ON24 Universal Terms and Conditions
a) ON24 hereby undertakes to provide access to manage or create Web-based events and related projects (each an “Event”) for Client, including broadcasts of streaming audio and/or video over the internet accessible by viewers (each a “Webcast”), and virtual environments, virtual events, virtual briefing centers, and virtual trade shows (each a “Virtual Environment”). The Events shall utilize ON24’s application platform (the “Platform”) and other various ON24 services and tools. “Services” shall mean the Webcasts, Virtual Environments, the Platform and all other ON24 services and tools used to produce an Event. These “Terms” shall mean these Universal Terms and Conditions, and all exhibits, amendments and attachments hereto. “Work Order” shall mean an individual work order, email, or similar document, submitted by Client and accepted by ON24 for the purchase of Services. Client can order Services from ON24 by entering into a written agreement with ON24 that expressly incorporates by reference these Terms (each an “Agreement”). ON24 offers two types of Agreements: (i) a Master Services Agreement, which can be used in connection with and to govern one or more Work Orders, or (ii) a Services Agreement.
a) Client may not use the Services in any manner inconsistent with these Terms.
b) ON24 reserves the right to, upon subsequent execution of a reseller agreement, appoint Client as an authorized, non-exclusive, independent value added reseller of the Services, conditioned upon Client complying with its obligations under this Agreement. Client may authorize and charge an individual to log into, participate in or view an Event (a “Viewer”). Client may charge its Customers to view an Event and/or may charge or permit its Customers to allow Viewers to view an Event
c) Client, if having agreed to a Self Service agreement, will have the right to produce an Event accessing the Platform and Services, and to provide content via the Platform and Services (“Manage an Event”) either directly or through the services of a third party Event manager that Client engages to Manage an Event on behalf of Client. Client shall not utilize the Services in a manner that allows anyone other than Client or Client’s authorized third party Event manager to Manage an Event.
d) ON24 hereby grants to Client, regardless of reseller status, the non-exclusive right to market, promote, support and sell the right to access and use the Platform for the limited purpose of conducting Virtual Environment. Client shall only offer such access to potential organizers and/or sponsors of Virtual Environment (a “Customer”).
e) Client acknowledges that ON24 may include a label or tag line “Powered by ON24″™ on all viewer facing pages or other pop up pages that becomes visible when an Event is viewed, and Client shall not remove that label or tag line or in any way cause it not to appear as originally set by ON24 on the page.
3) Event Production and Services by ON24
a) Client acknowledges that, from time to time, Client may require ON24 to produce an Event or a portion of an Event. In such a case, production of an Event by ON24 will require its utilization of various elements of services. Client shall work with ON24’s representative to establish which elements Client requires for each Event and Client shall submit a Work Order containing those elements to ON24. A Work Order may not be submitted by Customer or any third party.
b) Promptly upon receiving a Work Order, ON24 shall review the Work Order and recommend any adjustments that ON24 reasonably believes are necessary. At any time Client and ON24 determine that a Work Order needs to be adjusted for an Event, the parties shall revise the Work Order based on mutual agreement. Client acknowledges that a successful Event requires a complete and correct Work Order submitted a reasonable amount of time prior to the Event. ON24 shall not be liable for any failures, errors, or omissions, to the Work Order and/or the Event, because of Client’s failure to timely, and accurately, respond to reasonable requests by ON24.
c) Utilizing the Work Order, ON24 will commence producing the Event. Client acknowledges that because of the difficulties in defining all aspects of an Event, it will need to work closely with ON24, including being reasonably available for consultations, if and when any issues arise, and ON24 shall not be liable for any failures, errors, or omissions, to the Work Order and/or the Event, because of Client’s failure to timely, and accurately, respond to reasonable requests by ON24. Client is fully responsible for providing all aspects of content of each Event and for making sure that aspects of content are available to ON24 as ON24 may require from time to time in producing the Event. ON24 will not be responsible for editing any content provided by Client unless otherwise specifically set out in a writing signed by both parties.
