IMPORTANT – READ CAREFULLY: CUSTOMER’S USE OF THIS WEBSITE AND THE SERVICES ARE CONDITIONED UPON CUSTOMER’S COMPLIANCE AND ACCEPTANCE OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE WITH THE TERMS OF THIS AGREEMENT, DO NOT USE THE SERVICES. CUSTOMER IS ENCOURAGED TO PRINT OR DOWNLOAD THESE TERMS AND CONDITIONS AND SAVE THEM FOR THEIR RECORDS. To download a PDF version, click here.
This Agreement (the “Agreement”) is between the individual or legal entity using, purchasing or opening an account for Services (“Customer”) and the Select Communications related entity which invoices Customer for the Services (“Select Communications”). Please read this Agreement carefully before installing, accessing, or otherwise using the Services. By installing, accessing, or otherwise using Services, Customer agrees to be bound by this Agreement. Please maintain a copy for Customer’s records. If Customer does not agree with the terms of this Agreement, do not use the Services.
This Agreement governs the purchase and use of audio, video and web conferencing services and related products and services of Select Communications (“Select Communications Services”) and its third party suppliers (“Third Party Services”) (the Select Communications Services and Third Party Services are referred to collectively as the “Services”). Select Communications may alter, expand, or reduce the features of the Services from time to time without notice to Customer. Customer agrees that Select Communications obligation to provide Services is conditioned upon Customer providing all information and assistance reasonably required to perform the Services and Customer hereby agrees to timely provide all such information and assistance. Select Communications reserves the right to reclaim any dial-in numbers at any time. Customer acknowledges that not all Services can be guaranteed from all locations including, but not limited to via mobile telephones, pay phones or satellite phones due to various in-country, carrier or other restrictions.
The Term of this Agreement or any Order Form or any Account Set up Form (“Order Form”) shall remain in effect until terminated in accordance with the provisions of this Agreement (the “Term”).
Termination of the Agreement
Either Customer or Select Communications may terminate this Agreement at any time for convenience upon 30 days written notice to the other party; provided that the term of each Order Form, if any, shall be governed by such Order Form and shall continue for the term of the Order Form notwithstanding any termination of this Agreement. The termination of any Order Form shall not otherwise effect the Term of this Agreement or any other Order Form.
Termination for Cause
This Agreement or any Order Form may be terminated by the non-breaching party upon a material breach by the other party of a material provision of this Agreement or the relevant Order Form and such breach is not cured within sixty (60) days after written notice or within ten (10) days after written notice if the breach is a payment breach.
Effect of Termination
The termination of any Order Form shall not otherwise effect the Term of this Agreement or any other Order Form. If Customer terminates any Order Form for cause:
- Customer will pay for all Services rendered up to the date of termination;
- Select Communications will reimburse Customer for any amounts prepaid by Customer for Services not rendered; and
- Customer shall be relieved of any future payments due under such Order Form. Otherwise, upon any termination of this Agreement or any Order Form, Customer shall pay for:
- all Services rendered up to the date of termination; and
- Any minimum shortfall or future amounts due under this Agreement and any Order Form including the current renewal thereof, if applicable. All use of Services after termination shall be billed at standard rates.
Payments and Charges
Select Communications will invoice Customer electronically free of charge or via paper invoice for a fee. Customer agrees to make payment for all Services upon receipt of invoice, or such later date if specified on the invoice, to the location and in the manner directed on the invoice. Invoices not paid on a timely basis will be subject to a 1% late fee in accordance with the Select Communications finance policy applicable to Customer’s location or the maximum legally allowable interest rate, whichever is lower. Customer may obtain the finance policy applicable to Customer’s location by contacting us. Customer must notify Select Communications of any disputed charges within thirty (30) days from the date of the invoice, otherwise Customer will be deemed to agree to such charges and Select Communications will not be subject to making adjustments to charges or invoices. Customer acknowledges and agrees, that:
- unless indicated otherwise, Services are charged by multiplying all inbound or outbound legs of all conferences by the applicable per minute rate;
- Service rates specifically negotiated by Customer and agreed to by Select Communications as indicated on Select Communications invoices to Customer shall be deemed “Negotiated Rates;”
- Services that are not subject to Negotiated Rates, including conference legs to or from a location outside the host country and all taxes, fees, and surcharges, will be charged at Select Communications standard rates (“Standard Rates”);
- Customer may obtain Select Communications Standard Rates through Customer’s sales or account representative or in some cases through Customer’s web account.
