CAREFULLY READ THE FOLLOWING AGREEMENT, AS IT CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS IN CONNECTION WITH THE USE OF SIGHTCALL SERVICES AND PRODUCTS. BY CLICKING ON THE “ACCEPT” BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “DO NOT ACCEPT” BUTTON OR LEAVE THE WEBSITE.
This SightCall Terms of Service Agreement (the “Agreement”) is entered into by and between Weemo, Inc. (“SightCall”, “we”, “us”, or “our”) a Delaware company doing business under the name SightCall and the person or entity (“Customer”, “you”, or “your”) identified in the order submitted by Customer (each, an “Order”) or identified in connection with the SightCall Account registration process, or any of their employees, and governs Customer’s use, and SightCall’s provision, of the SightCall Service, as hereinafter defined. Each Order, and any exhibit or attachment to an Order, shall subject to this Agreement, and is incorporated herein by reference.
If you are an individual and are entering into this Agreement on behalf of an entity, you represent and warrant that you have the full right and authority to bind such entity to all of the terms and conditions of this Agreement. If you are an individual and are entering into this Agreement on your own behalf, you represent and warrant that you are at least eighteen (18) years of age and otherwise able to enter into a valid and binding legal agreement.
ACCESSING THE SIGHTCALL WEBSITE AND USING SIGHTCALL SERVICES REQUIRES THAT YOU HAVE READ AND ACCEPT THE TERMS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO USE SIGHTCALL SERVICES OR THE SIGHTCALL WEBSITE.
THE SIGHTCALL SERVICE:
ACCESS TO THE SIGHTCALL SERVICE, FREE ACCOUNTS, BETA SERVICES
- Access to the SightCall Service. Access to Customer’s SightCall Service Account(s) shall be enabled by use of username(s) and password(s) or through an API Key (“Credentials”) to be provided to Customer by SightCall. An “Account” is a single point of entry through which Customer accesses and uses the SightCall Service. Except where SightCall has actual notice of loss, theft or unauthorized use of Customer’s Credentials,
- Customer is responsible for all activity occurring in Customer’s Account(s) and
- SightCall shall have the right, without further inquiry, to rely on the provision of Customer’s Credentials as sufficient to authenticate Customer’s use of the SightCall Service.
- Free Accounts and Trials. SightCall may, from time to time at its discretion, offer free SightCall Service Accounts, for a limited or unlimited period of time. Unless otherwise specified during the Account registration process, the terms and conditions of this Agreement shall govern the use of such free Accounts. SightCall may terminate any free Account at any time without notice, in its sole discretion. Additionally, Customers that are granted free Accounts, and who are using the SightCall Zimbra Zimlet on a Zimbra server, shall not limit or restrict any third party users connected to the Zimbra server from having access to the SightCall Zimbra Zimlet and SightCall Service, or require that any such third party users pay any fees for same.
- Beta Services. SightCall may, from time to time, offer products or services that are not generally available to all SightCall customers (“Beta Services”). All Beta Services will be identified as “beta” or in a manner that indicates that the Beta Service is in limited or pre-release. Such Beta Services may still be in development and SightCall may change aspects of the Beta Services at any time, including prior to general release. Customer will not be obligated or required to use any Beta Services. SightCall may cease offering any Beta Services, or cease offering such services at no cost, at any time without notice, in its sole discretion.
- 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.
- Usage Policy:
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.
- End Users:
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).
- Term of this Agreement:
This Agreement commences on the Effective Date and shall remain in effect until all of Customer’s Orders have expired or been terminated in accordance with the terms of this Agreement (the “Term”). The “Effective Date” of this Agreement shall be the date specified in Customer’s initial Order or, if such Order was submitted online, the date Customer submits the online Order. If Customer has entered into this Agreement as part of the online Account registration process (such as for trial or Production Accounts), the Effective Date shall be the date that Customer accepts this Agreement online. If Customer is using the SightCall Service pursuant to a trial Account and does not submit an Order prior to the conclusion of the trial or test period, this Agreement will terminate at the end of the trial or test period or, if later, the date SightCall closes such trial Account.
- Term of Orders:
The initial term of each Order shall commence on the date specified in the Order or, if such Order was submitted online, the date Customer submits the online Order (the “Order Effective Date”). Unless earlier terminated in accordance with this Agreement, each Order shall remain in effect for 1 year from the Order Effective Date (unless a different term is set forth in Customer’s Order) (“Initial Term”), following which it shall automatically renew for successive one (1) year periods on the first day following the end of the Initial Term (each, a “Renewal Term”) unless either party hereto has provided written notice to the other of non-renewal at least 60 days in advance of the end of the Initial Term or, if applicable, the then-current Renewal Term. Notwithstanding the prior sentence, all Orders for free Accounts, unless earlier terminated by either Customer or SightCall, shall remain in effect for the period of time indicated during the Account registration process.
