a) ON24 owns and operates an application platform (the “Platform”) that facilitates the creation and management of (i) broadcasts of streaming audio and/or video over the internet (each a “Webcast” or “Event”), as well as (ii) virtual environments, virtual events, virtual briefing centers and virtual trade shows (each a “Virtual Environment”). Client can order the provisioning of Webcasts, Virtual Environments and/or other services from ON24 (collectively, the “Services”) by entering into a Master Services Agreement, Subscription Agreement, Services Agreement or a similar written agreement with ON24 that expressly incorporates by reference these Universal Terms and Conditions (each an “Agreement”). A “Work Order” is an ordering document executed pursuant to an Agreement for the purchase of Services by Client (and for purposes of these Terms shall hereinafter be considered an Agreement). These Universal Terms and Conditions may be referred to herein as these “Terms.” These Terms shall remain in full force and effect as long as any Agreement which incorporates by reference these Terms remains in effect.
2) Use of Services
a) In connection with an Agreement, Client may be provisioned one or more accounts on the Platform (“Accounts”). Accounts may only be used by Client and its authorized representatives to create and manage Events and Virtual Environments to be watched, visited or otherwise used, as the case may be, by individuals who register for or access Client’s Events and/or Virtual Environments (each an “Attendee”). Client shall safeguard login credentials to the Accounts and shall be responsible for all use of Services through the Accounts.
b) If the total number of Attendees connected to or attempting to connect to an Event exceeds the “Attendee Limit” (which is presently 2,500 concurrent Attendees, and may be increased by ON24 from time-to-time and shall not be decreased), ON24 reserves the right to deny additional connections and/or disconnect existing Attendees. Client agrees to notify ON24 at least 10 business days prior to any Event for which it desires to exceed the Attendee Limit. Should Client timely notify ON24, ON24 will try to accommodate reasonable limit increase requests made by Client for an Event.
3) Use Restrictions
a) Client agrees to use the Platform and Services in compliance with applicable law and shall not: (i) permit any third party to use the Platform or Services except as permitted herein or in an Agreement; (ii) modify, reverse engineer, disassemble, or decompile the Platform, or cause or permit others to do so; (iii) use the Platform or Services in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Platform or Services; (iv) remove or modify any title, trademark, copyright and/or restricted rights notices or labels from the Platform or Services; (v) create derivative works based on the Platform or otherwise violate ON24’s intellectual property rights; (vi) use Platform or Service on a service bureau basis; or (vii) use the Platform or Services in any manner inconsistent with these Terms.
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 or used by Client. All fees shall be paid in U.S. Dollars, unless another currency is specified in the applicable Agreement.
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 hereto, paid fees are non-refundable.
c) The fees payable for a Service shall be as set forth in the applicable fee schedule included in the applicable Agreement (each a “Fee Schedule”).
d) Should Client order or use a Service not listed on a Fee Schedule, the price for such Service shall be ON24’s then-current standard price, which Client hereby agrees to pay.
e) All fees are exclusive of taxes, levies, or duties that may be imposed by taxing authorities. Other than taxes based on ON24’s income, Client shall be responsible for paying all taxes, levies, or duties applicable to its purchases from ON24, even if such amounts are not listed in an Agreement. Client shall not be responsible for paying the same 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) If an Agreement does not include billing and payment terms, then with respect to that Agreement (i) ON24 shall invoice Client for all fees payable thereunder upon its execution, and (ii) Client shall pay all fees within 30 days of receipt of invoice. Client is responsible for providing complete and accurate billing and contact information to ON24 and for 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 that are not received by ON24 by their 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 direct third party expenses, costs, cancellation fees and penalties that are imposed on ON24 as a result of Client’s cancellation, delaying or rescheduling of Webcasts or other Services.
i) If any amount owed by Client is 30 days or more overdue, ON24 may, without liability and without limiting its other rights and remedies, accelerate Client’s unpaid fee obligations under such Agreement so that all such obligations become immediately due and payable, and suspend Services under such Agreement until such amount is paid in full.
