For Client Usage of All
TelSpan, Inc. Conferencing and Conferencing-related Services
1.1 TelSpan, Inc. serves its Clients (“Client”) in its business role as a Conferencing Services Provider (“CSP”). It offers audio, web, and video conferencing services including streaming and related adjunct Conferencing capabilities, including but not limited to recording, transcription, and video production (“Services”). Services are available during TelSpan’s extended business hours for higher level Operator Q&A and WebSupport and for 24 hours per day for its reservation-less services. Pricing for all services is provided prior to a Client’s usage of our services; services are paid for by the Client, based upon the service rendered, either immediately following the services provided or in a monthly billing invoice. Payment is due to TelSpan based upon the services requested by, and provided to, the Client.
1.2 TelSpan provides Conferencing-related services to its Clients in accordance with the Client instructions as evidenced in TelSpan-internal Client records and Client e-mails. TelSpan is not obligated or responsible to provide or comply with any special instructions, additional specifications, or requirements which are not set forth under these TERMS AND CONDITIONS.
1.3 For its own internal operational reasons, TelSpan may from time to time halt, suspend, or otherwise reduce the services offered. When such situations are identified in advance, TelSpan will use its best efforts to advise its Clients of these situations. When such situations are caused by events outside of TelSpan’s direct control, TelSpan will use its best efforts to minimize any Client inconvenience and/or service disruption.
1.4 Client understands that TelSpan’s services are dependent upon external, third-party providers of communications services including telephone carriers and Internet providers. TelSpan cannot be responsible for any service interruption outside of its control as caused by, or experienced by, these external providers.
1.5 Client understands that TelSpan’s services are dependent upon the usage of computerized and electronic equipment which may fail or underperform from time to time. TelSpan will seek to minimize any service disruption that these system failures make us.
1.6 Client agrees to protect all account and telephone numbers, codes, passwords, and security systems which may be associated with the services that TelSpan provides to Clients and to their conference participants. Client agrees that the unauthorized dissemination of such information, whether by Client or by Client’s participants, may lead to the abuse and misuse of the services provided to the Client, potentially resulting in financial loss and exposure to Client.
2.0 TERM AND TERMINATION
2.1 This agreement shall become effective as of the date of the Client’s first usage of any TelSpan-provided service (the “Effective Date”). The pricing and rates for all TelSpan services as provided to the Client will continue for a term of one year, unless a longer term is specified (“Initial Term”). On the anniversary of the effective date, this agreement will automatically renew for successive one-year terms (“Renewal Terms”) at the same pricing and rates unless negotiated and agreed to by both parties. Any such changes must be negotiated at least 30 days prior to the expectation of a pricing or rate change to become effective, beginning with the first calendar day of the following month.
2.2 If either party is in material default of its obligations under this agreement, the party not in default shall have the right to terminate this agreement if the defaulting party does not cure such default within 15 days of receiving written notice of such default.
2.3 TelSpan reserves the right to terminate this agreement and any Client relationship with five days prior written notice if Client is more than 20 days late in payment of TelSpan’s invoices or if TelSpan, for any reason or for no reason, decides to terminate its relationship with the Client.
3.0 INSTALLATION AND TRAINING
4.1 All Client service requests under this agreement are subject to TelSpan’s acceptance. TelSpan may, in its sole discretion, conduct a Client credit check as well as a review of Client’s business or organizational integrity, to ensure that TelSpan is establishing an appropriate business relationship based upon its own internal ethics and commercial requirements. TelSpan may request payment in advance or changes in payment terms from the Client at any time. For scheduled events, TelSpan reserves the right to delay, cancel, or otherwise re-schedule any Client requests based upon Client’s nonpayment of outstanding invoices or upon questions of Client’s present financial condition and/or ability to pay for such requested services.
4.2 TelSpan typically invoices its Clients for all services used in a calendar month. Invoices are prepared to begin on the first business day of the month following Client service usage and are provided in electronic format to an approved and Client-provided Client e-mail address. Net payment is due by the end of the calendar month in which the invoice is issued.
4.3 Past due balances are subject to a service charge of 2% per month on the net amount due on each unpaid invoice and on any outstanding statements.
