Global Terms
These AI-Media Global Terms apply to any order for Products or Services supplied by an AI Media entity and forms an agreement (Agreement) between the Customer and the relevant AI-Media entity as outlined below. By placing an Order for a Product or Service (including by clicking on the “I agree” or similar button or checkbox that is presented to the Customer), or by accessing or using one of the Products or Services, the Customer agrees to be bound by the terms of this Agreement. If the Customer does not agree to the terms and conditions of the Agreement, it must not Order, use or access any Product or Service.
Customer means:
(i) the individual who places an Order for a Product or Service, or that accesses one of the Services; or
(ii) if the individual is placing an Order or accessing a Service on behalf of a company other entity that they are representing, then Customer means the entity being represented.
By accepting on behalf of an entity, the individual represents and warrants that:
(i) it has full legal authority to bind that entity to this Agreement; and
(ii) it agrees to this Agreement on behalf of that entity.
AI-Media entity and Governing Law: the AI-Media contracting entity and relevant law governing this Agreement depends on the country in which the Customer is located (in the case of a Customer that is an individual) or incorporated or established (in the case of all other Customers), as follows:
| Country | AI-Media entity | Governing Law |
|
USA |
Ai-Media Technologies LLC |
The laws of the State of New York, USA |
|
Canada |
Ai-Media Canada Inc (Co No 1015825-9) |
The laws of Ontario, Canada |
|
UK or a country that forms part of EMEA |
Ai-Media UK B Ltd (Co No 07292409) |
The laws of England and Wales |
|
Australia, New Zealand or a country that forms part of Asia or the Pacific |
Access Innovation Media Pty Limited (ACN 105 924490) |
The laws of New South Wales, Australia |
Each party submits to the exclusive jurisdiction of the courts of the place specified in the Governing Law column above, and any court hearing appeals from those courts. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
TERMS AND CONDITIONS:
1. DEFINITIONS
The following capitalized words are defined as follows in this Agreement:
(a) Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with a party, where “control” means ownership, directly or indirectly, of 50% or more of the voting securities or other voting rights in, or ownership interests of, another entity;
(b) Agreement means these AI-Media Global Terms and includes the descriptions of parties and recitals, and all terms incorporated by reference into these AI-Media Global Terms;
(c) Authorized User means any Personnel of the Customer, a Customer Affiliate or of a third party service provider of Customer or a Customer Affiliate, who is authorized by the Customer or a Customer Affiliate to access and use the Products and Services on behalf of the Customer or Customer Affiliate;
(d) Automated Captioning Service means any Captioning Services provided using AI-Media’s “Lexi” automated captioning service, or any alternative automated captioning service provided by AI-Media from time to time;
(e) Automated Voice Service means any Voice Services provided using AI-Media’s “Lexi Voice” automated voice translation service, or any alternative automated voice service provided by AI-Media from time to time;
(f) Business Day means a day which is not a Saturday, Sunday, public holiday or bank holiday in the place in which the applicable AI-Media entity is incorporated;
(g) Captioning Services means any real-time or recorded content captioning (open or closed captions) that are provided by AI-Media via the Platform, including without limitation captioning for any media live-streamed through any online or third party platform;
(h) Claims means actions, suits, causes of action, arbitrations, debts, dues, costs, claims, demands, verdicts, orders and judgments either at law or in equity or arising under a statute and whether or not the matters giving rise to those claims are known to the parties at the date of this Agreement;
(i) Commencement Date means the date that is the earlier of (i) the Customer’s initial access to or use of a Product or Service; or (ii) the date of the first Order referencing this Agreement;
(j) Confidential Information means all information and material (whether oral, in writing or electronic) relating to a party and its business, that is not publicly available (other than by breach of this Agreement), including without limitation strategic, corporate, operational and financial information. Confidential Information also includes the contents of this Agreement;
(k) Delivered Materials means the captions, caption files, transcripts or other similar directly relevant files that AI-Media produces based on User Content and delivers to the Customer in connection with an Order;
(l) Documentation means any and all documentation generally made available by AI-Media to its customers (including on or via the Platforms) in connection with use of the Products or Services, including without limitation, users’ manuals, installation and configuration guides, technical and functional specifications, and any revisions or supplements thereto;
(m) Facilities means the facilities of the Customer including but not limited to the premises, working space, computer equipment, access to the Internet, and access to the Customer’s computer network and telecommunications system;
(n) Fees means the fees applicable to a Product or Service set forth on the Platforms (and customer portals accessible through the Platforms) or otherwise notified to Customer by AI-Media (including in a quote that forms part of the Order);
(o) Force Majeure Event means any event beyond the reasonable control of AI-Media, in consequence of which AI-Media cannot reasonably be required to perform its obligations under this Agreement including but not limited to, fire, outbreaks of war, pandemics, epidemics, acts of hostility, terrorist activity, national emergency, government action, where any of our employees, agents or contractors who are directly involved in providing the Services are sick or suffer some other emergency or unexpected event, or any act of God;