5) Confidential Information
a) As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of the Client includes, without limitation, Attendee Data (as defined below). Confidential Information of ON24 includes, without limitation, the Services, the Platform, and pricing and other terms related to Services presented to Client by ON24. These Terms and all Agreements shall be Confidential Information of each party. The Receiving Party shall in no way use or disclose any Confidential Information of the Disclosing Party, except as specifically contemplated by these Terms or with the prior written consent of the other party or as required by law.
b) These Terms impose no obligation upon the Receiving Party with respect to the Disclosing Party’s Confidential Information which the Receiving Party can establish by legally sufficient evidence: (i) was, prior to its receipt from the Disclosing Party, in the possession of, or rightfully known by, the Receiving Party, 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 Disclosing Party; (iii) is obtained by the Receiving Party 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 Receiving Party without reference to Confidential Information of the Disclosing Party.
c) Each party understands that the Disclosing Party’s Confidential Information constitutes valuable business assets of the Disclosing Party and the unauthorized disclosure of Confidential Information may irreparably harm the Disclosing Party. In the event of breach or threatened breach of obligations pertaining to Confidential Information by the Receiving Party, the Disclosing Party shall be entitled to seek injunctive relief and any other remedy available at law or equity.
d) Client shall not publish the results of any benchmark of the Services’ performance, except with ON24’s prior written consent.
6) Ownership; Client Information
a) For purposes of these Terms, “Intellectual Property” shall mean unpatented inventions, patent applications, patents, copyrights, trademarks, service marks, trade names, trade dress, domain names, know-how, technology, business methods and processes, trade secrets, and all other intellectual property and proprietary rights, and all developments, enhancements, derivatives, improvements, modifications or extensions thereof, anywhere in the world.
b) As between ON24 and Client, ON24 retains all right, title and interest in and to the Platform, the Services, all other ON24 Intellectual Property, and any improvement or modification thereto or thereof regardless of who pays for such improvement or modification. ON24’s licensors and suppliers own all right, title and interest to Third Party Applications (as defined below) that ON24 may make available as part of or in connection with the Platform or Services.
c) ON24 alone will own all right, title and interest, including all related Intellectual Property, in and to any suggestions, ideas, feedback, improvements, or recommendations created, conceived, or reduced to practice, by or on behalf of the Client or any Attendee, relating to the Platform or other ON24 proprietary rights (collectively, “Submissions”).
d) As between ON24 and Client, Client retains all right, title and interest in and to all materials and data it enters into the Platform or otherwise provides to ON24 under an Agreement, including, but not limited to, slides, audio files, video files, recordings generated from an Event, and photographs (“Client Materials”), any contact information or other personally identifiable information of Attendees of Client’s Events and Virtual Environments (“Attendee Data”) and all other Intellectual Property of Client (together with the Client Materials and Attendee Data, the “Client Information”).
e) Client hereby grants ON24 the right to use Client Information to the extent needed by ON24 to provide the Services to Client. Client acknowledges that ON24 does not exercise any control over the content of Client Information. Client shall bear the sole responsibility to ensure that all Client Information, and Client’s use and collection thereof, complies with all applicable laws and regulations. ON24 has no obligation, and expressly disclaims any obligation to review Client Information for accuracy or for any other reason.
f) ON24 may use Client Information in an aggregate and anonymous manner, compile statistical and performance information related to the provision and operation of the Services, and may make such information publicly available, provided that such information does not specifically identify Client or any Attendee.
g) ON24 has implemented commercially reasonable safeguards to protect the Platform and the Client Information (defined below) that ON24 processes via the Platform. The parties acknowledge, however, that the security of transmissions over the internet cannot be guaranteed. ON24 will not be responsible for Client’s access to the internet, for any interception or interruption of any communications through the internet, or for changes to or losses of data through the internet.
h) Client may access and download Client Information related to an Event that is stored in the Platform by accessing their account during the period in which such Event is made available on an on-demand basis as listed in the applicable Agreement (“On-Demand Access Period”). Client acknowledges that ON24 may maintain in its backup archive unaltered copies of Client’s Webcasts, but shall have (i) no obligation to store any Client Information beyond the On-Demand Access Period, and (ii) no liability for the deletion or destruction thereof thereafter.
