Product Terms

Where the Customer places an Order for Products from AI-Media, these Product Terms supplement and are incorporated into:

1. the Global Terms, or
2. the Master Agreement (where AI-Media and the Customer have entered into a Master Agreement).

Any capitalized terms that are not defined in these terms are defined in the aforementioned.

1. HARDWARE

(a) Delivery. AI-Media will use commercially reasonable efforts to arrange delivery of Hardware to the delivery address specified in the Order by the date specified in the Order. The Customer will pay the costs of shipping, freight, customs duties and other related charges.

(b) Risk. Risk in any Hardware will pass to the Customer when the Hardware is loaded at AI-Media’s warehouse for delivery to the Customer.

(c) Title.

i. Purchased Hardware. Title in any Hardware purchased outright by the Customer will pass to the Customer on receipt by AI-Media of payment in full for the Hardware.

ii. Rental Hardware or Demonstration Hardware. AI-Media owns and retains title to any Hardware supplied to the Customer on a rental or demonstrator basis. The Customer must not encumber AI-Media’s title to the Hardware in any way, or allow it to be encumbered.

iii. PPSR. For any Hardware supplied to a Customer on a rental basis in Australia, the Customer acknowledges that the rental of that Hardware constitutes a PPS Lease for the purposes of the Personal Property Securities Act 2009 (Cth), and this Agreement grants AI-Media a purchase money security interest (PMSI) in the Hardware and its proceeds to secure all amounts owed by the Customer to AI-Media. AI-Media may register its PMSI over the Hardware on the Personal Property Securities Register, and Customer must do all things necessary, and provide AI-Media on request all information AI-Media requires, to complete that registration and for AI-Media to perfect, preserve, maintain, protect or otherwise give full effect to the PMSI created by this Agreement.

(d) Payment.

i. Purchased Hardware. Unless otherwise specified in the Order, AI-Media will invoice the Customer the Fees on acceptance of the Order for Hardware. The Customer must make payment within thirty (30) days of receipt of the tax invoice from AI-Media.

ii. Rental Hardware. The rental Fees and instalment frequency will be specified in the Order. AI-Media will invoice the rental instalments in accordance with the Order. The Customer must make payment within thirty (30) days of receipt of the tax invoice from AI-Media.

(e) Cancellation of Orders for Hardware. The Customer may cancel an Order for Hardware prior to the date that the Hardware is shipped by AI-Media. The Customer must pay for any Hardware shipped prior to the date of cancellation.

(f) Rental Terms. The following terms apply to any Hardware supplied to the Customer on a rental basis, in addition to the terms applicable to Products elsewhere in the Master Supply Terms or the AI-Media Master Supply Agreement (as applicable):

i. subject to paying the rental instalments, the Customer may use the Hardware during the rental term specified in the Order (Rental Term);

ii. the Customer agrees to return the Hardware to AI-Media at the address nominated by AI-Media within five (5) business days of the expiry of the Rental Term, provided that Ai-Media will not refund any rental Fees if the Customer elects to return the Hardware before expiry of the Rental Term;

iii. the Customer will solely be responsible for the administration, management, coordination and payment of shipping and costs associated of Hardware return to AI-Media and must promptly inform AI-Media of details of return delivery (to this end, the Customer will be responsible for all costs, including Late Fees, that may arise from the Customer not acting in accordance with this sub-clause);

iv. if the Customer fails to return the Hardware by the expiry of the Rental Term, the Customer acknowledges and agrees that it will be charged a fee of 2 times the weekly rate of such Hardware as specified in the applicable Order (Late Fee);

v. the Customer must operate, maintain and store the Hardware in accordance with the Documentation and otherwise keep the Hardware in good repair and condition (normal and reasonable wear and tear excepted). If the Hardware is not in good repair or condition (in AI-Media’s reasonable opinion) when it is returned to AI-Media, AI-Media may make such repairs as it considers are necessary and the Customer must reimburse AI-Media’s actual cost of doing so;

vi. the Customer will be responsible for the risk of loss (including theft) or damage to the Hardware at all times once it is loaded at AI-Media’s warehouse for delivery to the Customer until it is delivered and returned back to AI-Media’s warehouse;

vii. if the Hardware is damaged, the Customer must promptly notify AI-Media, must continue to pay the rental instalments, and (if the Hardware is repairable), pay to AI-Media the cost of having the Hardware repaired or (if the Hardware is not repairable, or the cost of repairing it would exceed the market value of the Hardware), pay to AI-Media all remaining rental instalments to the end of the Rental Term, plus the applicable Late Fee applicable (inclusive of the duration of AI-Media’s inspection and potential repair of Hardware), plus the market value that the Hardware would have had at the end of the Rental Term but for the damage (as calculated by AI-Media) (Recouped Value);

viii. if the Hardware is lost, the Customer must promptly notify AI-Media and must pay to AI-Media the Recouped Value;

ix. if the Customer fails to return the Hardware to AI-Media at the address nominated by AI-Media at the expiry of the Rental Term, then the Customer must pay to AI-Media, in addition to the Late Fee, the market value of that Hardware as calculated at that date, where such payment must be made to AI-Media within 3 days of written notification provided from AI-Media to the Customer;

