SIGHTCALL TERMS OF SERVICE
Restrictions on Use:
Customer covenants that it will not, in connection with the use of the SightCall Service:
• use the SightCall Service in any illegal or unlawful manner, or for any illegal or unlawful purpose, or to stalk, harass, or harm another individual;
• perform any act which is intended to and/or actually does harm to SightCall, the SightCall Service, or any of SightCall’s customers;
• imply or state, directly or indirectly, that Customer is affiliated with or endorsed by SightCall without SightCall’s express written permission;
• send unsolicited messages, junk mail or SPAM, using the SightCall Service;
• share the Customer’s password or let any third party access Customer’s Account, or take any other action which would affect the security of the Customer’s Account;
• attempt to or actually override any security component included in the SightCall Services; or,
• publish, transmit, or disseminate any Content which is
• pornographic, sexually explicit or violent,
• illegal (including without limitation copyrighted material and material which infringes or has the potential to infringe the Intellectual Property Rights of a third party,
• slanderous or libelous,
• a breach of a third party’s privacy rights.
SightCall will not review or screen Content or Apps on a regular basis for compliance with this Agreement or applicable law, and SightCall shall have no obligation to do so; provided, however, that
• in addition to any other rights SightCall may have, SightCall reserves the right to suspend and/or terminate Customer’s access to and/or use of the SightCall Service, or any particular Content or App, if SightCall determines, in its sole judgment and discretion, that such suspension or termination is necessary to comply with the foregoing restrictions, applicable law, and/or to prevent significant harm to the SightCall Service or any end user, and
• in such event, SightCall shall use commercially reasonable efforts to suspend or terminate only that portion of the SightCall Service or any particular Content or App as SightCall deems reasonably necessary to prevent the occurrence or continuation of such violation and/or harm.
• At SightCall, our goal is to provide the highest quality service for the best value. The SightCall Usage Policy defines what constitutes an acceptable volume of use of the SightCall Service. SightCall establishes normal usage profiles for users of the SightCall Service across the industries where it operates. User profiles may be monitored to identify unusual patterns inconsistent with normal, individual use. SightCall may, at its sole discretion, suspend Customer’s right to use the SightCall Service, and/or terminate this Agreement in its entirety (and, accordingly, Customer’s right to use the SightCall Service), if SightCall determines that Customer usage varies substantially from normal use, and/or there is an unusual spike or increase in Customer use of the SightCall Service for which there is reason to believe such traffic or use is fraudulent or negatively impacting the operating capability of the SightCall Service. SightCall will use good faith efforts to notify the Customer in the event of such suspension and/or termination.
• Customer shall ensure that all of Customer’s end users which use or access the SightCall Service shall, as a condition of any such use or access, agree to terms which comply with the terms of this Agreement, and which are no less restrictive with respect to the use of the SightCall Service than those set forth in this Agreement. If SightCall determines in its sole discretion that a Customer has failed to comply with the terms of this Section 3(c), SightCall may, in addition to any other available rights and remedies, suspend and/or terminate this Agreement in its entirety (and, accordingly, Customer’s and end users’ right to use the SightCall Service).
FEES AND PAYMENT FOR PURCHASED SERVICES
Customer will pay all fees specified in Service Order Forms or Invoices. Except as otherwise specified herein or in an Order Form,
• fees are based on SightCall Services purchased and not actual usage,
• payment obligations are non-cancelable and fees paid are non-refundable, and
• quantities purchased cannot be decreased during the relevant subscription term.
Invoicing and Payment:
Customer will provide SightCall with valid and updated credit card information or with a valid purchase order or alternative document reasonably acceptable to SightCall. If Customer provides credit card information to SightCall, Customer authorizes SightCall to charge such credit card for all purchased services listed in the Order Form for the Initial Term and Renewal Term(s) as set forth in Section 4(b). Such charges shall be made in advance, either annually or in accordance with any alternative billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than credit card, SightCall will invoice Customer in advance in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are payable upon receipt of the invoice, and shall be due within sixty (60) days thereafter (the “Due Date”), unless otherwise specified in the Order Form. Customer is responsible for providing complete and accurate billing and contact information to SightCall and notifying SightCall of any changes to such information.
If any invoiced amount is not received by SightCall by the Due Date, then without limiting SightCall’s rights or remedies,
• those unpaid amounts shall accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or
• SightCall may condition future subscription renewals and Order Forms on Customer’s agreement to payment Due Dates which are shorter than those specified in Section 5(b).
Suspension of Service and Acceleration:
If any amount owed by Customer under this Agreement is thirty (30) or more days overdue (or 10 or more days overdue in the case of amounts Customer has authorized SightCall to charge to Customer credit card), SightCall may, without limiting other SightCall rights and remedies, accelerate Customer’s unpaid fee obligations under this Agreements so that all such obligations become immediately due and payable, and suspend the SightCall Service to Customer until such amounts are paid in full. SightCall will use reasonable efforts to provide Customer at least ten (10) days’ prior notice that Customer’s account is overdue, in accordance with Section 16, before suspending the SightCall Services.
