These Terms of Service shall apply to and govern all sales quotations, purchase orders, acknowledgements and other such related documents regarding the license of software, software updates, system, support and maintenance services from Viostream. These Terms of Service includes all Exhibits, and contains, among other things, warranty disclaimers, liability limitations and use limitations.
In this document unless the contrary intention appears:
- "Agreement" means these Terms of Service, any schedules attached, including the Order Form, as well as any variations executed according to the variation process described in these Terms of Service;
- A reference to a statute or other law includes regulations and other instruments under it and any consolidations, amendments, re-enactments or replacements of it;
- A reference to an act includes an omission and a reference to doing an act includes executing a document;
- A reference to “Content” means the third party or Customer owned video and/or audio content and related material distributed via the Products. This includes, but is not limited to, any: video, audio, flash, html, image, and text files;
- “Customer” means the party named as Customer in the Agreement
- “Business Day” means each day excluding Saturdays, Sundays and Public Holidays in New South Wales.
- “Contract Start Date” means the first day of the service commencement term
- “Viostream” means Viocorp International Pty Limited ABN 43 100 186 838;
- “Order Form” means the schedule of details of the Agreement headed “Order Form”, signed by Customer and Viostream;
- “Products” means the goods to be provided by Viostream under the Agreement and specified in the Order Form.
- “Professional Services” or “Services” means any work to be undertaken by Viostream in delivery of the products, including but not limited to configuration, design, production services, and/or integration of 3rd party products or services;
- A reference to “System” means any and all software modules that Viostream employs in the course of performing Services to the Customer under the Agreement;
- A reference to "Intellectual Property" means trademarks, copyright, patents and designs, whether registered or unregistered, and a reference to "Intellectual Property Rights" means rights in respect of Intellectual Property;
- A reference to “License” means the software modules that make up the Products identified in the order form, if any;
- A reference to “User Documentation” means user manuals or online help provided by Viostream relating to the proper operation and use of the Products; and
- A reference to “Authorised Users” means employees of the Customer that are authorised by the Customer to use the Products.
- A reference to “Term” means the term of the Agreement as stated on the Order Form.
- A reference to “Additional Term” means a period following the Term, which shall be available under the terms of Clause 6.2.
2. OWNERSHIP, LICENSES & RELATED RIGHTS
- Subject to the Terms of Service, Viostream grants to the Customer for the period of the Term, a non-transferrable license to use the Products provided by Viostream (“License”).
- All images including, but not limited, to PowerPoint slides, downloadable materials and collateral and multimedia content including, but not limited to, existing media provided to Viostream or audio/video captured live and streamed during the delivery of the System to Customer and its end users by Viostream (“Works”), shall be deemed “works made for hire” from Viostream to Customer pursuant to applicable law, and such Works shall be and remain the sole property of Customer.
- The System and all other materials, processes, know-how, tools, presenter and audience user interfaces, and technology owned or created by Viostream and used during the delivery of the System to Customer (“Viostream Property”), and all intellectual property rights therein and thereto, shall be and remain the sole property of Viostream, who hereby grants to Customer, during the term of the Agreement, a limited nonexclusive right and license to make use of Viostream Property solely for the purposes contemplated hereunder. The Customer may not modify any of Viostream’s products (including without limitation trademarks and documentation) in any way.
- The Customer acknowledges that a Viostream license is for the sole use of the Customer. Usernames and Passwords are for the sole use of the Customer. If a Customer wishes to extend access of its Viostream license to a related affiliate or third party, written permission from Viostream will be required. Additional fees may apply.
3. ADDITIONAL SERVICES
- If additional services are requested by the Customer these should be done through a written request to Viostream via email, indicating the changes to be made. Viostream shall respond with a Work Order document. If this Work Order is accepted by the customer it shall become an additional schedule to the Agreement.
- Agreed Professional Services will be charged at Viostream’s published rates and in accordance with related quotation/s.