x. the Customer must take out and maintain during the Rental Term, appropriate insurance covering the risk of loss or damage to the Hardware; and

xi. if the Customer fails to pay a rental instalment when due, breaches a term of this Agreement in relation to the Hardware, or an Insolvency Event occurs in relation to the Customer (Default), without limiting any other remedy available at law or in equity, AI-Media may, at its election: (A) retake possession of the Hardware wherever it may be located, in which case the Customer must provide all necessary access to its facilities to permit AI-Media to retake possession; (B) declare the rental instalments for the remainder of the Rental Term immediately due and payable by notice to the Customer; (C) terminate the Order for the Hardware; and/or (D) commence proceedings to recover the rental Fees and any other liabilities arising before or after the Default.

(g) Demonstration Hardware. The following terms apply to any Hardware supplied to the Customer on a demonstrator basis (Demonstration Hardware):

i. AI-Media shall pay for shipping the Demonstration Hardware to and from the Customer’s primary premises (excluding costs associated with delays or other actions that may increase the costs of shipping that are caused or contributed to by the Customer);

ii. If the Customer wishes to purchase the Demonstration Hardware at the conclusion of the demonstrator term; the applicable warranty shall be deemed to have commenced on the date at which the Demonstration Hardware was first shipped to the Customer (see AI-Media Encoder Warranty & Support Terms);

iii. In the event that the Demonstration Hardware is not shipped to AI-Media or not organized for shipping via the requisite courier company (at AI-Media’s direction) within 5 business days of the conclusion of the demonstrator term (Demo Return Period), then the Customer shall be subject to the Rental Terms noted herein, commencing on the day following the expiration of the Demo Return Period.

(h) Defective Hardware. The Customer must, as soon as possible after delivery, check whether the Hardware was damaged or defective when delivered. The Hardware will be considered to have been delivered in good condition unless the Customer notifies AI-Media of the damage or defect within 2 Business Days of delivery. If the Customer notifies AI-Media of damage or defects within the 2 Business Day period, it must preserve the Hardware in the state in which it was delivered and provide evidence to AI-Media’s reasonable satisfaction as to that state. Where requested, the Customer must allow AI-Media access to inspect the Hardware. AI-Media will, at its option, provide a replacement or give a credit for Hardware only where:

(i) the Customer has complied with this clause;
(ii) AI-Media is satisfied that the damage or defect was not caused in shipping or by the Customer, and
(iii) the Hardware is returned to AI-Media in the same condition as when first delivered to the Customer.

If on inspection, AI-Media determines that there is no material defect in the Hardware contemplated in this clause and that no repairs are necessary in order to re-establish that Hardware’s operational state, then AI-Media shall charge to the Customer all labor, inspection, administration and shipping costs associated with its investigation, where such payment shall be made upon receipt by Customer of the relevant invoice in respect of the same.

(i) Licence to Embedded Software. AI-Media grants the Customer a limited, worldwide, non­exclusive, non-transferable license for the Customer and its Affiliates to use any Embedded Software for the Customer and its Affiliates’ internal business purposes, solely in connection with use of Hardware. Embedded Software means any software or firmware that is embedded in any Hardware, including any updates to such software or firmware as may be provided to the Customer by AI-Media during the Term.

(j) Updates to Embedded Software. From time to time, AI-Media may make generally available in a relevant territory updates or new releases of the Embedded Software. AI-Media may make such updates or new releases available to Customer within a reasonable time of them becoming generally available, and subject to the payment of any applicable additional Fees.

2. ON-PREMISE SOFTWARE

(a) Subscription License to On-Premise Software. AI-Media grants the Customer a limited, worldwide, non-exclusive, non-transferable, revocable, license for the Customer and its Affiliates to install and use the On-Premise Software for Customer and its Affiliates’ internal business purposes during the period for which Customer has paid the associated subscription license Fee (License Period).

(b) Payment. Unless otherwise specified in the Order, AI-Media will invoice the Customer pursuant to the relevant Order for the subscription Fee for On-Premise Software. The Customer must make payment within thirty (30) days of receipt of a tax invoice from AI-Media.

(c) Delivery. AI-Media will make On-Premise Software available for download in electronic format. On-Premise Software will be provided in object code format only. No source code will be provided.

(d) Additional terms. The Customer’s license to On-Premise Software is subject to any further restrictions or rights of use conditions for the specific On-Premise Software that are set out in these Product Terms or elsewhere in the Documentation.

(e) License controls. On-Premise Software may utilize a license key to verify the Customer’s compliance with the Master Supply Terms or the AI-Media Master Supply Agreement (as applicable), as well as technology to track and report usage and similar functionality. The Customer must not remove, obscure, disable, or otherwise interfere with the foregoing.

(f) Audit Rights. The Customer must keep a record of the use of any On-Premise Software and must, on request by AI-Media, verify to AI-Media in writing that the On-Premise Software has been used by the Customer in accordance with the Global Terms or, where AI-Media and the Customer have entered into a Master Agreement, that Master Agreement. If AI-Media considers it necessary and on giving the Customer reasonable notice, the Customer must allow AI-Media or its representatives full access to the On-Premise Software between 9am and 5pm on business days so that AI-Media can verify compliance by the Customer with its obligations. The Customer must at its cost, assist AI-Media in connection with any audit.

