This Agreement (the "Agreement") governs the purchase and use of audio, video and web conferencing services and related products and services (the "Pragmatic Services") of Pragmatic Conferencing Solutions Corp. ("Pragmatic") and its third party suppliers ("Third Party Services") (the Pragmatic Services and Third Party Services are referred to collectively as the "Services"). Pragmatic may alter, expand, or reduce the features of the Services from time to time without notice to Customer.
This Agreement is between the individual or legal entity using, purchasing or opening an account for Services ("Customer") and Pragmatic. Please read this Agreement carefully before installing, accessing, or otherwise using the Services.
This Agreement is effective and legally binding on Customer when Customer accepts this Agreement as evidenced by Customer installing, accessing, or otherwise using and/or paying for the Services. For any use of the Services by Customer, Customer agrees to pay all the current rates included by reference in this Agreement. The rates for the Services may be changed by Pragmatic from time to time without prior notice. If Customer does not agree to these prices, charges, terms and conditions, Customer will not use the Services.
This Agreement may be changed and updated from time to time by Pragmatic. Pragmatic will post updated terms of service on its website. Customer's continued use of the Services thereafter will be deemed acceptance by Customer of such changes. Please keep visiting our web site for the latest terms of service.
Customer agrees that Pragmatic's obligation to provide Services is conditional 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. Pragmatic 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 shall remain in effect until terminated in accordance with the provisions of this Agreement (the "Term").
Termination of the Agreement
Either Customer or Pragmatic may terminate this Agreement at any time for convenience upon 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: (a) Customer will pay for all Services rendered up to the date of termination; (b), Pragmatic will reimburse Customer for any amounts prepaid by Customer for Services not rendered; and (c) 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: (a) all Services rendered up to the date of termination; and (b) 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.
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. Pragmatic 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 Pragmatic 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 Pragmatic's property or interferes with or disrupts Pragmatic's system or other users. Although Pragmatic is not responsible for any such communications, Pragmatic may suspend any such communications of which Pragmatic 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 Pragmatic 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
ALL SERVICES ARE PROVIDED "AS IS" AND "WITH ALL FAULTS" AND WITHOUT ANY WARRANTY. CUSTOMER UNDERSTANDS AND AGREES THAT PRAGMATIC'S SERVICES AND THE WEBSITE ARE PROVIDED "AS IS" AND "AS AVAILABLE". PRAGMATIC 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. PRAGMATIC MAKES NO WARRANTY OR REPRESENTATION REGARDING ANY INFORMATION, MATERIALS, GOODS OR SERVICES OBTAINED THROUGH PRAGMATIC'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. PRAGMATIC 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 PRAGMATIC'S REASONABLE CONTROL.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PRAGMATIC, 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 PRAGMATIC 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 Pragmatic, its suppliers, their affiliates and their officers, directors, employees (the "Pragmatic 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: (1) Customer's use of the Services (including without limitation, any person accessing the Services using Customer's account); (2) 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; (3) 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.
Pragmatic 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 (i) independently developed by a party, (ii) generally available to the public other than by a party's breach of this Agreement, (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. Nothing shall prevent or prohibit the receiving party from providing access to Confidential Information as may be 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.
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. Pragmatic's 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 Pragmatic in a non-electronic writing manually signed by a duly authorized representative of Pragmatic. If there is any law, rule, regulation or policy that causes Pragmatic to be regulated or that causes the Agreement or Services to be in conflict with such law, rule, regulation or policy, Pragmatic may terminate or modify the affected Services without liability.
Pragmatic 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 Pragmatic's 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 Pragmatic 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 Pragmatic 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 Pragmatic, will have no effect and that this Agreement is the only contract between Pragmatic 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.
Dispute Resolution and Mandatory Arbitration
Instead of suing in court, You and Pragmatic each agree to settle disputes (except small claims that that can be dealt with pursuant to the jurisdiction of the Small Claims Court of Ontario) only by arbitration. The rules in arbitration are different. There's no judge or jury, and review is limited, but an arbitrator can award the same damages and relief, and must honour the same limitations in these Terms and Conditions, as a court would. To the fullest extent permitted by law we each agree that in the event that the Pragmatic and You (collectively the "Parties" and individually, a "Party") cannot resolve a dispute within a time frame satisfactory to the Party raising the dispute, then, the dispute must be referred to arbitration by a single arbitrator in accordance with the Arbitration Act (Ontario). If the parties are unable to agree, within three (3) business days, on a single arbitrator who will be named to resolve the dispute, either Party may apply to the Ontario Superior Court of Justice to appoint a single arbitrator who will be suitably qualified by education and professional experience to deal with the matters that are the subject of the arbitration. The arbitration will take place in Toronto, Ontario. The decision of the arbitrator shall be in writing, stating the reasons for the award, shall be final and binding on the parties to the arbitration and no appeal shall be taken from any decision of the arbitrator unless the decision contains an error of law, which results in a determination that is patently unreasonable. If for some reason these arbitration requirements don't apply, each Party hereby waives any trial by jury.
Pragmatic may, at any time, amend the provisions of this Agreement. Any amendment proposed by Customer may only be accepted by Pragmatic in a non-electronic writing manually signed by authorized representatives of the parties. Notwithstanding anything in this Section to the contrary, if Pragmatic 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.
You may not assign, lease, resell or transfer the Services to a third party without the prior written consent of Pragmatic. Pragmatic reserves the right to terminate the Services and the use of the Services, without any liability to You whatsoever in the event that You assign, lease, resell or transfer Services to a third party assignment by Pragmatic, and transfer of personal information, to an affiliate of Pragmatic or in any change of control transaction of Pragmatic without the prior written consent of Pragmatic.
The terms and provisions of these Terms of Services may only be waived in writing. No failure by Pragmatic to insist upon Your performance of any obligation in these Terms of Services will constitute a waiver of the obligation.
The invalidity, illegality or unenforceability of any one or more provisions of these Terms of Services will not impair any other provision in these Terms of Services.
You confirm that You accept these Terms of Services, as well as all other related documents, including notices, in English only, unless You specifically request French correspondence. Residents du Québec Seulement – Les parties aux présentes confirment leur volonté que la présente convention, de même que tous les documents s'y rattachant, y compris tout avis, soient rédigés en anglais seulement, à moins d'une demande expresse de l'une des parties à l'effet que les documents échangés soient rédigés en français.
These Terms of Services and any related agreements will be governed in all respects by the laws of the Province of Ontario, Canada and the federal laws of Canada applicable therein.