ReadyTalk Terms of Service
- Ecovate, Inc. d.b.a. ReadyTalk, a Delaware corporation (ReadyTalk), provides audio and web conferencing services (the Services) to users who have agreed to the terms of services set forth below. These terms of services (this Agreement) are a legal agreement between the person, organization or entity indicated as the Customer (the Customer) on the ReadyTalk Order Form completed on ReadyTalks website at www.readytalk.com (the Order Form) or on the Pricing Agreement provided to the customer (the “Pricing Agreement”) and ReadyTalk, and states the terms and conditions under which the Customer may access ReadyTalks systems and/or software and use the Services. ReadyTalk may refuse to provide Services to a potential Customer in its sole discretion and is not obligated to provide a reason for such refusal.
- PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY. BY USING THE SERVICES, YOU REPRESENT AND WARRANT TO READYTALK THAT YOU: (I) ARE EIGHTEEN (18) YEARS OF AGE OR OLDER; (II) ARE, OR ARE AUTHORIZED TO SIGN FOR AND BIND, THE CUSTOMER; AND (III) HAVE READ AND UNDERSTOOD THIS AGREEMENT.
- BY USING THE SERVICES YOU AGREE, ON BEHALF OF THE CUSTOMER, TO BE BOUND BY THE PROVISIONS OF THIS AGREEMENT AS IF YOU HAD ACTUALLY SIGNED THIS AGREEMENT. IF CUSTOMER DOES NOT WISH TO BE LEGALLY BOUND BY THIS AGREEMENT, CUSTOMER MAY NOT USE THE SERVICES. READYTALK MAY REVISE THIS AGREEMENT AT ANY TIME WITHOUT NOTICE BY UPDATING THIS POSTING. BY USING THE SERVICES CUSTOMER AGREES TO BE BOUND BY ANY SUCH REVISIONS AND SHOULD THEREFORE PERIODICALLY VISIT THIS POSTING TO DETERMINE THE CURRENT VERSION OF THIS AGREEMENT BY WHICH CUSTOMER IS BOUND.
- ReadyTalk agrees to provide Customer with the Services quoted in the Order Form or Pricing Agreement, which is incorporated herein, and hereby grants to Customer, during the term of this Agreement, a non-exclusive, non-transferable and non-sublicensable right to use the Services pursuant to the terms and conditions of this Agreement. Customer receives no right to modify or reproduce the Services or any software associated therewith. ReadyTalk reserves the right to vary the technical specifications of, and make changes, additions or replacements to, the Services where necessary for operational reasons or as required to comply with any applicable safety, statutory or legal requirement. ReadyTalk reserves the right to temporarily suspend the Services as necessary to conduct maintenance and upgrades to the Services.
- Customer is solely responsible for the acquisition, operation and maintenance of all hardware, equipment and software (not included with the Services) necessary for use of the Services, including, but not limited to, computers, telephones and related equipment and connections. Customer shall use the Services only for conferences or meetings in which Customer is an active participant and for its internal business purposes, and Customer shall not resell, sublicense or redistribute the Services to any third party or use the Services on a timeshare or service bureau basis or to operate a website or otherwise generate income from the Services. Customer agrees to ensure that each person using Customers account to use the Services (i) uses the Services pursuant to the terms and conditions of this Agreement and (ii) uses the Services only for lawful purposes. Customer shall ensure that no person using Customers account uses the Services to (i) violate ReadyTalks network security or any third partys system or network security by any method, including unauthorised interference with any user, host, system or network or unauthorised access to, use of or monitoring of data, systems or networks or (ii) send, receive, store, distribute, transmit, post, upload or download any materials that are designed to violate ReadyTalks network security or any third partys system or network security.
- Charges and Payment
- Customer agrees to pay the fees listed in the Order Form or Pricing Agreement. Customer shall pay all applicable fees, duties, tolls, administrative assessments, surcharges or taxes now or hereafter attributable to the Services and included on a ReadyTalk invoice. Customer shall be fully responsible for payment to ReadyTalk for all Service usage, including without limitation any fraudulent usage charges. ReadyTalk will invoice Customer for all fees and other charges as specified on the Order Form or Pricing Agreement. All invoiced amounts will be due and payable thirty (30) days after the invoice date. Overdue amounts may, at ReadyTalks election, be subject to a late payment charge of one and one-half percent (1.5%) per month or the highest rate permitted by law, whichever is lower. ReadyTalk may suspend the Services, or any portion thereof, in the event that any invoice for Services is delinquent. Customer shall be responsible for all costs and expenses (including legal fees) incurred by ReadyTalk and its affiliates and agents in collecting any payments due from Customer under this Agreement.