(p) Global Terms means these Global Terms, as amended and updated from time to time, located at: Global Terms;
(q) Hardware means any AI-Media or AI-Media Affiliate hardware products (including EEG hardware encoders and Lexi Local devices) set out in an applicable Order;
(r) iCap Network means AI-Media’s cloud hosted closed captioning and subtitle delivery network, connecting content providers to Captioning Services and Third Party Captioning Services, as more particularly described at: https://www.ai-media.tv/our-products/icap-cloudnetwork/;
(s) Insolvency Event means the occurrence of any one or more of the following events in relation to a party:
(i) an application is made to a court for an order that it be wound up, declared bankrupt or that an administrator, liquidator provisional liquidator or receiver or receiver and manager be appointed, and the application is not withdrawn, struck out or dismissed within twenty one (21) days of it being made;
(ii) a liquidator or provisional liquidator is appointed and the appointment is not terminated within fourteen (14) days of it being made;
(iii) an administrator or a controller is appointed to any of its assets and the appointment is not terminated within fourteen (14) days of it being made;
(iv) it enters into an arrangement or composition with one or more of its creditors, or an assignment for the benefit of one or more of its creditors;
(v) it proposes a winding-up or dissolution or reorganization, moratorium, deed of company arrangement or other administration involving one or more of its creditors;
(vi) it is insolvent as disclosed in its accounts, or otherwise states that it is insolvent, or it is presumed to be insolvent under an applicable law;
(vii) it becomes an insolvent under administration or action is taken which could result in that event and the proceeding is not dismissed within twenty one (21) days of the date action is taken;
(viii) a writ of execution is levied against it or a material part of its property which is not dismissed within twenty eight (28) days;
(ix) it ceases to carry on business or threatens to do so, other than for reorganisation or restructuring; or
(x) anything occurs under the law of any jurisdiction which has a substantially similar effect to any of the above paragraphs of this definition.
(t) Intellectual Property means all copyright, designs and industrial designs, circuit layouts, trademarks, service marks and commercial names and designations, trade secrets, know-how, confidential information, patents, invention and discoveries, literary artistic and scientific works, inventions in all fields of human endeavor, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields;
(u) Intellectual Property Rights means all rights in Intellectual Property, including current and future registered and unregistered rights, whether conferred by statute, common law or equity, in any jurisdiction in the world;
(v) Lexi Local means the hub which delivers highly secure live, automatic captions, on-premises and off the cloud;
(w) Loss means, in relation to any person, any damage, loss, cost (including legal costs on a full indemnity basis), expense or liability incurred by the person or any claim, action, proceeding or investigation made against the person however arising and whether present or future, fixed or unascertained, actual or contingent;
(x) On-Premises Software means any AI-Media or AI-Media Affiliate software products for installation on the Customer’s premises (such as iCap Alta IP Video Captioning) as set out in an applicable Order, including any updates to such software as may be provided to Customer by AI-Media during the Order Term;
(y) Order means an order for Products and/or Services placed in accordance with clause 2.3(b);
(z) Order Term has the meaning given in clause 2.3(e);
(aa) Personal Information means:
(i) any information relating to an identified or identifiable natural person; and
(ii) any information defined as “personally identifiable information,” “personal information,” “personal data” or similar terms as such terms are defined under applicable laws;
(bb) Platform means:
(i) in the case of Services, the online AI-Media Customer platform applicable to the Service, located on www.ai-live.com, www.ai-media.tv, www.eegent.com or www.eegcloud.tv (or such other location as otherwise notified to the Customer by AI-Media); and
(ii) for Products that allow the Customer to access the iCap Network, the iCap Network and AI-Media’s online Customer platform located on www.eegcloud.tv (or as otherwise notified to the Customer by AI-Media);
(cc) Privacy Policy means the AI-Media policy located at: https://www.ai-media.tv/privacypolicy/;
(dd) Product Terms means the Product Terms and Encoder Warranty & Product Support Terms;
(ee) Products means Hardware or On-Premise Software;
(ff) Personnel means a party’s employees, agents and contractors;
(gg) Services means, collectively, the Captioning Services, the Voice Services, transcription, note-taking, audio description, translation, voice to voice translation, or other services to be provided by AI-Media as set out in an applicable Order;
(hh) Supply Specific Terms means the Product Terms or Terms of Service, as applicable to an Order and incorporated into this Agreement in accordance with clause 5;
(ii) Support means the technical support services to be provided by AI-Media for the Products and Services in accordance with clause 4(c);
(jj) Term has the meaning given in clause 2.1(a);
(kk) Terms of Service means the Terms of Service;
(ll) Third Party Captioning Services has the meaning give in clause 7(a); and
(mm) User Content means the information or content, including videos, audio recordings, illustration or texts, regardless of the medium, that the Customer shares, uploads or submits in connection with its access to or use of the Platforms or Services.