d) The Work Order shall also describe in sufficient detail all aspects that Client requires with respect to allowing viewers to view an Event, including such matters as the estimated number of viewers that may view the Event, the registration procedures for viewers, the availability of an Event after production for on-demand viewing, and any other concern or issue of importance to Client.
e) If, in the reasonable opinion of ON24, the number of viewers connected to, or attempting to connect to, an Event exceeds the bandwidth reserved for that Event, ON24 may deny additional connections and disconnect existing viewers. Client agrees to notify ON24, at least 10 days prior to any Event, if Client expects the number of viewers to exceed ON24’s reasonable bandwidth expectations.
4) Billing and Payment
a) Client shall pay all fees specified in an Agreement as well as the fees payable for any additional Services ordered on time.
b) Client understands and agrees that Client incurs the obligation to pay fees by the purchase, not the usage, of Services. Payment obligations are non-cancelable, and except as expressly specified in Exhibit A, paid fees are non-refundable.
c) The fees payable for a Service shall be as set forth in the applicable Fee Schedule(s) included in the applicable Agreement (each a “Fee Schedule”). ON24 maintains several Fee Schedules based on territory and country. The applicable Fee Schedule shall be determined by the country Client has its principal place of business, provided, however, that in case an Event, or any part of an Event, is managed by ON24 or its suppliers, the applicable fee schedule shall be determined based on the Event’s physical location, provided, however, that if the Event lacks a physical location, the applicable fee schedule shall be determined based on the physical location of the production and/or delivery of Services related to the Event. The North America Fee Schedule (“N.A. Fee Schedule”) shall include the countries of The United States of America (including its territories and possessions), Canada, and Mexico (collectively “North America”). The European Union Fee Schedule (“E.U. Fee Schedule”) shall include those countries officially recognized as members by the European Parliament as of the Effective Date of the T&C Agreement (“European Union”). The United Kingdom Fee Schedule (“U.K. Fee Schedule”) shall include the countries of England, Scotland, Northern Ireland and Wales (collectively “United Kingdom”). These territorial designations are inclusive and any country not included within the three territory designations above is not covered by the N.A. Fee Schedule, the E.U. Fee Schedule, or the U.K. Fee Schedule and accordingly, an amendment detailing the Fee Schedule for the Services to be performed shall be required. ON24 reserves the right to amend the foregoing Fee Schedule territorial designations, at any time, for any reason, at its sole discretion. ON24 will invoice Client in accordance with the Schedule noted on the Fee Schedule.
d) Should Client order a Service not listed on a Fee Schedule, the price for such Service shall be ON24’s then-current full rate price, which Client agrees to pay.
e) All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Client shall be responsible for payment of all applicable such taxes, levies, or duties (excluding taxes based on ON24’s income), even if such amounts are not listed in an Agreement except to the extent Client has provided ON24 with a valid tax exemption or direct pay certificate that exempts Client from such payment. Client shall reimburse ON24 for any taxes paid on behalf of Client.
f) Unless the Agreement expressly states other billing and payment terms, (i) ON24 shall invoice Client for all fees payable thereunder upon execution of such Agreement, and (ii) Client shall pay all fees within 30 days of the date of invoice. Client is responsible for providing complete and accurate billing and contact information to ON24 and notifying ON24 of any changes to such information. Client shall provide ON24 with written notice of any dispute or disagreement with invoiced fees within 30 days of the date of the applicable invoice. Absent such a notice, Client shall be deemed to have agreed to the invoiced fees.
g) Any amounts invoiced hereunder that are not received by ON24 by the due date are subject to a finance charge of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, plus all reasonable expenses of collection incurred by ON24, including attorneys’ fees and other legal expenses. Client agrees that ON24 may apply monies paid by Client to any amounts owed by Client under any Agreement.
h) Client shall reimburse ON24 for all third party cancellation fees, penalties, expenses, and costs imposed on ON24 as a result of Client’s cancellation, delaying or rescheduling of Events or Services.
i) If any amount owed by Client is overdue, ON24 may, without liability and without limiting its other rights and remedies, suspend Client’s access to the Platform and ON24’s provisioning of Services under the applicable Agreement, until such amount is paid in full. Any suspension by ON24 under the preceding sentence shall not relieve Client of its payment obligations under the applicable Agreement.
