purchase Order, with the balance to be invoiced as stated immediately above.
    2. Payment terms for Products and fixed-price Services are net thirty (30) days from the date of Seller’s invoice; for Services on any other basis, within fifteen (15) days, unless otherwise required by Section 7.C below. Failure to make full payment of invoices within such 30 day period shall constitute a material breach of these Terms. Title to hardware shall pass to Buyer upon receipt for all Products.
    3. Seller may, in its sole discretion, agree to extend credit to Buyer. In the event that Seller, in its sole discretion, does not approve Buyer’s credit, Seller may elect to grant payment terms of cash in advance or letter of credit, or such other terms as Seller shall determine.. Seller may, in its sole discretion, adjust Buyer’s credit limit from time to time and set limits on the amounts of Products shipped or Services provided to Buyer which are not paid for in advance by Buyer. Seller reserves the right to request and receive adequate security from Buyer or to require advance payment before making or continuing shipments in the event that, in the sole opinion of Seller, Buyer’s credit or its ability to pay its debts as they become due is or becomes impaired.
    4. Late Payment. Seller shall have the right to charge interest at two percent (2%) per month or the maximum legal rate, whichever is less, on the balance of any overdue payment, and to recover the reasonable costs and expenses incidental to the collection of any overdue account, including reasonable attorneys’ fees. Seller shall have the right to suspend performance, without liability, in the event that any invoice is not paid when due. Seller can treat any such suspension of performance lasting more than forty-five (45) days as a termination for Buyer’s breach in accordance with Section 16.
  8. Changes.
    1. At its discretion, Seller may make any changes in Products at any time. With respect to Products that are the subject of an accepted Purchase Order or statement of work, Seller may make such changes that in its reasonable determination do not degrade the function, performance, quality or reliability of the Products, nor affect their price or delivery, nor cause adverse deviation from the technical specifications or form or fit. Seller shall give Buyer notice of any such change relating to ordered Products as promptly as practicable.
    2. Change Effects. Seller must consent to any changes in the requested method of shipment and packaging, or place of delivery. If such changes cause an increase or decrease in the cost of, or the time required for, the performance of any part of the Purchase Order, the applicable Purchase Order shall be considered to be modified accordingly to reflect such additional costs and delivery time schedule.
    3. Written Change. If Buyer and Seller mutually agree to make changes, or otherwise make corresponding adjustments to any prices and fees due under the Purchase Order each party shall execute a written modification of the Purchase Order, signed by duly authorized representatives of both Buyer and Seller.
  9. Seller Warranty for Products.
    1. Seller’s warranty to Buyer (the “Seller Warranty”) for hardware, software, and Services purchased or licensed by Buyer under these Terms is contained in Exhibit 1 to these Terms. Seller’s return and warranty replacement policies and procedures, available at www.rmgnetworks.com/company/returns will govern the return of all ordered Products. Buyer acknowledges and agrees that non-compliance with the foregoing policies and procedures void any Product warranties in this Agreement. All preventative maintenance and/or scheduled replacements are non-warranty maintenance actions.
    2. SELLER MAKES NO OTHER EXPRESS WARRANTIES, WRITTEN OR ORAL, AND ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OF TITLE, OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. IN NO EVENT SHALL SELLER HAVE ANY LIABILITY FOR ANY PRODUCTS, SERVICES OR SOFTWARE USED FOR AVIATION, COMBAT, MEDICAL, LIFESAVING, LIFE SUSTAINING OR NUCLEAR APPLICATIONS.
  10. Support for Products. Seller offers the support plans for Software and Extended Warranty Plans for Hardware for purchase more fully described in Exhibit 3.
  11. Seller’s Intellectual Property Matters.
    1. Proprietary Rights. Buyer agrees that Seller owns all right, title, and interest in all of Seller’s patents, trademarks, trade names, inventions, copyrights, know-how, trade secrets and all other intellectual property and proprietary rights relating to the design, manufacture, operation or service of the Products and Services (collectively, “Seller IP”), and that the sale or license conveys no right or license to manufacture, duplicate or otherwise copy or reproduce any of the Products or use the Seller IP. Buyer will not use or disclose drawings, specifications, technical information or other data furnished by Seller (which also constitute Seller IP) without the prior written consent of Seller. Buyer agrees and acknowledges that any improvement or modification to such Seller IP shall be the sole property of Seller, regardless of whether any such improvement or modification was the creation of or paid for by Buyer. Buyer recognizes that Seller IP is unique and consents to the remedy of injunction in addition to damages for violation of these provisions.