4. COPYING, TRANSFERRING OR MODIFYING SOFTWARE
- The System consists of copyrighted material, trade secrets and other proprietary intellectual property of Viostream. Customer may not permit other individuals to use the System, except under the terms listed herein. Customer may not decompile, disassemble, reverse-engineer or otherwise display the source code in human-readable form. Further, Customer may not modify, translate, create derivative works based on the System, rent, lease, distribute or lend the System, and may not sell to others the right to use the System on its computer. Customer may not remove any proprietary notices or labels on the System. Customer may not copy, transfer, transmit, sublicense, assign or grant a security interest in this license or the System. In the event of any breach by Customer of any provision of the Agreement governing the License rights granted and ownership retained by Viostream, Viostream shall send a written notice explaining the nature of such breach to Customer. If such breach is not cured within seven (7) days after the giving of such notice, Viostream may terminate the Agreement upon written notice to the Customer and the remaining unbilled and unpaid balance of the Total Agreement Cost shall be immediately due and payable by Customer to Viostream.
- In the event that, in Viostream’s reasonable opinion, Customer requests a modification to the System subsequent to execution of the Agreement, and such modification: (i) materially varies from the then existing System; or (ii) would require Viostream to expend unanticipated, extraordinary resources; then Viostream may, in its sole discretion, elect to deliver to Customer an estimate of the additional fees and/or schedule changes, if any, that will apply to Viostream’s implementation of such changes. Nothing in this paragraph shall waive or relieve Customer’s obligation to pay Viostream the total Fees of this Agreement.
5. OBLIGATIONS OF VIOSTREAM
- Viostream will supply the Products to the Customer pursuant to the terms of this Agreement.
- Viostream supplied Products are deemed to be Accepted based upon the Commencement Date/Contract Start Date
6. OBLIGATIONS OF CUSTOMER
- The Customer must pay Viostream any fees for the Products immediately when due. Subject to any other provisions of the Agreement relating to payment, payment of Viostream's invoice must be made within thirty (30) days from the date of the invoice. Viostream must notify the Customer in advance in the event that any additional fees in respect of the Agreement are payable. Viostream’s procurement process is to issue the annual renewal quotation two months (60 days) before Contract Start Date (CSD), and issue the corresponding invoice 1 month (30 days) before CSD.
- The Agreement will automatically renew for one (1) Additional Term which will be equivalent to the original term specified in the initial Order Form, unless a Termination Notice is provided to Viostream in writing ninety (90) days prior to the End Date specified on the order form. In the event the Agreement renews, the completion date shall become the end of the Additional Term.
- The Customer will allow Viostream access to its premises at reasonable times and must provide all reasonable assistance in relation to any installation or implementation of the Products.
- Upon delivery of each Product, such item will be deemed to have been accepted by the Customer unless within 30 days of the date of such delivery or completion of the services, the Customer notifies Viostream in writing of any deficiencies and provides reasonable evidence thereof.
- The Customer consents to Viostream reproducing any of the Customer's registered or unregistered trademarks and any copyright materials supplied by the Customer to Viostream in order for Viostream to provide the Products to the Customer pursuant to the terms of the Agreement.
- The Customer consents to Viostream reproducing the Customer’s registered or unregistered trademark for the purposes of any press release or marketing material released by Viostream in relation to the products and services. Viostream shall make every endeavour to consult the Customer regarding any press release or marketing material.
- Viostream reserves the right to update its Products and Services during the term of the Agreement and improve any delivery method hosted on Viostream’s servers.
- The Customer acknowledges that it is solely responsible for the contents of any new Content distributed via the Products during the term of the Agreement. The obligations of the Customer under this clause are without limitation to the warranties provided by Viostream under the Agreement in relation to its right and title to use the Intellectual Property and Content associated with the Website.
- Specifically, the Customer will use reasonable endeavours to ensure the Content does not:
a) infringe any other person's Intellectual Property Rights;
b) be of an obscene or pornographic nature;
c) be threatening or abusive;
d) advocate illegal activity.
- Viostream reserves the right to display a “Powered by Viostream” logo and suitable hyperlink to its homepage within any Content distributed via the Product. Customer may request removal of the “Powered by Viostream” logo and hyperlink but this may be subject to additional fees.