7) Privacy & Security
a) ON24 is a data processor and Client is the data controller, as these terms are defined under applicable data protection laws, including the EU General Data Protection Regulation (the “GDPR”). The ON24 Data Processing Terms (the “DP Terms”), located at https://www.on24.com/dp-terms, will apply to the Processing of Personal Data (both terms as defined in the DP Terms) on behalf of Client and its authorized users in the provision of the Services. Except to the extent otherwise expressly agreed to in writing, the terms of the DP Terms, effective the later of May 25, 2018 or the date Client has executed these Terms, are hereby incorporated by reference into and shall apply to these Terms. The parties agree to comply with the terms of the DP Terms.
c) Client will post and make available any necessary privacy notice and obtain any necessary consent from individuals or third parties regarding the collection, use, processing and transfer (including any cross-border transfer) of Client Information relating to the Services and use of the Platform. Client acknowledges that it may make a privacy notice available through the Platform, and may incorporate custom consent statements, as part of the Event creation and setup through the Platform.
a) ON24 and Client each warrant that it has validly entered into these Terms and each Agreement and has the legal power to do so.
b) ON24 warrants that it will provide the Services (i) in a professional manner, consistent with generally accepted industry standards, (ii) free from malware, viruses, worms, Trojan horses, and trap doors, and (iii) in material conformance with any descriptions thereof in the applicable Agreement. Client must notify ON24 of any warranty deficiencies within 30 days from performance of the relevant Services in order to receive warranty remedies. In the case of a breach by ON24 of an express warranty set forth above in this subsection, Client’s exclusive remedy shall be the re-performance of the deficient Services. The foregoing warranties in this subsection shall not apply to any Third Party Applications.
c) EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, THE PLATFORM AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, AND CLIENT’S USE OF THE PLATFORM AND SERVICES IS AT CLIENT’S OWN RISK, AND 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 IMPLIES WARRANTY ARISING OUT OF COURSE OF CONDUCT, USAGE OR TRADE PRACTICE, AND ON24 DOES NOT WARRANT THAT THE PLATFORM AND SERVICES WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, SECURE OR VIRUS-FREE. ON24 SHALL HAVE NO LIABILITY WHATSOEVER FOR THE ACCURACY, COMPLETENESS OR TIMELINESS OF ANY CLIENT INFORMATION. ON24 NEITHER WARRANTS THAT CLIENT, IN USING THE PLATFORM AND SERVICES, WILL OBTAIN THE RESULTS THAT CLIENT INTENDS, NOR THAT A PLATFORM AND SERVICES WILL BE ADEQUATE FOR OR ACHIEVE THE BUSINESS PURPOSES AND REQUIREMENTS OF CLIENT. ON24 MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO ANY THIRD PARTY APPLICATIONS.
d) Client represents and warrants that: (i) its use of the Platform and Services, including the transfer of 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 Platform and Services in any manner that could damage, disable, overburden, impair or otherwise interfere with ON24’s operation of the Platform; (iii) it will comply with all laws and regulations applicable to bulk or commercial email, as well as other electronic communications, including without limitation all local or national laws applicable to the regions where Client has business operations or where the recipients of their electronic communications are located; and (iv) Client will comply with its obligations set forth in Section 7 (Privacy & Security), and Client 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 acknowledges that ON24 shall have the right to remove or disable any Client Materials that it reasonably deems to be pornographic, libelous, offensive, illegal or otherwise objectionable but that this right shall not excuse Client from full responsibility arising from any such material.