    2. Limited Software License. Seller shall retain full title to the software in the Products (the “Software”) and all copies thereof, and Buyer and its Buyers may use the Software only for their internal use and in accordance with this Section. During the License Term, Seller (which for purposes of these provisions shall be synonymous with “Licensor”) hereby grants and Buyer (which for purposes of these provisions shall be synonymous with “Licensee”) accepts a nonexclusive, revocable, nonsublicensable and nontransferable limited license to install and use the Software listed in a Purchase Order solely with the hardware and equipment purchased by Buyer from Seller, subject to the restrictions applicable to the type of license for such Software as identified in Exhibit 2, or as more fully described in a Purchase Order. The “License Term” for each type of Software shall be only for so long as Buyer remains in full compliance with these Terms or Seller shall not have revoked such license in accordance with these Terms. In no event will Buyer: (i) copy, transfer, modify, translate, or create derivative works based on any of the Software, provided, that Buyer may make a single archival copy of the Software for backup purposes so long as Buyer documents the existence and location of such backup copy; (ii) disable or circumvent any of the security mechanisms provided with or embedded in any Software; (iii) send to, or cause to be sent to Seller any software, viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying trade secrets, ideas or algorithms of any of the Software; (iv) tamper with other customer accounts of Seller or its affiliates; (v) attempt to gain unauthorized access to the Software or its related systems or networks; (vi) create “links” to or from the Software, or “frame” or “mirror” any content forming part of the Software; (vii) lease, distribute, license, sell or otherwise commercially exploit any of the Software or make the Software to a third party other than as contemplated in these Terms, including but not limited to using the Software for timesharing, service bureau or other similar purposes; (viii) permit anyone else to engage, directly or indirectly, in any of the activities described in the foregoing subparts (i) through (vii). Buyer will promptly disclose to Seller any violation of the provisions of this paragraph.
    3. Subject to these Terms and Buyer’s payment of Seller’s then-current fees for Content subscription, during the applicable subscription term for such Content, Seller grants Buyer a nonexclusive, revocable, non-sublicensable, non-transferable and limited subscription license to Seller’s Content provided by Seller to Buyer solely for the purpose of Buyer using and displaying the Content on the number of computers and/or devices for which Buyer has purchased licenses to such Seller Content (the “Content License”); provided, however, that with respect to Content created by Seller specifically for Buyer in connection with Services, the Content License will be for so long as Buyer complies with the terms of such license, subject to any restrictions, limitations and conditions with respect to third-party Content. “Content” means all content in text, graphic or any other form that is used in connection with the Products.
    4. Product Branding. All Products sold or licensed by Seller will bear the trademarks, trade names, logos and the like, or copyright, proprietary or restricted rights notices of Seller or its licensors on the Products or contained in the Software. Buyer will not conceal, alter or remove any such marking or notices and may not co-brand or otherwise add any branding or marking to Products or their packaging, without the prior written consent of Seller.
  12. Indemnity.
    1. Seller Indemnity. Seller shall indemnify, defend and hold Buyer harmless from and against any and all losses, costs, liabilities or expenses (including but not limited to reasonable attorney’s fees) arising from a third party claim that the Products purchased and used by Buyer in accordance with these Terms infringes a U.S. patent or copyright, provided that: Buyer (i) promptly notifies Seller in writing of such claim; (ii) grants Seller sole control over the defense and settlement of the claim; and (iii) cooperates with any request by Seller for assistance in defending such claim. Should any such Product become, or in Seller’s opinion be likely to become, the subject of such a claim, Seller may, at its option and expense, (a) procure for Buyer the right to make continued use thereof, whether through obtaining a license or other means; (b) replace or modify such Product so that it becomes non-infringing; or (c) request return of the Product by Buyer and refund the price paid by Buyer for such Product less straight-line depreciation based on a three year useful life. Seller shall have no liability or obligation under this Section 12 for any alleged infringement based, in whole or in part, on (1) any combination of the Product with Buyer or third party products; (2) the use of the Products for a purpose or in a manner for which such Product was not intended or designed; (3) use of an older version of any Product when use of a newer version would have been non-infringing; (4) any modification made to the Product without Seller’s express written approval; (5) modifications made by Seller pursuant to Buyer’s instructions or request or to comply with designs, plans or specifications of Buyer; (6) any third party hardware or software; or (7) any intellectual property right owned or licensed by Buyer, or any subsidiary or affiliate of Buyer (each, and collectively, the “Excluded IP Claims”). THE FOREGOING CONSTITUTES SELLER’S ENTIRE LIABILITY AND OBLIGATION AND BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY INFRINGEMENT CLAIM ARISING OUT OF ANY PRODUCT PROVIDED UNDER THESE TERMS.