5) Confidential Information
a) During the course of the parties’ relationship, they may have access to confidential information of the other party that the disclosing party identifies as being confidential or that the receiving party reasonably should know is confidential (“Confidential Information”). Confidential Information of the Client includes, without limitation, personally identifiable content or data provided by Client. Confidential Information of ON24 includes, without limitation, (i) the source code for the Platform and for any software comprising the Services, (ii) any accompanying documentation, (iii) information proprietary to ON24 or to any person or entity contracted by ON24, which provides services, materials, products, or supplies in connection with the Services (a “Supplier”), (iv) these Terms and the terms, conditions and pricing contained in any Agreement, and (v) all of ON24’s technology involved in providing the Platform and Services. Except as required by law, neither party shall in any way use or disclose any Confidential Information of the other party except as specifically contemplated by these Terms or with the prior written consent of the other party.
b) These Terms impose no obligation upon a party with respect to the discloser’s Confidential Information which the recipient can establish by legally sufficient evidence: (i) was, prior to receipt from discloser, in the possession of, or rightfully known by, recipient, without an obligation to maintain its confidentiality; (ii) is or becomes generally known to the public without violation of these Terms or without a violation of an obligation of confidentiality owed to the discloser; (iii) is obtained by the recipient in good faith from a third party having the right to disclose it without an obligation of confidentiality; or (iv) is independently developed by the recipient without reference to Confidential Information of the discloser.
c) Each party understands that the Confidential Information constitutes valuable business assets of the discloser and the unauthorized disclosure of Confidential Information may irreparably harm the discloser. In the event of breach or threatened breach of obligations pertaining to Confidential Information by the recipient, the discloser shall be entitled to seek injunctive relief and any other remedy available at law or equity.
d) Client shall not publish any result of any benchmark of the Services’ performance, except with ON24’s prior written consent.
6) Ownership; Consent
a) As between ON24 and Client, Client retains all right, title and interest in Client Information (as defined below), Client’s proprietary technology, business methods, Client’s intellectual property including, without limitation, any trademark, service mark or domain name owned by Client. Client grants ON24 and its Suppliers the right to use Client Information to the extent necessary to provide Services to Client. Client acknowledges that neither ON24 nor any Supplier exercises any control whatsoever over the content of Client Information. Client shall have the full responsibility to ensure that all Client Information that Client and viewers collect, transmit, provide or receive complies with all applicable laws, and regulations. ON24 has no obligation, and expressly disclaims any obligation to review Client Information for accuracy, potential liability or for any other reason.
b) As between ON24 and Client, ON24 and its Suppliers retain all right, title and interest in and to their respective proprietary technology, business methods and intellectual property, including the software and hardware utilized in providing the Services, the Platform, all copyrights, patents, trademarks and trade secrets, and all developments, enhancements, derivatives, improvements, modifications or extensions of such technology and intellectual property conceived, reduced to practice or developed regardless of who pays for the development, enhancement, derivative, improvement, modification or extension.
c) In addition to any other consent provided in these Terms or expressly to ON24, Client hereby consents to ON24 utilizing Client Information and manifestations of any aspect or part of any Event for purpose of displaying all or part of an Event to potential customers and other persons who may have an interest in Client’s Event.
a) ON24 warrants that it will provide the Services in a professional manner, consistent with generally accepted industry standards, including the use of commercially reasonable virus detection and screening procedures.
b) Each party warrants that (i) it has the legal right to enter into these Terms, to perform its obligations under these Terms, (ii) it has no obligation that is inconsistent with or that will cause it to violate any of its obligations under these Terms, and (iii) with respect to its performance under an Agreement, it will comply with all applicable laws.
c) In the event of a breach by ON24 of an express warranty set forth above, Client’s exclusive remedy shall be limited to the re-performance of the deficient Services.
d) EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, AND CLIENT’S USE OF THE SERVICES IS AT CLIENT’S OWN RISK. ON24 MAKES NO OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED OR STATUTORY WARRANTY OF NON-INFRINGEMENT, TITLE, QUIET ENJOYMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY ARISING OUT OF COURSE OF CONDUCT, USAGE OR TRADE PRACTICE. ON24 DOES NOT WARRANT THAT THE SERVICES WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, SECURE OR VIRUS-FREE. NEITHER ON24 NOR ANY OF ITS SUPPLIERS SHALL HAVE ANY LIABILITY WHATSOEVER FOR THE ACCURACY, COMPLETENESS OR TIMELINESS OF ANY CLIENT INFORMATION. ON24 NEITHER WARRANTS THAT CLIENT, IN USING THE SERVICES, WILL OBTAIN THE RESULTS THAT CLIENT INTENDS, NOR THAT THE SERVICES WILL BE ADEQUATE OR OTHERWISE FITTING FOR THE BUSINESS PURPOSES AND REQUIREMENTS OF CLIENT.
e) Client represents and warrants that: (i) its use of the Services, including the transfer of polls, slides, audio, video, photographs, archives and any other data (“Client Information”) to ON24 and any Client Information comprising an Event, will not contravene any rule, law or regulation, (ii) it will not knowingly or willfully use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with ON24’s provision of the Services, (iii) it will not knowingly and intentionally transmit, introduce or allow to be introduced, either through it, or any third party, any virus, worm, “Trojan horse” time bomb or similar contaminating/destructive feature or other malicious code, (iv) it shall be responsible for all use of the Services via Client accounts and it shall prevent use of Client login credentials and accounts in violation of an Agreement, and (v) it has or will secure whatever legal authority or consent may be necessary for use, storage, processing and transfer by ON24, including international cross-border transfer, of Client Information as contemplated by these Terms. Client acknowledges that ON24 will not be processing, or reviewing for legality any Client Information but will merely be offering and enabling the transmission of Client Information. Client further warrants that ON24 may remove or disable any data it deems to be pornographic, libelous, offensive or otherwise objectionable but that this right shall not excuse Client from full responsibility arising from any such material.
f) Client acknowledges that ON24 shall have (i) no obligation to store data or recordings pertaining to an Event beyond the time period specifically set forth in the applicable Agreement and (ii) no liability for the erasure thereof after the end of the Event’s on-demand term, as set out in the applicable Agreement.
a) Except as set forth in these Terms, ON24 shall be responsible for any and all acts and failures by a Supplier to the same extent as if such action or failure were action or failure of ON24, and all rights and privileges of ON24 under these Terms may be exercised by a Supplier so authorized by ON24.
b) Client shall be responsible for, and ON24 shall have no responsibility for, any service or product provider that (i) is not a Supplier or (ii) has, because of a specific request by Client, been made a Supplier.
a) Each party (when so acting, the “Indemnitor”) shall indemnify the other party, its subsidiaries and affiliates and all employees, officers, directors, agents and representatives of the other party, its subsidiaries and affiliates (all such persons being, “Indemnitees”) from any and all losses, liability, damages, costs and expenses of any nature, including reasonable attorneys’ fees, incurred by any Indemnitee in connection with any claim, suit or demand of any third person based upon Indemnitor’s, (i) infringing or misappropriating any intellectual property right, (ii) breaching the representations, warranties and covenants of Section 7, (iii) breaching the confidentially obligations of Section 5, or (iv) otherwise arising out of or in any way connected with the negligent or willful acts or omissions of the Indemnitor.
b) Client shall indemnify and hold ON24, its subsidiaries and affiliates and all employees, officers, directors, agents and representatives of ON24 (collectively the “ON24 Indemnitees”), harmless from any and all losses, liability, damages, costs and expenses of any nature, including reasonable attorneys’ fees, incurred by ON24 Indemnitees, in connection with any claim, suit or demand of any third person that the ON24 Indemnitees have libeled that third party whether by any user-user or user-to-Client communication made via the Services (not published or caused to be issued by the ON24 or the ON24 Indemnitees).