a) Subject to these Terms, ON24 shall defend and hold Client harmless against any and all claims, demands, suits, or proceedings (“Claims”) made or brought against Client by a third party alleging that use of the Platform or Services by Client in accordance with these Terms or an Agreement infringes the intellectual property rights of a third party, provided that Client (i) promptly gives written notice of the Claim to ON24; (ii) gives ON24 sole control of the defense and settlement of the Claim (except that ON24 may not settle or defend any Claim unless it unconditionally releases Client of all liability); and (iii) provides to ON24, at ON24’s cost, reasonable assistance. ON24 will pay any losses, damages and costs (including reasonable attorney’s fees and legal costs) finally awarded against Client as a result of a Claim under this subsection. The foregoing obligations of ON24 shall not apply with respect to third party Claims of infringement that arise in whole or in part in connection with, as a result of, or that are directed at: (A) any modifications of the Platform or Services not made by or on behalf of ON24; (B) any bundling, combination, or integration of the Platform or Services with any non-ON24 products, processes, software, hardware or materials by Client, if the applicable infringement claim would have been avoided absent such bundling, combination or integration; or (C) use of the Platform or Services other than in accordance with these Terms or an Agreement. In the event of a Claim under this subsection, or if ON24 has a reasonable belief that a Claim is likely, ON24 may, at its option and expense, (1) procure for Client the continued right to use the Platform or Services; (2) provide alternate services that provide capabilities similar to those of the Platform or Services, as applicable; or (3) terminate the applicable Agreement and refund all prepaid fees for Services that remain undelivered at the time of termination. ON24’s obligations under this subsection shall not apply to any Third Party Applications. THIS SUBSECTION STATES ON24’S ENTIRE OBLIGATION AND LIABILITY, AND CLIENT’S SOLE RIGHT AND REMEDY FOR ANY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION, AND FOR THE AVOIDANCE OF DOUBT, ANY AMOUNTS TO BE PAID BY ON24 UNDER THIS SUBSECTION SHALL CONSTITUTE DIRECT DAMAGES FOR PURPOSES OF THE LIMITATION OF LIABILITY SECTION BELOW.
b) Subject to these Terms, Client shall defend and hold harmless ON24 against any and all Claims made or brought against ON24 by a third party alleging that Client Information, or use of the Platform or Services by Client in violation of these Terms infringes the intellectual property rights of a third party, provided that ON24 (i) promptly gives written notice of the Claim to Client; (ii) gives Client sole control of the defense and settlement of the Claim (except that Client may not settle or defend any Claim unless it unconditionally releases ON24 of all liability); and (iii) provides to Client, at Client’s cost, reasonable assistance. Client will pay any losses, damages and costs (including reasonable attorney’s fees and legal costs) finally awarded against ON24 as a result of a Claim under this subsection. In the event of a Claim under this subsection, ON24 will no longer have any obligation to provide Client with access to the Platform or any Services and may terminate all Events and Virtual Environments that may be related to the Claim. THIS SUBSECTION STATES CLIENT’S ENTIRE OBLIGATION AND LIABILITY, AND ON24’S SOLE RIGHT AND REMEDY FOR ANY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION, AND FOR THE AVOIDANCE OF DOUBT, ANY AMOUNTS TO BE PAID BY CLIENT UNDER THIS SUBSECTION SHALL CONSTITUTE DIRECT DAMAGES FOR PURPOSES OF THE LIMITATION OF LIABILITY SECTION BELOW.
10) Limitation of Liability
a) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THESE TERMS, INCLUDING LOST PROFITS OR REVENUES OR DATA, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, OR COSTS OF PROCURING SUBSTITUTE SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
B) EXCEPT FOR PAYMENT OBLIGATIONS AND VIOLATIONS OF SECTION 3 (USE RESTRICTIONS), NEITHER PARTY SHALL BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES FOR ALL CLAIMS ARISING OUT OF OR RELATED TO AN AGREEMENT IN AN AMOUNT GREATER THAN (A) THE AMOUNT OF FEES ACTUALLY PAID TO ON24 UNDER SUCH AGREEMENT by client DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF ANY CLAIM, EVENT, ACT OR OMISSION, LESS (B) AMOUNTS PAID IN SATISFACTION OF ANY PRIOR CLAIMS.
