INCLUDING FOR PAY PER USE (PPU) ADOBE SERVICES
IMPORTANT– READ CAREFULLY: CUSTOMER’S USE OF SERVICES IS CONDITIONED UPON CUSTOMER’S COMPLIANCE WITH, AND CONFIRMS CUSTOMER AGREEMENT TO BE BOUND BY AND ACCEPTANCE OF, THESE TERMS & CONDITIONS (THIS “AGREEMENT”). IF CUSTOMER DOES NOT AGREE WITH THE TERMS OF THIS AGREEMENT, DO NOT USE THE SERVICES. CUSTOMER IS ENCOURAGED TO PRINT OR DOWNLOAD THESE TERMS AND CONDITIONS AND TO REGULARLY CHECK THIS WEBSITE TO OBTAIN TIMELY NOTICE OF ANY CHANGES TO TERMS, WHICH MAY OCCUR FROM TIME TO TIME AND AT ANY TIME WITHOUT NOTICE.
1. Services and Pricing.
(b) Credit Checks; Taxes and Other Charges. The provision of Services under this Agreement is subject to credit verification and acceptance by PGi. PGi reserves the right, in its sole discretion, to change or institute new or additional charges and/or fees for access to or use of Services (including for ancillary services) at any time. Further, PGi may, in its sole discretion, request advanced payment, in whole or in part, from Customer or change its payment terms at any time. PGi may cancel or re-schedule orders if PGi determines, in its sole discretion, that Customer’s financial condition or previous payment record so warrants such change. Charges are exclusive of taxes.Customer will pay, and PGi reserves the right to collect in arrears, all sales, use, excise or other taxes (other than taxes based upon PGi net income), fees, charges for universal support mechanisms (including without limitation any and all federal or state Universal Service Fund charges) or other charges of any nature whatsoever, now or hereafter imposed or assessed on PGi, by any foreign, federal, state/provincial, county or local government authority upon or with respect to the Services provided. Customer shall indemnify PGi against any payments made by PGi which are Your responsibility under this paragraph. If Customer claims exemption from charges, Customer must provide PGi with a current, valid exemption certificate from the applicable regulatory authority.
(c) Minimum Commitment. In the event Customer agrees to a minimum commitment for use of the Services during the term of the Agreement (“Minimum Commitment”) and does not meet its Minimum Commitment in any given month, quarter or year, as applicable, PGi shall invoice for, and Customer shall pay, upon receipt of invoice, the shortfall equal to (i) the difference between the Minimum Commitment during each applicable term less any payments for actual usage made by Customer during each applicable period during the term of the Agreement, plus (ii) any Set-Up Fees if not included otherwise included in the Minimum Commitment and not already paid in full. For commitments based on minutes, the shortfall amount in dollars shall be calculated based upon pricing using the proportion of Services as Customer actually used during the applicable period. Unless otherwise expressly agreed to by the parties, in writing, only payments for use of Services shall be applicable to the Minimum Commitment and no usage of any other conferencing and collaboration services shall be applicable to the Minimum Commitment. Payments for the Minimum Adobe Commitment may not be applied to invoices for use of any other services provided by PGi or its suppliers to Customer.
2. Term and Termination.
(a) Term. Services shall commence upon the Service Commencement Date as agreed upon by the parties, in writing (or via click-thru acceptance), and shall continue for a minimum term of twelve (12) months, unless a different term is specified by the parties, in writing. Without limiting the foregoing, if the term of any Services described in a Schedule extends beyond the expiration or termination of this Agreement, the terms of this Agreement shall apply to such Services even after expiration or termination of the Agreement.
(b) Termination. Either party may terminate this Agreement at the end of any term by providing written notice to the other party of such termination at least 60 days prior to the end of such term.
(c) Termination for Cause. Either party may terminate this Agreement at any time in the event that the other party breaches any provision of this Agreement in any material respect and fails to cure such breach within 30 days after receipt of written notice of such breach. Notwithstanding the foregoing, PGi may terminate this Agreement and/or suspend the provision of Services immediately for: illegal, fraudulent or improper use of the Services (including without limitation Customer’s use of the Services in contravention of Section 6) or if deemed reasonably necessary by PGi to prevent interruption or disruption to PGi’ network, its business or other customers; if any portion of an invoice remains unpaid when due (including without limitation any Minimum Commitment shortfall amount); or for breach, not subject to cure. PGi shall not be liable to Customer or any third party should PGi exercise its right to discontinue Services, in whole or in part, or terminate this Agreement pursuant to this Section 2(b).
