SightCall Subscription Terms of Service Agreement

(Effective as of April 12, 2022)

This SightCall Subscription Terms of Service (“Agreement”) is entered into by and between SightCall, Inc. (“SightCall”) and the entity or person placing an order or accessing the Service (“Customer” or “you”). If you are accessing or using the SightCall Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “Customer” reference your company. If your company has already entered into a separate written subscription agreement with SightCall for use of the SightCall Services, the terms and conditions of such other agreement shall prevail over any conflicting terms or conditions in this Agreement. If you are accessing or using the SightCall Services in your individual capacity, all references to “User” herein mean you, the Customer. The Agreement consists of the terms and conditions set forth below, any attachments or exhibits identified below and any Order Forms (as defined below) that reference this Agreement.

This Agreement permits Customer to purchase online platform-as-a-service products and other services from SightCall pursuant to any SightCall ordering documents, online registration, order descriptions or order confirmations referencing this Agreement (referred to below as a “Service Order”) and sets forth the basic terms and conditions under which those products and services will be delivered. This Agreement shall govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.

The ”Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to the SightCall Services through any online provisioning, registration or order process or (b) the effective date of the first Service Order referencing this Agreement.

Modifications to this Agreement: SightCall may modify the terms and conditions of this Agreement (including SightCall Services pricing and plans) from time to time, with notice given to Customer by email or through the SightCall Services. Customer must notify SightCall within thirty (30) days of notice of the modifications that Customer does not agree to such changes, and SightCall (at its option and as Customer’s exclusive remedy) may either: (a) permit Customer to continue under the prior version of this Agreement until expiration of the then-current Subscription Term (after which time the modified Agreement will apply) or (b) allow Customer to terminate this Agreement and receive a pro-rated refund of any fees Customer has pre-paid for use of the SightCall Services for the terminated portion of the applicable Subscription Term. Upon any changes to this Agreement, Customer may be required to click to agree to the modified Agreement in order to continue using the SightCall Services, and in any event continued use of the SightCall Services after the modifications take effect constitutes Customer’s acceptance of the modifications.

BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, INSTALLING THE CLIENT SOFTWARE OR ACCESSING OR USING THE SIGHTCALL SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT INSTALL THE CLIENT SOFTWARE OR USE THE SIGHTCALL SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.

In addition, your use of the SightCall Services and any personal information SightCall may collects process, use, store, and share, are also subject to the SightCall Privacy Policy which can be accessed here: https://sightcall.com/privacy-....

SightCall and Customer may be referred to collectively as “Parties” or individually as a “Party.”


1. Definitions. Applicable terms not otherwise defined below in this Section 1 shall have the meaning defined hereunder in this Agreement, or in a Service Order.


1.1. “Acceptable Use Policy” means those SightCall Services obligations described in the Schedule 1 located here: https://sightcall.com/acceptab...


1.2. “Affiliates” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.


1.3. “Client Software” means software licensed by SightCall to Customer that is typically deployed on Customer’s machines to enable access to and use of the SightCall Service. Client Software may include or be provided with code licensed under third-party agreements, including open-source software.


1.4. “Customer Materials” means all content, documentation, data, information or other material that Customer loads, or grants SightCall the right to process, on or through the SightCall Services. Customer Materials also includes any content generated or loaded by Users, and any integrations with the SightCall Services created by Customer using the SightCall SDK or APIs.


1.5. "Documentation" means the online product documentation, user instructions and any files made available to Customer by SightCall as part of the SightCall Services, as may be updated from time to time by SightCall.


1.6. “Intellectual Property Rights” means all intellectual property or other proprietary rights worldwide, including patents, copyrights, trademarks, moral rights, trade secrets, and any other intellectual or industrial property, including registrations, applications, renewals, and extensions of such rights.


1.7. “Service Order” means the binding Customer ordering document governed by the Agreement and signed by Customer that describes, among other things, Customer’s use and access entitlements, the Support Services package selected by the Customer, any additional features or modules ordered by the Customer, the duration of the Subscription Term and the fees payable by the Customer in exchange for its use of the SightCall Service platform.


1.8. “SightCall Service(s)” means SightCall’s proprietary, cloud-based remote assistance Service, associated Application Programming Interface (“APIs”), Software Development Kit (“SDKs”), and web and mobile solutions, and shall include without limitation all software, sample code, object code, features, platform access rights, and elements of same, as well as all Documentation provided in connection with same.


1.9. “Support Services” means technical support and application management services, as fully described in the Support Services Schedule 2 located here: https://sightcall.com/support-services.


1.10. “Tenant” means a dedicated Customer environment that is accessed by Users and that includes Customer Materials as part of Customer’s use of the SightCall Services.


1.11. “Term” means the term of the Agreement, including the initial Subscription Term and any Renewal Term(s) as further described in Section 8.1.