    2. Buyer Indemnity. Buyer will indemnify, defend and hold harmless Seller, its affiliates and each of their respective officers, directors, employees, agents, successors and assigns (each, a “Seller Indemnitee”) from and against any and all losses, damages, liabilities, judgments, awards, penalties, interest, fines, costs, fees or expenses of whatever kind, including, but not limited to, reasonable attorneys’ fees, incurred by any Seller Indemnitee, directly or indirectly, arising out of any claim, demand, suit, action, allegation, or any other proceeding related to or otherwise made in connection with: (A) the willful or negligent acts or omissions of Buyer; (B) Buyer’s breach of these Terms or any Purchase Order, (C) the failure of Buyer to hold all necessary rights to, and interest in, any properties, materials or information that Buyer makes available to Seller to perform Seller’s obligations under these Terms or any Purchase Order (collectively, “Buyer Materials”); (D) a third party claim that any Buyer Materials or Seller’s use thereof in connection with these Terms or any Purchase Order infringes, misappropriates or violates any third-party rights; or (E) the Excluded IP Claims.
  13. Waiver of Damages, Limitation of Liability. SELLER SHALL NOT BE LIABLE IN CONTRACT, TORT OR OTHERWISE TO BUYER FOR ANY INCIDENTAL, PUNITIVE, CONSEQUENTIAL, INDIRECT, EXEMPLARY OR SPECIAL DAMAGES OF ANY KIND OR NATURE, INCLUDING WITHOUT LIMITATION, LOST REVENUES, LOST PROFITS, DELAY OR LOSS OF BUSINESS ARISING OUT OF OR RELATING TO THE PRODUCTS, SERVICES, ANY PURCHASE ORDER OR THESE TERMS OR THE BREACH THEREOF, WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SELLER’S LIABILITY FOR ANY CLAIM OF ANY KIND, INCLUDING NEGLIGENCE, FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM ANY PRODUCTS, SERVICES, PURCHASE ORDER OR THESE TERMS SHALL IN NO SINGLE CASE, OR IN THE AGGREGATE, EXCEED THE AMOUNTS PAID BY BUYER TO SELLER DURING THE TWELVE MONTHS PRECEDING SUCH EVENT GIVING RISE TO SELLER’S LIABILITY. ANY CLAIMS BROUGHT UNDER THESE TERMS OR OTHERWISE MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE EVENT GIVING RISE TO THE CLAIM. EACH PARTY ACKNOWLEDGES AND AGREES THAT THE FOREGOING LIMITATIONS ON LIABILITY ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES, AND THAT IN THE ABSENCE OF SUCH LIMITATIONS, THE MATERIAL AND ECONOMIC TERMS OF THESE TERMS WOULD BE SUBSTANTIALLY DIFFERENT.
  14. United States Government – RESTRICTED RIGHTS. Products and Software, and related documentation acquired with United States Government funds or intended for use within or for any United States federal agency are provided with RESTRICTED RIGHTS in accordance with Federal Acquisition Regulation (FAR) 52.227.19 or as set forth in the particular department or agency regulations or rules or particular contract which provides Seller and its suppliers equivalent or greater protection.
  15. Anti-Corruption; Export Control. Buyer shall (i) comply with the United States Foreign Corrupt Practices Act and any applicable foreign laws relating to similar subject matter; (ii) not make any illegal offer or make, or commit to make, a transfer of anything of value to any employee, representative, person or organization in any way connected with the other party, except reasonable business entertainment and gifts of insubstantial value, when customary in local business relationships and not violative of law as applied in the relevant jurisdiction; and (iii) comply with all applicable export laws, restrictions, and regulations of any United States or foreign agency or authority, and shall not export or re-export, or allow the export or re-export, of any Product, technology or information it obtains or learns pursuant to its relationship with Seller in violation of any such laws, restrictions or regulations. Buyer shall bear all expenses relating to any necessary licenses and/or exemptions with respect to the export from the United States of any Product purchased from Seller to any location in compliance with all applicable laws and regulations prior to the delivery thereof by Buyer.
  16. Termination for Default. Either party may terminate this Agreement upon ten (10) days written notice to the other party in the event that the breaching party does not cure a material breach of this Agreement to the reasonable satisfaction of the notifying party within thirty (30) days of written notice of such breach. In the event Seller terminates under this provision, Buyer will be liable for all Products purchased (even if not yet delivered) under a Purchase Order and all Services performed up until the date of termination. In addition, Seller will submit a final invoice to Buyer for termination settlement costs to be paid to Seller by Buyer. Such termination settlement costs shall include all direct and indirect costs incurred by Seller in performance of the terminated Purchase Order, including, without limitation: (1) all costs for materials received and accepted by Seller under the Purchase Order; (2) all work-in-process under the Purchase Order; and (3) those special costs associated with the administration and close-out of any subcontracts and purchase orders, including any costs for non-cancelable materials to be received by Seller under the applicable Purchase Order, as well as a profit of ten (10%) percent of the amounts determined under the foregoing items (1), (2), & (3). The following sections will survive termination of these Terms: 1, 2, 6, 7B, 7D,and 9 through and including 17.
  17. General Provisions.
    1. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that Seller may, upon thirty (30) days’ written notice, assign any or all of its rights or obligations without the prior written consent of Buyer to an entity that controls or is controlled by, or is under common control with Seller. Any purported assignment in violation of this covenant shall be null and void.
