Telley Software Services Agreement

This Telley Software Services Agreement (this "Agreement") governs paid services made available through the Telley Platform to Users (each as defined below). The Telley Terms of Use (the "TOU") governs the relationship between visitors to the Telley Sites (as defined in the TOU).

This Agreement is a binding contract between Telley Inc., a New York Corporation with a principal place of business at 36-26 192nd Street Flushing, NY 11358 ("Telley") and the individual, corporation, partnership, joint venture, limited liability company, unincorporated organization, trust, association or other entity (collectively "Person") intending to download, install or otherwise access or use the Telley Platform (as defined below) (the "User") (User and Telley are referred to collectively as the "Parties").

TELLEY PROVIDES THE SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT USER ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE "ACCEPT" BUTTON BELOW, OR BY DOWNLOADING, INSTALLING OR OTHERWISE ACCESSING OR USING THE SERVICES, USER (A) ACCEPTS THIS AGREEMENT AND AGREES THAT USER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT, IF AN INDIVIDUAL, USER IS 18 YEARS OF AGE OR OLDER. IF USER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, TELLEY WILL NOT AND DOES NOT LICENSE THE SOFTWARE OR GRANT ACCESS RIGHTS TO USE THE SERVICES TO USER AND USER MUST NOT DOWNLOAD, INSTALL OR OTHERWISE USE OR ACCESS THE SOFTWARE, DOCUMENTATION OR SERVICES.

The Telley Platform. For purposes hereof, the "Services" refers to the cloud-based platform, including the associated Software (as hereinafter defined), branded as "Telley" developed by Telley for the purpose of allowing editors to share content with clients ("Viewers") in real time. All documentation and other materials related to the Services that are provided by Telley, or to which User is given access, including user manuals, help files and any other instructions, specifications, documents, and materials that describe the functionality, installation, testing, operation, use, maintenance, support, technical features, or requirements of the Software shall herein after be referred to as the "Documentation." For the avoidance of doubt, any updates, upgrades, bug fixes, patches, and other error corrections, enhancements, releases, improvements, and other adaptations or modifications made to the Software which may contain, among other things, changes to the functionality, compatibility, capabilities, performance, efficiency, or quality of the Services (collectively "Updates"), whether or not owned by Telley, are a part of the Services. "Software" means the Telley branded desktop and mobile apps made available to User by Telley and which User may install on their local devices, subject to all provisions of this Agreement, in the course of accessing and utilizing the Services. The "Telley Platform" means the Services, Software and Documentation, as well as any other materials made available by Telley to User in connection therewith.
Rights to Use Services. For purposes hereof, "Order Form" means an order form entered into subject to this Agreement that sets forth the number of access credentials that Telley grants to a particular User (each such user an "Authorized User"). Order Forms will not be binding unless executed (a) by both parties hereto; and (b) as set forth in Section 6.4. Subject to and conditioned upon User's payment of the Fees (as defined below) and User's, and each Authorized User's, strict compliance with the provisions of this Agreement, Telley hereby grants to User, during the Term (as hereinafter defined) (y) a non-exclusive, non-transferable, non-sublicensable, limited right for Authorized Users to access and utilize the Services, and utilize the Services to transmit audiovisual content (the foregoing as "User Content") to Viewers (the foregoing as the "Access Right"); and (z) a non-exclusive, non-transferable, non-sublicensable, limited license for Authorized Users to install, reproduce and to use the Software and Documentation as further set forth herein (the foregoing as the "License"; the License together with the Access Right as the "SaaS Grant"). The Services include maintenance and support as defined in Section 5 hereof and any content made available to User through its Authorized Users' use of the Telley Platform.
1. Per Seat License Rights. The License grants each Authorized User the right to:
  1. Install in accordance with this Agreement, the applicable Order Form and the Documentation, one (1) copy of the Software on one (1) computer which is owned or leased, and controlled by, User. Each such computer shall be used only for a single Authorized User and User shall be responsible for maintaining the confidentiality of the password (or other credentials) used by Authorized Users to access and use the Software. Without limiting anything set out elsewhere in this Agreement, User shall be responsible for any and all activities that occur under its accounts, including the unauthorized use of any password and agrees to immediately notify Telley of any unauthorized use of any of User's accounts, passwords, or other credentials or any other breach of security.