(nn) Virtual and Cloud-based Encoder means the same as described in the Encoder Warranty & Product Support Terms;
(oo) Voice Services means the process of converting spoken words from one language into another, combining automated speech recognition, machine translation, and speech synthesis, deliverable by AI-Media over the iCap Network, as more particularly described at: https://www.ai-media.tv/our-products/lexi-ai-powered-captioning-tool-kit/lexi-voice/.
2. TERM AND ENGAGEMENT
2.1 Term and variation of this Agreement
(a) This Agreement will commence on the Commencement Date and will continue until expiry of all Order Terms, unless terminated earlier in accordance with the terms of this Agreement.
(b) AI-Media reserves the right, at its complete discretion, to amend or modify this Agreement or any Supply Specific Terms at any time. AI-Media will notify the Customer of any changes either by replacing this Agreement or the Supply Specific Terms on AI-Media’s website (showing the date that it was updated), or via email, or via any other means AI-Media deems reasonable. Any changes made will become effective immediately and either the Customer’s explicit consent or the Customer’s continued use of the Product or Service constitutes the Customer’s acceptance of the new terms. If the Customer does not agree with any amendment or modification of this Agreement or the Supply Specific Terms, then the Customer can choose to terminate this Agreement at any time, by ceasing to use the applicable Services, On-Premise Software and cancelling the Customer’s account with AI-Media.
2.2 Structure and order of precedence
(a) This Agreement is made up of:
(i) the terms set out in clauses 1 to 17 of these Global Terms; and
(ii) the terms in each Order.
(b) Unless expressly contemplated by reference to this clause in an Order, if there is any inconsistency between the documents or clauses listed in clause 2.2(a) above, the documents and clauses will prevail in the order in which they are listed above to the extent of any inconsistency.
2.3 Engagement
(a) Subject to the terms and conditions of this Agreement, and in consideration of the Customer paying the Fees to AI-Media, AI-Media will provide the Products and Services specified in one or more Orders placed during the Term.
(b) The Customer may order Products and Services from time to time via:
(i) the ordering facilities made available on the Platforms, by logging into the Customer’s account on such Platforms – any such order is subject to the ordering and cancellation rules set out in the Terms of Service;
(ii) executing or otherwise accepting (including via email) a quote for the Product or Service issued by AI-Media; or
(iii) AI-Media accepting in writing (including via email) an ordering document issued by the Customer in a form acceptable to AI-Media, that specifies the Products or Services selected, Fees and other terms agreed to by the parties relating to the supply of those Products or Services.
(c) AI-Media may reject an ordering document issued by the Customer, or any part of it, at AIMedia’s sole discretion.
(d) The parties acknowledge and agree to the additional ordering and cancellation rules set out in the Terms of Service (in the case of orders for Services), and the Product Terms (in the case of orders for Products).
(e) The term of each Order (Order Term) will be:
(i) as specified in the Order; or
(ii) the period from when the Order is placed in accordance with clause 2.3(b) until delivery of the Product or Service.
(f) Each Order placed during the Term is incorporated into and forms part of this Agreement.
(g) Customer acknowledges that the Services may be provided by AI-Media remotely via the Platform. AI-Media is permitted to subcontract performance of some or all of the Services to any person, provided that AI-Media remains responsible for the acts or omissions of any subcontractor.
3. FEES AND PAYMENT
3.1 Fees
(a) In consideration of the provision of the Products and/or Services, the Customer will pay AI-Media the Fees.
(b) AI-Media may vary the Fees applicable to an existing Order at any time by notice to the Customer sixty (60) days prior to the variation taking effect. If the Customer does not agree to the relevant variation of Fees, then the Customer may terminate the applicable Order on written notice to AI-Media and the applicable Order will terminate on the day that the relevant variation of Fees takes effect; and
(c) AI-Media may vary all other Fees at any time on notice to Customer, and such varied Fees will apply to any Order placed for the Product or Service after the date that AI-Media has notified the Customer of the varied Fee.
(d) The Fees are exclusive of tax, fees, imposts or charges imposed under law.
3.2 Invoicing and payment
(a) In respect of each Order, AI-Media will issue the Customer a tax invoice setting out the Fees for relevant Products and Services under the Order. Unless otherwise specified in the Supply Specific Terms or an Order, AI-Media will invoice the Customer in advance for Services, and on acceptance of the Order for Products. The Customer must make payment within thirty (30) days of receipt of a tax invoice from AI-Media.
(b) The Customer must pay AI-Media the Fees for a relevant Order by Electronic Funds Transfer to AI-Media’s nominated bank account or via an alternative payment method specified in the applicable Supply Specific Terms or otherwise approved by AI-Media in its sole discretion. Where AI-Media approves payment via a third party payment processing service, the Customer will be required to agree to the third party payment processor terms, and will be solely responsible for any fees charged by the third party payment processor.
(c) All Fees are to be paid in the currency invoiced by AI-Media or as otherwise stipulated by AI-Media.
(d) AI-Media may set-off any amount payable to the Customer by AI-Media under this Agreement against any amount payable by the Customer to AI-Media under this Agreement.
