Libré Communications

EULA

LIBRÉ COMMUNICATIONS INC. (“LCI”) MAKES SUBSCRIPTION SERVICES AND RELATED COMPONENTS AVAILABLE FOR PURCHASE THROUGH THE WEBSITE, WWW.LIBRECOMMUNICATIONS.COM (“THE SERVICES”). THIS AGREEMENT APPLIES TO ALL USERS OF THE WEBSITE AND THE SERVICES.

IMPORTANT NOTICE: THIS AGREEMENT CONTAINS IMPORTANT LIMITATIONS ON REPRESENTATIONS, WARRANTIES, REMEDIES, AND LIABILITIES THAT ARE APPLICABLE TO THE SERVICES SO YOU SHOULD READ IT CAREFULLY BEFORE ORDERING SERVICES. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A PURCHASE ORDER THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS HEREOF. IF YOU ARE AN AGENT OR EMPLOYEE OF AN ENTITY YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.BY USING THIS WEBSITE AND/OR THE SERVICES YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS OF USE. IF YOU DO NOT ACCEPT THESE TERMS, THEN DO NOT USE THE WEBSITE OR ANY OF ITS CONTENT OR SERVICES. THESE TERMS OF USE MAY BE AMENDED OR UPDATED BY LCI FROM TIME TO TIME WITHOUT NOTICE AND THE TERMS OF USE MAY HAVE CHANGED SINCE YOUR LAST VISIT. IT IS YOUR RESPONSIBILITY TO REVIEW THESE TERMS OF USE FOR ANY CHANGES. YOUR USE AFTER ANY AMENDMENTS OR UPDATES SHALL SIGNIFY YOUR ASSENT TO AND ACCEPTANCE OF SUCH REVISED TERMS. ANY NEW FEATURES THAT MAY BE ADDED TO THE SERVICES OR TO THE WEBSITE FROM TIME TO TIME WILL BE SUBJECT TO THESE TERMS OF USE, UNLESS STATED OTHERWISE. YOU SHOULD VISIT THIS PAGE PERIODICALLY TO REVIEW THIS AGREEMENT.

1. DEFINITIONS.
In addition to the capitalized terms defined elsewhere in these Terms, the following terms shall have the following meanings:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this Agreement, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity;
“Ancillary Services” means any services and features provided by LCI in support of or supplemental to the Libré Communications Service including training, analytics, support and hosting each as further described on the Website;

“Customer Transmission(s)” means audio-visual content and data transmitted by the Customer and/or its Permitted Users over the Libré Communications Service which may be hosted and stored by LCI in accordance with this Agreement;

“Documentation” means any and all hard copy and electronic documentation that LCI generally makes available to subscribers to the Libré Communications Service, including “how to” user guides, reference materials, and/or installation manuals;

“Equipment” means the hardware components of the Libré Communications Service including Libré plug-and-play video encoders, cameras and any cabling or other components indicated on the Order Form which are required for the proper functioning of the Libré Communications Service;

“Fees” means the fees payable by Customer to LCI for the right to receive access to the Libré Communications Service, Ancillary Services and its components, including equipment cost, monthly subscription fees and overages, all as further described on the Price List or Order Form (as applicable);

“Intellectual Property” means all rights in any invention, discovery, improvement, utility model, patent, copyright, trademark, industrial design or mask work right, and all rights of whatsoever nature in computer software and data, Confidential Information, trade secrets or know-how and all intangible rights or privileges of a nature similar to any of the foregoing, in every case in any part of the world whether or not registered, and shall include all rights in any applications and granted registrations for any of the foregoing rights;

“Libré Communications Service” means the secure web-based, live streaming and video optimization service for broadcasting Customer Transmissions in high definition through LCI’s proprietary systems and network, as further described in the Documentation;

“LCI Software” means any software pre-loaded on the Equipment or used in the Libré Communications Service, any software tools made available for the Ancillary Services and any application programming interfaces (“APIs”) made available by LCI from time to time as part of a Subscription Plan;

“Order Form” means the executed order form which sets out the Subscription details for the Services;

“Permitted User” means an individual who is authorized by Customer to use the Libré Communications Service, and who has been supplied a login and password by Customer to access Customer Transmissions;

“Person” means and includes an individual, a partnership, a joint venture, a corporation, a limited liability company, a trust, a foundation, an unincorporated organization, and any other type of legal entity;

“Subscription” means the three-year subscription for the Libré Communications Service and Ancillary Services under a Subscription Plan; and

“Subscription Plan” means a Subscription for the Libré Communications Service on a Silver, Gold or Platinum basis having the features indicated on the Order Form and the Documentation.