SightCall 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(e), 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.
All payments must be made in the currency of the invoice and are non-refundable.
Customer agrees that Customer purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by SightCall regarding future functionality or features.
License to Use the SightCall Service:
Subject to the terms and conditions set forth in this Agreement, SightCall hereby grants Customer a limited, revocable (as set forth in this Agreement), non-transferable, non-exclusive, worldwide license to use the applicable
SightCall Service for which Customer has submitted an Order or registered online. All rights not expressly granted to Customer are reserved by SightCall. Except as expressly consented to by SightCall, in writing, Customer shall not:
• sublicense, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the SightCall Service or any part thereof, in any way; or
• modify, reverse engineer, decompile, disassemble or make derivative works based upon the SightCall Service, and any and all SightCall software, tools, and trademarks.
License to Content
Customer hereby grants SightCall a limited, revocable (as set forth in this Agreement), non-transferable, non-exclusive, royalty-free, worldwide license to perform all such acts with respect to the Customer’s Content as are necessary for SightCall to provide the SightCall Service in accordance with this Agreement. All rights not expressly granted to SightCall are reserved by Customer.
License to Feedback, Suggestions or Recommendations:
Customer hereby grants SightCall an unlimited, irrevocable, perpetual, transferable, non-exclusive, royalty-free, worldwide license to use and/or incorporate into the SightCall Service any feedback, suggestions and/or recommendations provided to SightCall by Customer regarding the SightCall Service, whether during the Term or otherwise.
Customer agrees not to remove, obscure, or alter any SightCall copyright notice, trademarks, logos, or other proprietary rights notices affixed to or contained within the SightCall Service.
As between the parties, SightCall shall own and retain all right, title and interest in and to the SightCall Service, and all elements thereof (including without limitation any and all SightCall software, tools and trademarks), including without limitation all Intellectual Property Rights therein and relating thereto. “Intellectual Property Rights” means, collectively, all patent rights, copyrights, trade secrets and moral rights; trade names, trademarks, service marks, and companion goodwill; domain names; rights of publicity and rights of privacy; and other similar rights throughout the world, together with all registrations and/or applications for each of the foregoing.
SightCall acknowledges and agrees that as between SightCall and Customer, Customer shall retain all right title and interest in and to the Customer’s software, products and services, subject to SightCall’s underlying rights in and to the SightCall Service and all elements thereof.
REPRESENTATIONS AND WARRANTIES
The SightCall Service. SightCall represents and warrants that it either owns fully and outright or otherwise possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to perform its obligations hereunder, exercise its rights hereunder and to grant the licenses granted by it under this Agreement.
Content and Apps. Customer represents and warrants that
• it either owns fully and outright or otherwise possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to perform its obligations hereunder, exercise its rights hereunder and to grant the licenses granted by it under this Agreement and
• the Content and the Apps use through the SightCall Service, as enabled by Customer, directly or indirectly, does not, and shall not, infringe, violate or misappropriate any third party’s rights.
Customer agrees to indemnify and hold SightCall and its subsidiaries, affiliates, officers, agents, employees, and licensors harmless from and against any and all claims, demands, lawsuits, actions or other liability (collectively, “Claims”), including reasonable attorneys’ fees, due to or arising out of Customer’s Content, Customer’s use of the SightCall Services, any claim that Customer or Customer’s Content caused damage to a third party, Customer’s violation of this Agreement or any material term hereof, or Customer’s violation of any rights of another, including without limitation any Intellectual Property Rights. In connection with any Claims, pursuant to this Section 10, SightCall will
• give Customer prompt written notice of such claim; and
• cooperate reasonably with Customer (at Customer’s expense) in providing information in connection with Customer’s payment of the defense of such Claim and any losses arising out of such Claim.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, SIGHTCALL MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND TO CUSTOMER, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, WORKMANLIKE QUALITY, NON-INFRINGEMENT, TITLE, SUITABILITY, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE OR THAT THE SIGHTCALL SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SIGHTCALL SERVICE IS PROVIDED ON AN “AS IS” BASIS ONLY. NO ADVICE OR INFORMATION OBTAINED BY CUSTOMER FROM SIGHTCALL SHALL CREATE ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. IF ANY JURISDICTION DOES NOT ALLOW THE DISCLAIMER OF ANY OF THE ABOVE WARRANTIES, THE SCOPE AND DURATION OF THE APPLICABLE WARRANTY(IES) SHALL BE LIMITED AS REQUIRED BY APPLICABLE LAW.
LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE TO THE OTHER UNDER OR IN CONNECTION WIT THE AGREEMENT FOR ANY INDIRECT OR CONSEQUENTIAL LOS OR DAMAGE.