- Corporate Subscription charges are based on the tiered pricing structure specified in the Pricing Agreement. Tiers are determined based on the number of Active Subscriptions on the customer account. ”Active Subscription” is defined as any contact with one or more active access codes under a Corporate License. “Active Access Code” is defined as a code provided to a User to access the services they have subscribed to.
- From time to time, ReadyTalk may offer Customer additional features or services for an added cost, after providing notice describing such added features or services and associated costs. Customers use of such additional features or services shall be governed by the terms and conditions of this Agreement and such use shall be deemed acceptance of fees and charges associated therewith, which fees and charges shall be due in accordance with the terms of this Agreement.
- Any discrepancy, dispute or request for adjustment regarding an invoice for fees and charges under this Agreement must be pursued in writing by Customer within ninety (90) days following the date of such invoice, and any invoice not disputed within such ninety (90) day period shall be deemed accepted by Customer.
- The Services and all software, documentation, hardware and other materials used in provision of the Services or on ReadyTalk’s website (collectively, the “ReadyTalk Materials”) are proprietary to and the property of ReadyTalk, and, as between the parties, all right, title and interest in and to the ReadyTalk Materials (including, but not limited to, patents, copyrights, trademarks, service marks, rights to logos, trade secrets and trade names, including without limitation third-party names, product names and brand names, and all other intellectual property and proprietary rights) remain in and shall be the exclusive property of ReadyTalk. Except as expressly set forth in this Agreement, ReadyTalk does not confer any right of ownership to the ReadyTalk Materials to Customer. The obligations of this Section 4 are perpetual and survive termination of this Agreement.
- Notwithstanding Section 4.a., Customer owns and retains all right, title and interest in and to the content of any archived files (sound and/or presentation content) created by Customer (“Customer Materials”), and Customer hereby grants ReadyTalk a license to use the Customer Materials to perform the Services and ReadyTalk’s other obligations under this Agreement.
- Privacy and Security
- Although ReadyTalk uses reasonable security safeguards with respect to the Services, ReadyTalk cannot guaranty the security or privacy of any transmissions or communications through the Services. Customer acknowledges that Customer is solely responsible for all content and information sent, received, stored, distributed, transmitted, posted, uploaded or downloaded using the Services. ReadyTalk reserves the right to delete any content or information sent, received, stored, distributed, transmitted, posted, uploaded or downloaded using the Services which violates any provision of this Agreement.
- Confidential Information
- Neither party will disclose the Confidential Information (defined below) of the other party, other than to employees and contractors of such party who need to know such information to carry out the purposes of this Agreement or as required by law, and neither party will use the Confidential Information of the other party except for purposes of this Agreement. Each party shall protect the Confidential Information of the other party using at least the same care with which it protects its own Confidential Information of like nature, but at all times shall use at least reasonable care. Each party agrees to provide the other party notice of all legal requests for Confidential Information prior to disclosure.
- For purposes of this Agreement, “Confidential Information” means the terms and conditions of this Agreement and all information communicated by one party to the other party in connection with the Services or performance of this Agreement which is (i) written information conspicuously marked as confidential, (ii) oral or visual information identified as confidential at the time of disclosure, or (iii) clearly by its nature confidential, including, but not limited to, trade secrets, financial information and customer and business information. In addition, ReadyTalk’s “Confidential Information” shall include all documentation and software provided to Customer as part of the Services and all account numbers, passwords, personal identification numbers and any necessary conference codes provided to Customer in connection with the Services. Notwithstanding the foregoing, “Confidential Information” shall not include information which the receiving party can demonstrate is (i) already known by the receiving party without any obligation of confidentiality, (ii) publicly known or that becomes publicly known through no unauthorized act of the receiving party, (iii) rightfully received from a third party without an obligation of confidentiality, or (iv) independently developed without use of the disclosing party’s Confidential Information.
- Upon termination or expiration of this Agreement, each party shall return to the other party or destroy, at the disclosing party’s option, all Confidential Information of the other party. The parties acknowledge that any threatened or actual breach of this Section 7 shall constitute immediate and irreparable harm to the non-breaching party for which equitable remedies shall be awarded by a court of competent jurisdiction.