PRICE CHANGES. CUSTOMER ACKNOWLEDGES AND AGREES THAT STANDARD RATES ARE SUBJECT TO CHANGE AT ANY TIME WITHOUT SELECT COMMUNICATIONS PROVIDING SPECIFIC NOTICE TO CUSTOMER BY SELECT COMMUNICATIONS POSTING NEW STANDARD RATES. CUSTOMER THEREFORE AGREES TO CHECK SELECT COMMUNICATIONS’S STANDARD RATES FROM TIME TO TIME AND IN EACH CASE PRIOR TO USING ANY SERVICES SUBJECT TO STANDARD RATES. NEGOTIATED RATES ARE SUBJECT TO CHANGE AT ANY TIME ON THIRTY (30) DAYS PRIOR WRITTEN NOTICE TO CUSTOMER OR AT ANY TIME WITHOUT PRIOR NOTICE TO CUSTOMER IN THE EVENT AN ACCOUNT REMAINS DORMANT (I.E., SERVICES ARE NOT USED) FOR A PERIOD OF TWELVE MONTHS OR LONGER. CUSTOMER AGREES THAT EITHER OR BOTH OF NEGOTIATED RATES AND STANDARD RATES MAY BE INCREASED BY SELECT COMMUNICATIONS BY 15% EACH YEAR WITHOUT PRIOR NOTICE TO CUSTOMER. IN LIGHT OF THE PRICE CHANGING POLICIES HEREIN, CUSTOMER THEREFORE AGREES TO CAREFULLY REVIEW EACH INVOICE PRIOR TO MAKING PAYMENT AND TO NOTIFY SELECT COMMUNICATIONS OF ANY RATE DISPUTES WITHIN THIRTY (30) DAYS FROM THE DATE OF THE INVOICE, OTHERWISE CUSTOMER WILL BE DEEMED TO AGREE TO SUCH RATES AND TO HAVE WAIVED ANY RIGHTS TO DISPUTE THEM IF NOT RAISED WITHIN THIRTY (30) DAYS FROM THE DATE OF THE INVOICE.
In the event charges due are not timely paid in full for any reason, Select Communications shall have the right to suspend all or any portion of the Services until such time as all charges and applicable interest amounts and/or late fees have been paid. In addition, if any outstanding invoice has not been paid in full within 60 days of the date due, Select Communications may
- increase the per minute or per use charge for any service by up to 15% beginning with Customer’s usage on the 61st day in which the invoice was due; and
- Charges and features that may have been waived in the past will no longer be waived, both of which may be done without any further notice.
The new rates, if applied by Select Communications, will continue in effect until a written agreement expressly lowering such rate is executed by an authorized representative of each party. This rate increase is in addition to any and all other rate increases allowed pursuant to these terms and conditions. Following such payment, Select Communications may reinstate Services only upon satisfactory assurance of Customer’s ability to pay for Services, including modified payment terms such as prepayment and/or accelerated invoicing. Such suspension shall not relieve Customer of any payment liability. Customer agrees to reimburse Select Communications for any costs, expenses, or fees expended by Select Communications in connection with any collection efforts against Customer, including reasonable internal and outside attorneys’ fees.
Taxes, Fees and Surcharges
In addition to the rates for the Services, Customer shall pay all applicable fees, duties, tolls, administrative assessments, surcharges, or taxes now or hereafter attributable to the Services and included on Customer’s invoice.
Subject to Customer’s compliance with the terms and conditions of this Agreement, Select Communications hereby grants Customer a non-exclusive license during the applicable Term to use the Services. Except as specifically set forth herein, Select Communications or its suppliers retain all right, title, and interest, including all intellectual property rights, relating to or embodied in the Services, including without limitation all technology, telephone numbers, web addresses, software, or systems relating to the Services. Customer agrees not to reverse engineer, decompile, disassemble, translate, or attempt to learn the source code of any software related to the Services. Customer agrees that use of Third Party Services such as Adobe Connect and Cisco WebEx is subject to the license agreement of such provider. Other than using the Services for conferences or meetings in which Customer are an active participant, Customer may not resell the Services or otherwise generate income from the Services.
Responsibility for Customer’s Accounts
Customer is responsible for maintaining the confidentiality of Customer’s accounts, owner numbers, conference codes, passwords and personal identification numbers used in conjunction with the Services and for all uses of the Services in association with Customer’s accounts whether or not authorized by Customer. Select Communications does not sell products or services for children. Customer will not allow children under 18 to use the Services without the involvement of a parent or guardian. Customer agrees to immediately notify Select Communications of any unauthorized use of Customer’s account of which Customer become aware.