11) Modifications; Features; Third Party Applications
a) From time to time after the date of these Terms, ON24 may make available new releases to the Platform that add, enhance or change the features and services of the Platform. Additional charges may or may not be applicable for new features and services, but in no case will Client be charged for any such features and services without Client’s express prior approval. ON24 reserves the right to withdraw, suspend or discontinue any functionality or feature of the Platform provided that the functionality of the Platform is not materially decreased during the term of an Agreement as a result.
b) Client hereby elects, and expressly requests and consents, to participate in the ON24 Business Interest Cloud feature, as part of the Services, and agrees to the ON24 Business Interest Cloud Terms set forth at https://www.on24.com/bic-terms/.
c) Through its use of the Services, Client may have access to certain third party applications, such as plugins and websites (collectively, “Third Party Applications”). ON24 does not maintain control over Third Party Applications, and shall not be responsible for their content, operation or use. Third Party Applications may be modified or disabled at any time, and ON24 shall not be under any obligation to provide notice of any such modifications. By linking or otherwise providing access to Third Party Applications, ON24 does not provide any representation, warranty or endorsement, express or implied, with respect to the legality, accuracy, quality or authenticity of information or services provided by such Third Party Applications. ON24 hereby disclaims any and all responsibility and liability for any harm resulting from Client’s use of Third Party Applications, and Client hereby irrevocably waives any claim against ON24 with respect to all Third Party Applications. This subsection does not apply to any third party services which Client may purchase from ON24 for a fee.
i) For Material Breach. Either party may terminate an Agreement, by written notice to the other party, in the event of a material breach of such Agreement by the other party, if such breach is   not cured within 30 days after the breaching party receives from the non-breaching party a written notice which sets forth a detailed description of the breach.
ii) For Insolvency. Either party may terminate an 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 Platform or 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.
b) Survival. Should 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 payment obligations, indemnity obligations, IP ownership, confidentiality obligations, warranty disclaimers, and limitations of liability.
c) 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. Client shall not make, or induce others to make, any defamatory, critical, derogatory or negative statements or comments about ON24, its products, services or its employees, orally, in writing, or on the internet on message boards, social media networks, online forums or other websites.
d) No Implied Licenses. These Terms shall not be the source of or give rise to any implied license or right in or to, and ON24 reserves all rights not expressly granted to Client hereunder.
e) Resale of Services. Should Client and ON24 enter into an Agreement that expressly authorizes Client to resell Services and such Agreement specifies that it is governed by these Terms (a “Reseller Agreement”), then the ON24 Reseller Terms set forth at https://www.on24.com/reseller-terms/ shall apply and be incorporated into to such Reseller Agreement.
f) Assignment. Neither party may assign, transfer, or delegate any rights or responsibilities under an Agreement or these Terms, whether by operation of law or otherwise, 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 to the other party.
g) Export Compliance. The Services and Platform are subject to the export laws and regulations of the United States. Each party represents that it is not named on any U.S. government denied-party or restricted-party list. Client shall not require, encourage or solicit the attendance of any Events or other use of Services by individuals in a U.S. embargoed country or region, or use the Services in violation of any U.S. export law or regulation.
h) Anti-Corruption. Client affirms that it has not and agrees that it will not, in connection with the purchase of and the use of the Services contemplated by the relevant Agreement or in connection with any other business transactions involving ON24, make or promise to make any payment or transfer anything of value, directly or indirectly: (i) to any governmental official or employee (including employees of government corporations or instrumentalities); (ii) to any political party, official or a political party or candidate (or to an intermediary for payment to any of the foregoing); (iii) to any officer, director or employee of ON24; or (iv) to any other person or entity if such payment or transfer would violate the laws of the country in which made or jurisdiction in which Client operates or conducts commerce, or the laws of the United States, including but not limited to the U.S. Foreign Corrupt Practice Act (“FCPA”), 15 U.S.C. § 78m, 78dd-l, 78dd-2, and 78dd-3.
i) 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.
j) 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. Except for actions for nonpayment or breaches with respect to a party’s proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either party more than two years after the cause of action has accrued.
k) 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 slowdowns, 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.
l) 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.
m) Wiver. No failure or delay by either party in exercising any right under an Agreement will constitute a waiver of that right.
n) Notices. ON24 may give notice applicable to ON24’s general customer base by means of a general notice on the Platform, and notices specific to Client by electronic mail to Client’s email address on record in ON24’s account information. If Client seeks to provide a notice to ON24 pursuant an Agreement or these Terms, or becomes subject to insolvency or other similar legal proceedings, Client must send a written notice to ON24 at ON24, Attn: Legal Department, 795 Folsom st., Third floor, San Francisco, CA 94107 or to ON24’s then current address as may be updated by ON24 from time to time.