- Except for materials already made public, neither party will distribute any news releases, articles, brochures, speeches or advertisements concerning this Agreement, nor use the other party’s name or trademarks (or any variation thereof), without the other party’s prior written consent.
- ReadyTalk Representations and Warranties
ReadyTalk hereby warrants, represents and covenants to Customer as follows:
- ReadyTalk is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.
- ReadyTalk has full power and authority to enter into this Agreement; the execution, delivery and performance of this Agreement by ReadyTalk have been duly authorized by all necessary actions on the part of ReadyTalk; and this Agreement, when duly executed by ReadyTalk and Customer, will constitute a valid, binding and enforceable obligation of ReadyTalk, except as such enforceability may be affected by the application of the rights of creditors generally and the principles of equity.
- CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT THE SERVICES ARE PROVIDED ON AN AS IS AND AS AVAILABLE BASIS, AND ACCESS TO AND/OR USE OF THE SERVICES BY CUSTOMER OR ANY OTHER PERSON USING CUSTOMERS ACCOUNT IS AT CUSTOMERS SOLE RISK. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, READYTALK DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. READYTALK MAKES NO WARRANTY THAT ANY OF THE SERVICES WILL MEET THE REQUIREMENTS OF CUSTOMER OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE, NOR DOES READYTALK MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES, AS TO ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICES, REGARDING ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES OR THAT ANY DEFECTS IN THE HARDWARE OR SOFTWARE RELATED TO THE SERVICES WILL BE CORRECTED. THE ENTIRE RISK ARISING OUT OF USE OF THE SERVICES REMAINS WITH CUSTOMER. NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM READYTALK OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. THE WARRANTIES PROVIDED IN THIS SECTION 7 ARE SOLELY TO AN FOR THE BENEFIT OF CUSTOMER AND FOR NO OTHER PERSON, ORGANIZATION OR ENTITY.
- Customer Representations and Warranties
Customer hereby warrants, represents and covenants to ReadyTalk as follows:
- Customer (if not a natural person) is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.
- Customer has full power and authority to enter into this Agreement; the execution, delivery and performance of this Agreement by Customer have been duly authorized by all necessary actions on the part of Customer; and this Agreement, when duly executed by ReadyTalk and Customer, will constitute a valid, binding and enforceable obligation of Customer, except as such enforceability may be affected by the application of the rights of creditors generally and the principles of equity.
- During the term of this Agreement, any content or material Customer or any person using Customers account sends, receives, stores, distributes, transmits, posts, uploads or downloads in connection with the Services shall not in any way (i) violate any laws, rules or regulations, (ii) be obscene, indecent, immoral, defamatory, slanderous, libelous or harassing, (iii) infringe upon, violate or misappropriate any intellectual property or proprietary rights of any third party, including, without limitation, any copyright, trademark, trade secret or patent, (iv) violate any rights of publicity or privacy of any third party, or (v) damage ReadyTalks property or interfere with or disrupt ReadyTalks systems or other users. Customer is solely responsible for all content and information sent, received, stored, distributed, transmitted, posted, uploaded or downloaded using Customers account.
For the purpose of this Agreement, Customer shall grant to ReadyTalk a limited, non-exclusive, non-transferable, royalty-free license to use the trademarks, logo designs and trade names provided by Customer (collectively, the “Customer Marks”) subject to the terms of this Agreement. Use of the Customer Marks by ReadyTalk is strictly limited to identifying Customer as a ReadyTalk customer on its website and in ReadyTalk promotional materials – provided any such use has been pre-approved, not be unreasonably withheld, by Customer. ReadyTalk hereby acknowledges that validity of Customer’s ownership of the entire right, title and interest in and to the Customer Marks; that their use by ReadyTalk shall not create for ReadyTalk any right, title or interest in or to any of the Customer Marks.
- ReadyTalk shall be responsible for and shall save, defend, indemnify and hold the Customer, its officers, directors, employees and agents harmless from and against any claims, demands, suits, proceedings, etc. (each a “Claim”) brought by any individual, organization or entity (including, but not limited to, “Chairpersons”, defined herein as Customer’s employee, agent or contractor who moderates a Web Conference or On-Demand Audio Conference) arising out of (i) ReadyTalk’s violation or breach of this Agreement, (ii) the Services infringing a U.S. copyright existing as of the Commencement Date or a U.S. patent issued as of the Commencement Date (an “Infringement Claim”), or (iii) ReadyTalk’s gross negligence or willful misconduct; provided, however, that ReadyTalk shall not be required to indemnify Customer against or hold Customer harmless from any Claim brought by any User.