Responsibility for Communications
Customer is the sole owner of content and solely responsible for the content of all communications (visual, written or audible) using Customer’s accounts. Customer shall comply with all laws while using the Services; shall not transmit any communication that violates any law, court order, or regulation; shall not violate any third party rights in using the Services; and shall not use the Services in any way that damages Select Communications property or interferes with or disrupts Select Communications system or other users. Although Select Communications is not responsible for any such communications, Select Communications may suspend any such communications of which Select Communications is made aware. Use of conference recording or taping any use of the Services by Customer may subject Customer to laws or regulations and Customer is solely responsible for and obligated to provide any required notification to participants prior to commencement of said conference. Customer acknowledges and agrees that Select Communications has not and is not expected to provide Customer with any analysis, interpretation or advice regarding Customer’s compliance with the above and does not control Customer’s content nor guarantee the accuracy, integrity, security or quality of Customer’s content.
Privacy and Data Use
The information Select Communications holds about Customer will be used to provide the Services and for identification, account administration, analysis and fraud/loss prevention purposes. Each party will comply with all applicable personal data protection and privacy laws where such party is located (the “Data Protection Laws”). The parties acknowledge and agree that:
- Select Communications may have access to personal data under the Data Protection Laws and will:
- use it solely for the purpose of providing the Services;
- process it only in accordance with Customer’s instructions; and
- take appropriate technical and organizational measures to prevent unauthorized or unlawful processing, accidental loss, destruction or damage to it;
- personal data may be processed by Select Communications and its affiliates throughout the world; and
- Customer is the data controller and retains full responsibility for the data processed on its behalf by Select Communications acting as data processor.
ALL SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND WITHOUT ANY WARRANTY. CUSTOMER UNDERSTANDS AND AGREES THAT SELECT COMMUNICATIONS’S SERVICES AND THE WEBSITE ARE PROVIDED “AS IS” AND “AS AVAILABLE”. SELECT COMMUNICATIONS AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SELECT COMMUNICATIONS MAKES NO WARRANTY OR REPRESENTATION REGARDING ANY INFORMATION, MATERIALS, GOODS OR SERVICES OBTAINED THROUGH SELECT COMMUNICATIONS’S SERVICES OR WEBSITES, OR THAT THE SERVICES WILL MEET ANY OF CUSTOMER’S REQUIREMENTS, OR BE UNITERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF THE SERVICES AND WEBSITE ARE AT CUSTOMER’S SOLE RISK. SELECT COMMUNICATIONS IS NOT LIABLE FOR ACTS OR OMISSIONS OF OTHER SERVICE PROVIDERS, FOR INFORMATION OR CONTENT OF COMMUNICATIONS, THIRD PARTY SERVICES, EQUIPMENT FAILURE OR MODIFICATION, OR CAUSES BEYOND SELECT COMMUNICATIONS’S REASONABLE CONTROL.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SELECT COMMUNICATIONS, OR ITS SUPPLIERS OR THEIR AFFILIATES, BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, CONSEQUENTIAL ORINCIDENTAL DAMAGES WHATSOEVER OR LOSS OF GOODWILL, DATA OR PROFITS, OR COST OF COVER ARISING OUT OF, OR RESULTING FROM THE SERVICES, THIS AGREEMENT OR ANY ORDER FORM REGARDLESS OF THE LEGAL THEORY OF RECOVERY, EVEN IF SELECT COMMUNICATIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR DAMAGES THAT ARE REQUIRED BY LAW TO BE PAID, CUSTOMER AGREES THAT ALL DAMAGES ARE EXCLUDED EXCEPT FOR THE DIRECT DAMAGES THAT ARE ACTUALLY INCURRED BY CUSTOMER IN REASONABLE RELIANCE, UP TO THE LESSER OF THE AMOUNT OF A REFUND OF THE PRICE THAT CUSTOMER ACTUALLY PAID FOR THE SERVICES DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM REGARDLESS OF THE FORM OF ACTION OR CLAIM (E.G., CONTRACT, WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE, FRAUD, OR OTHER LEGAL THEORY) OR ONE THOUSAND DOLLARS (US$1,000).
Customer shall indemnify, defend and hold Select Communications, its suppliers, their affiliates and their officers, directors, employees (the “Select Communications Indemnitees”) harmless from any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including reasonable attorneys’ fees, which arise out of or relate to:
- Customer’s use of the Services (including without limitation, any person accessing the Services using Customer’s account);
- any actual or alleged violation of this Agreement, any Order Form or any applicable law, rule or regulation by Customer or any person accessing the Services using Customer’s account;
- or any actual or alleged infringement or violation by Customer or any person accessing the Services using Customer’s account of any intellectual property or privacy or other right of any person or entity.