c) In connection with any indemnification obligation under these Terms, the Indemnitor shall have sole control over the defense and settlement of a claim and the Indemnitee shall provide reasonable assistance in the same at the Indemnitor’s expense. Indemnitee may monitor but not control the defense and settlement of such claim with counsel of its own choosing and its own expense, and Indemnitor shall cooperate in the same. Indemnitor shall not propose a judgment or agree to a settlement that attributes fault or liability to, or requires an action or admission by, Indemnitee without the prior written consent of Indemnitee.
10) Limitation of Liability
a) EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS, OR LIABILITY RESULTING FROM DISCLOSURE OF CONFIDENTIAL INFORMATION OR INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF ON24, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR DAMAGES ARISING FROM LOST DATA, INTERRUPTED COMMUNICATIONS, LOST REVENUE, LOST PROFITS, LOST TECHNOLOGY, LOSS OF RIGHTS OR COSTS OF PROCURING SUBSTITUTE SERVICES OR ANY OTHER SUBSTITUTION OR SOLUTION, HOWEVER ARISING, EVEN IF THE PARTY AGAINST WHICH THE CLAIM IS MADE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b) EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS, OBLIGATIONS TO PAY FEES, OR LIABILITY RESULTING FROM ACTS OF GROSS NEGLIGENCE OR RECKLESS OR WILLFULL MISCONDUCT OR, THE MAXIMUM LIABILITY OF EITHER PARTY HEREUNDER SHALL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID OR PAYABLE TO ON24 BY CLIENT DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF ANY CLAIM EVENT, ACT OR OMISSION GIVING RISE TO THE LIABILITY.
11) Modifications and Releases
a) From time to time after the date of these Terms, ON24 may prepare and install new releases to the Platform that add, enhance or change the features and services of the Platform. Customers of Client shall be entitled to use any new features and services added to the Platform. Additional charges may or may not be applicable for new features and services. ON24 reserves the right to withdraw, suspend or discontinue any functionality or feature of the Platform provided the Platform continues to meet the specifications as provided separately. ON24 reserves the right to introduce new products that are not part of the current Platform.
a) ON24 alone will own all rights, title and interest, including all related Intellectual Property, to any suggestions, ideas, feedback, improvements, recommendations or other information created, conceived, or reduced to practice, by or on behalf of the Client or any Customer or any subscriber to an Event relating to the Platform and the other ON24 proprietary rights (“Submissions”). “Intellectual Property” shall mean any unpatented inventions, patent applications, patents, extensions, supplementary protection certificates, design rights, copyrights, trademarks, service marks, trade names, trade dress, domain rights, mask work rights, know-how, technology, business processes, Event concepts, Event experiences and other trade secret rights, and all other intellectual property rights, derivatives thereof, and any forms of protection of a similar nature anywhere in the world. ON24 may maintain in its archive unaltered copies of Client’s Events.
a) Termination of these Terms. These Terms shall remain in effect until terminated. These Terms may be terminated by a party hereto providing the other party hereto thirty (30) days’ written notice thereof, provided that if there is one or more active Agreements at such time, then the termination of these Terms shall not be effective until the last such active Agreement is terminated or expires.
b) Termination of an Agreement.
ii) For Insolvency. At any time during the Term of these Terms, either party may terminate these Terms, or any Agreement, with written notice if: (i) the other Party (a) becomes insolvent, (b) voluntarily commences any proceeding or files any petition under the bankruptcy laws of the United States, (c) becomes subject to any involuntary bankruptcy or insolvency proceedings under the laws of the United States, which proceedings are not dismissed within 90 days thereafter, (d) makes an assignment for the benefit of its creditors, or (e) appoints a receiver, trustee, custodian or liquidator for a substantial portion of its property, assets or business; or (ii) the other Party passes a resolution for its winding up, liquidation or dissolution, or a court of competent jurisdiction makes an order for such other Party’s winding up, liquidation or dissolution.