(d) Effect of Termination. In the event that Customer terminates this Agreement (not due to breach by PGi) or if PGi terminates on account of Customer’s breach, Customer shall pay to PGi: (i) as liquidated damages, but not as a penalty and representing a reasonable estimate of the probable loss to PGi, the shortfall resulting from Customer’s failure to meet any Minimum Commitment for the full term of such Services, which shall represent a reasonable estimate of the probable loss to PGi; or (ii) for PPU Customers, all fees and charges incurred for Services used through the effective date of termination. For the avoidance of doubt, Customer acknowledges and agrees that notwithstanding any other provision in this Agreement, Customer is not and will not be entitled to any partial year or partial term credits or refunds of any kind (including but not limited to pre-paid charges) for Services in the event of termination for any reason.
3. Proprietary Information and Non-Disclosure. Each party acknowledges that, in the course of performing its duties under this Agreement, it may obtain information relating to the business, the Services and to the other party that is of a confidential and proprietary nature (“Proprietary Information”). Such Proprietary Information may include, but is not limited to, trade secrets, know-how, inventions, techniques, processes, computer programs, schematics, data, customer lists, financial information and sales and marketing plans. Without limiting the foregoing, this Agreement and the pricing terms referenced herein shall be considered Proprietary Information of PGi. Each party and its employees and agents shall at all times, during the term of this Agreement and thereafter, keep in trust and confidence all Proprietary Information and shall not use such Proprietary Information other than in the course of their duties under this Agreement, nor shall either party or its employees and agents disclose any of such Proprietary Information to any person without the other party’s prior written consent. Each party acknowledges that any such Proprietary Information received by the other party shall be received as a fiduciary of the other party. Each party further agrees to immediately return to the other party or destroy all Proprietary Information in its possession, custody or control in whatever form held (including all copies of all written documents relating to that) upon termination of this Agreement or at any time, or from time to time, upon the request of the other party.
4. Trademarks and Trade Names. Except as required for use of the Services, Customer has no right or license to use any of the trademarks or trade names owned by, licensed to or associated with PGi and its suppliers (the “PGi Marks”) during the term of this Agreement without express written consent from PGi. Despite prior approval, Customer will immediately cease and desist using the PGi Marks upon notice from PGi or upon termination of this Agreement for any reason. Any use by Customer of the PGi Marks other than as described above will constitute a breach of this Agreement for which, in addition to any other remedies available at law or in equity, PGi may terminate this Agreement. If PGi elects to issue a press release pertaining to this Agreement, PGi and Customer agree to cooperate in a joint press release, subject to both parties’ prior review and approval, announcing the execution of this Agreement. Customer agrees to allow PGi to name Customer as a client of PGi in any marketing material PGi may create from time to time. PGi will not use Customer trademarks or trade names, other than the corporate name and/or logo of Customer or solely to the extent used in PGi’ internal business communications and/or presentations, in any marketing materials without the prior written consent of Customer, which consent shall not be unreasonably withheld.
5. Intellectual Property. The Services provided under this Agreement (including any custom application(s) developed for Customer and results from a collaboration) and all associated intellectual and proprietary rights are the sole property of PGi and/or its suppliers.
6. Customer Compliance and Indemnification. Customer acknowledges that PGi has no control over the content of information transmitted by Customer through the Services (whether visual, written or audible) and that PGi does not examine the use to which Customer puts the Services or the nature of the information Customer or Customer’s users send or receive. Customer shall comply with all applicable foreign, federal, state/provincial and local laws relating to its use of the Services under this Agreement (including without limitation, export and control laws and regulations). Customer agrees not to transmit content through use of the Services that infringes any third party’s intellectual property rights or that is unlawful, threatening, abusive, harassing, libelous, deceptive, fraudulent, invasive of another’s privacy, vulgar, obscene or otherwise contains objectionable material of any kind or nature. Customer is responsible: (i) for any and all activities that may occur under Customer’s account and (ii) to maintain the confidentiality and security of its Services’ access numbers, keys and passcodes. Customer agrees to notify PGi immediately if there has been an unauthorized use of any access numbers, keys and passcodes or any other breach of security and Customer shall be liable for fraudulent charges until such time as Customer has notified PGi to suspend any compromised access numbers, keys and/or passcodes. Customer acknowledges that PGi may from time to time monitor bridge activity relating to the Services for quality assurance and fraud detection. Further, and notwithstanding confidentiality provisions herein, PGi may disclose information about Customer’s use of Services to satisfy any law, regulation, government agency request, court order, subpoena or other legal process. Customer shall indemnify, defend and hold PGi, its officers, directors, employees, affiliates and its suppliers harmless from any claims, losses, damages, penalties or costs (including without limitation reasonable attorneys’ or expert witness fees) arising out of Customer’s (or any person or entity accessing the Services through Customer or Customer’s account): (i) use of the Services; (ii) violation or alleged violation of any applicable laws or regulations with respect to the Services; or (iii) infringement of any intellectual property rights of any third party. The obligations contained in this paragraph shall survive any termination or suspension of the Services contemplated herein, the expiration or termination of this Agreement, and shall also survive final payment.