o) Entire Agreement, Amendments, Conflicts. These Terms (which include Exhibit A hereto), the DP Terms, and the applicable Agreement constitute the entire agreement between the parties and supersede 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. With respect to any conflict or inconsistency between these Terms, the DP Terms or the Agreement: (i) the DP Terms will apply with respect to any terms applicable to or relating to privacy, data protection, or the processing of personal data; the terms of the Agreement will control with respect to any other terms. The expiration or termination of one 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 an Agreement, and all such terms or conditions shall be considered inapplicable and null and void.
p) 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. A facsimile or electronic signature shall be deemed an original signature for all purposes.
SERVICE LEVEL SCHEDULE
For purposes of this Service Level Schedule (this “Schedule”), in addition to those terms defined above, the following terms shall have the following respective meanings:
a) “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:
||Duration of Scheduled Downtime
||Saturdays 6 pm-12 midnight Pacific Time
ON24 is relieved of its duty to provide the Services only if it has elected to schedule maintenance during the Scheduled Maintenance Window.
b) “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.
c) “Standard Business Hours” means the time on business days between 6 am and 6 pm Pacific Time for North America Events, and between 8 am and 6 pm in the UK for EMEA Events.
d) “Failed Webcast Event” means,
i) with respect to a live Webcast Event,
(1) Greater than 50% of the total Webcast Viewers experiences media streams that are unavailable to them for six consecutive minutes, or
(2) 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
ii) 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.
e) “Full Live Day Failure” means,
i) with respect to the live day component of a Virtual Environment (“Live Day”),
(1) 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.
(2) 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.
f) “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.
g) “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.
h) “Critical Application Functionality” means Chat and Global Navigation and Show Locations.
i) “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.
a) 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.
b) 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.
c) Client shall not earn any credit if the failure otherwise qualifying Client for a credit occurs:
(i)Due to connection errors resulting from Attendee mistake or Client’s failure to follow best practice guidelines;
(ii) During Scheduled Downtime;
(iii) Whenever ON24 has the right to suspend Client’s access to Services pursuant to the Terms;
(iv) 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;
(v) As the result of Client’s equipment or service or any third party equipment or service not within the sole control of ON24; or
(vi) As a result of the network equipment or network conditions between ON24 and the Client’s personal computer.
d) Except as specifically expressed in the Terms, this Section 2 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.
3) Operational Availability
a) 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.
b) 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.
4) On Call Support
a) On call support for Live Events will be available during Standard Business Hours.
b) ON24 will categorize ON24 Client service requests for Platform access issues according to the following severities:
|Request Severity Category
||Business Hours Resolution Goals
||After Hours Resolution Goals
||Access to Services is not available.
||15 minute acknowledgement
15 minute start
1 day resolution
|1 hour acknowledgement
1 hour start
1 day resolution
||Access to Service is available but on a diminished basis or with constant interruption
||15 minute acknowledgement
15 minute start
1-2 day resolution
Operations not applicable
||Access to Services is diminished or interrupted, but a workaround provides reasonable access
||15 minute acknowledgement
30 minute start
1-4 day resolution
Operations not applicable
||The Services are accessible but reflect less than perfect quality. Client requires changes, but they are not critical to existing access.
||15 minute acknowledgement
30 minute start
1hour-2 day resolution based upon urgency code
Operations not applicable
|S5-Enhancement or Question
||Client request a new or enhanced feature.
||15 minute acknowledgement
2 day start
Operations not applicable
5) 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.
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.
Terms and Conditions for agreements entered into before March 28, 2013
Terms and Conditions for agreements entered into between March 29, 2013 and December 21, 2014
Terms and Conditions for agreements entered into between December 22, 2014 and December 8, 2016
Terms and Conditions for agreements entered into between December 9, 2016 and March 3, 2017
Terms and Conditions for agreements entered into between March 4, 2017 and April 17, 2018