iii) Upon any termination or expiration of an Agreement, Client’s right to access and use the Services covered by that Agreement shall immediately terminate. If ON24 terminates an Agreement pursuant to this Section, all fees set forth on such Agreement are immediately due and payable.
c) Survival. Should these Terms and/or an Agreement be terminated, all provisions herein or therein, as the case may be, which by their nature should survive termination, will survive, including without limitation, provisions pertaining to accrued rights to payment, indemnity obligations, IP ownership, confidentiality obligations, warranty disclaimers, and limitations of liability.
d) Independent Contractors; Relationship. The parties are independent contractors, and no agency, partnership, franchise, joint venture or employment relationship is intended or created by these Terms. Neither party shall make any warranty or representation on behalf of the other party.
Neither party shall disparage the products or services of the other party.
e) No Implied Licenses. These Terms shall not be the source of or give rise to any implied license, and ON24 reserves all rights not expressly granted to Client hereunder.
f) Assignment. Neither party may assign, transfer, or delegate any rights or responsibilities under an Agreement or these Terms without prior written consent of the other party (and such consent shall not be unreasonably withheld), except that no consent shall be required in the event of an assignment, transfer or delegation in connection with a merger, acquisition, reorganization, or sale of substantially all of the assets of the party (a “Transfer”), provided, however, if a party consummates a Transfer with a direct competitor of the other party, then such other party may terminate all Agreements without liability upon written notice.
g) Injunctive Relief. In the event of actual or threatened breach of any of the terms of these Terms, ON24 shall have the right to specific performance and injunctive relief. The rights granted by this Section are in addition to any and all other remedies and rights available at law or in equity.
h) Governing Law. These Terms, and any disputes arising out of or related hereto, shall be governed by the internal laws of the State of California, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
i) Venue. The state and federal courts located in San Francisco County, California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to an Agreement. Each party hereby consents to the exclusive jurisdiction of such courts.
j) Publicity. With the prior written permission of Client, ON24 shall also be permitted to use Client’s name and brief excerpts of the multimedia content to reproduce examples of work both on-line and through CD-ROMS or other fixed media.
l) Force Majeure. Except for payment obligations, either party shall be excused for failure to perform under these Terms where such failure results from circumstances beyond that party’s control including, without limitation, such circumstances as fire, storm, flood, earthquake, strikes, work stoppages or slow downs, delay or failure of transportation or supplies, acts of the public enemy, acts of God or acts, regulations, priorities or actions of the United States, a state or any local government or agents or instrumentalities thereof.
m) Severability. If any provision of these Terms is held invalid, illegal, or unenforceable, the validity, legality or enforceability of the remaining provisions shall in no way be affected or impaired thereby.
n) Waiver. No failure or delay by either party in exercising any right under an Agreement will constitute a waiver of that right.
o) Notices. ON24 may give notice applicable to ON24’s general client base by means of a general notice on the Platform, and notices specific to Client by electronic mail to Client’s e-mail address on record in ON24’s account information. Notwithstanding the foregoing, notices pertaining to legal or dispute related matters will be sent by first class mail or pre-paid post to Client’s address on record in ON24’s account information. If Client has a dispute with ON24, wishes to provide a notice under the Agreement, or becomes subject to insolvency or other similar legal proceedings, Client shall send written notice to ON24 at ON24, Attn: Legal Department, 201 Third St., Third Floor, San Francisco, CA 94103
p) Entire Agreement, Amendments, Conflicts. These Terms, together with the applicable Agreement, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, whether written or oral, concerning the subject matter of such Agreement. No modification, amendment, or waiver of any provision of an Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict or inconsistency in terms between an Agreement and these Terms, the terms of the Agreement shall take precedence. The expiration or termination of an Agreement shall not affect another Agreement. Notwithstanding anything to the contrary therein, no terms or conditions included in a Client purchase order or any other Client documentation shall be deemed incorporated into or form any part of this Agreement, and all such terms or conditions shall be considered inapplicable and null and void.
q) Counterparts. An Agreement or these Terms may be executed in one or more counterparts, each of which when so executed and delivered or transmitted by facsimile, email or other electronic means, shall be deemed to be an original and all of which taken together shall constitute but one and the same instrument, each of which when so executed and counterparts. Each counterpart when so executed shall be deemed to be an original and all of which together shall constitute one and the same agreement. A facsimile or electronic signature is deemed an original signature for all purposes.