4.4 Client is solely responsible for any collection charges or other expenses, including reasonable attorneys’ fees incurred by TelSpan to collect any sums determined to be properly due from the Client under this agreement and based upon the services used.
4.5 Client is solely responsible for all sales, usage, excise, or other taxes or governmental fees legally levied and which are due as a result of the services provided by TelSpan to the Client pursuant to the Client’s request for such services.
5.0 LEGAL COMPLIANCE: INDEMNIFICATION
5.1 Client retains the sole responsibility for the usage of the services provided and for the content the Client may offer while using TelSpan’s services.
5.2 Client shall indemnify and hold TelSpan harmless from and against any claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) arising out of Client’s usage of the services in violation of any laws or regulations. If any claim is brought against TelSpan for which Client may be liable, TelSpan shall (A) give Client notice of any relevant claim, (B) cooperate with Client, at Client’s expense, in the defense of such claim, and (C) give Client the right to control the defense of any such claim using counsel reasonably acceptable to TelSpan, at Client’s expense. Clients will not enter into any settlement without TelSpan’s consent which will not be unreasonably withheld. TelSpan will have the right to participate in the defense of any claim at its own expense and using its own attorneys, at its sole discretion.
6.0 DISCLAIMERS AND LIMITATION OF LIABILITY
6.1 TelSpan expressly disclaims any and all warranties, express or implied, relating to its Conferencing or Conferencing-related services including but not limited to warranties or merchantability or fitness for a particular purpose or use. TelSpan’s maximum liability for damages arising out of or relating to the services indicated under this agreement is limited to an amount equivalent to the TelSpan-charged rates directly related to the specific services provided for the specific Event or usage identified. In the case of service outage or partial failure, TelSpan reserves the sole right to determine the amount, if any, and method of any financial consideration provided to its Client for such outage or failure.
6.2 In no event shall TelSpan be liable for any direct, special, indirect, incidental, or consequential damages (including but not limited to money damages, loss of profit, profit opportunity, or other monetary loss), even if TelSpan is advised in advance of the possibility of such damages.
7.1 Each party acknowledges that, in the course of the parties’ relationship, each may obtain information relating to the other party and its users or end-customers, which is of a confidential or proprietary nature (“confidential information”). Confidential information includes trade secrets, customer lists, software plans, or any other information relating to any product, service or project in development, marketing or business plans, or financial or operational information. Each party will at all times, both during and after the term of this agreement and services provisioning, keep confidential information in confidence, and not use or disclose it for any purpose other than as may be reasonably necessary for the performance of respective duties of each under this agreement. At the termination of this agreement, each party will return or certify destruction of all confidential information to the other promptly after the disclosing party so requests. Nothing in this article, however, will be construed to prohibit any disclosure required by court order or subpoena, provided that prior to disclosing confidential information, the recipient of the order or subpoena gives the disclosing party prior notice and a reasonable opportunity to seek to restrict or limit such disclosure.
8.1 The failure of either party at any time to enforce any particular term or condition of this agreement shall not constitute a waiver of either party’s right to enforce at another time such term or condition or any other term or condition of this agreement.
8.2 Client may not assign this agreement without TelSpan’s prior written consent. TelSpan consents to the assignment to an acquirer of substantially all of Clients assets or businesses. This agreement shall be binding upon and in, inuring to the benefit of the parties’ successors, legal representatives, and authorized assigns.
8.3 Articles 5.0, 6.0, and 7.0 of this agreement shall survive any termination or expiration of this agreement.
8.4 This agreement shall be interpreted and governed by the laws of the State of Indiana (USA) without regard to its rules governing conflicts of law, and the parties agree to submit to the exclusive jurisdiction of the state or federal courts located in or with responsibility for Marion, County, Indiana, to resolve any disputes arising hereunder.
8.5 This agreement is the entire agreement between the parties concerning the subject matter hereof.
8.6 Client enters into this agreement solely for its own benefit and purpose. This agreement in no way confers any rights upon any third party, including but not limited to any third-party participant in any conference or other third-party recipients of messages transmitted through the services, any vendor involved in the provisioning of any services to Client or to TelSpan.
8.7 Client warrants and represents that the person(s) representing Client in the usage of these Conferencing services effective accepts and executes this agreement on behalf of Client and is fully authorized to do so.