(g) Updates and Release. From time to time during the License Period, AI-Media may make generally available in a relevant territory updates or new releases of the On-Premise Software. AI-Media may make such updates or new releases available to Customer within a reasonable time of them becoming generally available, and subject to the payment of any applicable additional Fees. Use of new releases of the On-Premise Software may require the Customer, at its own cost and expense, to update or deploy new versions of third party software or hardware.

3. ICAP NETWORK

(a) iCap Network. Where the Customer purchases Hardware or subscribes to On-Premise Software that allows the Customer to access the iCap Network, AI-Media grants to the Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable right for it and its Personnel to access and use the iCap Network, solely for the Customer to access Voice Services, Captioning Services and Third Party Captioning Services from the applicable Product. For the iCap Encode Pro – HD492 encoder, this license is included with the Fees for that Hardware, and support is sold separately. For all other Hardware and all On-Premise Software, this license is subject to paying the associated license Fee, and is limited to the period for which the license Fee has been paid. In all cases, this license is limited to the period in which AI-Media elects to host the iCap Network.

(b) Access. In order to obtain access to the iCap Network, the Customer must have an account on the applicable Platform (Customer Account), which it may request from AI-Media Tech Support. Only individuals with a unique user account registered by the Customer under its Customer Account will be entitled to access the iCap Network, and only with their account credentials (username and password) issued to them.

(c) Terms of use. The Customer’s access and use of the iCap Network is subject to the terms and conditions (including prohibitions) for Platforms in the Global Terms or, where AI-Media and the Customer have entered into a Master Agreement, that Master Agreement.

(d) Prohibited User Content. The Customer must not upload, share or submit any User Content to or via the iCap Network that:

i. may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to the Customer, to any other person, or to any animal;

ii. may create a risk of any other loss or damage to any person or property;

iii. seeks to harm or exploit children including by exposing them to inappropriate content, asking for personally identifiable details or otherwise;

iv. may constitute or contribute to a crime or tort;

v. contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, hostile, obscene violent, or that which provokes violence or hostility, profane, or otherwise objectionable;

vi. contains any information which discriminates against others based on race, religion, sex, sexual orientation, age, disability, ancestry or national origin;

vii. contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets);

viii. contains any information or content that the Customer does not have a right to make available under any law or under contractual or fiduciary relationships;

ix. contains any information or content that the Customer knows is not correct and current; or

x. violates third-party rights of any kind, including without limitation any Intellectual Property Rights or rights of privacy or publicity.

(e) Security. AI-Media implements and maintains physical, technical and administrative security measures designed to protect delivery of data over the iCap Network from unauthorized access, use, modification, or disclosure.

(f) Changes or discontinuation. AI-Media may make improvements or other changes to the iCap Network from time to time in its sole discretion, with or without notice to the Customer. AI-Media may also discontinue the iCap Network or any portion or feature of it for any reason at any time. If the improved or modified iCap Network is not acceptable to the Customer, the Customer’s only recourse is to stop using the iCap Network. Notwithstanding the foregoing, AI­-Media will use reasonable efforts to provide substantial and reasonable notice in respect of any improvement or change to the iCap Network that renders the Customer’s current hardware inoperable with the proposed improvement or change.

(g) Collection of data. AI-Media collects certain data and information about Customers and Authorized Users in connection with use of the iCap Network. AI-Media collects and uses any Personal Information contained within such data and information in accordance with the Privacy Policy, which the Customer acknowledges.

4. WARRANTY AND DISCLAIMER

(a) Warranty. AI-Media warrants that the Products will perform materially as described in AI-­Media’s published Documentation for the period specified for Encoders from the date of delivery (see Encoder Warranty & Product Support Terms).

(b) Remedy. If AI-Media breaches the warranty above, AI-Media will use commercially reasonable efforts to correct the issue as soon as AI-Media is made aware of it. If either party determines that the proposed remedy is impracticable, either party may terminate the affected Order and AI-Media will refund to Customer any pre-paid, unused fees for the terminated portion of the affected Order. This refund will be Customer’s exclusive remedy and AI-Media’s entire liability for breach of the warranty.

(c) Disclaimer. AI-Media does not warrant, guarantee or make any representation that:

i. the Products 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 Products will be error-free or that such errors or defects may be corrected;

iii. the results obtained from the Products will be in accordance with the Customer’s expectations;

iv. the Products will be fit for any purpose not expressly and specifically contemplated by the Documentation;

v. the iCap Network will be compatible with all hardware and software which the Customer may use, and AI-Media is not required to ensure or maintain any compatibility with any particular hardware or software;

vi. the iCap Network, or the server that makes the iCap Network available on the World Wide Web are free of software viruses, free from errors, or that the iCap Network will operate uninterrupted;

vii. AI-Media’s security procedures will be error-free, that transmissions over the iCap Network 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

viii. access to the iCap Network will be uninterrupted, timely or error-free.