2. SERVICE TERMS.
2.1 Provision of Libré Communications Service. Conditioned on the terms and conditions of this Agreement and payment of the Fees, LCI shall make the Libré Communications Service and the Ancillary Services available to Customer and its Permitted Users during the term of the Subscription.
2.2 Customer Account Access. LCI hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable internal license to use and access the LCI website and user interface for the purpose of using the Libré Communications Service and the Ancillary Services during the Term. Customer shall be provided with login details enabling direct access to its database of Customer Transmissions, analytics and reports based on the same. Customer shall have the ability to edit, add to and delete content which is in its database and account.
2.3 General Service Warranties. LCI represents and warrants that during the Term (i) it will provide the Libré Communications Service and Ancillary Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; and (ii) the Libré Communications Service shall perform materially in accordance with the Documentation. For greater certainty, LCI does not warrant that Customer’s use of the Service will be error-free or uninterrupted.
2.4 LCI Service Responsibilities. LCI shall: (i) in addition to its confidentiality obligations hereunder and the service warranties above, not use or modify the Customer Transmissions (except for the purposes of performing its obligations or exercising its rights under this Agreement) or disclose the Customer Transmissions to any third parties; (ii) use commercially reasonable efforts to maintain the security and integrity of the Libré Communications Service and the Customer Transmissions; (iii) provide support to Customer as set forth on the Order Form (or documents incorporated by reference therein); and (iv) use commercially reasonable efforts to make the Libré Communications Service available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime as indicated in Schedule A; or (b) any unavailability caused by a force majeure event pursuant to section 12.11.
2.5 Customer Account & Content Responsibilities. Customer is responsible for all activities that occur in Customer’s User accounts and for maintaining the security and confidentiality of any login details to such account. Customer is responsible for any and all content provided hereunder and for compliance with this Agreement including obtaining all necessary licenses, permissions and consents to enable all material comprising Client Transmissions to be made available to LCI for LCI to transmit, host and store. For greater certainty, Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Transmissions; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Libré Communications Service and the Libré Communications Service, and notify LCI promptly of any such unauthorized access or use; and (iii) comply with all applicable local, provincial, state, federal and foreign laws in using the Libré Communications Service and providing Client Transmissions to its Permitted Users anywhere in the world.
2.6 Service Restrictions. Customer shall not (and shall not allow any Person to): (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Libré Communications Service or Equipment, or any part or component thereof; (b) circumvent any user limits or other timing or use restrictions that are built into the Libré Communications Service; (c) remove any proprietary notices, labels, or marks from the Libré Communications Service or Equipment; (d) frame or mirror any content forming part of the Libré Communications Service, other than as expressly permitted in the Documentation; (e) access the Libré Communications Service in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Service; or (f) use or promote the use of the Libré Communications Service for se while navigating vehicles or other hazardous uses.
2.7 Use Guidelines. Customer shall not, and shall not permit any Person to: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Libré Communications Service (or any of its components) available to any third party without LCI’s prior written consent, other than for Customer Transmissions as contemplated by this Agreement; (ii) use the Libré Communications Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) use the Libré Communications Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy or publicity rights; (iv) interfere with or disrupt the integrity or performance of the Libré Communications Service or the data contained therein; (v) attempt to gain unauthorized access to the Libré Communications Service or its related systems or networks; or (vi) Use the Libré Communications Service to transmit or store any communication of any kind which would constitute a criminal offense or otherwise constitute a violation of any local, state, provincial, federal or international law or encourage conduct which would violate any such law.

