-
APPLICABILITY; ENTIRE AGREEMENT
Except as set forth in the first paragraph above, these Terms
are the only terms that govern the provision of Services by
Telestream to Customer. These Terms, together with any quote,
SOW, and accepted purchase order entered into with Customer in
connection with these Terms (collectively, this “Agreement”),
comprise the entire agreement between the parties, and
supersede all prior or contemporaneous understandings,
agreements, and communications, both written and oral. In the
event of any conflict between the terms and provisions of
these Terms and those of any SOW, quote, or purchase order,
the following order of precedence will govern: (a) first,
these Terms; (b) second, the applicable SOW; (c) third, the
applicable quote; and (d) fourth, the applicable purchase
order accepted by Telestream, excluding any Customer terms and
conditions. Except as set forth in the first paragraph above,
these Terms prevail over any of Customer’s terms and
conditions regardless of whether or when Customer has
submitted its request for proposal, purchase order, or other
such terms. Provision of services to Customer does not
constitute acceptance of any of Customer’s terms and
conditions and does not serve to modify or amend these Terms.
All such additional or different terms and conditions are
expressly rejected by Telestream.
-
SERVICES
-
PRICES; VALIDITY OF QUOTATIONS
The price(s) for the Services and the currency of payment are
as stated on the face of the quotation, SOW, or invoice issued
by Telestream to which these Terms are attached. Quotations
supplied by Telestream are valid for 30 days unless a
different validity period is stated on the quotation. Customer
agrees to reimburse Telestream for all reasonable travel and
out-of-pocket expenses incurred by Telestream in connection
with the performance of the Services.
-
PERFORMANCE DATES; CHANGE ORDERS
Telestream shall use reasonable efforts to meet any
performance dates specified in the quotation, SOW, or purchase
order, and any such dates shall be estimates only. If either
party wishes to change the scope or performance of the
Services, it shall submit details of the requested change to
the other party in writing. Telestream shall, within a
reasonable time after such request (and, if such request is
initiated by Customer, not more than ten (10) business days
after receipt of Customer's written request), provide a
written estimate to Customer of: (a) the likely time required
to implement the change; (b) any necessary variations to the
fees and other charges for the Services arising from the
change; (c) the likely effect of the change on the Services;
and (d) any other impact the change might have on the
performance of this Agreement. Promptly after receipt of the
written estimate, the parties shall negotiate and agree in
writing on the terms of such change (a "Change Order").
Neither party shall be bound by any Change Order unless
mutually agreed upon in writing.
-
CUSTOMER’S OBLIGATIONS
Customer shall: (a) cooperate with Telestream in all matters
relating to the Services and provide such access to Customer’s
premises, and such office accommodation and other facilities
as may be reasonably requested by Telestream, for the purposes
of performing the Services; (b) respond promptly to any
Telestream request to provide direction, information,
approvals, authorizations, or decisions that are reasonably
necessary for Telestream to perform Services in accordance
with the requirements of the Agreement; (c) provide such
Customer materials and information and Telestream may
reasonably request to carry out the Services in a timely
manner and ensure that such Customer materials and information
are complete and accurate in all material respects; and (d)
obtain and maintain all necessary licenses and consents and
comply with all applicable laws in relation to the Services
before the date on which the Services are to start. If
Telestream’s performance of its obligations under these Terms
is prevented or delayed by any act or omission of Customer or
its agents, subcontractors, consultants or employees,
Telestream shall not be deemed in breach of its obligations
under these Terms or otherwise liable for any costs, charges
or losses sustained or incurred by Customer, in each case, to
the extent arising directly or indirectly from such prevention
or delay.
If Customer does not perform a material obligation in
connection with the Services within 30 days of the applicable
deadline, then Telestream may in its sole discretion terminate
the SOW or purchase order upon 30 days written notice to
Customer. In addition, 180 days after such notice, Telestream
in its sole discretion may invoice Customer for the full
amount of the terminated Services.
-
INTELLECTUAL PROPERTY
All intellectual property rights, including copyrights,
patents, patent disclosures and inventions (whether patentable
or not), trademarks, service marks, trade secrets, know-how
and other confidential information, trade dress, trade names,
logos, corporate names, and domain names, together with all of
the goodwill associated therewith, derivative works and all
other rights (collectively, “Intellectual Property Rights”) in
and to all documents, work product, and other materials that
are delivered to Customer under this Agreement or prepared by
or on behalf of Telestream in the course of performing the
Services, including any items identified as such in an SOW
(collectively, the “Deliverables”), shall be owned by
Telestream. Upon receipt of full payment for the Services, and
except for any Confidential Information of Customer or
Customer materials, Telestream hereby grants Customer a
license to use all Intellectual Property Rights free of
additional charge and on a non-exclusive, worldwide,
non-transferable, non-sublicensable, fully paid-up,
royalty-free, and perpetual basis to the extent necessary to
enable Customer to make reasonable use of the Deliverables and
the Services.