- If an Infringement Claim has been made, or in ReadyTalk’s opinion is likely to be commenced, Customer agrees to permit ReadyTalk, at its option and expense, either to: (a) procure for Customer the right to continue using the Services, (b) replace or modify the Services so that they become non-infringing, or (c) immediately terminate the License, in which case Customer shall cease using the Services and this Agreement shall immediately terminate, subject to the provisions of Section 14(c).
- Notwithstanding the foregoing, ReadyTalk has no liability for any Infringement Claim arising from: (a) the combination, operation or use of the Services with any services, hardware or software not provided by ReadyTalk hereunder, (b) the alteration or modification of the Services by any party other than ReadyTalk, (c) ReadyTalk’s compliance with Customer’s designs, specifications or instructions, (d) use of the Services after ReadyTalk has informed Customer of modifications or changes in the Services required to avoid an Infringement Claim, or (e) use of the Services in a manner not authorized by ReadyTalk.
- THIS SECTION 9(a) STATES THE ENTIRE OBLIGATION OF VENDOR, AND THE EXCLUSIVE REMEDY OF CUSTOMER, IN RESPECT OF ANY INFRINGEMENT OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHT.
- Customer shall be responsible for and shall save, defend, indemnify and hold ReadyTalk, its officers, directors, employees and agents harmless from and against any Claims brought by any individual, organization or entity (including, but not limited to, Chairpersons and any other User) arising out of (i) Customer’s violation or breach of this Agreement, (ii) any Claim of a User, (iii) the Customer Materials, or (iv) Customer’s gross negligence or willful misconduct.
- The indemnifying party’s obligations hereunder are conditioned upon: (i) receipt of prompt written notice of a Claim from the indemnified party; (ii) the indemnified party tendering to the indemnifying party full and complete authority and control to resolve the matter and any subsequent appeal; and (iii) reasonable cooperation and assistance of the indemnified party, at the request of the indemnifying party and at the indemnifying party’s cost and expense. The indemnified party will have the right, at its option, to participate in the settlement or defense of a Claim, with its own counsel and at its own expense, but the indemnifying party will retain sole control of the Claim’s settlement and defense. A party seeking indemnification pursuant hereto must not by any act, including any admission, statement or acknowledgement, materially impair or compromise the indemnifying party’s defense and shall use commercially reasonable efforts to mitigate damages or losses for which indemnification is sought. Neither party shall be entitled to indemnification for a Claim to the extent such party’s negligence contributed to such Claim.
- Limitation of Liability
- NO AUDIO, VIDEO OR WEB-BASED CONFERENCING SYSTEM IS COMPLETELY ERROR FREE. READYTALK DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, AND CUSTOMER ASSUMES ALL RISKS ASSOCIATED WITH USE OF THE SERVICES BY CUSTOMER AND ANY OTHER PERSON USING CUSTOMERS ACCOUNT. READYTALK SHALL NOT BE LIABLE FOR PERFORMANCE DELAYS OR FOR NONPERFORMANCE DUE TO CAUSES BEYOND ITS REASONABLE CONTROL. THE SERVICES ARE NOT DESIGNED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING, WITHOUT LIMITATION, OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT SYSTEMS OR WEAPONS SYSTEMS, AND READYTALK EXPRESSLY DISCLAIMS ALL LIABILITY ARISING FROM USE OF THE SERVICES FOR SUCH PURPOSES.
- THE LIABILITY OF READYTALK AND ITS AFFILIATES, EMPLOYEES, AGENTS AND SUPPLIERS FOR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT RECEIVED FROM CUSTOMER HEREUNDER (IF ANY) IN THE PREVIOUS TWELVE (12) MONTHS. IN NO EVENT SHALL EITHER PARTY OR SUCH PARTYS AFFILIATES, EMPLOYEES, AGENTS OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS, REVENUE, DATA OR GOODWILL, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL THEORY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Term and Termination
- The term of this Agreement will commence on the effective date of Customers Order Form or Pricing Agreement and, unless earlier terminated pursuant to the terms of this Agreement, shall continue for the term specified in the Order Form or Pricing Agreement (Initial Term) . Thereafter, this Agreement will automatically continue for additional terms, each with the same duration as the Initial Term (each, a Renewal Term), unless either party gives written notification to the other party, not less than thirty (30) days prior to the end of the current term, of its intent to terminate this Agreement.