  2. Use the Software and Documentation for internal business purposes and to facilitate Authorized Users' sharing of editorial content with their clients in real time; and
  3. Make one (1) copy of the Software solely for archival purposes and one (1) copy of the Software solely for backup purposes, provided that User shall not, and shall not allow any Person to, install or use any such copy other than if and for so long as any original copy installed in accordance with this Agreement and the Documentation is inoperable and, provided, further, that User uninstall and otherwise delete such inoperable copy(ies). All copies of the Software made by User pursuant to this Section 2.1 shall: (i) remain the exclusive property of Telley; (ii) be subject to the terms and conditions of this Agreement; and (iii) include all trademark, copyright, patent and other Intellectual Property Rights (as defined below) notices contained on the original.
2. Use Restrictions. User shall, and shall require and ensure that its Authorized Users, abide by and follow and not, directly or indirectly, breach any of the provisions hereof including:
  1. Use (including by making any copies of) the Telley Platform beyond the scope of this SaaS Grant, including for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any Person, or that violates any applicable law;
  2. Permit any Person, other than the Authorized Users, to use the SaaS Grant for any purpose other than those stated in Section 2.1;
  3. Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Telley Platform;
  4. Modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Telley Platform or any part thereof;
  5. Reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Telley Platform or any part thereof;
  6. Remove, delete, alter or obscure any Intellectual Property Rights notices from the Telley Platform, including any copy thereof;
  7. Use the Telley Platform for purposes of competitive analysis of the Telley Platform, the development of a competing software product or service, or any other purpose that may be to Telley's commercial disadvantage;
  8. Use the Telley Platform in any way that violates any applicable law, rule or violation, any binding agreement between User and any third party, or the intellectual property or other proprietary rights of any third party; and
  9. Except as contemplated by this Agreement, copy the Telley Platform, in whole or in part.
3. Viewers. The total number of simultaneous Viewers will be set forth on Order Forms hereunder. If User wishes to increase (or decrease) the total number of allowable simultaneous Viewers, User should execute a new Order Form or modify its Order Form as set forth herein.
4. International User Restriction. The Software is not intended to be used by Persons outside of the United States of America. Telley and its digital infrastructure, through which the Software is offered, are located in the United States of America. User acknowledges and consents to the handling of any data it submits to Telley through its access to or use of the Software or Documentation pursuant to the laws of the United States of America and the other applicable terms and conditions set forth in this Agreement.
5. Responsibility for Use of the Telley Platform. User is responsible and liable for all uses of the Telley Platform and any access thereto, whether direct or indirect. Without limiting the foregoing, User is responsible and liable for all actions, failures, and omissions with respect to the Telley Platform by its Authorized Users or by any other Person to whom User may provide access to or use of the Software, whether such access or use is permitted by, or in violation of, this Agreement, including Viewers.
6. Reservation of Rights. Telley reserves all rights not expressly granted to User in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to User or any third party any intellectual property rights or other right, title, or interest in or to the Telley Platform.
7. Feedback Data. User hereby grants to Telley a perpetual, irrevocable, royalty-free, fully-paid, fully transferrable, non-exclusive, worldwide license to any and all feedback, suggestions, modifications, know-how, the results and proceeds of any manipulation or processing, improvements and other alterations arising from or related to the Telley Platform made by User or any Authorized Users (the foregoing as the "Feedback Data"): (a) to incorporate into or otherwise use in connection, either directly or indirectly, with any future services, products or other offerings by Telley; (b) for Telley's internal business purposes; (c) for the purposes of publishing aggregated reports concerning the Software; and (d) for any other legal purpose.
Open Source and Third Party Software. The Telley Platform may include software, content, data or other materials, including related documentation, that are owned by third parties or Persons other than Telley and that are provided to User on terms that are in addition to or different from those contained in this Agreement ("Third Party Licenses"). This Agreement and User's use of the Telley Platform is subject to, and User is bound by and shall comply with, all such Third Party Licenses. Any breach by User of any Third Party License is also a breach of this Agreement.
Collection and Use of Information. In addition to the Feedback Data, User acknowledges and agrees that Telley may, directly or indirectly, through the services of third parties or through the provision of maintenance and support services as defined in Section 5 hereof, collect, use and store information regarding User's use of the Telley Platform.
1. Permitted Uses of Information: User hereby acknowledges and agrees that Telley may use any information collected or gathered pursuant to this Section 4 for:
  1. Any purpose related to any use of the Software by any of Telley's Users, provided that such uses do not violate the confidentiality provisions of Section 10 hereof;
  2. Any improvement to the performance of, or development of any Updates to, the Telley Platform; and
  3. Verifying User's compliance with the terms of this Agreement and enforcing Telley's rights, including all Intellectual Property Rights, in and to the Telley Platform.