    2. Confidentiality and Proprietary Information. Seller may disclose to Buyer information considered to be confidential and/or proprietary information of Seller (“Proprietary Information”). Information shall be considered Proprietary Information if clearly marked “Confidential” or “Proprietary” or the like or if the disclosure is oral, when identified at the time of disclosure. Buyer shall protect Seller’s Proprietary Information with at least the same degree of care that it regularly uses to protect its own Proprietary Information from unauthorized use or disclosure, but in no event with less than reasonable care. The confidentiality obligations imposed by these Terms shall not apply to any Proprietary Information that: (A) is or (through no improper action or inaction by Buyer becomes part of the public domain; (B) was lawfully in the possession of or known by Buyer on a non-confidential basis at the time of disclosure by Seller; (C) was received on a non-confidential basis from a third party having a lawful right to disclose such information; or (D) was independently developed by Buyer without reference to or use of the Proprietary Information as demonstrated by Buyer’s records to Seller’s reasonable satisfaction. Buyer’s obligations under this Confidentiality and Proprietary Information Section shall continue until one of the exceptions listed above in this Section applies to that specific Proprietary Information.
    3. Governing Law. These Terms, all transactions between, and the rights and obligations of the parties will be governed, construed and interpreted in accordance with the laws of the State of Texas, without reference to conflict of laws principles. Each party consents to the exclusive jurisdiction and venue of the state and federal courts located in Dallas, Texas. BOTH PARTIES IRREVOCABLY WAIVE TRIAL BY JURY FOR ALL CLAIMS ARISING UNDER THESE TERMS. The parties acknowledge and agree that the transactions contemplated under these Terms and any Purchase Order are commercial in nature, and the parties expressly and irrevocably waive (i) any claim or right which the parties may have to immunity (whether sovereign immunity or otherwise) for the parties or with respect to any of the parties’ assets in connection with any legal action, award or other proceedings to enforce these Terms, including, without limitation, immunity from service of process, immunity of any of the parties’ assets from pre- or post-judgment attachment or execution and immunity from the jurisdiction of any court or tribunal; and (ii) service of process pursuant to the Hague Convention. The parties expressly exclude application of the 1980 United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act to these Terms or any Purchase Order.
    4. Entire Agreement. These Terms, together with any Ordering Information, set forth the final and entire understanding of the parties relating to the included subject matter and merges all prior discussions between them. Both parties can modify this Agreement only by a writing signed by each party. These Terms shall govern any conflict or inconsistency with any Purchase Order. The remedies stated in these Terms are cumulative and are in addition to and not in lieu of any other remedies at law or in equity and may be enforced concurrently from time to time.
    5. Force Majeure. Neither party shall be in default of these Terms to the extent that performance of its obligations (except for payment obligations), or attempts to cure any breach are delayed or prevented by acts or occurrences beyond the reasonable control of such party, including without limitation acts of civil or military authorities, any law, order, direction, regulation, ordinance, action of any governmental authority, national emergencies, embargoes, epidemics, quarantine or other health emergency, flood, storm, tornadoes, hurricanes, or other unusually severe weather conditions, or other environmental disturbances, earthquakes, volcanic action, acts of God, wars, riots, insurrections, civil disturbances, threats or acts of terrorism or similar acts fires, explosions, nuclear accidents, electrical power surges or failures, strikes, lockouts, work stoppages or slowdowns, vandalism, inability to secure products or services of other persons, curtailment of transportation facilities, acts of transportation carriers, or governmental travel advisories or prohibitions
    6. Independent Contractors. The relationship of the parties established by these Terms is that of independent contractors, and nothing contained in these Terms authorizes either party to direct or control the activities of the other, or to act as the representative or on behalf of the other party, unless specifically authorized in these Terms. All financial and other obligations associated with each party’s business are the sole responsibility of that party.
    7. If any provision or provisions of these Terms shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
    8. At any time, the failure or delay of either party to enforce any of the provisions of these Terms, or the failure to require performance by the other party of any of the provisions of these Terms, will in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of either party later to enforce each and every such provision. The express waiver by either party of any provision, condition or requirement of these Terms will not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
    9. All notices, demands and other communications shall be in writing and shall be deemed to have been given if delivered personally, or three days after mailing by certified mail (return receipt requested) or overnight carrier to the respective addresses listed below or to such other address as either Party may designate by providing notice in accordance with this section 17.I.:

If to Seller:                                                         If to Customer:

Audability Inc.                                                   To Legal and Accounting Departments

5915 Airport Road, Suite 700                        at the address set forth on the purchase order or

Mississauga, Ontario L4V 1T1                      Statement of Work associated with this Agreement.

Attn: General Counsel

e-mail address: support@Audability.com

 

 

EXHIBIT 1: WARRANTY

Hardware Warranty

Limited Warranty. Manufacturer warrants that the supplied Hardware will be materially free from defects and workmanship for a period of one (1) year, commencing on the earlier of the date of shipment, subject to the following limitations:

  1. the limited warranty extends only to Customer and is not assignable or transferable to any subsequent purchaser or end user;
  2. Unless Customer purchases an Extended Warranty Plan with the Advance Shipper option as described in Exhibit 3, Customer will bear the cost of shipping the Hardware to the Customer technical support department of Manufacturer. Customer will bear the cost of shipping the Hardware back to Customer after the completion of service, or to ship replacement Hardware if Manufacturer elects replacement as Customer’s remedy under this limited warranty; and
  3. Customer complies with any additional warranty procedures that may be provided from Manufacturer from time to time;
  4. A repair on warranted Hardware is good only for the balance of the warranty, or for ninety (90) days from the date of the repair, whichever is longer.

Warranty Exclusions. The limited warranty provided for in this Section 2(A) does not cover:

  1. defects or damages resulting from use of the supplied Hardware in other than its normal and customary manner, or in an environment or in a manner or for a purpose for which the Hardware was not designed;
  2. defects or damages from incorrect or abnormal use, abnormal conditions (including without limitation, results of force majeure event), power surges or other irregularities, failure to perform recommended maintenance or improper maintenance, improper handling, or storage, exposure to moisture or dampness, unauthorized modifications, unauthorized connections, unauthorized repair (successfully or not), or had parts replaced by any party other than Manufacturer or an Manufacturer authorized repair facility, misuse, neglect, abuse, accident, alteration, improper installation, or other acts which are not the fault of Manufacturer, including damage caused by shipping, spills of food or liquid;
  3. breakage or damage unless caused directly by defects in material or workmanship;
  4. claims in which the technical support department at Manufacturer was not notified by Customer of the alleged defect or malfunction of the supplied Hardware during the applicable limited warranty period;
  5. Hardware which have had the serial number removed or made illegible;
  6. Hardware that was not purchased by Customer from Manufacturer or its authorized resellers;
  7. claims related to or caused by Third-Party Materials;
  8. damage resulting from use of accessories that have not been pre-approved in writing by Manufacturer;
  9. all plastic surfaces and all other externally exposed parts that are scratched or damaged due to normal customer use;
  10. consumables such as fuses and batteries; or
  11. any other cause not wholly and directly attributable to Seller, or any other cause beyond the reasonable control of Seller.

Warranty Remedies. As Customer’s sole and exclusive remedy for any warranty claim with respect to Hardware, during the warranty period, Manufacturer will, at its sole option, either repair, replace or refund the Hardware Purchase Price of any supplied Hardware that is covered under this limited warranty. Manufacturer will not be required to repair or replace more than the components of the Hardware actually found to be in breach of the limited Hardware warranty provided in this Attachment, and repaired or replaced Hardware will be warranted under this Attachment only for the remaining portion of the original warranty period. Manufacturer may elect, at its sole option, to use functionally equivalent re-conditioned, refurbished or new units or parts of any units. In addition, Manufacturer will not back-up any data or Content that Customer has added to the Hardware. Where Customer returns any Hardware, and after evaluation, Manufacturer finds no non-conformity to the warranty, Manufacturer may return the Hardware to, and Customer shall pay Manufacturer its standard “no trouble found” (“NTF”) or equivalent fee.