-
PAYMENT TERMS; INVOICES
In consideration of the provision of the licenses, equipment
and Services provided by Telestream under this Agreement,
Customer shall pay all invoiced amounts due to Telestream
within 30 days of the date of the applicable invoice. Unless
specified otherwise in the applicable quote or SOW, all
payments shall be in US dollars and made by check or wire
transfer. In addition to any other right Telestream might
have, if Telestream does not receive payment by the applicable
due date, then at Telestream’s discretion, such charges may
accrue late interest at the rate of 1.5% of the outstanding
balance per month, or the maximum rate permitted by law,
whichever is lower, from the date such payment was due until
the date paid. In addition, Telestream may suspend its
provision of Services until all payment has been made in full.
Invoicing is as follows: (a) for projects valued at or less
than $25,000 USD, the invoice will issue upon receipt of the
applicable purchase order; (b) for projects valued at great
than $25,000 USD, the invoice will issue as set forth in the
applicable quote or SOW.
-
TAXES
Unless otherwise indicated on the relevant quotation, SOW, or
invoice issued by Telestream, any and all sales, use, value
added (VAT) and similar taxes imposed on Telestream or which
Telestream has a duty to collect in connection with the sale,
supply, delivery, or use of any Product will appear as
separate items on the invoice, and Customer shall be
responsible for their payment. If sales to Customer are exempt
from such taxes, Customer shall furnish Telestream with a
certificate of exemption prior to commencement of any
Services.
-
CONFIDENTIALITY
All non-public, confidential or proprietary information of
Telestream, including, but not limited to, trade secrets,
technology, information pertaining to business operations and
strategies, and information pertaining to customers, pricing,
and marketing (collectively, “Confidential Information”),
disclosed by Telestream to Customer, whether disclosed orally
or disclosed or accessed in written, electronic or other form
or media, and whether or not marked, designated or otherwise
identified as "confidential," in connection with the provision
of the Services and this Agreement is confidential, and shall
not be disclosed or copied by Customer without the prior
written consent of Telestream. Confidential Information does
not include information that is: (a) is or becomes generally
available to the public other than as a result of Customer’s
breach of this Agreement; (b) is obtained by Customer on a
non-confidential basis from a third party that, to Customer’s
knowledge (after reasonable inquiry), was not legally or
contractually restricted from disclosing such information; or
(c) Customer establishes by documentary evidence, was in its
possession prior to Telestream’s disclosure hereunder.
Customer shall use the Confidential Information only to make
use of the Services and Deliverables. Telestream shall be
entitled to injunctive relief for any violation of this
Section 9.
-
EXPORT RESTRICTIONS
Customer shall comply with such laws and regulations governing
use, export, re-export, and transfer of products and Services
and technology, and will obtain all required U.S. and local
authorizations, permits, or licenses.
-
WARRANTY
Telestream shall perform the Services provided under the SOW
in a workmanlike manner. Customer’s sole and exclusive remedy
for breach of warranty shall be, at Telestream’s option: (a)
re-performance of the Services; or (b) termination of the SOW
or the applicable Service(s) and reimbursement by Telestream
to Customer of the portion of the Service fees paid to
Telestream for such non-conforming Services.
THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS
AND OTHER TERMS, EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING,
COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, ALL OF
WHICH ARE EXCLUDED, INCLUDING WITHOUT LIMITATION, THOSE OF
SATISFACTORY QUALITY, MERCHANTIBILITY, FITNESS FOR A
PARTICULAR PURPOSE, DATA, ACCURACY, NON-INFRINGEMENT, TITLE,
OR REASONABLE CARE AND SKILL.
-
LIMITATION OF LIABILITY
UNLESS APPLICABLE LAW PRESCRIBES OTHERWISE, IN NO EVENT SHALL
TELESTREAM, ITS AFFILIATES, SUCCESSORS, ASSIGNS, SUPPLIERS AND
SERVICE PROVIDERS BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY
FOR ANY LOSS OF USE, REVENUE OR PROFIT, LOSS OF DATA OR
DIMINUTION IN VALUE, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF
BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE,
REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND
WHETHER OR NOT TELESTREAM HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED
OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL
THE COLLECTIVE AGGREGATE LIABILITY OF TELESTREAM, ITS
AFFILIATES, SUCCESSORS, ASSIGNS, SUPPLIERS AND SERVICE
PROVIDERS ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER
ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE), OR OTHERWISE, EXCEED (A) THE AGGREGATE AMOUNTS
PAID OR PAYABLE TO TELESTREAM FOR THE SPECIFIC QUOTE, SOW, OR
ACCEPTED PURCHASE ORDER THAT IS THE SUBJECT OF THE CLAIM
GIVING RISE TO SUCH LIABILITY, OR (B) IF NO SUCH AMOUNTS HAVE
BEEN PAID OR ARE PAYABLE, $10,000.
-
TERM AND TERMINATION
The applicable quote, SOW, or purchase order will set forth
the term of the Services. As set forth in the applicable
quote, SOW, or purchase order, upon occurrence of any renewal
Services term, the fees for the Services during any renewal
term may be subject to change upon notice to Customer by
Telestream.