- ReadyTalk may terminate this Agreement (i) immediately if Customer materially breaches any of its obligations under this Agreement, (ii) immediately if Customer becomes insolvent, voluntarily files or is subject to a petition under the United States Bankruptcy Code, including a petition for Chapter 11 reorganization as set forth in the United States Bankruptcy Code, or (iii) for convenience upon sixty (60) days written notice to Customer.
- Any expiration or termination of this Agreement shall not relieve either party from any obligations hereunder due and owing prior to such expiration or termination. Upon expiration or termination of this Agreement for any reason, all rights and licenses granted to Customer hereunder shall terminate and Customer shall immediately pay ReadyTalk all amounts due and payable prior to the date of such expiration or termination. Each partys rights and obligations under Sections 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of this Agreement shall survive expiration and termination of this Agreement.
- Miscellaneous Provisions
- Assignment. Neither party shall assign or transfer its rights or obligations under this Agreement without the other partys prior written consent, which consent shall not be unreasonably withheld or delayed; provided that ReadyTalk may appoint one or more subcontractors to supply any portion of the Services so long as ReadyTalk remains solely responsible for providing the Services in accordance with this Agreement. This Agreement shall be binding upon and inure to the benefit of each party and its permitted successors and assigns.
- Notices. Any notice under this Agreement shall be in writing, unless specified otherwise and except for ordinary operational notices, and shall be sent by Registered or Certified Mail, postage prepaid and return receipt requested, or by e-mail to the parties as set forth below. Either party may at any time notify the other party in writing as set forth herein of a change of address or person for the purposes of serving notice.
If to ReadyTalk:
1900 Sixteenth Street
Denver, CO 80202
Attention: Contracts Department
If to Customer:
At the address provided on the Order Form
- Severability. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable in any respect, such provision shall be severed or modified as may best preserve the intent of the parties, and the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
- Amendments and Modifications. The Services and this Agreement, or any of its provisions, may be amended or modified by ReadyTalk from time to time, at ReadyTalks sole discretion, without prior notice to Customer. Any amendment or modification to the Services or this Agreement shall be effective upon the earliest to occur of (i) a posting on ReadyTalks website or (ii) written notice to Customer as provided in this Agreement. By continuing to use the Services after any amendment or modification, Customer accepts and agrees to be bound by such amendment or modification.
- Independent Contractors. ReadyTalk is an independent contractor, and nothing contained in this Agreement shall be construed to (i) give either party the power to direct and control the day-to-day activities of the other party, (ii) constitute the parties as partners, joint venturers, co-owners, agents, franchisee or franchisor or otherwise, or (iii) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever. Neither party is an employee of the other, nor is either party entitled to employee benefits from the other party. All financial and other obligations associated with each partys business are the sole responsibility of such party. Each party represents and warrants that it (i) will not make any representations, warranties or guarantees on behalf of the other party and (ii) will not disparage the other party in any manner or otherwise harm the other partys business or reputation.
- Force Majeure. ReadyTalk shall not be responsible for any failure or delay in the performance of any obligation hereunder if such failure results, directly or indirectly, from fire, explosion, strike, freight embargo, weather, act of God, war, civil disturbance, terrorism, act of government or any agency or official thereof, labor shortage, severe weather, failure of vendors, manufacturers, suppliers or subcontractors or any other event beyond ReadyTalks control.
- Section Headings. Section headings in this Agreement are for convenience only and shall not be considered in the interpretation of this Agreement.
- Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, without giving effect to conflicts of law principles.
- Actions arising out of this Agreement; Venue. No action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than two (2) years after the cause of action has arisen, or in the case of an action for non-payment, more than two (2) years from the date the last payment was due. The exclusive jurisdiction and venue for any claim or action arising out of or relating to this Agreement shall be in the state and federal courts located in Denver County, Colorado, and the parties hereby submit to the exclusive jurisdiction of such courts with respect to such claims. The parties agree to waive any objection they may now or in the future have to the venue set forth in this paragraph.
- Entire Agreement. This Agreement and any documents, exhibits and attachments referenced herein contain the entire agreement between the parties concerning the subject matter hereof, and any representations or agreements, oral or otherwise, not embodied herein are superseded by the terms hereof and shall be of no force or effect.