SERVICE LEVEL SCHEDULE
For purposes of this Service Level Schedule (“Schedule”), in addition to those terms defined above, the following terms shall have the following respective meanings:
1.1. “Scheduled Maintenance Window” is the time during which the Services are not required to be available in accordance with the following schedule, which schedule ON24 may change from time to time upon reasonable notice to Client:
ON24 is relieved of its duty to provide the Services only if it has elected to schedule maintenance during the Scheduled Maintenance Window.
1.2. “Unscheduled Maintenance” means maintenance performed, (i) when, in ON24’s commercially reasonable discretion, it is necessary to avoid loss of Services or (ii) during any downtime mutually agreed to with Client to correct a situation that endangers Client ability to utilize the Services.
1.3. “Failed Webcast Event” means,
(a). with respect to a live Webcast Event, (i). Greater than 50% of the total Webcast Viewers experiences media streams that are unavailable to them for six consecutive minutes or (ii). The presenter, in using the interface to control the presentation, experiences a lag time between a command’s initiation and its response of greater than 30 seconds continuously for more than five minutes, and
(b). with respect to an On-Demand Webcast Event that is scheduled to be broadcast at a set point in time, greater than 50% of the total Webcast Viewers experiences media streams that are unavailable to them for six consecutive minutes.
1.4. “Full Live Day Failure” means,
(a). with respect to the live day component of a Virtual Environment (“Live Day”), (i). Greater than 50% of the total Live Day attendees cannot access the Application, or the Critical Application Functionality for more than ten percent (10%) of the scheduled Live Day duration. (ii). Greater than 50% of the total Live Day attendees cannot access the Supporting Application Functionality for more than fifteen percent (15%) of the scheduled Live Day duration.
1.5. “High Impact Live Day Failure” means,
(i). Greater than 50% of the total Live Day attendees cannot access the Application, or the Critical Application Functionality for more than five percent (5%) of the scheduled Live Day duration. (ii). Greater than 50% of the total Live Day attendees cannot access the Supporting Application Functionality for more than ten percent (10%) of the scheduled Live Day duration.
1.6. “Partial Live Day Failure” means,
(i). Greater than 25% of the total Live Day attendees cannot access the Application, or the Critical Application Functionality for more than five percent (5%) of the scheduled Live Day duration. (ii). Greater than 25% of the total Live Day attendees cannot access the Supporting Application Functionality for more than ten percent (10%) of the scheduled Live Day duration.
1.7. “Critical Application Functionality” means Chat and Global Navigation and Show Locations.
1.8. “Supporting Application Functionality” means Reports, Marquees, “Access” to environment content, Who’s Here, Video Greetings (Main Plaza and Booth), Network Builder, Message Board, Messages (in environment), Profile Manager, Briefcase, Prize Center, and the People Search.
1.9. “Standard Business Hours” means the time between 6 am and 6 pm Pacific Time on business days.
2. Operational Availability
2.1. Client acknowledges that it will not be able to access Event Services during the Scheduled Maintenance Window on those occasions when maintenance is actually scheduled, or during Unscheduled Maintenance. ON24 will notify Client in advance of its intent to schedule maintenance.
2.2. ON24 shall endeavor to provide advance notice to Client of Unscheduled Maintenance that affects Client. ON24 shall indicate to Client the reasons for and duration of any Unscheduled Maintenance.