Third-Party Hardware. Third-Party Hardware warranty and support is only available from the manufacturer, except under separate agreement. Manufacturer does not provide any services for Third-Party Hardware that is not manufactured by Manufacturer. These products fall under the normal pass-through warranties provided by the manufacturer. Manufacturer will pass-through to Customer any applicable Third-Party Hardware warranties from Third-Party Providers that Manufacturer is legally able to transfer.

SOFTWARE WARRANTY

Limited Warranty. Manufacturer provides a limited warranty that, during the ninety (90) day period commencing on the date when Customer (or Manufacturer personnel when installing on Customer’s behalf) download the Software, (i) the latest and current version of the Software will operate in substantial conformity with the then- current version of the applicable Documentation for such Software provided by Manufacturer, and (ii) the Media on which the Software is provided will not, when provided to Customer, be damaged or in a physically defective condition. The foregoing limited warranty is subject to the following terms and conditions:

  1. Customer is current on all, and there are no overdue amounts relating to any, Fees;
  2. Customer provides all necessary cooperation and access to its personnel, records, systems, hardware, equipment and other resources for Manufacturer to remedy the defective Software; and
  3. breach of the limited warranty with respect to Software is not due to: (1) accident, abuse, or misapplication; (2) modification or alteration by anyone other than Manufacturer; (3) any software, service, hardware, equipment or otherwise that is provided, developed, created, managed, licensed or owned by a third party; (4) usage of any Software in violation of the Documentation or this Agreement; (5) Customer’s failure to follow Manufacturer’s instructions; (6) reasons beyond the control of Manufacturer, including but not limited to a Force Majeure Event; (7) Customer’s failure to install and use the most up-to-date version of the Software; (8) specifications, instructions, features, functions, designs or other elements provided by or requested by Customer; or (9) Customer’s or its users’ negligence or breach of this Agreement.

Remedy. In the event of a breach of the limited warranty set forth in Section 3(A) of this Attachment, and provided that (i) Customer reports the nonconformity to Manufacturer in writing, (ii) Customer has purchased Support, and (iii) the nonconformity is reproducible by Manufacturer, then Manufacturer will use commercially reasonable efforts to remedy the nonconformity in the Software in accordance with the Support described in Exhibit 3. The preceding remedy is Customer’s sole and exclusive remedy due to a breach of the limited warranty set forth in Section 3(A) of this Attachment.

Third-Party Software. Third-Party Software warranty and support is only available from the Third-Party Provider licensor, except under separate agreement. Manufacturer does not provide any services for Third-Party Software that is not owned by Manufacturer, which falls only under the normal pass-through warranties provided by the Third- Party Provider licensor. Manufacturer will pass-through to Customer any applicable Third-Party Software warranties from Third-Party Providers that Manufacturer is legally able to transfer.

SERVICES WARRANTY

  1. Limited Warranty. Manufacturer provides a limited warranty that the Professional Services will be performed in a professional and workmanlike manner in accordance with the requirements set forth in the applicable LOD or Statement of Work, and that, upon delivery to Customer, any Deliverables will materially conform to the requirements and specifications set forth in the applicable Statement of Work. Customer will have thirty (30) days to notify Manufacturer of any material non-conformance of the Deliverables to the specifications and requirements set forth in the applicable Statement of Work.
  2. Remedies. In the event of a breach of the limited warranty in Section 3(A) of this Attachment, as Customer’s sole and exclusive remedy, Manufacturer will (i) with respect to the Professional Services, re-perform the Services, and (ii) with respect to the Deliverables, repair or replace the defective Deliverables.

EXHIBIT 2: SOFTWARE LICENSE TYPES

As may be more fully described in a Purchase Order, a Buyer may receive one or more of the types of licenses to Software listed below:

Types of Licenses. The following describe the different types of licenses Customer may receive to Software and the restrictions related thereto:

  1. Sign Server Software License: the Server Software used to support the tiered number of Access Licenses on the applicable Order.
  2. Data Server Software License: the Server Software used to support a tiered number of Access Licenses on the applicable Order. Data Server Software tiers are as shown on an Order.
  3. Access License- Large Screen: the right of a device (e.g., media player) to access the Sign Server or Data Server Software to display content on any Large screen identified on the applicable Order or may be transferred to another (replacement) Hardware; pricing for the Access License may be differentiated depending on the type of server accessed.
  4. Access License- Small Screen: the right of a device (e.g. media player) to access the Sign Server or Data Server Software to display content on any Small screen identified on the applicable Order or may be transferred to another (replacement) Hardware; pricing for the Access License may be differentiated depending on the type of server accessed.
  5. End User Access License: the Software can be used by multiple and different individuals on their laptop or desktop PC to access the Sign Server or Data Server subject to the maximum number of licenses authorized.
  6. Mobile Access License: the Software can be used by multiple and different individuals on their Mobile device (tablet, smartphone, other mobile devices) to access the Sign Server or Data Server, subject to the maximum number of licenses authorized.