8. MAINTENANCE AND SERVICE LEVEL CRITERIA
- Viostream warrants to Customer that it will provide the Products and Services according to the service estimates in this Agreement for the applicable Products and Services. Measurement of any service estimates shall be suspended during Scheduled System Maintenance, and during Unscheduled Maintenance, provided that:
a) “Scheduled System Maintenance” means regular scheduled maintenance during the standard outage window (9:30pm – 2:30am AEST) unless otherwise agreed, for a period in the order of not substantially more than one hour twice per month (notified at least 10 days in advance to the Customer via email and in-product notifications, if such Scheduled Maintenance could affect System Availability).
b) “Unscheduled Maintenance” means maintenance which falls outside of the criteria for Scheduled System Maintenance and for which Viostream has given to the Customer at least 48-hours prior written notice.
- System Availability
a) Viostream will provide System Availability of at least 99.5%.
b) System Availability is measured according to calendar months and refers to total uptime of the Products, excluding Scheduled Maintenance periods.
c) Excluded from System Availability are any outages that arise from:
(i) Scheduled maintenance; and
(ii) any acts or omissions of the Customer (for example, any outages occurring in infrastructure managed by the Customer), except to the extent the act or omission is at the direction of Viostream.
d) “System Availability” is defined by the measurement criteria listed below, all data for which shall be recorded and may be provided by Viostream to the Customer upon request in a discrete monthly report within 30 days after the end of each calendar month, meaning that the data will be recorded from scratch and continuously each month:
(i) System Availability will be calculated according the Total Minutes in Calculation Period, The total Minutes when the System is Available to the Customer in the Calculation Period excluding Scheduled System Maintenance so that the calculation = Minutes Available/Total Minutes in period (based on All data reported)
(ii) System Availability is measured by Viostream’s monitoring systems which track the up time of our systems at an average of every 1 minute.
- Support Services
a) Viostream provides customer support with our Licenses.
b) Customer support is available via live chat functionality inside the Product.
c) Support is available between the hours of 8am - 6pm AEST, Monday through Friday, excluding Public Holidays in the state of NSW.
d) One training session in the use of the Products is provided at the commencement of the licence period or at the earliest mutually convenient time.
9. HOSTING, STORAGE, SECURITY AND SOURCE CODE
- Unless otherwise specified on the Order Form or by way of written notice by the Customer, Viostream will retain copies of all Customers’ materials on Viostream's servers for the term of this Agreement and for 30 days after termination. Unless otherwise agreed, on expiry of the 30 day period referred to in this clause, Viostream will delete all copies of the Customer's Content from its servers.
- If upon submission of termination notice as set out in Clause 15, the Customer or its Authorised Users requires Viostream to provide copies of the Customer's materials stored on the Viostream server, then Viostream will charge the Customer an off-boarding administrative fee to extract the content and provide a copy to the Customer.
- At all times, Viostream's origin servers will be housed in Amazon Web Services, within a secure facility. Viostream will use all reasonable endeavours to prevent unauthorised access to Viostream's servers but Viostream does not warrant that it will be able to prevent unauthorised access to the Customer's Content.
- Content from Viostream’s origin servers may be delivered via a global content delivery network.
- Viostream will at all times endeavour to make available the servers and Products provided to the Customer, but shall not be liable for interruptions or down-time of the servers except as provided for under a Service Level Agreement if such an agreement is executed between the parties.
- The license allows for a monthly allowance for video streaming bandwidth and processing as stated on the Order Form.
10 .SUBCONTRACTORS AND VIOSTREAM'S EMPLOYEES
- With the prior written consent of the Customer (such consent not to be unreasonably withheld), Viostream may at any time subcontract any or all of its obligations to the Customer in relation to the Products and Services to a subcontractor nominated by Viostream.