7. Warranty and Limitation of Liability. ALL SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND PGi SHALL NOT HAVE ANY LIABILITY TO ANY PARTY, INCLUDING BUT NOT LIMITED TO CUSTOMER, FOR THE CONTENT OF INFORMATION TRANSMITTED BY CUSTOMER THROUGH THE SERVICES OR ANY LOSS, DELAY, INTERRUPTION OR INACCURACY OF SUCH COMMUNICATIONS. PGi DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES OR COVENANTS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT REGARDING THE SERVICES. WITHOUT LIMITING THE FOREGOING, PGi MAKES NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, AND ANY MATERIAL, AND/OR DATA DOWNLOADED, UPLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. PGi ALSO DOES NOT MAKE ANY WARRANTY OR GUARANTEE FOR ANY PRODUCTS OR SERVICES PROVIDED BY VENDORS SUGGESTED BY PGi. NEITHER PGi, NOR PGi’ SUPPLIERS, SHALL IN ANY EVENT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT OR OTHER MONETARY LOSS; LOSS OR INTERRUPTION OF DATA, COMPUTER TIME OR VOICE TRANSMISSIONS; ALTERATION OR ERRONEOUS TRANSMISSION OF DATA; ACCURACY OF DATA; UNAUTHORIZED ACCESS TO OR USE OF VOICE OR DATA PROCESSED OR TRANSMITTED BY, TO OR THROUGH THE SERVICE; OR PROGRAM ERRORS) EVEN IF PGi IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. PGi SHALL NOT BE LIABLE FOR ANY FAILURE TO PERFORM, OR DELAY IN PERFORMANCE OF, ITS OBLIGATIONS UNDER THIS AGREEMENT CAUSED BY REASONS BEYOND PGi’ CONTROL. IN NO EVENT SHALL PGi’ TOTAL LIABILITY TO CUSTOMER ARISING UNDER THIS AGREEMENT, WHETHER SUCH THEORY OF LIABILITY IS BASED IN CONTRACT, TORT OR OTHERWISE, EXCEED AN AMOUNT EQUIVALENT TO ONE MONTH CHARGES (CALCULATED ON A PRO-RATED BASIS FOR ADVANCED PAYMENTS OF ALL CHARGES) BY PGi TO CUSTOMER FOR THE PARTICULAR SERVICE PERFORMED BY PGi DURING THE TERM IN WHICH THE EVENT, ACT OR OMISSION GIVES RISE TO THE LIABILITY.
8. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original but all of which together will constitute one and the same document.
9. Captions and Section Headings. Captions and section headings are for convenience only, are not a part of this Agreement and may not be used in construing it.
10. Severability. Should any provision of this Agreement be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining terms of this Agreement shall not be affected or impaired thereby, and the illegal, 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 risk.
11. Waivers. Any failure by any of the parties to comply with any of the obligations, agreements or conditions set forth in this Agreement may be waived by the other party, but any such waiver must be in writing signed by the waiving party and will not be deemed a waiver of any subsequent failures or of any other obligations, agreements or conditions contained herein.
12. No Agency. The parties’ relationship to each other shall be that of independent contractors. Neither party shall or shall be deemed to be an agent, employee, partner of, or joint venturer with the other party.
13. No Third Party Beneficiaries. Each party enters into this Agreement solely for its own benefit and purpose. Except for PGi’ suppliers as expressly provided herein, this Agreement in no way confers any rights upon, or imposes obligations on either of the parties toward, any third party, including but not limited to any recipient of content transmitted through the Services.
14. Successors and Assigns; Assignment. This Agreement shall be binding upon and inure to the benefit of the parties’ successors, legal representatives and authorized assigns. PGi may assign its rights and obligations under this Agreement to an entity that either now or in the future controls, is controlled by or is under common control with PGi or as a consequence of merger, acquisition, change of control or asset sale. Customer may not assign its rights and obligations under this Agreement without the written consent of PGi, which shall not be unreasonably withheld.
15. Notices. Customer notices will be addressed to the address first set forth on this Agreement. Notifications to PGi shall be addressed to: American Teleconferencing Services, Ltd. d/b/a Premiere Global Services, Attn: Legal Department, 3280 Peachtree Road NE, Suite 1000, Atlanta, GA 30305-2422 USA.
16. Survival of Terms. Articles 3, 6, 7 and 18 shall survive cancellation, termination, expiration or suspension of this Agreement.