Without limiting any other term of this Agreement, and unless otherwise prohibited by law, either party may terminate this Agreement, including without limitation any outstanding Orders:
- if the other party becomes insolvent or files or has filed against it a petition for bankruptcy which has not been dismissed thirty (30) days from filing, or
- upon the occurrence of a material breach of this Agreement by the other party if such breach is not cured within thirty (30) days after written notice identifying the matter constituting the material breach, or
- either party has a Change of Control, which for purpose of this Agreement shall mean the sale of all or substantially all the assets of a Party; any merger, consolidation or acquisition of a Party with, by or into another corporation, entity or person; or any change in the ownership of more than fifty percent (50%) of the voting capital stock of a Party in one or more related transactions.
- Effect of Termination:
In the event of the termination or expiration of this Agreement, all licenses granted under this Agreement shall terminate automatically. Upon an early termination of this Agreement for any reason, all then-current Orders shall terminate and, unless such termination resulted from a material, uncured breach of this Agreement by SightCall, all fees and expenses payable under any such Orders shall become immediately due and payable. All sections of this Agreement that expressly or by nature would continue beyond expiration or termination shall survive expiration or termination of this Agreement, including without limitation any right of action for breach of this Agreement prior to termination, indemnification obligations, confidentiality provisions, and representations and warranties.
FEES AND PAYMENT FOR PURCHASED SERVICES
Customer will pay all fees specified online or in Order Forms. 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.
- Overdue Charges:
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.
- Payment Procedures:
All payments must be made in United States Dollars and are non-refundable.
- Future Functionality:
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 (except as provided in Section 25(b)), 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 (except as provided in Section 25(b)), 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.
- License Restrictions:
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.
CUSTOMER SERVICE AND SUPPORT
- Support of End Users:
Customer shall at its sole expense provide end user support with respect to all Customer software, products and services.
- SightCall Customer Support:
SightCall will use commercially reasonable efforts to provide Customer with maintenance and support for the SightCall Services in accordance with its standard practices (as such may be amended from time to time). SightCall shall have no obligation to support any version of SightCall Software other than the then current and immediate prior version thereof. Customer agrees that SightCall may charge in accordance with its then current policies for any support services resulting from
- problems, errors or inquiries relating to any non-SightCall-provided hardware, system, service or other content or software,
- use of any unsupported version of the SightCall software, or
- any unauthorized use of the SightCall Services. Additionally, SightCall may provide Customer with any update that it makes generally available to its other licensees that have purchased the same SightCall Service.
- The following terms shall apply separately to each Account using SightCall Service.
- Service Commitment. SightCall will use commercially reasonable efforts to make the SightCall Service available with a Monthly Uptime Percentage (defined below) of at least 99.95% of the time. In the event SightCall does not meet the goal of 99.95% of SightCall Service availability in a given calendar month, Customer will be eligible to receive a Service Credit as described below.“Unavailable Time” means the SightCall Service is not available for use according to performance and monitoring services reports of availability; provided that service issues or outages relating to any Exclusions (defined below) shall not be deemed as Unavailable Time.“Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of continuous 5 minute periods during the Service Month in which the SightCall Service was in a state of “Unavailable Time” as identified by Monitoring ServiceA “Service Credit” is a dollar credit, calculated as set forth below, that SightCall may credit back to an eligible Customer account.
- Service Credit. For a calendar month where the Uptime Monthly Percentage, as identified by Monitoring Service, SightCall, at its sole discretion after confirming the nature and accuracy of the Unavailable Time, will credit Customer’s account a percentage of that month’s billings based on active users, as defined by this table:
|Monthly Uptime Percentage
Service Credit shall be issued to Customer’s SightCall balance for future use only. No refunds or cash value will be provided. Service Credits may not be transferred or applied to any other account.
- Credit Request and Payment Procedures. To apply for a Service Credit, the customer must submit a ticket via the SightCall Portal within thirty (30) days of the month in which the Unavailable Time occurred. The ticket must include,
- “SLA Claim” as the subject of the ticket;
- the dates and times of the Unavailable Time for which you are requesting credit; and
- any applicable information that documents the claimed outage.
- Exclusions. Notwithstanding anything to the contrary, no Unavailable Time shall be deemed to have occurred with respect to any unavailability, suspension or termination of the SightCall Service, or any other SightCall Service performance issues, that
- are caused by factors outside of SightCall’s reasonable control, including, without limitation, any force majeure event, carrier related problems or issues, or Internet access or related problems beyond the demarcation point of SightCall or its direct hosting subcontractors (i.e beyond the point in the network where SightCall maintains access and control over the SightCall Services);
- result from any actions or inactions of Customer or any third party (other than SightCall’s direct hosting subcontractor);
- result from Applications, equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within SightCall’s direct control); or
arise from SightCall’s suspension and/or termination of Customer’s right to use the SightCall Services in accordance with the Agreement,
- scheduled maintenance; or
- problems or issues related to alpha, beta or not otherwise generally available SightCall features or products (collectively, the “Exclusions”).
- Sole Remedy. Service Credits shall be your sole and exclusive remedy for any unavailability or non-performance of the SightCall Services or other failure by us to provide the SightCall Services.
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.