Select Communications and Customer agree to use commercially reasonable efforts to protect from unauthorized disclosure Confidential Information of the other party. Confidential Information shall mean information that derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and marked as Confidential (“Confidential Information”). The parties agree that Confidential Information may be disclosed to employees, affiliates, suppliers or advisors on a need-to-know basis and who agree to be bound by confidentiality terms and conditions at least as stringent as those herein. This confidentiality obligation shall not apply to any information
- independently developed by a party,
- generally available to the public other than by a party’s breach of this Agreement,
- already known by a party at time of disclosure to that party, or
- rightfully received from a third party without restriction on disclosure or an obligation of confidentiality running directly or indirectly to the other party.
Nothing shall prevent or prohibit the receiving party from providing access to Confidential Information as may be required by law, rule or regulation provided that the receiving party gives as much notice as is reasonably practical and provides reasonable assistance to the disclosing party in challenging the disclosure so required by law, rule or regulation. Notwithstanding the foregoing, the parties acknowledge that Recipient shall not be required to return to Discloser or destroy those copies of Information residing on Recipient’s backup, disaster recovery or business continuity systems and the obligations hereunder with respect to such Information shall survive until such Information is destroyed.
Use of the Services by the United States Government or other governmental agencies shall be as “restricted computer software” or “limited rights data” as set forth in 48 CFR 52.227-14, or as “commercial computer software” or “commercial computer software documentation” under DFARS 252.227-7202, or under such other similar applicable terms and conditions to prevent the transfer of rights in and to the technology to the government or such agency other than under normal commercial licensing terms and conditions. Contractor/manufacturer is Select Communications Inc., 6836 Bee Caves Road, Bld. 3, Suite 205, Austin, TX 78746.
Export and Import Control Laws and Regulations
Customer acknowledges that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Services and any related software. Without limiting the foregoing, Customer acknowledges that the Services and any related software are or may be an “encryption item” subject to controls under the Export Administration Regulations promulgated by the U.S. Department of Commerce. Customer agrees not to export or re-export the Services or any related software in any form in violation of the export laws of the United States or any foreign jurisdiction.
Message delivery Services
If Customer uses Services to send fax, email, phone, text, SMS, or other messages (“Messages”) to any recipients (the “Recipients”) as a condition for using such Services, Customer represents and warrants that a) that Customer will not make any automated out-dials to induce the purchase of goods or services or to solicit a charitable contribution; and (b) Customer has the legal right to send all Messages to the Recipients (including obtaining any required consents from the Recipients) and the content timing and purpose of all Messages, campaigns and programs are in compliance with all applicable laws, rules and regulations including those with respect to timing, content, do not call lists and: the following laws of the United Sates: TCPA 47 USC 227; CANSPAM Pub. L. No. 108-187; and TSR 16 CFR 310; the following laws of Canada: the Canadian Radio-television and Telecommunications Commission concerning telemarketing and unsolicited faxes, Personal Information Protection and Electronic Documents Act; and from the following laws of the United Kingdom: the UK Privacy and Electronic Communications Regulations 2003. Customer further acknowledges that Customer is the sender of all Messages and Select Communications is acting at Customer’s direction as the broadcaster of the Messages. Select Communications does not provide content and Customer shall be solely responsible for all content of the Messages and for providing any list of names, numbers or addresses for Select Communications to utilize in sending Messages.
If any part of this Agreement is determined to be invalid or unenforceable, then such invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the allocation of risks, and the remainder of the Agreement will continue in effect. If any provision(s) is found to be contrary to law, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. Select Communications failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision unless agreed to by Select Communications in a non-electronic writing manually signed by a duly authorized representative of Select Communications. If there is any law, rule, regulation or policy that causes Select Communications to be regulated or that causes the Agreement or Services to be in conflict with such law, rule, regulation or policy, Select Communications may terminate or modify the affected Services without liability.