(e) If the Customer disputes any charges in an invoice, the Customer must notify AI-Media within 14 days after the invoice date. In respect of a dispute related to usage of either the Lexi Service or iCap Platform the following process will apply:
(i) the Customer must notify AI-Media in writing of the specific dates and times at which the Customer believes an overcharge has been made;
(ii) in such notification, the Customer must expressly certify that such usage was caused by the Customer leaving the Service or Platform on for a period longer than necessary for its captioning purposes (Overrun Period);
(iii) AI-Media shall have 14 days to process and review this dispute or otherwise request additional information in respect of the circumstances of the Overrun Period;
(iv) If AI-Media reasonably considers the Overrun Period to be a period over which the Customer did not use the Services or Platform; then the Customer shall be provided with a credit where such credit will be provided to the Customer under a new invoice (if such credit is granted within 10 days of Customer’s receipt of the original relevant invoice) or a credit note to offset the Customer’s next invoice (if such credit is granted post 10 days of Customer’s receipt of the original relevant invoice) (Overrun Period Credit);
(v) The Overrun Period Credit is calculated as:
(A) the total fees incurred by the specific encoder in question under the disputed invoice; less
(B) the average current monthly fee applicable to the average hours used in respect of the specific Physical Encoder or the Virtual and Cloud-based Encoder (Encoder) in question over the 6-month period prior to the Customer’s notice hereunder (or if Customer’s usage of the relevant Encoder has been less than 6 months, then the maximum duration possible).
(vi) The process and resultant Overrun Period Credit contemplated under this sub-clause 3.2(e) shall:
(A) be offered to the Customer once per 6-month period only;
(B) not exceed a value of over 10% of the total original invoice;
(C) expire 60 days following the Customer’s receipt of the original invoice.
(f) If the Customer does not make a payment by the due date required under this Agreement, without prejudice to AI-Media’s rights under clause 11, AI-Media may do any or all of the following:
(i) charge interest at the rate of ten per cent (10%) per annum on all overdue amounts owed by the Customer to AI-Media, calculated and accruing daily, until the relevant overdue amount (and accrued interest) is paid;
(ii) commence proceedings to recover any liabilities, in which case the Customer will reimburse any costs or expenses (including, without limitation, collection agency’s fees, reasonable attorneys’ fees, and arbitration or court costs) incurred by AI-Media to collect any amount that is not paid when due;
(iii) suspend or not perform any Services until any outstanding amount due by the Customer under this Agreement has been paid; or
(iv) delay delivery of any Products until any outstanding amount due by the Customer under this Agreement has been paid.
4. CUSTOMER OBLIGATIONS
(a) The Customer must:
(i) co-operate with AI-Media as AI-Media reasonably requires, to enable AI-Media to provide the Products and Services;
(ii) provide information and documentation that AI-Media reasonably requires, to enable AI-Media to provide the Products and Services;
(iii) obtain all necessary consents from its Personnel to AI-Media’s collection and use of Personal Information submitted to AI-Media or the Platforms in accordance with AI-Media’s Privacy Policy;
(iv) and must ensure its Personnel, keep any account credentials (username and passwords) for access to the Platforms, Products or Services confidential and secure;
(v) arrange its own internet service and obtain any equipment necessary to connect to the Platforms for AI-Media to provide the Services;
(vi) make available to AI-Media such Facilities as AI-Media reasonably requires, to enable AI-Media to perform the Services;
(vii) comply with all applicable laws in the use of the Products and Services; and
(viii) only use the Products and Services in accordance with AI-Media’s Documentation.
(b) The Customer must not, and must ensure that its Personnel do not do any of the following, or allow any third party to do any of the following:
(i) rent, lease, sell, copy, reproduce, provide access to, make available, distribute or sublicense the Products, Platforms or Services to any party unless expressly authorized in this Agreement;
(ii) use the Products, Platforms or Services to develop a similar or competing product or service, or copy, imitate or use, in whole or in part, the look and feel of the Products, Platforms or Services;
(iii) reverse engineer, de-compile, tamper or seek to access the source code, circuit workflows, designs or patents of or in respect of the Products, Platforms or Services;
(iv) reproduce, adapt, disseminate, modify or create derivative works of the Products or Services, Platforms or the Intellectual Property of AI-Media or its affiliates (or parts thereof);
(v) remove or alter any copyright, trade mark, logo or other proprietary notice or label appearing on the Products, Platforms or Services;
(vi) use the Products, Platforms or Services for any unlawful, fraudulent or criminal purpose;
(vii) accessing any content on the Services or Platform through any technology or means other than those provided or authorized by the Service or Platform;
(viii) use the Services or otherwise access or use the Platforms in any way that interrupts, damages or impairs the Services or Platforms, including by not limited to uploading or transferring files that contain invalid data, viruses, worms, trojans or other harmful programs, accessing or attempting to access the accounts of other users, penetrating or attempting to penetrate any security measures, launching any automated program or script (for example web robots, web ants or web spiders), or taking any action that imposes or may impose an unreasonable or disproportionately large load on AI-Media’s infrastructure;
(ix) use the Products, Platforms or Services in any way which infringes or breaches the Intellectual Property Rights of any third party;
(x) use the Products, Platforms or Services in any way which may be obscene, indecent, pornographic, vulgar, profane, racist, sexist, discriminatory, offensive, derogatory, harmful, harassing, threatening, embarrassing, malicious, abusive, hateful, menacing, defamatory, untrue or political;
(xi) use the Products, Platforms or Services to cause nuisance, annoyance or inconvenience, in any manner whatsoever, including for transmitting spam, chain letters, or other commercial solicitation purposes;
(xii) attempt to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Platforms or Services;
(xiii) collect or harvest any Personal Information, including account names, email addresses, from the Platforms or Services;
(xiv) permit any person other than the applicable Authorized User to access and use the Authorized User’s account on the Platforms;
(xv) impersonate another person or otherwise misrepresent its affiliation with a person or entity, conducting fraud, hiding or attempting to hide its identity; or
(xvi) bypass the measures used to prevent or restrict access to the Product, Platform or Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Product, Platform or Service or the content therein.