1.12. “User” means the named person or persons authorized by Customer to use the SightCall Service as defined in a Service Order. Users may be designated in different categories in a Service Order. Users having a unique identifier (“UID”) and password to connect to the SightCall Services shall be identified as "Named Users". A Named User cannot share Users IDs and passwords with other Users during the Subscription Term, and Customer usage of the SightCall Services is not intended to be for concurrent or shift-based Users. Named User access rights may be reassigned to new Named Users if the original Named User no longer uses and accesses SightCall Services because of a role change, employment termination or similar reasons. Any exceptions to the general designation of Users as Named Users shall be set forth in applicable Service Orders.


2. SightCall Services.


2.1 Provision of Service. The SightCall Services and Support Services are provided on a subscription basis for a set term (each, a “Subscription Term”) designated in an executed or acknowledged Service Order. SightCall may also offer Professional Services (as defined in Section 4.4) related to the Service. Customer shall purchase and SightCall shall provide the specific SightCall Services and related Professional Services (if any) as specified in the applicable Service Order entered into as of the Effective Date.


2.2 Access to Service. During each Subscription Term, SightCall grants to Customer and its Users the following rights: a) the right to use and access the SightCall Services solely for its own benefit and in accordance with the terms and conditions of this Agreement, and b) the right to use and access the Documentation; each strictly in accordance with any scope of use restrictions designated in the applicable Service Order. During the Subscription Term and based on the SightCall Service entitlements Customer purchases, Customer may be entitled to use and access the SightCall SDK and APIs, exclusively to create third-party system or service integrations to connect with the SightCall Services.


2.3 Users. Use of and access to the SightCall Service is permitted only by Users designated by Customer. Customer may grant certain Users administrative privileges (which may include authority to provision new User accounts, create new Tenants, assign Users to Tenants or control User access permissions at the account or Tenant level) as further described in the Documentation (“Administrators”). Customer will, through its Administrators, assign user IDs and passwords for each User to access the SightCall Services. Customer shall require that all Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. Customer shall be responsible for any and all actions taken by Users on Customer’s account and for rescinding access to its account (including its Tenants) by any User that Customer no longer wishes to have access. Users may also be Customer’s end user customers.


2.4 Client Software; App Marketplaces. To the extent use of the SightCall Services require Customer to install Client Software, subject to all of the terms and conditions of this Agreement, SightCall grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during the applicable Subscription Term to use the object code form of the Client Software internally, but only in accordance with (a) the Documentation, (b) this Agreement and (c) the Service Order. To the extent a User accesses the SightCall Services using a “mobile app” from the Apple Store or from Google Play (or any other third party marketplaces as or if available), Customer use of the downloaded application may be subject to additional terms and conditions with the company permitting access to the SightCall Services mobile app download. SightCall disclaims any liability for Customer’s use of third party online marketplaces.


2.5 Contractors and Affiliates. Customer may permit its independent contractors and consultants who are not competitors of SightCall (“Contractors”) and Customer Affiliates to serve as Users, provided Customer remains responsible for compliance by each such Contractor or Affiliate with all of the terms and conditions of this Agreement, and any such use of the SightCall Services by such Contractor or Affiliate is for the sole benefit of Customer (or such Affiliate). Use of the SightCall Services by Affiliates, Contractors, Users and Customer in the aggregate must be within the restrictions and limitations described in the applicable Service Order.


2.6 General Restrictions. Customer shall not (and shall not permit any third party to): (a) rent, lease, provide access to or sublicense the SightCall Service to a third party (except to Users as permitted herein); (b) use the SightCall Services to provide or create, or incorporate the SightCall Service into, any similar service provided to a third party or otherwise directly expose the functionality of the SightCall Service to any third party (except to Users as permitted herein); (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs, or to the SightCall Service, except to the extent expressly permitted by applicable law (and then only upon advance notice to SightCall); (d) copy or modify the SightCall Services or any Documentation (including any underlying workflows, algorithms, procedures or hierarchies), or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the SightCall Service (including any reports or data printed from the Service) and in the Documentation; (f) publicly disseminate information regarding the performance of the SightCall Services; (g) adversely impact the speed, security or integrity of the SightCall Service (or any data contained within the Service); (h) conduct any penetration testing or exploit or attempt to exploit any vulnerabilities in the SightCall Service, or (i) violate the SightCall Acceptable Use Policy.


3. Customer Obligations.


3.1 In General. Customer shall ensure that Customer, its Affiliates and its Users’ use of the SightCall Service is at all times compliant with Customer's privacy policies and all applicable laws.