3. SOFTWARE TERMS
3.1 Grant of License for APIs and Embedded Software. Conditioned on the terms and conditions of this Agreement and payment of the Fees, LCI grants Customer a non-exclusive, non-transferable license during the Term to use the LCI Software in accordance with the Documentation. Binary code versions of certain third-party software may be embedded in or delivered with the Equipment and/or LCI Software (“Third-Party Software”). If a separate license agreement for an item of third-party software is: delivered to Customer with the LCI Software or Equipment or referenced in any material that is provided with the LCI Software or Equipment, then such third-party software shall be Third-Party Software and such separate license agreement shall govern the use of that item or version of such third-party software. Customer’s right to use any Third-Party Software, third-party data, third-party software or other third-party content provided with the Software shall be limited to the use necessary to operate the LCI Software as permitted by this Agreement. No other rights in the LCI Software or Third-Party Software are granted to Customer. Notwithstanding the foregoing, in the case of Third-Party Software that is licensed pursuant to open source licenses that prohibit the imposition of any restrictions on use beyond those contained in such open source licenses, the restrictions on use contained in this Agreement shall not be applicable to such Third-Party Software.
3.2 LCI Software Restrictions. Neither Customer nor any of its Permitted Users shall reverse engineer, disassemble, reverse translate, decompile or in any other manner decode the LCI Software or any element or component of the LCI Software, or create any derivative work based on the LCI Software unless expressly agreed by LCI or in the Documentation. Customer shall not rent, lease, assign, sell, license, sublicense, market, distribute, re-distribute, or transfer the LCI Software or Documentation in any manner or in any form not expressly permitted by this Agreement.
3.3 Limited LCI Software Support. LCI provides software support in conjunction with equipment support described in Section 4 below. Third Party Software is provided only with the warranties, if any, provided by the third party licensors.

4. HARDWARE/EQUIPMENT TERMS
4.1 Equipment Procurement Terms: General. Customer shall be entitled to procure Equipment from LCI for the prices specified on the Order Form. Additional Equipment may be procured from time to time at LCI’s then-current price list or as quoted to Customer in a written quotation from LCI. Upon acceptance of a purchase order from Customer for a quantity of Equipment, LCI will ship the Equipment(s) FOB LCI’s premises to Customer’s designated premises on the Order Form. Unless specified in advance by Customer, LCI will select a carrier in its own discretion. Customer shall be responsible for all freight, packing, insurance and other shipping-related expenses. Risk of loss will pass to Customer upon delivery of the Equipment by LCI or one of its agents, as the case may be, to the carrier. Neither Customer nor any Person shall modify or alter any Equipment(s) supplied by LCI for use with the Libré Communications Service. Any support or other service required as a result of any abuse, modification, alteration or installation of any additional software on any Equipment(s) provided by LCI for use with the Libré Communications Service shall be charged as additional professional services at LCI’s then-current professional services rate.
4.2 Equipment and IP. LCI or its licensors are the owners of all Intellectual Property in the core technology comprised within the Equipment and no title in the Intellectual Property shall transfer to Customer. Any third party components required or requested with the Equipment will be licensed or sold to Customer (as applicable) on the manufacturer’s terms. Such terms will be provided to Customer and Customer will be solely responsible for compliance with the same. Customer shall not (and shall require its end users to contractually commit not to) reverse engineer or disassemble the Equipment or any software contained therein. For the avoidance of doubt, any software or firmware included in the Equipment is licensed and not sold on a perpetual, royalty-free non-exclusive license basis for use solely with the Equipment. The Equipment shall retain any proprietary markings (including copyright and patent) provided there or required by LCI or its third party licensors.
4.3 Limited Equipment Warranties. Third party components are sold with the benefit of the original equipment manufacturer’s warranty, if applicable (the “OEM Warranty”). Apart from the OEM Warranty, third party products are provided ‘as is’. In respect of Equipment purchased pursuant to these Terms, LCI warrants that they will operate for a period of six (6) months substantially in conformance with their specifications from the date of delivery to Customer (the “Libré Equipment Warranty”). Notwithstanding the generality of the foregoing, the Libré Equipment Warranty will not apply if the relevant Equipment have been tampered with or modified in any way by anyone other than LCI or its agents. Furthermore, improper use of the Equipment will void the Libré Equipment Warranty. Customer shall comply with the returns procedure in Section 4.4 below.
4.4 Returns Procedure. Prior to return of any Equipment to LCI for any reason, Customer shall advise LCI of the quantity, serial numbers (if applicable) and original Order number for the Equipment and shall provide a detailed reason for the return. LCI shall accept returns only after a Return of Merchandise Authorization (“RMA”) number is issued by authorized LCI personnel for the return of such Equipment units. Customer shall ship all authorized returns to an LCI-designated location, freight prepaid by Customer. All unauthorized returns, or returns that fail to display the appropriate RMA number, may be subject to reshipment to Customer freight collect. Within thirty (30) days of receiving Equipment returned under warranty or for non-acceptance, LCI shall assess the returned product units and provide a response regarding its warranty or non-acceptance assessment. Notwithstanding the obligation of Customer to return the affected Equipment to LCI, LCI may, as soon as practicable after receipt of notice of defective Products ship replacement Equipment units to Customer. LCI shall notify Customer of such shipment. Where a warranty or non-acceptance claim is valid, LCI shall be responsible for all shipping and handling costs for any replacement Equipment units it ships to Customer. However, if LCI does not receive the damaged or defective Equipment from Customer or if the same are received by LCI but the returned Equipment do not qualify for replacement due to an invalid warranty or non-acceptance claim, LCI may charge Customer the cost of the replacement Product and the related shipping costs incurred to sending the same to Customer.
4.5 Support. LCI will provide technical support during the hours and for the duration indicated in an Order Form. Any support required over the limit will be charged at LCI’s then applicable hourly rate. LCI will also be entitled to reimbursement for reasonable travel and living expenses if requested to provide support at Customer’s premises.