Except as otherwise expressly provided herein, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise. Customer acknowledges that Select Communications is an independent contractor, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement. This Agreement is for the sole benefit of Select Communications and its affiliates and Customer and is not intended to, nor shall it be construed to, create any right or confer any benefit on any other party. The parties do not intend that this Agreement will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to this Agreement. The parties confirm that they wish to have this Agreement written in English only. Customer authorizes Select Communications monitoring including recording of calls for the purposes of quality assurance and Customer further consent to Select Communications use of automatic dialing equipment to contact Customer. Select Communications performance of the Services is subject to existing laws and legal process, and nothing contained in this Agreement or any Order Form is in derogation of Select Communications right to comply with governmental, judicial and law enforcement requests or requirements relating to Customer’s use of Select Communications Website, the Services or information provided to or gathered by Select Communications with respect to such use. Customer may not assign this Agreement or any Order Form to any other person or entity without Select Communications prior written approval, but nothing restricts Select Communications ability to assign this Agreement or any Order Form or subcontract the Services hereunder.
Governing Law; Exclusive Forum; Jurisdiction
If Customer is incorporated or registered in, or if not incorporated or registered, resides in Europe, the Middle East or Africa, this Agreement shall be governed and construed by the laws of England and Customer irrevocably agrees and consents to the exclusive jurisdiction and venue of the courts sitting in England with respect to any dispute, controversy or claim arising out of or relating to this Agreement or any Services provided by Select Communications. If Customer is incorporated or registered in, or if not incorporated or registered, resides in Asia, Australia, New Zealand or the Indo – Pacific region, this Agreement shall be governed and construed by the laws of Singapore and Customer irrevocably agrees and consents to the exclusive jurisdiction and venue of the courts sitting in Singapore with respect to any dispute, controversy or claim arising out of or relating to this Agreement or any Services provided by Select Communications. If Customer is incorporated or registered in, or if not incorporated or registered, resides in North, Central or South America or any other region of the world not mentioned above, this Agreement shall be governed and construed by the laws of Texas USA and Customer irrevocably agrees and consents to the exclusive jurisdiction and venue of the courts sitting in Austin, TX USA with respect to any dispute, controversy or claim arising out of or relating to this Agreement or any Services provided by Select Communications.
Customer agrees to service of process by mail directed to Customer’s billing address. Customer waive all defenses including but not limited to sovereign immunity, lack of personal jurisdiction and forum non convenes and expressly waive any right to bring suit or have any action heard in Customer’s local courts. Customer agrees that any claim or cause of action arising out of or related to this Agreement must be commenced by Customer within one (1) year after the cause of action arose.
Select Communications will not be responsible for delays and/or defaults in its performance due to causes beyond its reasonable control, including, but without limiting the generality of the foregoing; acts of terrorism, wars, hostilities, revolutions, riots, civil commotion, national emergency, fire or explosion, flood, force of nature, embargoes, accidents, acts of God, or stability or availability of the Internet, the elements; telecommunication system failure; technology attacks, epidemic; quarantine; viruses; strike; lockouts; disputes with workmen or their labor disturbances; total or partial failure of transportation, utilities, delivery facilities, or supplies; acts or request of any governmental authority; or any other cause beyond Select Communications control, whether or not similar to the foregoing.
This Agreement in addition to Order Forms, if any, executed by the parties (each an “Order Form”) constitute the entire agreement between Select Communications and Customer with respect to the Services and supersedes all prior or contemporaneous communications and proposals, representations, promises, or agreements, whether electronic, oral, or non-electronic, between Select Communications and Customer regarding them. Customer agrees that any terms or conditions contained in any document, including but not limited to a purchase order, acknowledgement, email, or other document that Customer may now or later provide to Select Communications, will have no effect and that this Agreement is the only contract between Select Communications and Customer regarding the Services and may only be amended as set forth herein. The application of the United Nations Convention on the International Sale of Goods is hereby expressly excluded. A printed version of this Agreement and of any notice given to Customer in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Notices from Select Communications to Customer under this Agreement may be sent by mail, email, fax or other electronic media and will be considered given upon delivery to the physical address, fax number, email address or other contact information provided by Customer for billing or account management purposes. Notices to Select Communications must be sent to the address mentioned in Select Communications invoice to Customer with a courtesy copy to 6836 Bee Caves Road, Bld. 3, Suite 205, Austin, TX 78746 Attn: Legal Department. All notices shall be in English.
Select Communications may, at any time, amend the provisions of this Agreement. Any amendment proposed by Customer may only be accepted by Select Communications in a non-electronic writing manually signed by authorized representatives of the parties. Notwithstanding anything in this Section to the contrary, if Select Communications posts amended terms on its Website, such terms will automatically become effective ten (10) days after they are posted on the Website. By using the Services after such revised terms are posted, Customer agrees to be bound by any such amended provisions. Therefore, Customer agrees to periodically visit the Website to examine the then-current Agreement.