3.2 Responsibility for Customer Materials. Customer is solely responsible for the accuracy, content and legality of all Customer Materials (including those submitted by its Users) and for permitting SightCall to lawfully use, process and access Customer Materials in connection with SightCall performance of the SightCall Services. Subject to the terms of this Agreement, Customer hereby grants to SightCall a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit and publicly perform and display the Customer Materials solely to the extent necessary to provide the Service to or as directed by Customer. Customer represents and warrants to SightCall that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Materials as contemplated in this Agreement, and that no Customer Materials will violate or infringe (i) any third-party intellectual property, publicity, privacy or other rights, (ii) any laws, (iii) any terms of service, privacy policies or other agreement governing Customer Materials or (iv) the SightCall Acceptable Use Policy. SightCall is not responsible for the results produced by, or Customer’s use of, the SightCall SDK or APIs. Customer shall ensure that any integrations created using the SightCall SDK or APIs are compatible and interoperable with SightCall Services and any other third party systems.


3.3 Protected Health Information; Data Processing under GDPR and CCPA; Compliance with Laws.


3.3.1 HIPAA and PHI. If applicable, Customer agrees to not submit to or load onto the SightCall Services any Protected Health Information (“PHI”) unless (i) the Service Order specifies that the SightCall Services includes a Tenant compliant with the Health Insurance Portability and Accountability Act (“HIPAA”); (ii) the configuration of the Tenant and associated use cases follow HIPAA implementation guidelines; and (iii) Customer has entered into a Business Associate Agreement ("BAA") with SightCall. Unless a BAA is in place, SightCall will have no liability under this Agreement for PHI, notwithstanding anything to the contrary in this Agreement or under HIPAA or any similar Laws. If Customer is permitted to submit PHI to the SightCall Services, it may only do so by uploading it to a Tenant specifically identified as a "PHI Tenant". The mutually executed BAA shall be incorporated by reference into this Agreement and is subject to its terms.


3.3.2 GDPR and CCPA. Similarly if applicable, Customer and SightCall may enter into a data processing addendum (“DPA”) governing Customer’s ability to load and permit SightCall to process, any personal data or information regulated under applicable data protection laws (including the European Union’s General Data Protection Regulation (“GDPR”) and the California Consumer Privacy Act (“CCPA”)), in connection with the SightCall Services, in which additional terms may include applicable designations of controller and processor obligations, the application of standard contract clauses, and descriptions of compulsory rules, practices and processes enabling the secure transfer of personal data from various global locations. For purposes of this Section, each party shall comply with all applicable data protection laws governing each of their respective business operations, in the geographic locations in which SightCall Services (on the one hand) and Customer and its Users are offered or situated (on the other hand). For purpose of this Agreement, SightCall is designated as the data processor, and Customer is designated as the data controller. Any mutually executed DPA shall be incorporated by reference into this Agreement and is subject to its terms.


3.3.3 Compliance with Laws. Each party shall comply with all applicable international, national, state, provincial or local laws, regulations, directives, statutes, judicial rulings, orders, or other mandates have the force and effect of law during and after the Term of this Agreement, in connection with each of their respective business operations. Customer acknowledges and agrees that SightCall Services may only be used and accessed in geographical territories in which the SightCall Services (including VoIP or video chat) are lawful and authorized, and do not contravene or violate prevailing government regulations.


3.4 Backups of Customer Materials. Except for disaster recovery measures described in the Documentation, the SightCall Service does not archive or backup Customer Materials. SightCall shall not of its own accord intentionally delete any Customer Materials from the SightCall Service prior to termination of Customer's applicable Subscription Term. Except for the foregoing, SightCall expressly disclaims all other obligations with respect to maintaining archives or backups of Customer Materials.


3.5 Recordings. Certain SightCall Services provide functionality that allows a Customer to record video, audio and data shared during collaboration sessions. Customer is solely responsible for complying with all federal, state, and local laws in the relevant jurisdiction when using such recording functionality. Without limiting any other disclaimers set forth in this Agreement, SightCall expressly disclaims any and all liability with respect to Customer recording of audio and/or shared data while using the SightCall Service, and Customer releases and agrees to hold SightCall harmless from and against any damages, or any other consequences or liabilities related to the recording, loss or deletion of Customer Materials related to Customer’s use of SightCall’s recording technology.


3.6 Third Party Services. SightCall may, from time to time, inform Customers of third-party services that can be used by Customers in connection with the SightCall Service, including services from companies associated with SightCall’s partner program, and Customer may opt to use these or other third-party services in connection with the SightCall Service. Customer’s use of any third-party service in connection with the SightCall Service, and any terms, conditions, representations and/or warranties associated with such use, are solely as set forth in the end user license agreement (“EULA”) terms between Customer and such third-party service providers. SightCall makes no endorsement, representation or warranty with regard to any such third-party services, or any content or materials used on connection with such third-party service, even if such provider is certified by SightCall or designated as a partner by SightCall. As such, SightCall shall not be responsible or liable to Customer in any manner for any such third-party service, or compliance with the EULA. SightCall does not, unless otherwise expressly set forth in writing, provide maintenance or support for third-party services, or for any integrations or interfaces created by use of SightCall’s SDK and APIs that connect such third-party services.


4. SightCall Obligations.


4.1 Support Services. SightCall shall provide Support Services as defined in the SightCall Support Services Schedule as set forth in the Schedule 2 located here: https://sightcall.com/support-.... SightCall does not provide direct end user Support Services. The Support Services package option selected by Customer and related fees shall be set forth in the Service Order.