5. PAYMENT TERMS
5.1 Fees. In consideration for the receipt of the Libré Communications Service and its components by Customer, Customer shall pay the Fees as specified on the Order Form.
5.2 Invoicing & Payment. Fees for the Libré Communications Service will be invoiced at the beginning of each month and will include the basic monthly subscription cost together with any overages incurred during the previous month. Unless otherwise stated in an invoice, charges are due net thirty (30) days from the invoice date. Equipment fees will be due net thirty (30) days from the date of delivery of the corresponding Equipment(s). Customer is responsible for maintaining complete and accurate billing and contact information with LCI by updating its online account.
5.3 Overdue Payments. Any payment not received from Customer by the due date may accrue, at LCI’s discretion, late charges at the rate of 1.5% of the outstanding balance per month (19.57% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
5.4 Taxes. Unless otherwise stated, LCI’s fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases pursuant to this Agreement, excluding taxes based on LCI’s net income or property. If LCI has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides LCI with a valid tax exemption certificate authorized by the appropriate taxing authority.
5.5 Audit Rights. LCI shall have the right to use the capabilities of the Libré Communications Service to confirm usage and Customer’s compliance with this Agreement.
5.6 Suspension of Service. If Customer’s account is thirty (30) days or more overdue, then in addition to any of its other rights or remedies, LCI shall have the right to suspend the Libré Communications Service provided to Customer and/or delivery of any additional Equipment(s),until such amounts are paid in full. Suspension of service shall not relieve the Customer of any obligations, financial or otherwise, due to LCI hereunder, and shall not give rise to any claim by Customer against LCI directly or indirectly arising from the suspension or interruption of service.