THE LIABILITY OF EITHER PARTY TO THE OTHER UNDER OR IN CONJUNCTION WITH THE AGREEMENT SHALL NOT EXCEED 100% OF THE ANNUAL CONTRACT VALUE IN AGGREGATE.
THIS CLAUSE SHALL NOT APPLY TO LOSS OR DAMAGE ARISING OUT OF OR IN CONJUNCTION WITH FRAUD, DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE OR TO THE EXTENT THAT LIABILITY CANNOT BE LIMITED OR EXCLUDED BY LAW.
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 between Customer and such third-party service provider. SightCall makes no endorsement, representation or warranty with regard to any such third-party service, or any content or materials used on connection with such third-party service, even if such provider is certified by SightCall or selected as a premier partner (or similar designation) by SightCall. As such, SightCall shall not be responsible or liable to Customer in any manner for any such third-party service. SightCall does not, unless otherwise expressly set forth in writing, provide maintenance or support for third-party services.
Each party agrees not to disclose the other party’s Confidential Information without its prior written consent. “Confidential Information” includes, without limitation:
• all intellectual property;
• financial information (including pricing) and business information; and
• any other information designated in writing as “Confidential”, or which would reasonably be deemed to be confidential in nature. Confidential Information does not include:
• Customer’s Content;
• information that has become publicly known through no breach by Customer or SightCall of these confidentiality obligations;
• information that is independently and lawfully developed or obtained without access to Confidential Information, as evidenced in writing;
• information required to be disclosed by law or court order; or
• the fact that Customer is a customer of SightCall.
SightCall shall have the right to identify Customer as a customer only upon prior written permission from Customer, in any manner or media, and to use Customer’s name and/or logo in SightCall’s general marketing materials. Customer shall have the right to identify SightCall as the provider of the SightCall Service, and to use SightCall’s name and/or logo solely in connection with Customer’s use of the SightCall Service.
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 contact identified in Customer’s most recent Order and, if to SightCall, to:
330 Townsend Street, Suite 209
San Francisco, CA 94107
Attn: General Counsel
MOBILE APPLICATION STORES
Apps leveraging SightCall may be submitted to the Apple® App Store and/or the Google® Play store and such other marketplaces as SightCall may from time to time enable (collectively, the “App Markets”). Customer is solely responsible for submitting all Apps to the App Markets for approval and acceptance. SightCall makes no representation or warranty that the App Markets will accept the submitted App or the extent to which an App will be installed and/or used by end users. Customer is solely responsible for ensuring that it and its Apps comply with the App Markets’ policies, including, without limitation, any obligations regarding privacy and privacy policies, and, in addition to all other disclaimers set forth in this Agreement, SightCall expressly disclaims any responsibility for any failure of any App to comply with the App Markets’ policies.
HIGH RISK USE
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.
If the law of Customer’s country prohibits Customer, Customer administrators and/or Customer users from using SightCall Service because the SightCall Service is not allowed in the country or countries in which Customer or Customer users are located, Customer and Customer users are prohibited from using the SightCall Service in such circumstances.
Certain SightCall Services provide functionality that allows a Customer to record 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 recording, loss or deletion of customer data.
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 same.
OPEN SOURCE DISCLOSURE
SightCall acknowledges that it uses certain Open Source Libraries as part of the SightCall Service. A summary and acknowledgment of SightCall’s open source use can be found at SightCall Open Source Libraries (http://www.sightcall.com/open-source-licenses/ )
Certain of the SightCall Services will permit Customer to comply with HIPAA/HITECH in connection with such use. As a condition of any use of the SightCall Services under HIPAA/HITECH, SightCall will enter into a separate business associate agreement with the Customer, and in such case SightCall will comply with all business associate obligations under HIPAA/HITECH. In such event, the pricing for the applicable SightCall Services will be modified in accordance with SightCall’s pricing policies then in effect (as such may be amended from time to time).
COPYRIGHT COMPLAINT POLICY
If you believe any Content or other use of the SightCall Services infringes your copyrighted work(s), you may provide a notification of claimed copyright infringement to our Designated Agent for copyright complaints, requesting that the infringing material be removed, or that access to the SightCall Services be blocked. This notice must include:
• A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
• Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
• Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material. We will need direct URLs to the content/image(s) being referenced.
• Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
• A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
• A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
In addition, if you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the law permits you to send SightCall a counter-notice. Notices and counter-notices must meet statutory requirements imposed by the Digital Millennium Copyright Act (“DMCA”). You acknowledge that if you fail to comply with all of the notice requirements of the DMCA, your notice may not be valid. You may currently find this information at http://www.loc.gov/copyright.
In accordance with the DMCA, SightCall has designated an agent to receive notification of alleged copyright infringement. Any written Notification of Claimed infringement should comply with Title 17, United States Code, Section 512(c)(3)(A) and should be provided in writing to our Designated Agent as follows:
330 Townsend Street, Suite 209
San Francisco, CA 94107 USA
Attention: General Counsel