In addition to any remedies that may be provided under the
Agreement, Telestream may terminate these Terms and any
related quote, SOW, or purchase order, with immediate effect
upon written notice to Customer, if Customer: (a) fails to pay
any amount when due under the Agreement and such failure
continues for 10 days after Customer's receipt of written
notice of nonpayment; (b) has not otherwise performed or
complied with any of the terms of the Agreement, in whole or
in part; (c) becomes insolvent, files a petition for
bankruptcy or commences or has commenced against it
proceedings relating to bankruptcy, receivership,
reorganization, or assignment for the benefit of creditors; or
(d) assigns (by operation of law or otherwise, including
merger) or transfers any of the rights or responsibilities
granted under the SOW, without the prior written consent of
Telestream, or in the event of a sale of all or substantially
all of Customer’s assets, or transfer of a controlling
interest in Customer to an unaffiliated third party. Upon
termination, in addition to any invoiced amounts still owing,
Customer shall promptly pay Telestream for all work Telestream
has performed up to the effective date of termination at the
agreed-upon prices, fees and expense reimbursement rates, plus
a reasonable margin. If Customer wishes to re-engage
Telestream after a termination by Telestream under Section
13(b), the parties must enter into a new SOW before Telestream
will perform any additional Services. Section 1 and Sections 5
through 22 survive the termination or expiration of the
Agreement.
-
WAIVER
No waiver by Telestream of any of these Terms is effective
unless explicitly set forth in writing and signed by
Telestream. The waiver by either party of any right provided
under these Terms or an SOW will not constitute a subsequent
or continuing waiver of such right or of any other right under
these Terms or an SOW.
-
FORCE MAJEURE
Except for the obligation to pay monies due and owing, neither
party shall be liable for any delay or failure in performing
any term of these Terms or an applicable SOW when and to the
extent such failure or delay is caused by or results from acts
beyond the affected party’s control, including without
limitation, acts of God, flood, fire, earthquake, pandemic,
epidemic, explosion, labor disputes, supply chain shortages,
delays of common carriers, government order, law or action,
national or regional emergency, telecommunication breakdowns,
power outages or shortages, or other such events or
circumstances. The obligations and rights of the affected
party will be extended for a period of time equal to the
period of time during which such event prevented its
performance.
-
ASSIGNMENT
Customer shall not assign or otherwise transfer any of its
rights, or delegate or otherwise transfer any of its
obligations or performance under these Terms, without the
prior written consent of Telestream, and any purported
assignment, delegation or transfer in violation of this
Section 16 is null and void. Subject to the foregoing, these
Terms are binding upon and inure to the benefit of the
parties’ hereto and their respective successors and permitted
assigns.
-
ATTORNEYS FEES
Telestream shall be entitled to recover its reasonable costs
and attorneys’ fees, both at trial and on appeal, in any
litigation based on these Terms in which Telestream is the
prevailing party.
-
GOVERNING LAW; VENUE
All matters arising out of or relating to these Terms are
governed by and construed in accordance with the internal laws
of the State of California without giving effect to any choice
or conflict of law provision or rule (whether of the State of
California or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than those
of the State of California. Any legal suit, action, or
proceeding arising out of or relating to this Agreement shall
be instituted in the federal courts of the United States of
America or the courts of the State of California, in each case
located in the County of Sacramento, and each party
irrevocably submits to the exclusive jurisdiction of such
courts in any such suit, action, or proceeding.
-
SEVERABILITY
In the event that one or more terms of these Terms herein or
in a related SOW becomes or is declared to be invalid, illegal
or unenforceable by any court of competent jurisdiction, each
such term will be null and void and deemed deleted from the
Terms or SOW. All remaining terms of the Terms or SOW will
remain in full force and effect. Notwithstanding the
foregoing, if this paragraph is invoked and, as a result, the
value of the SOW is materially impaired for either party, as
determined by such party in its sole discretion, then the
affected party may terminate the SOW by written notice with
immediate effect to the other party.
-
RELATIONSHIP OF THE PARTIES
The relationship between the parties is that of independent
contractors. Nothing contained in these Terms shall be
construed as creating any agency, partnership, joint venture
or other form of joint enterprise, employment, or fiduciary
relationship between the parties, and neither party shall have
authority to contract for or bind the other party in any
manner whatsoever.
-
AMENDMENT AND MODIFICATION
-
NOTICES
All notices, requests, consents, claims, demands, waivers, and
other communications hereunder (each a “Notice”) will be in
writing and addressed to the parties at the addresses set
forth in the quote or SOW or to such other address and contact
personnel that may be designated by the receiving party in
writing. All Notices will be delivered by personal delivery,
nationally recognized overnight courier (with all fees
prepaid), facsimile or email (with confirmation of
transmission), or by certified mail, or registered mail (in
either case, return receipt requested, postage prepaid).
Except as otherwise provided in this Agreement, a Notice is
effective only (a) upon confirmed receipt of the receiving
party, and (b) if the party sending the Notice has complied
with the requirements of this Section 22.