6. PROPRIETARY RIGHTS
6.1 Reservation of Rights. The rights and licenses granted under this Agreement are only as expressly set forth herein. LCI and its licensors reserve all rights, title and interest in and to the Libré Communications Service, including all related Intellectual Property. No other license or right is or will be deemed to be granted, whether by implication, estoppel, inference or otherwise, by or as a result of this Agreement or any conduct of either party under this Agreement.
6.2 Customer Transmissions. As between LCI and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Transmissions. Customer Transmissions are deemed Confidential Information of Customer under this Agreement. For the Term hereof, Customer grants to LCI and its Affiliates a non-exclusive, non-transferable right and license to access and use the Customer Transmissions to the extent necessary to provide the services hereunder as contemplated by this Agreement.
6.3 Customer Warranties. Customer represents and warrants that: (a) Customer has all rights necessary to provide LCI with content for use in accordance with the terms of this Agreement; and (b) LCI’s use of the content in accordance with the terms of this Agreement will not violate the rights of any third party.
6.4 Suggestions. LCI shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual, unrestricted license to use or incorporate into the Libré Communications Service and components any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Permitted Users relating to the Libré Communications Service or any component thereof.

7. CONFIDENTIALITY & PRIVACY
7.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, the Customer Transmissions, the LCI Software, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
7.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.
7.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
7.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
7.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections contained in this Agreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
7.6 Privacy. LCI shall at all times comply with the privacy law requirements of the applicable law in its collection, use and storage of any Personal Information forming part of the Customer Transmissions. For greater certainty, LCI does not monitor Customer Transmissions or collect any Personal Information unless necessary for provision of the services. LCI shall have in place appropriate technical and organizational measures to prevent unauthorized access to or accidental loss or damage or destruction of Personal Information and shall treat any Personal Information of Customer and its Permitted Users in accordance with the obligations for protecting Confidential Information. In this Section “Personal Information” means personally identifiable information about an individual.

8. DISCLAIMERS.
8.1 General Warranties. Each party represents, warrants to the other party that: (i) it has all requisite power and authority and approvals to execute, deliver and perform its obligations under this Agreement and if it is a corporation, trust, partnership, society or other form of business association, it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (ii) the execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by it and any necessary third parties, with the intent and effect that this Agreement constitutes a legally binding contract enforceable against that party in accordance with all applicable laws subject only to laws of general application affecting the enforcement rights of creditors.
8.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, LCI MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

9. INDEMNIFICATION. 
9.1 Indemnification by LCI.LCI shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable attorneys’ fees) awarded to a third party against Customer by a court of competent jurisdiction in any claims, demands, suits, or proceedings made or brought against Customer by a third party alleging that the use of the Libré Communications Service as contemplated hereunder infringes the intellectual property rights of a third party (“IP Claims”); subject to the condition that Customer (a) promptly gives written notice of each IP Claim to LCI; (b) gives LCI sole control of the defense and settlement of each IP Claim; and (c) provides to LCI, at LCI’s cost, all reasonable assistance in respect to each IP Claim.
9.2 Mitigation. If (a) LCI becomes aware of an actual or potential IP Claim, or (b) Customer provides LCI with notice of an actual or potential IP Claim, LCI may (or in the case of an injunction against Customer, shall), at LCI’s sole option and determination: (I) procure for Customer the right to continue to use the Libré Communications Service; or (II) replace or modify the Libré Communications Service(or the affected components) with equivalent or better functionality so that Customer’s use is no longer infringing; or (III) if (I) or (II) are not commercially reasonable, terminate provision of the Libré Communications Service and refund to Customer any pre-paid Fees for any periods after the termination of the Libré Communications Service, less any outstanding moneys owed by Customer to LCI.
9.3 Exclusions. The indemnity in Section 9.1 does not extend to (1) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Libré Communications Service furnished by LCI with other products, software or services not provided by LCI; (2) any IP Claim related to any Customer Transmissions, or (3) any IP Claim related to any use or exercise of any other right in respect to the Libré Communications Service outside the scope of the rights granted in this Agreement.
9.4 Indemnification by Customer. Subject to this Agreement, Customer shall defend, indemnify and hold LCI harmless against any loss, damage, fine, penalty or costs (including reasonable attorneys’ fees) incurred in connection with: (i) any claims, demands, suits, or proceedings made or brought against LCI alleging that the Customer Transmissions, or Customer’s use of the Libré Communications Service in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party or contravened the laws of any jurisdiction; or (ii) any breach of Customer’s warranties hereunder ((i) and (ii) together “Customer Claims”); provided, that LCI(a) promptly gives written notice of each Customer Claim to Customer; (b) gives Customer sole control of the defense and settlement of each Customer Claim (provided that Customer may not settle any Customer Claim unless it unconditionally releases LCIof all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance in respect to each Customer Claim.