(c) If the Customer or any of its Personnel breach any of the provisions in clause 4(b), or allow any third party to do so, without prejudice to any other rights under this Agreement or at law, AI-Media may suspend or terminate access to the Platforms and the Services for any or all Authorized Users.
(d) The Customer must use reasonable efforts to communicate the terms of this Agreement to anyone who may or will come into contact with or use the Platforms or Services through the Customer’s account, including, without limitation, the Customer’s Authorized Users, Personnel and customers. The Customer must ensure such persons comply with the terms of this Agreement and will be responsible and liable to AI-Media for any act or omission by any such person to the same extent that the Customer would have been liable to AI-Media had it committed such act or omission.
(e) The Customer is solely responsible for the User Content, including its selection, classification, accuracy, completeness and quality, as well as any exposure of Authorized Users or other persons to harmful, offensive or distressing materials through the User Content.
5. SUPPLY SPECIFIC TERMS
(a) Services. Where the Customer Orders Services, the Customer agrees to, and must comply with, the Terms of Service, which are incorporated into this Agreement as if set out in full. In the event of inconsistency between the terms herein and the Terms of Service, the terms herein will take precedence to the extent of that inconsistency only.
(b) Products. Where the Customer Orders Products, the Customer agrees to and must comply with, the Product Terms, which are incorporated into this Agreement as if set out in full. In the event of inconsistency between the terms herein and the Product Terms, the terms herein will take precedence to the extent of that inconsistency only.
(c) Support. AI-Media will provide the Customer with reasonable remote technical support during AI-Media’s US business hours for any issues that the Customer or an Authorized User encounters in using the Products and Services. To request technical support, the Customer must contact AI-Media using the support contact details made available on AI-Media’s website and as specified within the Encoder Warranty & Product Support Terms. AI-Media will endeavor to respond to requests as soon as reasonably practicable.
6. PLATFORMS
(a) Right to access. For the duration of the Term the Customer (and its Personnel) are given a limited, non-exclusive, non-transferable, revocable license to access and use the Platforms, in connection with the Customer ordering, using and receiving the Services, subject to the terms of this Agreement.
(b) Disclaimer. AI-Media does not warrant, guarantee or make any representation that:
(i) the Platforms will be compatible with all hardware and software which the Customer or Authorized User may use, and AI-Media is not required to ensure or maintain any compatibility with any particular hardware or software;
(ii) the Platforms, or the server that makes the Platforms available on the World Wide Web are free of software viruses, free from errors, or that the Platforms will operate uninterrupted;
(iii) AI-Media’s security procedures will be error-free, that transmissions over the Platforms will always be secure, or that unauthorized third parties will never be able to defeat security measures AI-Media implements or those of AI-Media’s third party service providers; or
(iv) access to the Platforms will be uninterrupted, timely or error-free.
(c) Security. AI-Media implements and maintains physical, technical and administrative security measures designed to protect delivery of data over the Platforms from unauthorized access, use, modification, or disclosure.
(d) Collection of data. AI-Media collects certain data and information about Customers and Authorized Users in connection with use of the Platforms. AI-Media collects and uses any Personal Information contained within such data and information in accordance with the Privacy Policy which the Customer acknowledges.
(e) Changes to the Platforms. AI-Media may make improvements or other changes to the Platforms from time to time in its sole discretion, with or without notice to the Customer. AI-Media may also discontinue a Platform or any portion or feature of it for any reason at any time. If an improved or modified Platform is not acceptable to the Customer, the Customer’s only recourse is to stop using the Platform.
7. ACCESS TO THIRD PARTY SERVICES
(a) The Products and Platforms may allow the Customer to access captioning services provided by third parties (Third Party Captioning Services).
(b) The Customer acknowledges that any engagement with a third party for Third Party Captioning Services is between the Customer and the relevant third party, and that third party (and not AI-Media) is liable for the Third Party Captioning Services, including the content, quality, accuracy and timeliness of any captions provided, and compliance with applicable laws, regulations and standards.