4.2 Service Level Obligations. SightCall will use commercially reasonable efforts to make the SightCall Services available with minimal downtime, 24 hours a day, 7 days a week in accordance with SightCall’s “Service Level Commitment” set forth in the Schedule 3 located here: https://sightcall.com/service-....


4.3 Open Source. SightCall acknowledges that it uses certain Open Source libraries as part of the SightCall Services (“Open Source Software”). A summary and acknowledgment of SightCall’s Open Source Software use and applicable Open Source licenses associated with each library, can be found at SightCall Open Source Software libraries located here: http://www.sightcall.com/open-....


4.4 Professional Services. SightCall shall provide agreed upon professional consulting services (“Professional Services”) that may be purchased in the applicable Service Order. The scope of Professional Services shall be as set forth in a Statement of Work referencing this Agreement and executed by both parties describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information (“SOW”). Unless Professional Services are provided on a fixed-fee basis, Customer shall pay SightCall at the per-hour or daily rates set forth in the applicable Service Order (or, if not specified, at SightCall’ then-standard rates) for any Professional Services. Customer will reimburse SightCall for reasonable travel and lodging expenses as incurred, as pre-approved in writing by Customer. Customer may use anything delivered as part of the Professional Services in support of authorized use of the SightCall Services and subject to any terms set forth in Service Order and the applicable SOW, but SightCall shall retain all right, title and interest in and to any such work product, code or deliverables and any derivative, enhancement or modification thereof created by SightCall (or its agents) (excluding any underlying Customer Materials, Customer’s pre-existing proprietary software or other materials designated in writing or Confidential Information).


4.5 Security Obligations. SightCall agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of the Service or Customer Materials. However, SightCall shall have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond SightCall' control.


5. Service Orders; Pricing Payment Terms; Taxes.


5.1 Service Orders and Pricing. The parties shall enter into and execute a Service Order as of the Effective Date for the initial Subscription Term. SightCall may issue new Service Orders for any of the following circumstances: a) for each Renewal Term, b) for any usage by Customer that exceeds the limits set forth in an individual Service Order, c) for Affiliate use of the SightCall Services (though Customer remains liable for any Affiliate use), or d) for additional access and use rights to new SightCall Service modules or capabilities that SightCall makes available only for a separate fee. Separate SightCall Services modules generally available as of the Effective Date are described in the Documentation, and include session recording technology, multi-party session capabilities and SightCall Editions. Customer acknowledges that a new Service Order is not required for an automatic renewal that occurs under Section 8.1. SightCall Services pricing terms and descriptions as of the Effective Date are as set forth in a separate Services Order subject to and governed by this Agreement. SightCall reserves the right to increase fees applicable to SightCall Services (as well as for additional Users, session recording functionality, multi-party session capabilities and other fees for new modules and features) by providing Customer thirty (30) days’ notice prior to the end of each active Subscription Term.


5.2 Payments Terms. SightCall Service fees are invoiced annually in advance. Except as otherwise set forth in a SOW, Professional Services fees are invoiced in advance and on a time and materials basis. Customer will pay each invoice within 30 days following the invoice date. Late payments will accrue interest at a rate of 1.5% per month or the legal maximum rate, whichever is lower. Customer will cure a delinquency in payment of any amounts owed under this Agreement within 30 days from the date of SightCall's delinquency notice. If Customer fails to timely cure such delinquency, or regain compliance under Section 8.2 (defining the cure period for breach), SightCall may suspend Customer's use of the SightCall Services or terminate this Agreement for breach, in addition to any other available rights and remedies. Customer is responsible for all fees, expenses and other costs relating to or connected with making invoiced payments to SightCall under this Agreement, including the direct payment of all banking fees, ACH processing fees, currency conversions, or similar transactional costs and fees; none of which Customer may deducted or off-set from the SightCall’s invoiced total fee. All terms of this Section 5 shall apply unless expressly stated otherwise in the applicable Service Order, SOW, or the Documentation.


5.3 Taxes. SightCall Services fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including for example, value-added sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer purchases hereunder. If SightCall has the legal obligation to pay or collect Taxes for which Customer are responsible under this Section 5.3, SightCall will invoice Customer and Customer will pay that amount unless Customer provides SightCall with a valid tax exemption certificate authorized by the appropriate taxing authority. For the avoidance of doubt, SightCall shall be solely responsible for Taxes assessable against SightCall based on SightCall’s income, property and employees, and Customer shall not withhold or deduct any amounts for same except as required by applicable law. Should Customer be required under any law or regulation of any governmental entity or authority outside of the United States, to withhold or deduct any portion of the payments due to SightCall, then Customer shall increase the sum payable to SightCall by the amount necessary to yield to SightCall an amount equal to the sum it would have received had no withholdings or deductions been made.