Maintenance and Support. Telley shall provide User with support services relating to the functionality, installation, operation and technical features of the Telley Platform. Such support services may include Updates as Telley determines, in its sole discretion, are necessary to permit the Software to function in accordance with the Documentation and this Agreement. User acknowledges and agrees that Telley has no obligation to develop any Updates at all or for any particular issues. User further acknowledges and agrees that the Documentation and Updates made available to User in connection with the support services offered under this Section 5 shall be subject to all terms and conditions of this Agreement. For avoidance of doubt, the support services do not necessarily include any new version or new release of the Software that Telley may issue as a separate or new product and Telley may determine in its sole discretion whether any issuance qualifies as a new version, new release, or Update of the Telley Platform.
Payment and Fees. User shall pay Telley the fees set forth in an applicable Order Form in accordance with the terms and conditions set forth therein and subject to the restrictions of this Section 6 (the "Fees"). To the extent that any financial terms, including those related to the Fees, set forth in an applicable Order Form conflict with the terms and conditions set forth in this Section 6, the financial terms of an applicable Order Form shall control. For the avoidance of doubt, any renewal of the SaaS Grant shall not be effective until Telley receives the Fees for such renewal in full.
1. Payment. User shall pay all Fees and any accompanying amounts due and owing under this Agreement either:
  1. On an annual basis, which may be subject to a discount as defined in an applicable Order Form;
  2. On a month to month basis and in advance of Telley's grant or renewal of the SaaS Grant to User under this Agreement; or
  3. As otherwise set forth on an applicable Order Form.
2. Late Payment. If User fails to make any payment when due then, in addition to all other remedies that may be available to Telley:
  1. Telley may, in its sole discretion, charge interest on the past due amount at the rate of 1.5% per month or the highest rate permitted under applicable law;
  2. User shall reimburse Telley for all reasonable costs incurred by Telley in collecting any late payment of amounts due or related interest, including attorneys' fees, court costs, and collection agency fees; and
  3. If such failure continues for twenty (20) days following written notice thereof, Telley may: (i) disable User's Access Rights, License, or SaaS Grant either partially or entirely in its sole discretion; or (ii) terminate this Agreement under Section 9.1(b)(iv).
3. Taxes. All Fees and other amounts payable by User under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, User is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by User hereunder, other than any taxes imposed on Telley's income.
4. User Modifications to Service Levels To the extent that Telley offers additional Services for additional Fees, User may request a modification to its Service levels set forth on an Order Form to upgrade and receive such additional Services or downgrade and refuse such additional Services. User may request such modifications through functionality made available to Users through the Services (the foregoing as "User Preferences") or in any other manner determined by Telley in its sole discretion. Modifications to User Preferences will constitute a binding Order Form hereunder. Once an Order Form has been accepted by Telley pursuant to this Section, modifications to the Services will be applied within a commercially reasonable timeframe in a manner determined by Telley. When such modification is made during a given Term (as opposed to on a renewal or at the end of a Term), the applicable fees will be pro-rated based on the remaining and unexpired duration of the Term. If User choses to downgrade its then-applicable Service level, then it may no longer be able to access all of the functionality, operation, use, or technical features of the Telley Platform that were made available to such User prior to such downgrade. User hereby acknowledges and agrees to be bound by its upgrade or downgrade determinations and to pay the resulting Fees according to the terms and conditions set forth in this Section 6 and as set forth on an applicable Order Form.
5. Card Authorizations. To the extent Telley permits and User makes any payments through the use of any debit, credit or other payment card (collectively "Card"), User hereby certifies that it is the owner of each such Card and the corresponding bank account from which funds will be drawn to make such payments. By making a payment to Telley through the use of a Card, User hereby authorizes Telley to initiate charges to the Card for all charges User places either through an upgrade or downgrade or through any applicable use of the Software or Services. This authorization will remain in effect, unless and until Telley receives a written notice from User stating that such authorization is terminated. Such termination will be effectuated within a reasonable time thereafter (as judged within the discretion of Telley). Telley shall not be liable for any overdraft or insufficient funds charges, including finance charges and late fees, which are caused by User's failure to maintain sufficient funds to pay Telley the applicable Fees hereunder. User will compensate Telley for any such fees or charges incurred by Telley in connection with any of the foregoing.
Intellectual Property.