8. WARRANTIES
(a) Each party warrants that:
(i) it is validly existing under the laws of the place of its incorporation and has the power and authority to carry on its business;
(ii) it has the power to enter into and perform its obligations under this Agreement; and
(iii) it has all necessary licenses, approvals, permits and consents to enter into this Agreement and perform the obligations under it.
(b) The Customer warrants that:
(i) it has no legal disability or contractual restriction that prevents it from entering into this Agreement;
(ii) it owns (or has sufficient rights to) the User Content;
(iii) it has the full right, power and authority to grant AI-Media the license to User Content in accordance with this Agreement;
(iv) it has obtained all necessary consents to the collection and use of any Personal Information or data in the User Content in order for AI-Media to store and use the User Content to provide the Products and Services in accordance with this Agreement;
(v) the User Content, and use of it by AI-Media, its Affiliates and contractors in accordance with this Agreement (including to produce the Delivered Materials), does not infringe the rights, including Intellectual Property Rights, publicity, personality or privacy or data protection rights, of any third party; and
(vi) the User Content, and use of it by AI-Media, its Affiliates and contractors in accordance with this Agreement (including to produce the Delivered Materials), does not violate any applicable laws, statutes or regulations.
(c) AI-Media warrants that:
(i) it has the full right, power and authority to grant the rights and licenses granted to the Customer under this Agreement; and
(ii) the Products and Services do not infringe the Intellectual Property Rights of any third party.
9. CONFIDENTIALITY
(a) A party must not, and must ensure that its Personnel do not, either during or after the Term, disclose any Confidential Information which has disclosed to it by the other party, except:
(i) to its Personnel and the Personnel of its Affiliates on a need to know basis;
(ii) to its professional advisers, but only for the purpose of advising on or in relation to this Agreement;
(iii) as required by law judicial or parliamentary body, securities exchange or governmental agency, or
(iv) with the previous written consent from the other party.
(b) A party and its Personnel (and any Personnel of its Affiliates) must only use the Confidential Information disclosed to it by the other party, for the purpose of exercising its rights and performing its obligations under this Agreement.
(c) A party must at all times store Confidential Information disclosed to it, safely and securely.
(d) A party must immediately notify the other party in writing of any actual, threatened or suspected unauthorized disclosure of any Confidential Information.
(e) Upon termination or expiry of this Agreement, each party must deliver to the other party or destroy (and provide to the other party a written statutory declaration in respect of the same), all Confidential Information in its possession or control (and any copies of the Confidential Information).
(f) Notwithstanding anything to the contrary herein, parties agree that AI-Media may utilize the Customer’s name and marks in respect of AI-Media’s marketing materials to indicate that AIMedia is a captioning partner of the Customer for the duration of the Term.
(g) The obligations of this clause 9 survive termination or expiry of this Agreement.
10. INTELLECTUAL PROPERTY
(a) Ownership by AI-Media. AI-Media (or its licensors) owns and retains all rights, including Intellectual Property Rights, in and to the Products, Services, Platforms and Documentation.
(b) Documentation. AI-Media grants the Customer a limited, worldwide, non-exclusive, nontransferable, revocable license to use and reproduce the Documentation for the sole purposes of the Customer and its Affiliates ordering, using and receiving the Products and Services during the Term.
(c) License to Client-Side Software. AI-Media grants the Customer a limited, worldwide, nonexclusive, non-transferable, revocable license to download, install and use any client-side software (if any) made available by AI-Media that is necessary to use and receive the Services, for the sole purpose of the Customer and its Affiliates using and receiving the Services during the applicable Order Term.
(d) User Content. All Intellectual Property Rights in the User Content remains with the Customer or its licensors. The Customer grants AI-Media and its Affiliates a limited, nonexclusive, transferrable, royalty-free, worldwide license to copy, display, upload, perform, distribute, store, modify and otherwise use the User Content for the purpose of providing and improving the Products and Services and as otherwise permitted under this Agreement, including the Privacy Policy, in any form, medium or technology now know or later developed.
(e) Delivered Material. Provided that AI-Media has received full payment of the relevant Order for Services, the Intellectual Property Rights in the Delivered Materials are owned by and assigned to the Customer. The Customer grants to AI-Media and its Affiliates a perpetual, irrevocable, non-exclusive, transferable, royalty-free, worldwide license to store and use the Delivered Materials for the purposes of providing the Services and for archiving and quality assurance testing and controls.
(f) Aggregate Analytical Data. The Products, Platforms or Services may generate, and AI-Media may produce and collect, analytical data related to use of any such Products or Services that cannot be identified as relating to a particular individual or company (Aggregate Analytical Data). Customer acknowledges and agrees that AI-Media owns, and may freely use, any such Aggregated Analytical Data derived from Customer’s use of any Products, Platforms or Services supplied to Customer under this Agreement.