5.4 No Set-Off. Customer will not set-off or offset against SightCall's invoices amounts that Customer claims are due to Customer by SightCall, or any amounts resulting from any billing or collection disputes. Customer will bring any claims or causes of action Customer may have in a separate action and waive any rights Customer may have to offset, set-off, or withhold payment for the SightCall Services delivered by SightCall.


5.5 Voice And Data Charges; Customer Connectivity. Customer is responsible for all fees and charges imposed by Customer’s telephone carriers, wireless providers, and other voice and/or data transmission providers for voice and/or data transmission used to access and use the SightCall Services. If Customer’s broadband connection and/or telephone service fails, or Customer experiences a power failure, the SightCall Services may also cease to function due to reasons outside of SightCall control, and SightCall shall not be liable for, and Customer expressly releases SightCall from any liability, in connection with such events or activities.


5.6 Use Verification. SightCall may remotely review the scope of Customer's use of the SightCall Service, and on SightCall's written request, Customer will provide reasonable assistance to verify Customer's compliance with the Agreement with respect to access to and use of the SightCall Services. If SightCall determines that Customer has exceeded its permitted access and use rights to the SightCall Service as described in a Service Order, SightCall will notify Customer and Customer will, within 30 days, either: (1) disable any unpermitted use; or (2) purchase additional use and access rights commensurate with Customer's actual use, at SightCall’s then effective rates and fees.


6. Confidential Information.


6.1 Confidential Information Defined. As used herein, "Confidential Information" means non-public information that the party disclosing the information designates at the time of disclosure as being confidential, or, if disclosed orally or visually, is identified as such prior to disclosure, or which, under the circumstances surrounding the disclosure, the receiving party knows or has reason to know should be treated as confidential without the need to be marked as such. Without limiting the foregoing, Confidential Information shall include any information regarding a party's financial condition, business opportunities, plans for development of future products, unreleased versions of products, know-how, technology, customer information, and customer data. SightCall Technology, SightCall Services and Documentation shall be deemed SightCall Confidential Information. Notwithstanding the foregoing, nothing received by a receiving party shall be construed as Confidential Information which: (i) is or becomes generally available to the public without breach of this Agreement; (ii) is lawfully obtained from a third party without a duty of confidentiality; (iii) is known to the receiving party prior to such disclosure; or (iv) is, at any time, developed by the receiving party independent of any such disclosure(s) from the disclosing party and the receiving party can reasonably show such independence.


6.2 Non-Disclosure. The receiving party shall not disclose the disclosing party's Confidential Information to any third party and may only use the disclosing party's Confidential Information for the intended business purpose related to this Agreement and for the benefit of the disclosing party. Both parties shall protect Confidential Information from disclosure or misuse by using the same degree of care as for their own confidential information of like importance, but shall at least use reasonable care. Further, both parties agree to have each of their employees or independent contractors with access to any Confidential Information agree to be bound by an enforceable agreement that ensures the protection of the Confidential Information from disclosure to at least the same extent as does this Agreement. Each receiving party agrees to promptly notify the disclosing party upon learning of any unauthorized disclosure of the disclosing party's Confidential Information, and shall provide reasonable assistance to the disclosing party to remedy and contain such breach. In connection therewith, Customer agrees to provide any such notice to SightCall at legal@sightcall.com. The foregoing notwithstanding, a receiving party may disclose the other party's Confidential Information if the information is required by law to be disclosed in response to a valid order of a court of competent jurisdiction or authorized government agency, provided that the receiving party must give the disclosing party prompt written notice, if legally permitted, and obtain or allow for a reasonable effort by the disclosing party to obtain a protective order prior to disclosure, at this disclosing party’s cost and expense.


6.3 Equitable Remedies. The parties agree that a breach of the confidentiality obligations set forth in this Agreement by receiving party may cause immediate and irreparable damage to disclosing party and shall entitle disclosing party, without the necessity of posting a bond, to seek injunctive relief to prevent the continued unauthorized use of disclosing party’s Confidential Information, as well as to pursue all other remedies available to disclosing party at law.


7. Representations and Warranties.


7.1 Limited SightCall Services Warranty. SightCall warrants, for Customer’s benefit only, that the SightCall Services will operate in substantial conformity with the applicable Documentation. SightCall’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, at no charge to Customer, for SightCall to use commercially reasonable efforts to correct the reported non-conformity, or if SightCall is unable to correct the defect SightCall Services, or if SightCall determines such remedy is impracticable, either party may then terminate the applicable SightCall Services following a cure period of not less than thirty (30) days. The limited warranty set forth in this Section 7.1 shall not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) to use provided on a no-charge or evaluation basis.


