Terms and Conditions for Agile Live Services

IMPORTANT-READ CAREFULLY: YOUR USE OF THE AGILE LIVE WEBSITE AND AGILE LIVE SERVICES (THE "SERVICES") IS CONDITIONED UPON YOUR COMPLIANCE AND AGREEMENT TO THESE TERMS.

This is a legal agreement between you (either an individual or entity) and Agile Live, Inc. ("Agile Live"), for use of the Services, media, printed materials, and "online" or electronic documentation. You agree to be bound by and become a party to all the terms of this Agreement by joining, or initiating a conference supported by the Services.

If you do not agree with the terms of this Agreement, do not use the Services.

Service Description. These Terms and Conditions govern the use of Agile Live’s audio, video and web-based conferencing services and related standard and enhanced conferencing features (“Services”). By ordering or using the Services Customer agrees to be bound by these Terms and Conditions. Agile Live may enhance and/or expand the features of the Services from time to time. Customer shall provide all user information necessary to enable Agile Live to create user profiles for each user Customer wishes to provide access to the Services. Services are charged by multiplying the number of minutes used in a month by Customer’s per minute rate. Agile Live reserves the right to reclaim any dial-in numbers provided Customer for Services (“Dial-In Numbers”) if such Dial-In Numbers are “inactive” for 120 days. The term “inactive” is defined as no usage on a specific number/service and no upcoming reservations scheduled for such number/service. The Dial-In Numbers will be reassigned to the Customer, upon request, in Agile Live’s sole discretion only if such Dial-In Numbers continue to be available, otherwise Customer will be provided new Dial-In Numbers.

Service Security. Agile Live utilizes industry-accepted measures and standards to maintain the security and confidentiality of Customer’s content and personally identifiable information. Agile Live hosts Customer content and information on a server that is secured by an authentication scheme and a firewall. Customer acknowledges and agrees that Agile Live cannot prevent and, therefore, is not responsible for inadvertent security breaches. Agile Live cannot and does not warrant or guarantee that third parties will not intercept, interfere with, or access in an unauthorized manner, information or communications sent or received as part of the Services. Use of conference recording or taping any use of the Services by Customer may subject Customer to State or Federal laws or regulations (e.g., regarding the notification to participants of the use of these features). Agile Live does not assume the responsibility for any required notification to any conferencing participants of the Services.

Payments, Charges and Taxes
Payments and Charges. Each month, Agile Live will invoice Customer for the total monthly cost of all Services. Payment will be due thirty (30) days from date of invoice. Unpaid invoices will be subject to a monthly service charge of 1.5% of the outstanding balance or the maximum legally allowable interest rate, whichever is lower. Customer must notify Agile Live of any disputed charges within twenty (20) days from the date of the invoice, otherwise Customer will be deemed to agree to such charges and Agile Live will not be subject to making adjustments to charges or invoices.

Unpaid Charges. In the event charges due are not paid in full, for any reason, within thirty (30) days from the Invoice date, Agile Live shall have the right to suspend all or any portion of the Services until such time as all undisputed charges and applicable late fees have been paid. Following such payment, Agile Live may reinstate Services to Customer only upon satisfactory assurance of Customer’s ability to pay for Services, including modified payment terms such as prepayment and weekly invoicing. Such suspension shall not relieve Customer of payment liability accrued through the date of such suspension, and shall not relieve Customer of any applicable MAC.

Taxes. All rates provided to Customer do not include taxes. Customer shall pay all applicable federal, state, county, local or other governmental taxes, fees, duties, tolls, surcharges or other charges now or hereafter imposed that are attributable to the Services and included on Customer’s invoices.

Trademarks and Trade Names. Other than use of materials and point-of-sale items supplied by Agile Live, Customer has no right or license to use any of the trademarks or trade names owned by, licensed to or associated with Agile Live (the “Marks”) without express written consent from Agile Live. Despite prior approval, Customer will immediately cease using the Marks upon notice from Agile Live. Any use by Customer of the Marks other than as described above will constitute a breach of these Terms and Conditions for which, in additional to any other remedies available at law or in equity, Agile Live may terminate the Customer’s accounts.