(g) Feedback. If the Customer or any Authorized User provides any comments, suggestions, recommendations, feedback or ideas about the Products or Services, including about how to improve the Products or Services (Feedback), the Customer grants AI-Media a worldwide, perpetual, irrevocable, sub-licensable, royalty-free, transferable license to use the Feedback to further develop AI-Media’s products and services, or to create new products and services. AIMedia will exclusively own all Intellectual Property Rights in any technology, developments, derivative works or other materials created by it or on its behalf using or incorporating Feedback, without any obligation to the Customer or any Authorized User. AI-Media is free to disclose any Feedback on a non-confidential basis or otherwise to anyone.
11. INDEMNITY
(a) The Customer hereby indemnifies and must keep indemnified AI-Media and its Affiliates from and against any Loss or Claim suffered or incurred by AI-Media or any of its Affiliates, arising from or in connection with:
(i) breach by the Customer or an Authorized User of any provision of this Agreement;
(ii) any User Content;
(iii) any activity engaged in by or on behalf of the Customer using or through the Products, Platforms or Services;
(iv) violation of any law by the Customer or an Authorized User; or
(v) infringement of any rights of a third party by the Customer or an Authorized User, including that the User Content or Delivered Materials infringes the Intellectual Property Rights, publicity, personality or privacy or data protection rights of a third party.
(b) AI-Media hereby indemnifies and must keep indemnified Customer from and against any Loss suffered or incurred by Customer arising from or in connection with a Claim from a third party that the Products or Services infringe that third party’s Intellectual Property Rights.
12. LIABILITY
(a) Except in the case of death or personal injury caused by AI-Media’s negligence, the liability of AI-Media and its Affiliates under or in connection with this Agreement (including all Orders, in the aggregate) for any Loss or Claim whether arising in contract, tort, negligence, breach of statutory duty, under an indemnity or otherwise, shall not exceed the total Fees paid by the Customer to AI-Media under this Agreement in the six (6) months’ preceding the date of the first Claim arising under this Agreement.
(b) To the extent permitted by law, neither party will be liable to the other party for any indirect, special, economic or consequential loss or damage, or any loss of revenue, profits, goodwill, data, use of services, opportunities or anticipated savings, whether arising in negligence, breach of contract, statute or otherwise.
(c) Nothing in this Agreement is intended to exclude, restrict or modify any guarantees under law which apply and cannot be excluded, restricted or modified. Otherwise, all terms, conditions, warranties and representations, whether express or implied by statute, custom, course of dealing or performance, are excluded unless expressly set out in this Agreement. Without limiting the foregoing, or the disclaimers in clause 6(b), the Terms of Service or Product Terms, AI-Media excludes any implied warranty of merchantability, fitness for a particular purpose, or noninfringement.
(d) Notwithstanding clause 12(a), to the extent permitted by law, AI-Media’s liability for a breach of any guarantee or warranty imposed under this Agreement or under law that cannot be excluded but may be limited, or for any dissatisfaction that the Customer has with a Product or Service or breach by AI-Media of this Agreement, is limited at AI-Media’s election to:
(i) the supplying of the Products and/or Services again; or
(ii) the payment of the cost of having the Products and/or Services supplied again.
13. TERMINATION
(a) A party may terminate this Agreement and/or any individual Order immediately without notice upon the happening of any of the following events:
(i) If the other party suffers an Insolvency Event; or
(ii) If the other party commits a material breach of this Agreement, and fails to remedy the breach within fourteen (14) days of receiving a notice from the first party identifying the breach and requiring the breach to be remedied.
(b) The Customer can terminate any Order for Services at any time by ceasing to use the Service and cancelling the Customer’s account with AI-Media. Without prejudice to any of AIMedia’s other rights, the Customer must immediately pay to AI-Media any outstanding amounts owed to AI-Media under this Agreement.
(c) AI-Media may in its sole discretion and at any time terminate this Agreement on notice to the Customer.
(d) If a party exercises its right to terminate an Order and no other Order is then in effect under this Agreement, this Agreement will expire on the effective date of termination of the terminated Order.
(e) Upon termination or expiry of this Agreement or an Order (in which case as applicable to that Order):
(i) all tax invoices for Fees issued to the Customer and which have not been paid by the Customer, become immediately due and payable;
(ii) AI-Media will issue a tax invoice in respect of Fees for Services performed and Products delivered by AI-Media at any time prior to the date of termination or expiry (for which AI-Media has not previously issued a tax invoice), and the Customer must make payment within five (5) days of receipt of the tax invoice from AI-Media; and
(iii) the licenses and rights of access to the Services, Platforms, Client-Side Software and On-Premise Software terminate, and the Customer must immediately cease use of them and uninstall and delete all copies of Client-Side Software and On-Premise Software.
(f) Termination of this Agreement does not affect any accrued rights or remedies of either party.