7.2 Limited Support and Professional Services Warranty. In addition, SightCall shall perform Support Service and Professional Services in a competent, professional and workmanlike manner consistent with applicable industry practices. Provided Customer provides timely written notice of non-conforming Support or Professional Services performance within thirty (30) days following the completion of each Support or Professional Service, SightCall will timely re-perform the applicable Service in accordance with the foregoing warranty, and if SightCall is unable or incapable of performing the Support Service within thirty (30) days following the warranty claim, Customer may terminate the Subscription Term, and shall receive as its sole remedy, a refund of any fees Customer has pre-paid for use of the SightCall Service for the terminated portion of the applicable Subscription Term. If SightCall is unable or incapable of reperforming the Professional Service within thirty (30) days following the warranty claim, Customer may terminate the SOW, and receive a refund for that portion of the Professional Services that is defective.


7.3 Warranty Disclaimer.
(A) EXCEPT FOR THE LIMITED WARRANTIES IN SECTIONS 7.1 and 7.2, ABOVE, THE SIGHTCALL SERVICES ARE PROVIDED “AS IS”. NEITHER SIGHTCALL NOR ITS PARTNERS AND SUPPLIERS MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. SIGHTCALL DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SIGHTCALL SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES SIGHTCALL WARRANT THAT IT WILL REVIEW THE CUSTOMER MATERIALS FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER MATERIALS WITHOUT LOSS. SIGHTCALL SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF SIGHTCALL. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

(B) SIGHTCALL HAS NO LIABILITY OR RESPONSIBILITY, AND CUSTOMER IS SOLELY RESPONSIBLE, FOR ASSESSING WHETHER THE SIGHTCALL SERVICES (INCLUDING SIGHTCALL’S SECURITY OBLIGATIONS) WILL MEET CUSTOMER’S REGULATORY OR OTHER LEGAL OBLIGATIONS. SIGHTCALL DOES NOT REPRESENT OR WARRANT THAT THE SIGHTCALL SERVICES WILL ACHIEVE CUSTOMER’S DESIRED RESULTS AND SIGHTCALL DISCLAIMS ALL LIABILITY OF ANY KIND FOR DECISIONS MADE BASED ON USE OR OTHER RESULTS OF THE SIGHTCALL SERVICE. SIGHTCALL HAS NO CONTROL OVER, AND WILL HAVE NO LIABILITY FOR, ANY ACTS OR OMISSIONS OF ANY USERS.

(C) CUSTOMER ACKNOWLEDGES THAT SIGHTCALL SERVICES ARE NOT DESIGNED OR INTENDED FOR ACCESS AND/OR USE IN OR DURING HIGH-RISK ACTIVITIES, INCLUDING BUT NOT LIMITED TO: MEDICAL PROCEDURES; ON-LINE CONTROL OF AIRCRAFT, AIR TRAFFIC, AIRCRAFT NAVIGATION OR AIRCRAFT COMMUNICATIONS, OR THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF ANY NUCLEAR FACILITY. CUSTOMER UNDERSTANDS THAT THE SIGHTCALL SERVICES DO NOT ALLOW AND SHOULD NOT BE USED FOR CALLS TO EMERGENCY SERVICES NUMBERS (E.G., IN THE UNITED STATES 911, OR IN THE UNITED KINGDOM 999 AND 112). WITHOUT LIMITING ANY OTHER DISCLAIMERS SET FORTH IN THIS AGREEMENT, SIGHTCALL EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.


7.4 By Customer. Customer represents and warrants that the Customer has the right and authority to enter into this Agreement, to perform its duties and obligations hereunder, exercise its rights hereunder, and to grant the licenses granted by Customer under this Agreement. Customer further represents and warrants that Customer has secured for SightCall all right, license, permission and consent necessary to access and use Customer Materials, Users’ account information and any data Users upload to the SightCall Services platform for the purposes of delivering the SightCall Services, responding to any technical problems, troubleshooting and testing, and that Customer Materials do not and will not infringe on any privacy, intellectual property or other rights of third parties. Customer represents and warrants that Customer’s use of the SightCall Services shall comply with all applicable laws, regulations, statutes, judicial decisions or other rules and regulatory or governmental rulings in connection with Customer’s business operations. Customer shall be solely liable to SightCall or to third parties, for any violation, breach or non-compliance with any of the foregoing obligations.


8. Term and Termination.


8.1 Term. The term of this Agreement (“Term”) and the SightCall Services period set forth in the initial Service Order (the “Subscription Term”) shall commence on the Effective Date hereof, and shall continue until the termination of this Agreement in accordance with the terms hereof and for the duration set forth in the Service Order. The Agreement and the SightCall Services set forth in a Service Order will automatically renew for additional, consecutive one (1) year periods (each a “Renewal Term”), unless either Party provides not less than thirty (30) days’ written notice of non-renewal prior to the end of the applicable Subscription or Renewal Term.


8.2 Termination. Either party may terminate this Agreement (including all related Service Orders) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operations without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).