For purposes of the above licenses, Manufacturer shall define “Large” and “Small” in reference to screen size in its current price list.

Should Manufacturer add additional license types, or a specific customer requirement result in the creation of a customized license, such licenses shall be as specified in an Order, Statement of Work, or a customer-specific amendment to this Agreement.

EXHIBIT 3: SOFTWARE SUPPORT AND HARDWARE EXTENDED WARRANTY PLANS

Manufacturer offers two levels of support: Manufacturer Gold Support and Manufacturer Platinum Support (each, a “Support Plan”). Each Support Plan chosen by Customer can apply to all Software included in a single system or installation if purchased. Customer must purchase and continuously keep in effect Software support. Hardware Extended Warranty Plans, with or without the Advance Shipping feature, described below, are also available for an additional charge. For purposes of this Attachment and its Schedules only, the term “Products” does not include Manufacturer Content.

Support Services

Included Services. Provided that Customer complies with the terms of this Agreement, including but not limited to Section 1(B) below, Manufacturer will provide the applicable Support availability, response times, and services as described herein for Customer’s then-current Support Plan.

Customer’s Responsibilities. Customer shall:

  1. pay all fees due under this Agreement and this Attachment;
  2. pay any expenses incurred by Manufacturer in acquiring access (including without limitation expenses due to any Customer procedure or security protocol);
  3. pay for any on-site Support at Manufacturer’s then-current rates and pay for expenses incurred by Manufacturer to perform on-site Support (including expenses for travel, labor and lodging);
  4. pay Manufacturer’s then-current rates for any support and maintenance not covered by Customer’s Support Plan;
  5. grant Manufacturer appropriate access to the Products being supported;
  6. comply with Manufacturer’s recommended or required implementations regarding any Upgrades and Updates;
  7. at its expense, uninstall, pack and ship any Hardware needing Support to the address provided in the Return Material Authorization or at http://www.Manufacturernetworks.com/company/returns;
  8. install any replacement Hardware when received; and
  9. indicate the following in any request for Support: name, company, telephone number, description of the problem, whether the applicable Software is inoperative, and when Customer will be available to receive a return call from Manufacturer.

Excluded Services. Manufacturer is not obligated to provide any services beyond those offered in the applicable Support Plan.

Fees

  1. Fees. Manufacturer’s current rates for the Support may be updated by Manufacturer at any time. However, any rate change shall not affect an unexpired Order for Support until that Support term renews.
  2. Non-refundable Support Fees. Customer acknowledges and agrees that Support Fees are non-refundable, notwithstanding any expiration or termination of an Order or this Agreement.
  3. Out-of-plan Charges. Any out-of-plan charges (including without limitation those incurred for after-hours Support, on-site Support, Training and Installation Services) will be invoiced by Manufacturer after they are incurred and will be paid by Customer within thirty (30) days from receipt of such invoice. Customer acknowledges and agrees that such charges are non-refundable.

Term and Renewal

  1. Initial Term; Renewal. If purchased by Customer, the initial term of Support shall commence upon date of shipment, and shall continue for one (1) year, or such other period of time as agreed in writing in advance by the Parties. Prior to the end of any term of Support Plan, Manufacturer will notify Customer of Manufacturer’s then-current Support rates. Customer shall prior to expiration submit an Order for Support specifying which Support Plan, if any, Customer wishes to purchase for a renewal term.
  2. Renewal Term. The term of each subsequent Order for Support shall commence upon the commencement date set forth on the applicable Order and shall remain in force for one year, or such other period of time as agreed in writing in advance by the Parties.
  3. Expiration. Customer acknowledges that Support may expire if Manufacturer has not received an Order for Support renewal promptly in accordance with Section 3(A) above. If Support lapses, Customer will not receive Support for, nor Upgrades or Updates to, the Products, and Support will be provided at Manufacturer’s then-current rates.

Support Availability

RMG Networks Contact Information and Hours
For Customers in North America
SUPPORT DESK 1-877-789-TECH  Mon – Fri 7am-7pm (0700 – 1900 ) US Central Time
EMAIL support@rmgnetworks.com; (M-F, 7a-7p Central Time)
HOURS: RMG Gold Support: Support is available from, Monday – Friday, 7A.M. – 7 P.M. US Central Time Zone excluding RMG holidays.