14. FORCE MAJEURE
(a) AI-Media will not be liable for any Loss to the Customer arising from any failure of or delay in performance of its obligations under this Agreement, where the failure is wholly or substantially due to a Force Majeure Event, provided that AI-Media:
(i) as soon as reasonably practical, notifies the Customer in writing, providing details of the Force Majeure Event, and the extent to which it is unable to perform its obligations; and
(ii) uses reasonable endeavors to minimize the duration and adverse consequences of the Force Majeure Event.
(b) Where the Force Majeure Event prevents AI-Media from performing a material obligation under this Agreement for a period in excess of thirty (30) days, then either party may by notice terminate this Agreement, which will be effective immediately, unless otherwise stated in the notice.
15. DISPUTE RESOLUTION
(a) Unless a party to this Agreement has complied with all of the provisions of this clause 15, that party may not commence court proceedings in connection with any dispute, controversy or Claim arising out of or relating to this Agreement, including its validity, breach or termination (Dispute), except where that party seeks urgent interlocutory relief in which case that party need not comply with this clause before seeking such relief.
(b) Notwithstanding the existence of a dispute or difference each party shall continue to perform its obligations under the Agreement.
(c) This clause 15 shall survive termination or expiry of this Agreement.
(d) A party claiming that a Dispute has arisen must give written notice to the other party setting out the nature of the Dispute (Dispute Notice).
(e) The parties must meet (which may be satisfied by means of telephone or video conference) within fourteen (14) days of service of the Dispute Notice with a view to negotiating and resolving the Dispute.
(f) If the Dispute is not settled through direct negotiations within thirty (30) days of the date of the notice in clause 15(d), then the parties agree that they will endeavor to settle the Dispute by mediation administered by the American Arbitration Association-International Centre for Dispute Resolution (AAA-ICDR), with its New York Headquarters at 120 Broadway, Floor 21, New York, NY 10271, USA, under its Mediation Rules before resorting to litigation or other dispute resolution procedure.
16. NOTICES
16.1 Address and method for service
(a) AI-Media may provide notifications to the Customer via email notice, written or hard copy notice to the email or physical address provided by the Customer when placing the Order, or through positing of such notice on AI-Media’s website, as determined by AI-Media in its sole discretion.
(b) The Customer may give notifications to AI-Media under this Agreement in writing and in English, by email to , or in person or via post to the relevant AI-Media contracting entity’s registered office.
16.2 Service
Service will be sufficient if any such notice is:
(i) delivered personally to the party to be served;
(ii) sent by ordinary pre-paid post to either the above address or to a registered office. If a notice is posted, it is deemed to have been duly served on the third day after postage;
(iii) sent by email to the email address specified in clause 16.1, and receipt is deemed to be acknowledged by the recipient by a delivery receipt notification generated by the recipient’s email system after sending of the email containing the notice or to which the notice is attached but if this delivery or receipt is later than 5.00 pm (local time) on a business day of the recipient, the notice is deemed to have been given and served on the next business day. Emailing notices will constitute sufficient and effective delivery when delivered to the recipient’s email account whether or not the specific electronic communication is accessed or read; or
(iv) in the case of a notice posted by AI-Media on its website, at the time of posting of that notice on the website.
17. GENERAL
17.1 Relationship
The relationship between AI-Media and the Customer is that of a principal and an independent contractor. Nothing in this Agreement will constitute or be construed to constitute a party as the partner, agent, employee or representative of any other party or to create any trust relationship between them.
17.2 Entire Agreement
This Agreement contains the whole agreement between the parties in respect of the subject matter of the Agreement.
17.3 Amendment
No variation or waiver of, or any consent to any departure by a party from, a provision of this Agreement is of any force or effect unless it is confirmed in writing signed by the parties and then that variation, waiver or consent is effective only to the extent for which it is made or given.
17.4 Assignment
Subject to clause 2.3(g), no party may assign, transfer or novate, whether in whole or part, the benefit of this Agreement or any rights or obligations under this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, AI-Media may assign or novate any or all of its rights and obligations under this Agreement to one or more of its Affiliates at any time without requiring further consent from the Customer.
17.5 Waiver
The failure, delay, relaxation or indulgence on the part of any party in exercising any power or right conferred upon that party by this Agreement does not operate as a waiver of that power or right, nor does any single exercise of any power or right preclude any other or further exercise of it or the exercise of any other power or right under this Agreement.
17.6 Severance
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
17.7 Counterparts
This Agreement may be executed by any number of counterparts and all of those counterparts taken together constitute one and the same instrument. A party is entitled to treat (and it shall be deemed) a signed copy of this Agreement exchanged by electronic mail in portable document format as an original signed Agreement.
17.8 No Third Party Beneficiaries
The parties specifically disavow any desire or intention to created a “third party” beneficiary contract, and specifically declare that no person, except for the parties and their permitted assigns, will have any rights hereunder nor any right of enforcement hereof.
17.9 Interpretation
Headings used throughout this Agreement are for reference only and do not affect the meaning or interpretation of the Agreement. Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included. A reference to “person” includes a natural person, a firm, a body corporate, an unincorporated association, trust, partnership or an authority.