- The Customer must not at any time during the term of this Agreement or within twelve (12) months after termination of this Agreement solicit or entice away any of Viostream's employees or attempt to solicit or entice away any Viostream employees
11. INTELLECTUAL PROPERTY RIGHTS
- Customer warrants that it has or will acquire the rights to use all Content it distributes via the Products. To the best of the Customer’s knowledge, the Content distributed via the Products is not in breach of any third party Intellectual Property Rights or Moral Rights.
- The Customer acknowledges that all Intellectual Property Rights in the Products are owned by Viostream or its third party licensors.
- Viostream warrants that it does or will own all Intellectual Property Rights in Viostream. Viostream warrants that it has good title to use all Intellectual Property Rights associated with the Products and that it is not in breach of any third party Intellectual Property Rights in licensing Products to the Customer.
- Viostream warrants that it does not own the Intellectual Property Rights associated with the Content distributed via the Products.
- Viostream consents to the Customer reproducing any of Viostream’s registered or unregistered trademarks and any copyright materials, which are supplied by Viostream to the Customer in order for the Customer to market its ability to provide access to and use the Products. The consent under this clause is for the purposes of this clause and for the duration of this Agreement only, is non transferable or assignable and the Customer must not modify, vary or adapt anything provided by Viostream without Viostream’s written consent. Anything provided by Viostream under this clause must be returned at the end of the duration of this Agreement
- The Customer must ensure that it complies with applicable Australian privacy laws at all times.
- Viostream will deal with any personal information Viostream receives from the Customer in accordance with applicable Australian privacy laws.
13. CONFIDENTIAL INFORMATION
- Unless otherwise required to be disclosed by law or in accordance with the terms of this Agreement, the Customer must keep confidential all information disclosed by Viostream and which is noted to be confidential or which by its nature may be considered confidential including all information relating to the Products such as User Documentation.
- Unless otherwise required to be disclosed by law or in accordance with the terms of this Agreement, Viostream must keep confidential all information disclosed by the Customer and which is noted to be confidential or which by its nature may be considered confidential including all information relating to the Content.
14. LIMITATION OF LIABILITY
- Conditions, warranties or other rights for the benefit of the Customer may be implied or given in respect of this Agreement by the Competition and Consumer Act (2010) or other laws. All other implied conditions, warranties and rights, together with any implied by custom or other circumstances, are excluded.
- Viostream limits its liability for breach of any implied condition, warranty or right referred to in clause 14.1 to the extent allowed by law. Subject to the qualifications in section 64A of the Competition and Consumer Act (2010) or in other laws, Viostream's liability for any breach of such implied condition, warranty or right is limited:
a) in the case of goods supplied, to any one or more of the following (as Viostream may determine):
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or supply of equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
b) in the case of services supplied, to one of the following (as Viostream may determine):
(i) the supplying of the service again; or
(ii) the payment of the cost of having the services supplied again.
- Subject to the provisions of clauses 14.1 and 14.2, and despite any implication arising from any other clauses in this Agreement, Viostream is not liable to the Customer for indirect or consequential loss or damage suffered by the Customer or any other person arising out of a breach or other act or omission (whether negligent or not) in connection with this Agreement. "Indirect loss" includes financial loss or expense including where caused by lack of use or of goodwill, loss of data or delay in the performance of any obligation, together with any expense incurred in connection with that loss, or mitigation or attempted mitigation of that loss. Indirect loss does not include any loss or damage for which Viostream is entitled to indemnity under a policy of insurance held by it.
- Subject to the provisions of clauses 14.1, and 14.2 and except in the case of any claim for damages arising from the death of, or injury to, any person caused by any wilful or negligent act or omission of Viostream, but otherwise notwithstanding anything else to the contrary contained in or implied in this Agreement, any liability which Viostream may have to the Customer in relation to breach of an obligation in relation to the Products or this Agreement will be limited to AUD1,000.
- Viostream may terminate this Agreement upon the occurrence of any of the following:
a) failure by the Customer to perform any obligation under this Agreement where such failure is not rectified within ninety (90) days notice from Viostream requesting such rectification;
b) the Customer is "insolvent" within the meaning of that word in the Corporations Act 2001 (Cth), or, if the Customer is an individual, is made a bankrupt; or
c) the Customer purports to assign its rights under this Agreement without Viostream's consent.