17. Governing Law; Languages. This Agreement shall be governed by, and construed and enforced in accordance with the laws of the State of Georgia applicable to agreements made and to be performed therein, without regard to any conflicts or choice of law rules. The parties agree to submit to the exclusive jurisdiction of the state or federal courts located in or with responsibility for Fulton County, Georgia to resolve any disputes arising hereunder. The English language version of this Agreement controls. Agreements provided in languages other than English are provided for ease of reference only. If Customer is in Canada, it is the express wish of both parties that this Agreement, and any associated documentation, be written and signed in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
18. Entire Agreement. This Agreement, including all Schedules attached hereto, constitutes the final, complete and entire agreement between the parties with respect to the subject matter hereof, and supercedes any previous proposals, negotiations, agreements or arrangements, whether verbal or written made between the parties with respect to such subject matter. There are no other verbal agreements, representations, warranties, undertakings or other agreements between the parties. If Customer requires use of a Customer-form purchase order in connection with any of the Services to be performed hereunder, Customer hereby acknowledges and agrees that to the extent such purchase order contains any pre-printed or other terms and conditions, such terms and conditions, whether in addition to or in conflict with this Agreement, shall have no effect whatsoever and this Agreement shall govern the relationship between PGi and Customer. PGi may amend at any time the provisions of this Agreement by, at PGi’ election: (i) posting revised terms and conditions (“Amended Terms”) on www.pgi.com (the “PGi Web Site”) or (ii) delivering the Amended Terms to Customer at the address, fax or e-mail address provided herein (such delivery may be included in invoices for the Services delivered to Customer). All Amended Terms shall automatically be effective 30 days after such amendment is posted on the PGi Web Site or delivery to Customer as provided above. CUSTOMER AGREES TO BE RESPONSIBLE FOR REGULARLY REVIEWING THE PGi WEB SITE TO OBTAIN TIMELY NOTICE OF ANY SUCH AMENDED TERMS AND PGi’ THEN-CURRENT TERMS AND CONDITIONS. BY USING THE SERVICES AFTER POSTING OR DELIVERY OF AMENDED TERMS, CUSTOMER WILL BE DEEMED TO HAVE ACCEPTED AND BE BOUND BY SUCH AMENDED TERMS. No such amendment by PGi shall serve to constitute a default or termination by PGi of this Agreement, nor shall such amendment serve to be a basis for Customer’s termination of this Agreement. Except as otherwise provided in this Agreement or any Schedule hereto, this Agreement may only be amended or modified, in whole or in part, by a written instrument signed by the parties to this Agreement.
Services & Pricing Schedule Billing Footnotes:
Services will be billed in U.S. dollars, unless expressly stated otherwise by PGi or agreed upon by the parties in writing.
Without limiting any other applicable fees and charges, Customer will be charged overage fees for minutes used that exceed allotted minutes available to Customer pursuant to specific service plans offered from PGi and agreed to by Customer.
International rates and surcharges apply on a per minute basis for all calls originating outside the non-contiguous United States and/or international dial-out.
For calls with less than three (3) participants, a minimum Connection Charge will apply.
Call set-up and disconnect charges also apply to all inbound and outbound legs of all calls.
PGi rounds completed calls to the next full minute on a per participant basis and rounds the price of the call to the nearest whole cent.
Services that are not listed herein, including Enhanced Services such as moderator set-up, cancellation, rescheduling and no-show fees for Operator Assisted calls, are subject to PGi’s Standard Charges, which are available upon request from Customer’s PGi Sales Representative.
PGi is required by the Federal Communications Commission (FCC) to contribute to the federal Universal Service Fund (USF), which subsidizes telecommunications services in high cost and rural areas and services to low income consumers, schools, libraries and rural health care providers. To recover the cost of its federal USF contributions, PGi assesses federal USF charges equal to the then-applicable quarterly contribution factor (as established by the FCC) times the portion of your invoice subject to federal USF charges.
In addition, PGi assesses a 4,95% monthly Telecommunications Surcharge on audio conferencing services to recover its costs associated with regulatory requirements and compliance and other costs imposed by its underlying telecommunications carriers on PGi. USF charges apply to the Telecommunications Surcharge. Additionally, PGi imposes a 4,3% Service Fee on all pre-tax charges. PGi will not provide advance notice of any change in the quarterly USF contribution factor, USF charges, the Telecommunications Surcharge or the Service Fee. USF charges, the Telecommunications Surcharge, and the Service Fee are neither taxes nor government-required charges. PGi applies a per minute surcharge to each toll-free minute originating from Alaska, Hawaii, any US Territory, the Caribbean or Canada. For the avoidance of doubt and notwithstanding the foregoing, the Connection Charge will not apply to iMeet® or GlobalMeet® Bundled Services, and the Telecommunications Surcharge will not apply to iMeet or GlobalMeet Bundled Web Services. PGi does not currently assess USF charges on bundled service offerings.
These Terms and Conditions were last revised September 2017 and are subject to periodic revisions and updates. CUSTOMER IS RESPONSIBLE FOR REGULARLY REVIEWING THIS SITE TO OBTAIN TIMELY NOTICE OF ANY AMENDED TERMS.