EXCLUSIONS/LIMITATIONS OF LIABILITY
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY THEORY OF LIABILITY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM THE PERFORMANCE OR FAILURE OF PERFORMANCE OF ANY PROVISION OF THIS AGREEMENT (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER FOR DAMAGES (OR AMOUNTS) IN EXCESS OF THE TOTAL FEES PAID AND/OR PAYABLE FOR THE APPLICABLE ORDER FOR THE FULL INITIAL TERM OR RENEWAL TERM IN WHICH THE INCIDENT GIVING RISE TO THE CLAIM HEREUNDER AROSE, EXCEPT IN CONNECTION WITH DAMAGES ARISING UNDER SECTIONS 9 OR 10 OF THIS AGREEMENT, OR CUSTOMER’S USE OF THE SIGHTCALL SERVICES VIA A FREE ACCOUNT.
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, 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:
Weemo Inc. (d.b.a., SightCall)
330 Townsend Street, Suite 119
San Francisco, CA 94107
Attn: General Counsel
MOBILE APPLICATION STORES
- Apps 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 business users from using SightCall Service because the SightCall Service is not allowed in the country or countries in which Customer or business users are located, Customer and Customer business 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.
- 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:
Weemo, Inc. (d.b.a., SightCall)
330 Townsend Street, Suite 119
San Francisco, CA 94107 USA
Attention: General Counsel
- Independent Contractors:
SightCall and Customer are independent contractors under this Agreement and nothing herein shall be construed to create a partnership, joint venture, employment or agency relationship.
Neither party may assign performance of this Agreement or any of its rights or delegate any of its duties under this Agreement without the prior written consent of the other, except that each party may assign this Agreement without the other party’s prior written consent in the case of a merger, acquisition or other Change of Control, and in such event this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
- Governing Law:
This Agreement shall be governed by the laws of the United States of America and the State of California applicable to contracts entered into and wholly to be performed therein.
- Forum Selection:
Exclusive venue for all disputes arising out of this Agreement shall be in the state or federal courts in San Francisco County, California, and the parties each agree not to bring an action in any other venue. Customer waives all objections to this venue and agrees not to dispute personal jurisdiction or venue in these courts.
- Jury Trial Waiver:
CUSTOMER AND SIGHTCALL EACH WAIVE ANY RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY AND ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
- Statute of Limitations:
Notwithstanding any law providing a longer statute of limitations, any claim or cause of action arising out of or related to this Agreement and/or Customer’s use of the SightCall Service must be filed within 1 year after such claim or cause of action arose, without regard to the date such claim or cause of action was discovered, or such claim or cause of action shall be forever barred.
- Export Compliance:
Each party shall comply with all applicable United States and international export control laws and regulations. Customer specifically represents (i) that it is not located in any country or jurisdiction that is subject to U.S. economic sanctions, nor is it acting on behalf of the government of any such country and (ii) that it is not identified on the U.S. Department of the Treasury’s Office of Foreign Assets Control’s Specially Designated Nationals List, as amended from time to time, nor is it owned or controlled by any such entity.
- Effect of Waivers:
The waiver by either party of a breach or a default of any provision shall not be construed as a waiver of any succeeding breach of the same or any other provision.
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.
- Counterparts, Delivery, Acceptance:
This Agreement may be executed in counterparts, all of which are considered one and the same agreement, and becomes effective when one or more counterparts have been signed by each of the parties and delivered to the other party or upon Customer’s submission of an online Order (whichever occurs first). Delivery by facsimile or e-mail and online acceptance are all as effective as physical delivery of an originally executed copy hereof.
- Integration, Amendment:
This Agreement, including any Orders entered into hereunder, constitutes the entire understanding of the parties hereto with respect to the matters contemplated hereby, supersedes all previous agreements between the parties concerning the subject matter hereof.
- No Reliance:
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.
If any term, provision, covenant or condition of this Agreement is held invalid or unenforceable for any reason, the remainder of the provisions will continue in full force and effect as if this Agreement had been executed with the invalid portion eliminated. The parties further agree to substitute for the invalid provision a valid provision that most closely approximates the intent and economic effect of the invalid provision.
- Government Entities:
The SightCall Service may be licensed to the U.S. government or any entity acting on its behalf as a Commercial Item, as that term is defined at 48 C.F.R. §2.101, and licensed only with those rights as are granted to all other entities or individuals entering into an agreement to use the SightCall Service.
- Purchase Orders/Instruments:
Any instruments, including purchase orders, work orders, acknowledgments and vendor registration forms not signed by both parties (“Instruments”) shall not add to, supersede or modify, the terms of this Agreement and in the event any term of an Instrument purports to add to, supersede or modify any term of this Agreement, such term of the Instrument shall be void and without effect.
- Foreign Language Translation of Agreement:
For Customer’s convenience only, 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.
SightCall may modify this Agreement at SightCall’s sole discretion. Any such modified Agreement shall be posted or linked to, or delivered as provided in Section 16. Any such changes made during the term of this Agreement will become effective thirty (30) days after the date SightCall posts, links to, or provides notice of such modified Agreement. Customer’s continued use of the Services after such 30-day period shall constitute acceptance of such modified Agreement. Customer may not modify the terms of this Agreement without SightCall’s prior written consent.