10. LIMITATION OF LIABILITY
10.1 Limitation of Liability. IN NO EVENT SHALL LCI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY.
10.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL LCI HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF REVENUES, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT LCI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3 Certain Damages Not Excluded. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (II) DAMAGES ARISING FROM INFRINGEMENT AND/OR MISAPPROPRIATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; OR (III) ANY CLAIMS FOR NON-PAYMENT.

11. TERM AND TERMINATION.

11.1 Subscription Term.These Terms will apply from the date of signature of an Order Form for the term of the Subscription. Subscription terms are for an initial period of 3 years (“Initial Term”) and will automatically renew for further one (1) month periods unless Customer gives notice to terminate at the end of the Initial Term or at least 30 days in advance any time after the expiry of the Initial Term.
11.2 Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.3 Outstanding Fees. Termination or expiration shall not relieve Customer of the obligation to pay any fees accrued or payable to LCI prior to the effective date of termination or expiration.
11.4 Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 1, 2.6, 2.7, 3.2, 4.2, 6, 7, 8.2, 10, 11.3, 11.4 and 12.

12. GENERAL PROVISIONS.

12.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.2 Customer Affiliates. Customer Affiliates may use the Libré Communications Service subject to the terms and conditions of this Agreement. Customer shall cause each Customer Affiliate to comply with the terms and conditions of this Agreement to the full extent as if such Affiliate were a party hereto, and any act or omission relating to this Agreement by such Customer Affiliate shall be deemed an act or omission of Customer. In addition, each party may use one or more Affiliates to perform its obligations under this Agreement, provided that such use shall not affect such party’s obligations hereunder and any act or omission by such Affiliate relating to this Agreement shall be deemed an act or omission of such party.
12.3 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
12.4 Publicity. Neither party may issue press releases relating to this Agreement without the other party’s prior written consent. Each party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party’s standard guidelines.
12.5 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email, provided that an original hard copy of the emailed notice is also delivered by regular mail. Notices to LCI shall be addressed to the attention of the Legal Department. Notices to Customer shall be addressed to Customer’s designated contact person specified on the Order Form.
12.6 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
12.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
12.8 Assignment. Customer shall not assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of LCI. Any attempt to assign in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.9 Governing Law. This Agreement shall be governed by the laws of the Province of British Columbia, Canada, without regard to its conflict of law principles. No choice of laws rules of any jurisdiction shall apply to this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded.
12.10 Arbitration. All disputes arising out of or in connection with this contract, or in respect of any defined legal relationship associated therewith or derived therefrom, shall be referred to and finally resolved by arbitration before a single arbitrator under the International Commercial Arbitration Rules of Procedure of the British Columbia International Commercial Arbitration Centre. The appointing authority shall be the British Columbia International Commercial Arbitration Centre. The case shall be administered by the British Columbia International Commercial Arbitration Centre in accordance with its Rules. The place of arbitration shall be Vancouver, British Columbia, Canada.
12.11 Force Majeure. LCI shall not be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labour problems (other than those involving the employees of the affected party), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within LCI’s possession or reasonable control, provided that LCI gives Customer prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.
12.12 Export. Customer acknowledges and agrees that components of the Libré Communications Service may be subject to export and import controls under the regulations of Canada, the United States and other countries, and Customer shall comply with all export and import control regulations of such countries. Customer shall not use the Libré Communications Service for any purposes prohibited by export laws. Customer shall be responsible for procuring all required permissions for any subsequent export, import or use of the Libré Communications Service.
12.13 Entire Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any schedule, exhibit or addendum hereto, the terms of such schedule, exhibit or addendum shall prevail. Notwithstanding any language to the contrary therein, no pre-printed terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

Libré Communications Inc. © All rights reserved – last update: January 17, 2012