8.3 Effect of Termination. Upon any expiration or termination of this Agreement, Customer shall immediately cease any and all use of and access to the SightCall Services (including any and all related SightCall Technology) and delete (or, at SightCall's request, return) any and all copies of the Documentation, any SightCall passwords or access codes and any other SightCall Confidential Information in its possession. SightCall shall make Customer Materials available for retrieval for thirty (30) days following termination of this Agreement for any reason. Thereafter, Customer acknowledges that following termination (and the Customer Materials retrieval period), it shall have no further access to the SightCall Services or any Customer Materials submitted to the SightCall Service, and that SightCall may delete any such materials as may have been stored by SightCall at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.


8.4 Survival. All terms of this Agreement which by their nature extend beyond the termination of this Agreement, remain in effect until fulfilled and apply to respective successors and assigns.


9. Indemnification.


9.1 SightCall Indemnification. SightCall shall defend Customer from and against any claim by a third party alleging the SightCall Service when used as authorized under this Agreement, infringes a patent, copyright, or trademark and shall indemnify and hold Customer harmless from and against any damages and costs awarded against Customer or agreed in settlement by SightCall (including reasonable attorneys’ fees) resulting from such claim, provided that SightCall shall have received from Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for SightCall to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. If Customer’s use of the SightCall Services is (or in SightCall’s opinion is likely to be) enjoined, if required by settlement or if SightCall determines such actions are reasonably necessary to avoid material liability, SightCall may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using the SightCall Service; or if (a) and (b) are not commercially reasonable, (c) terminate the Agreement and refund to Customer any fees Customer has pre-paid for use of the SightCall Service for the terminated portion of the applicable Subscription Term. The foregoing indemnification obligation of SightCall shall not apply: (1) if the SightCall Services are modified by any party other than SightCall, but solely to the extent the alleged infringement is caused by such modification; (2) if the SightCall Services are combined with platforms, data, products or processes not provided by SightCall, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the SightCall Services; (4) to any action arising as a result of Customer Materials, or any other third-party applications, data or components contained within the SightCall Services; (5) to the extent the alleged infringement is not caused by the particular technology or implementation of the SightCall Services but instead by features common to any similar product or service; or (6) if Customer settles or makes any admissions with respect to a claim without SightCall’s prior written consent. THIS SECTION 9.1 SETS FORTH SIGHTCALL’S AND ITS PARTNERS AND SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.


9.2 Indemnification by Customer. Customer shall indemnify, defend and hold harmless SightCall from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with any claim arising from or relating to (a) any Customer Materials or breach or alleged breach by Customer of Section 3 (Customer Obligations), (b) any service or product offered by Customer in connection with or related to the SightCall Services or (c) sharing of Customer Materials with (or use thereof by) third-party Users. This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim from SightCall (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation from SightCall at Customer's expense.


10. Limitation Of Liability.


10.1 Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS PARTNERS OR SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.


10.2 Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EACH PARTY AND ITS PARTNERS AND SUPPLIERS’ ENTIRE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO SIGHTCALL DURING TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY UNDER THIS AGREEMENT.


10.3 Excluded Claims. “Excluded Claims” means any claim arising (a) from Customer’s breach of Section 2.6 (General Restrictions); (b) under Section 3 (Customer Obligations); (c) from a party’s breach of its obligations in Section 6 (Confidential Information) (but excluding claims related to Customer Materials); or (d) a party’s indemnification obligations under Section 9 of this Agreement.


10.4 Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 10 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.


11. Ownership.


11.1 Rights in Customer Materials. As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Materials as provided to SightCall. Subject to the terms of this Agreement, Customer hereby grants to SightCall a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit and publicly perform and display the Customer Materials solely to the extent necessary to provide the SightCall Service to or as directed by Customer.


11.2 SightCall Technology. This is a subscription agreement for access to use of the SightCall Services. Customer acknowledges that it is obtaining only a limited right to the SightCall Services and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that SightCall or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to all of the SightCall Services, Support Services, Documentation, Professional Services deliverables (but excluding any Customer Materials incorporated therein) and any and all related and underlying technology and documentation, and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, “SightCall Technology”). Except as expressly set forth in this Agreement, no rights in any SightCall Technology are granted to Customer. Further, Customer acknowledges that the SightCall Services is an online, hosted solution, and that except for Client Software, Customer has no right to obtain a copy of the SightCall Services. SightCall reserves all rights in and to SightCall Technology not expressly granted to Customer hereunder.


11.3 Feedback. Customer, from time to time, may submit comments, questions, suggestions or other feedback relating to any SightCall product or service to SightCall (“Feedback”). SightCall may freely use and exploit Feedback in connection with any of its products or services without any obligation to notify, account for, or compensate Customer.


11.4 Service Data. Notwithstanding anything to the contrary herein, Customer agrees that SightCall may obtain technical and other data about Customer’s use of the SightCall Services (“Service Data”), and SightCall may use and share the Service Data to improve, support, develop, provide and deliver reporting regarding the SightCall Service during and after the Term of this Agreement, provided that when sharing the Service Data outside of SightCall’s internal business operations, SightCall does not identify Customer as the source of such Service Data without Customer’s prior written permission.