3. On Call Support
3.1. On call support for Live Events will be available during Standard Business Hours.
3.2. ON24 will categorize ON24 Client service requests for network and Platform access issues according to the following severities:
4. Service Guarantee
ON24 warrants that it will make reasonable efforts within industry standards to provide System Availability of at least 99%. “System Availability” is the sum of hours that the system is available divided by total hours in the measurement period, excluding from total hours any scheduled maintenance. System Availability is measured on a calendar year-to-date basis based on data gathered by ON24’s monitoring systems via a process by which verifiable attempts shall be made periodically to access a standard URL within the ON24 system. If such access test succeeds, then the system shall be deemed as available.
In any case where the Client independently determines that System Availability has been measured at less than the Service Guarantee, the Client may communicate this problem in writing to ON24, stating in detail the exact nature of the problem. ON24 will provide to the Client a plan of remedy (the “Remedy Plan”), within 15 (fifteen) business days from its receipt of such notice. The Client will have the right to review and discuss the Remedy Plan with ON24 for a reasonable period of time. Upon mutual agreement to the Remedy Plan, ON24 will then execute that Remedy Plan.
If ON24 should fail to provide a Remedy Plan within that time period, the Client may provide written notice to ON24 stating that the Client believes ON24 has materially breached (the “Breach”) its Terms with the Client. Client may then terminate these Terms only if ON24 fails to remedy the Breach within 30 (thirty) business days from the date that ON24 confirms receipt of such written notice from the Client of the Breach.
5.1. Credits. If a Failed Webcast Event occurs, and Client notifies ON24 within three business days of the Failed Webcast Event, Client will qualify for a credit equal to the value of the charges for the Webcast Event, but not including any third party expenses that ON24 or Client incurred with respect to the Webcast Event. The credit shall be available to Client exclusively for use on another Webcast Event, and ON24 shall have no obligation to refund the value of any credit to Client.
5.2. Live Day Refunds.
If a Full Live Day Failure occurs, and Client notifies ON24 within three business days of the Full Live Day Failure, Client will qualify for full (100%) refund of base Live Day fee. If a High Impact Live Day Failure occurs, and Client notifies ON24 within three business days of the High Impact Live Day Failure, Client will qualify for a fifty percent (50%) refund of base Live Day fee. If a Partial Live Day Failure occurs, and Client notifies ON24 within three business days of the Partial Live Day Failure, Client will qualify for twenty five percent (25%) refund of base Live Day fee.
5.3. Service Exceptions. Client shall not earn any credit if the failure otherwise qualifying Client for a credit occurs:
(a). during Scheduled Downtime;
(b). during any Unscheduled Maintenance; and
(c). whenever ON24 has the right to suspend Client’s access to Services pursuant to the Terms.
(d). as the result of any occurrence, cause or event outside ON24’s reasonable control, which includes, but is not limited to, a Force Majeure event under the Terms; or
(e). as the result of Client’s equipment or service or any third party equipment or service not within the sole control of ON24.
(f). As a result of the network equipment or network conditions between ON24 and the Client’s personal computer.
5.4. Sole and Exclusive Remedy.
Except as specifically expressed in the Terms, this Section 5 of this Schedule states Client’s sole and exclusive remedy for any failure or interruption of Services or for any failure by ON24 to meet any Service Level target as well as for any breach or other violation of any warranty or obligation under this Schedule.
6. ON24 “LIVE” Webcast Viewer Policy
(a) All live Webcast events over 2,500 attendees require advance notification. Notifications for Full Service clients should be made to your ON24 Webcast Manager. Notifications for Self-Service clients should be made electronically to the ON24 Platform Support Team.
(b) Notifications must be received no later than 10 (ten) days prior to event date and require commitment of reserved audience capacity.
(c) Additional Webcast viewers over 2,500 must be purchased in blocks of 500. Additional Webcast viewers over 5,000 must be purchased in blocks of 1,000. Additional Webcast viewers over 10,000 will be priced by quote.
(d) Actual attendance over the reserved audience capacity will be billed at 150% of currently published rates for all webcast viewers exceeding reserved capacity.
(e) All Non-Streaming Webcast event profiles are limited to 2,500 attendees.