Responsibility For Your Account. Customer is responsible for all uses of the Services in association with Customer’s account, whether or not authorized by Customer. Customer is responsible for maintaining the confidentiality of Customer’s account and owner numbers and necessary conference codes, passwords and personal identification numbers used in conjunction with the Services. Agile Live 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 Agile Live of any unauthorized use of Customer’s account of which Customer becomes aware.

Other than using the Services for conferences or meetings in which Customer is an active participant and as permitted under the Terms and Conditions, Customer may not rent, lease, resell, distribute, make any commercial use of, use on a timeshare or use to operate a web site or otherwise generate income from the Services. Customer may not reverse engineer, modify, decompile, translate, or otherwise attempt to derive source code from Agile Live or any software provided thereon.

Responsibility for Content of Communication. Customer is the sole owner of content and is solely responsible for the content of all conference communications (visual, written or audible) using Customer’s account. Customer shall comply with all laws while using the Services and shall not transmit any communication, which would violate any laws, court order, or regulation, or would likely be offensive or injurious to the recipient. Customer will not use Services to send unsolicited mass mailings, surveys, pyramid schemes, chain letters, or contests to any person who has not given specified permission to be included in such a process (commercial or otherwise). Customer agrees not to use the Services to: a) engage in activities that are illegal, obscene, fraudulent, abusive, obscene or harmful to minors, unlawfully threatening, defamatory, trade libelous, invade privacy, infringe intellectual property rights, or otherwise injure third parties or are objectionable; b) in any way that damages Agile Live’s property or interferes with or disrupts Agile Live’s system or other users or c) communicate any message or material that is otherwise unlawful that would give rise to civil liability, is defamatory or that constitutes or encourages conduct that could constitute criminal offense under any applicable law or regulation. Although Agile Live is not responsible for any such communications, Agile Live may suspend any such communications of which Agile Live is made aware. Customer acknowledges and agrees that Agile Live does not control or monitor Customer’s content nor guarantee the accuracy, integrity, security or quality of Customer’s content. For conferences conducted utilizing any recording feature of the Service, Customer is responsible for and obligated to provide notification to the Participants prior to commencement of said conference that this is a "recorded session".

Privacy. Agile Live’s Privacy statement governs your visit to Agile Live’s Website and use of the Services and may be found on Agile Live’s website at http:www.Agile Live.com/privacy. Please consult it to learn Agile Live’s current practices with respect to Customer’s privacy

Limited Warranty.EXCEPT AS OTHERWISE PROVIDED HEREIN, (A) CUSTOMER UNDERSTANDS AND AGREES THAT AGILE LIVE’S SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”; (B) AGILE LIVE EXPRESSLY DISCLAIMS 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; (C) AGILE LIVE MAKES NO WARRANTY OR REPRESENTATION REGARDING ANY INFORMATION, MATERIALS, GOODS OR SERVICES OBTAINED THROUGH AGILE LIVE’S SERVICES OR WEBSITES, OR THAT AGILE LIVE’S SERVICES WILL MEET ANY CUSTOMER REQUIREMENTS, OR BE UNITERRUPTED, TIMELY, SECURE OR ERROR FREE; (D) USE OF AGILE LIVE’S SERVICES AND WEBSITE ARE AT CUSTOMER’S SOLE RISK; (E) AGILE LIVE 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 AGILE LIVE’S REASONABLE CONTROL AND (F) CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER RESULTING FROM THE USE OF SERVICES OR WEBSITE OTHER THAN AS A RESULT OF AGILE LIVE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Because some states and jurisdictions do not allow limitations on or the disclaimer of implied warranties, the above limitation shall be applied to provide the minimum warranty period or scope allowed by the applicable law.

Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL AGILE LIVE, OR ITS SUPPLIERS OR AFFILIATES, BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGE FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF, OR RESULTING FROM THE SERVICES WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF AGILE LIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, AGILE LIVE’S MAXIMUM CUMULATIVE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR ANY CLAIMS WHETHER IN CONTRACT OR TORT OR OTHERWISE, ARISING OUT OF OR RELATED TO SERVICES OR THESE TERMS AND CONDITIONS WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CUSTOMER TO AGILE LIVE FOR THE SERVICES DURING THE YEAR IMMEDIATELY PRECEDING ANY SUCH LIABILITY.