12. Miscellaneous.


12.1 No Agency. Nothing in this Agreement shall be deemed to create any agency, partnership, joint venture, or employment relationship. Customer accepts and acknowledges that SightCall is an independent contractor providing Customer with use of the SightCall Services.


12.2 Assignment. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party's assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 12.2 will be null and void.


12.3 Notices. All notices under this Agreement must be in writing and delivered either by hand, e-mail (with confirmation of receipt), certified mail (return receipt requested, postage pre-paid) or nationally recognized overnight delivery service (all delivery charges pre-paid) and addressed, if to Customer, to the address identified in this Agreement, if to SightCall, to SightCall, Inc., 2000 Broadway St. Suite 250, Redwood City, CA 94063 USA, Attn: Legal Department. Notices shall be deemed given when delivered by registered post or courier, with return receipt or acknowledgment requested.


12.4 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.


12.5 Export Compliance. In its use of the SightCall Services, Customer agrees to comply with all export and import laws and regulations of the United States, the European Union and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a "terrorist supporting" country, (ii) Customer shall not (and shall not permit any of its Users to) access or use the SightCall Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer shall not submit to the SightCall Services any information that is controlled under the U.S. International Traffic in Arms Regulations.


12.6 Government End-Users. Elements of the SightCall Services are commercial computer software. If the user or licensee of the SightCall Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the SightCall Services, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The SightCall Service was developed fully at private expense. All other use is prohibited.


12.7 Anti-Corruption Laws. Customer shall comply with all anti-corruption laws and regulations ("Anti-Corruption Laws") including but not limited to the United States Foreign Corrupt Practices Act ("FCPA") and/or the UK Bribery Act, irrespective of whether Customer is legally subject to it. Customer shall not cause SightCall to violate the FCPA, the UK Bribery Act or any Anti-Corruption Laws in connection with the activities conducted on behalf of SightCall under the Agreement or any other activities involving SightCall (collectively, the "Activities"). Customer shall not, in connection with the Activities, pay, offer, promise, or authorize the payment or transfer of anything of value, directly or indirectly, to any other person or entity for the purpose of improperly obtaining or retaining business, for any other advantage for SightCall, or for any other purpose prohibited by the FCPA, UK Bribery Act or any Anti-Corruption Laws.


12.8 Publicity. At the request of SightCall, Customer agrees to the issuance of a joint press release ("Press Release”) on a mutually agreed upon date or the 90th day from the Effective Date, whichever is earlier. Each party will have the right to approve the Press Release in advance, but such approval will not be unreasonably delayed or withheld. Customer also agrees to participate in other reasonable marketing activities that promote the benefits of the SightCall Services to other potential customers and to use the Customer's name and logo on SightCall web site and in SightCall promotional materials. This consent terminates upon termination of this Agreement.


12.9 Foreign Language Translation. For Customer's convenience, SightCall may provide Customer with a non-English translation of the Agreement. Any such non-English language version of the Agreement is for reference purposes. Customer acknowledges and agrees that the English language version of the Agreement shall, in all instances, govern the parties' relationship.


12.10 Governing Law and Forum Selection. This Agreement is made and will be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law principles. The Parties agree that any dispute arising under this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts of San Francisco County, California, and the parties agree not to bring an action in any other venue. Customer waives any and all objections to this venue and agrees not to dispute personal jurisdiction or venue in the event of a dispute arising under this Agreement. The United Nations Convention for the International Sale of Goods does not apply to this Agreement. The prevailing Party in any dispute or legal action regarding the subject matter of this Agreement shall be entitled to recover attorney's fees and costs. To the extent an agreement is concluded with Customer by other SightCall contracting entities, following governing law and exclusive jurisdiction terms shall apply:

12.11 Advice of Legal Counsel. Each Party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms and provisions of this Agreement.


12.12 Entire Agreement. This Agreement, including all Schedules to this Agreement, sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous agreements, proposals, negotiations, conversations, discussions and understandings, written or oral, with respect to such subject matter and all past dealing or industry custom. In the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of any schedule, the terms and conditions of this Agreement will govern. No Party hereto has relied on any statement, representation or promise of any Party or representative thereof except as expressly set forth in this Agreement. Any changes or amendments to this Agreement must be in writing, expressly refer to the changes to this Agreement, and be duly executed by both parties.


12.13 Waiver of Breach. No delay or omission by either party to exercise any right or power arising upon the other party's nonperformance or breach will impair that right or power or be construed as a waiver of it. Any waiver must be in writing and signed by the waiving party. A waiver on one occasion will not be construed as a waiver of any subsequent event of nonperformance or breach.


12.14 Severability. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any Party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the Parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.


12.15 Counterparts. This Agreement may be executed: (a) in two or more counterparts, each of which will be deemed an original and all of which will together constitute the same instrument; and (b) by the Parties by exchange of signature pages by PDF, facsimile or email.