RMG Platinum Support: Support is available 24 hours per day, 7 days a week, 365 days a year.

Response Time and Update Frequency

Severity Level Problem Definition Response Time* Response Updates
1 Critical. A severity one (1) issue is a catastrophic production problem which may severely impact Customer’s production systems, or in which Customer’s production systems are down or not functioning; loss of production data and no procedural work around exists. <60

minutes

Once per business day
2 Major. A severity two (2) issue is a problem where Customer’s system is functioning but in a severely reduced capacity. The situation is causing significant impact to portions of Customer’s business operations and productivity. The system is exposed to potential loss or interruption of service. <90

minutes

Once per business day
3 Minor. A severity three (3) issue is a medium-to-low impact problem which involves partial non-critical functionality loss, one which impairs some operations but allows the client to continue to function. This may be a minor issue with limited loss or no loss of functionality or impact to the client’s operation and issues in which there is an easy circumvention or avoidance by the end user. This includes documentation errors.  

<120

minutes

Every other business day
4 Request. A severity four (4) issue is for a general usage question or recommendation for a future product enhancement or modification. There is no impact on the quality, performance or functionality of the product. <24 hours Once per week

* RMG Platinum and RMG Gold Support usually resolve most Customer issues on the same day. Certain issues that require more troubleshooting, Software changes, corrupted data bases, network issues, policy and security issues, or system fixes may take longer. Under these situations, RMG provides the Customer with estimates regarding resolution.

Included Support Services

Gold

Platinum

SOFTWARE SUPPORT*
Regular Hours Technical Support

(See Support Availability in table on page 1 of Schedule A)

Software Replacement For Media Loss or Failure

(download; installation not included)

Software Enhancements

(e.g. Service Packs, Patch Releases, Hot Fixes; Installation not included.)

Minor Upgrades

(Minor Releases: e.g. 8.1 to 8.2; download; installation not included)

Major Upgrades

(Major Releases: e.g. 7. x to 8.0; installation & migration not included)

After-Hours and Weekend Emergency Technical Support

Holiday Emergency Technical Support

(RMG Networks Holidays)

Hardware Extended Warranty Plans

Two Extended Warranty Plans which continue the repair or replacement benefit for non-conforming Hardware are available for purchase by Customer. Either type of plan must be purchased only at the time, and as part, of the original Hardware purchase for the full term of the applicable plan.

Hardware Extended Warranty Plan with the Advance Shipper feature: As priced in the then current price list for all Hardware covered, as specified in the current price list, per year, Customer may select the Hardware Extended Warranty Plan with the Advance Shipper feature for the first three (3) years beginning with the original purchase of RMG Hardware Products, providing a total of three years’ warranty coverage. If Customer has purchased this feature, and it notifies RMG that Hardware provided under this Agreement does not conform to the applicable warranty, and RMG has issued the appropriate return materials authorization: (i) RMGwill ship, at Customer’s expense, replacement equipment to Customer; Customer may select and pay to receive the replacement Hardware the next business day after receipt of Customer’s notice, or pay for and use standard shipping instead; and (ii) Customer will provide paid transport to return the defective equipment to RMG’s facilities once uninstalled by Customer. RMG Networks Smart Screens are not eligible for Advance Shipper Support.

Hardware Extended Warranty Plan (without Advance Shipping feature): In the alternative, Customer may select a Hardware Extended Warranty Plan as priced on the then current price list for all Hardware covered, as specified in the current price list per year, that does not include the Advance Shipper feature. If selected, this Plan begins upon expiration of and continues the one (1) year limited Hardware warranty described under Attachment 2 for two additional years, providing a total of three years’ warranty coverage.  With either Extended Warranty plan:

  • Third Party Hardware is excluded from the Extended Warranty plans;
  • The terms of Attachment 2, Section 2, Warranties shall apply to any Extended Warranty plan, except as expressly excluded or changed by this provision;
  • For both plans, Customer will be responsible for removal and reinstallation of the Hardware and any associated costs and for shipping costs each way for the type of delivery desired (overnight or standard shipping);
  • RMG may elect, at its sole option, to use functionally equivalent re-conditioned, refurbished or new units or parts of any units as replacement units;
  • RMG may substitute a functionally equivalent model if the Customer’s model of Hardware is no longer commercially available; and
  • RMG retains the right to impose an NTF or equivalent fee for returned Hardware where RMG finds no non-conformity to the warranty.

Google Advertising

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By using the following Ads Settings, users can opt-out of Google Analytics for Display Advertising and customize Google Display Network ads. Users are also able to opt-out of sharing data with Google Analytics with the following browser add on: browser opt-outs.