- The Customer may terminate this Agreement upon the occurrence of any of the following:
a) failure by Viostream to perform any obligation under this Agreement where such failure is not rectified within ninety (90) days notice from the Customer requesting such rectification;
b) Viostream is "insolvent" within the meaning of that word in the Corporations Act 2001 (Cth); or
c) Viostream purports to assign its rights under this Agreement without the Customer’s consent.
- The Customer may terminate this agreement at any time within the Additional Term by providing in writing a ninety (90) day notice of intent to terminate. Where the Customer has paid Viostream annually upfront, any fees paid for the period after the effective Early Termination Date will be refunded to the Customer.
16. FORCE MAJEURE
- Viostream will not be liable for any loss or damage suffered by the Customer due to any delay or any breach or default under this Agreement in circumstances where such delay, breach or default results from causes beyond Viostream's reasonable control including but not limited to the compliance of any laws, regulations, orders, acts, instructions or priority of requests of government, acts of god, fires, floods, weather, strikes, lock-outs, wars, riots, delay or shortage in transportation.
- Any delay resulting from such cause as set out in clause 16.1 will immediately extend the date for performance by Viostream of any obligations under this Agreement by the period of delay.
- The Customer is entitled to terminate this Agreement if any delay resulting from such cause as set out in clause 16.1 continues for a period of 60 days.
17. GENERAL PROVISIONS
- Neither party may assign any or all of its rights under this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld).
- This Agreement will be governed by the laws of the State of New South Wales, Australia and the parties submit to the jurisdictions of the courts of that State.
- Even if a part of this Agreement is for any reason invalid or unenforceable, the remaining portion remains in full effect as if each party had signed it without the invalid portion.
- No waiver by Viostream of its rights will be implied from anything done or omitted by Viostream. Any express waiver by Viostream of any right will not be deemed to extend to any continuing or occurring default by the Customer of its obligations.
- This Agreement may only be varied where such variation is in writing and signed by authorised representatives on behalf of each party.
- Clauses 7, 10, 12, 14 and 16 will survive termination of this Agreement.
18. FEES AND PAYMENTS
- This Customer must pay to Viostream the fees as per the Order Form. Fees are payable in advance.
- All payments to Viostream must be made in Australian dollars and must be made by:
a) Direct Debit via Electronic Funds Transfer (EFT) or Direct Debit from the Customer’s Bank Account as notified by Customer on the INVOICE sent as part of this Agreement, or;
b) Automatic debit to the Customer’s Credit Card details of which are notified by Customer on the Authority to Auto-Debit Credit card form (to be supplied by Viostream if Customer selects this form of payment); or
c) Cheque in favour of Viostream International Pty Ltd or as directed in writing
- If the Customer defaults in making payments under this Agreement when due, then in addition to its other rights Viostream in its absolute discretion may;
a) Charge the Customer interest on the outstanding amounts at the rate being 2% above the published rate for the National Australia Bank (presently called “Business Base Rate”) applied at the rates applicable from time to time from the date on which payments are due until the date of payment; and/or
b) Suspend the provision of Services to the Customer until such a time as Customer has rectified the default and paid Viostream’s standard re-activation charge of AUD$500. Service Fees will continue to accrue during the period of suspension.
- If a reasonable, good faith dispute by Customer arises in respect of an invoice for Service Fees, the Customer must:
a) Notify Viostream in writing of the nature of the dispute and the amount in dispute;
b) Pay the undisputed amount within the timeframe required by the Agreement;
c) Co-operate with Viostream on a good faith basis to resolve the dispute at the lowest level possible within 14 days after the notification to Viostream.
- Customer is responsible for all reasonable costs and expenses incurred by Viostream employees or agents while travelling to and from, and while performing at the place of business, or any other site during the initial System training and installation. Such costs and expenses shall require prior written approval by Customer, and if approved, shall be invoiced separately.
- Viostream reviews its pricing periodically. We will provide you with at least thirty (30) days notice before charging you with any price change on any annual or longer term plans.