Indemnification. Customer shall indemnify, defend and hold Agile Live harmless from any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including reasonable attorneys’ fees, which arise out of or result from Customer’s use of the Service except those resulting from the negligence of Agile Live or a breach by Agile Live of these Terms and Conditons. Agile Live shall indemnify, defend and hold Customer harmless from any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including reasonable attorneys’ fees, which arise out of or result from the negligence of Agile Live or a breach by Agile Live of these Terms and Conditions. The party seeking indemnification with regard to any claim must: (i) notify the indemnifying party promptly in writing, not later than 30 days after the party receives notice of the claim, or sooner if required by applicable law; (ii) relinquish all control over the defense of the claim to the indemnifying party; and (iii) provide the indemnifying party with all assistance reasonably requested in defense of the claim. The indemnifying party shall have the right to compromise and settle the claim by the payment of money damages, but in no event shall the indemnifying party have the right to bind the indemnified party to any ongoing performance or other equitable relief in settlement of the claim.

Confidentiality. Agile Live and the Customer agree to hold all Confidential Information of the other party in strict confidence. 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 (“Confidential Information”). Confidential Information includes, without limitation, business plans; business strategies; marketing plans; industry and competitive information; technology, product and proposed product information; pricing and pricing arrangements and agreements; discount schedules; employee information; and financial information. Confidential Information may be written, oral, expressed in electronic media or otherwise disclosed, and may be tangible or intangible. A party is not required to specifically identify Confidential Information as such.

This confidentiality obligation shall not apply to any information (i) independently developed by a party, (ii) generally available to the public other than by a party's breach of these Terms and Conditions, (iii) already known by a party at time of disclosure to that party, or (iv) rightfully received from a third party without restriction on disclosure or an obligation of confidentiality running directly or indirectly to the other party. The parties agree that all Confidential Information shall be disclosed only to those employees and other persons on a need-to-know basis and who agree to be bound by these confidentiality restrictions.

The covenants of confidentiality and restrictions on use of Confidential Information shall apply during the Term of this relationship and for three (3) years after the termination or expiration of this relationship, except for trade secrets, as to which they shall apply for the period of time that such information retains its status as trade secrets under applicable law or for three (3) years following termination or expiration, whichever period is longer.

Export and Import Control Laws and Regulations. Customer agrees and acknowledges that the Services are subject to controls under the Export Administration Regulations promulgated by the U.S. Department of Commerce. Customer agrees that it will not export or re-export the Service in any form in violation of the export laws of the United States or any foreign jurisdiction.

Miscellaneous
Any failure of a party to comply with any obligation, covenant, agreement or condition herein may be expressly waived in writing by the other party, but such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure.

These Terms and Conditions shall be governed by, and construed and enforced in accordance with the laws of the State of California and the United States without giving effect to the conflict-of-laws principles thereof that would require the application of the laws of a different state. Customer agrees that any legal action involving these Terms and Conditions in any way will be instituted in a court of competent jurisdiction located in Douglas County, California, and Customer consents to jurisdiction of the courts of the State of California over Customer’s person for purpose of such legal action.

Should any part, term or provision of these Terms and Conditions be declared invalid, void or unenforceable, then such provision shall be construed, as nearly as possible, to reflect the intentions of the parties with all terms and provisions remaining in full force and effect.

Neither party will be responsible for failure of performance due to causes beyond its reasonable control. Such causes include (without limitation) acts of terrorism, wars, hostilities, revolutions, riots, civil commotion, national emergency, fire, flood, force of nature, explosion, embargo, accidents, acts of God, labor disputes, action of any governmental agency, a malfunction of a third party’s telephone lines, equipment or services which is necessary to provide the Services, or stability or availability of the Internet, or portion thereof.

Except as otherwise expressly provided herein, all remedies provided for in these Terms and Conditions 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 authorizes Agile Live’s monitoring including recording of calls for the purposes of quality assurance and Customer further consents to Agile Live’s use of automatic dialing equipment to contact Customer. Agile Live’s performance of the Services is subject to existing laws and legal process, and nothing contained in these Terms and Conditions is in derogation of Agile Live’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of Agile Live’s Website, the Services or information provided to or gathered by Agile Live with respect to such use.

Customer and Agile Live are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this these Terms and Conditions.

Neither party shall be deemed to have waived any right or remedy unless such waiver is made expressly and in writing.