1. Definition. For purposes hereof, "Intellectual Property Rights" means any and all rights in Telley's intellectual property that exists now or in the future, in any manner or media, whether now known or hereafter developed including: (a) patents, patent disclosures, and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing, (c) copyrights and works of authorship (whether copyrightable or not), including computer programs and rights in data and databases, (d) trade secrets, know-how, and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered, and including all registrations and applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection.
2. Acknowledgement of Ownership. User acknowledges and agrees that the Software and Documentation are provided under license, and are not sold, to User. User further acknowledges and agrees that the Services are provided under the Access Rights, and are not licensed to User. User does not acquire any ownership interest in the Software, Documentation, or Services under this Agreement, or any other rights thereto other than to use the same in accordance with the rights set forth in Sections 2 and 3 hereof and as subject to all of the terms, conditions and restrictions under this Agreement. Telley (and to the extent applicable, its parents, subsidiaries, affiliates, directors, officers, employees, licensors, sub-licensors, contractors, agents, successors, assigns and other service providers (collectively "Personnel")) reserve and shall retain their entire right, title and interest in and to the Software, Documentation, Services and all Intellectual Property Rights arising out of or relating to the foregoing, except as expressly granted to the User pursuant to this Agreement.
DMCA Compliance.User acknowledges that, pursuant to the Digital Millennium Copyright Act ("DMCA"), Telley may respond in accordance with the requirements of the DMCA to "take-down" notices from third parties which allege that the inclusion of User Content which Users provide in or on the Telley Platform violates the notifying party's or parties' copyrights. In so doing, Telley may elect to remove (or require User to remove) such allegedly infringing information from the Telley Platform unless User objects to the allegation of infringement, in which case Telley in its sole discretion and pursuant to the DMCA, may elect to maintain or restore the allegedly infringing information to the Telley Platform pending the outcome of any litigation or dispute which may be instituted regarding the alleged infringement. User will cooperate fully with Telley to assure compliance with the DMCA upon Telley's receipt of any "take-down" notice issued by any third party, and in so doing, will also promptly inform Telley whether User objects to any such "take-down" notice and, if so, whether User will institute litigation, arbitration or other legal processes to challenge the allegations of copyright infringement.
Term and Termination. This Agreement shall commence on the date it is accepted by User and remain in full force and effect for the period set forth in an applicable Order Form or until otherwise expired or terminated as set forth herein or in such Order Form (the "Term"). To the extent that any terms relating to the Term set forth in an applicable Order Form conflict with the terms and conditions set forth in this Section 9, the terms of such Order Form shall control.
1. Termination Rights.
  1. Telley shall have the right, in its sole discretion, to terminate this Agreement for any reason or no reason, upon thirty (30) days prior written notice to User.
  2. Telley shall have the right to terminate this Agreement immediately, automatically and without notice, should User engage in any of the following, each of which shall be deemed a material breach of this Agreement: (i) assign or sublicense this Agreement without the prior written approval of Telley; (ii) misuse, or permit an Authorized User to engage in an unauthorized use of, the Telley Platform; (iii) breach Sections 2, 3, 6, 7, 10 or 11 of this Agreement; or (iv) fail to pay the Fees or accompanying amounts subject to the restrictions set forth in Section 6.2(c).
  3. Telley shall have the right to terminate this Agreement immediately, automatically and without notice to User should a Force Majeure Event (as defined below) cause User's failure or delay of performance of any of the obligations set forth in this Agreement, including as set forth in Section 6 if such failure or delay continues uninterrupted for thirty (30) days without mitigation.
  4. User may terminate this Agreement by ceasing to use the Services and ceasing to use and destroying all copies of the Software and Documentation.
  5. Except as otherwise stated in Section 9.1(b), either party may terminate this Agreement for the other party's material breach of any material term hereof upon thirty (30) days prior written notice to the breaching party, provided that the breaching party does not cure such material breach within twenty (20) days following the breaching party's receipt of such notice.
  6. Either party may terminate this Agreement on thirty (30) days prior written notice to the other party should that party: (i) become insolvent or admit inability to pay its debts generally as they become due; (ii) become subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within thirty (30) business days or is not dismissed or vacated within forty-five (45) days after filing; (iii) become dissolved or liquidated or take any corporate action for such purpose; (iv) make a general assignment for the benefit of creditors; or (v) have a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business bankruptcy or insolvency.
2. Effect of Termination. Upon the expiration or termination of this Agreement:
  1. User shall immediately cease any and all use of the Software, Documentation and Services and shall destroy all copies of the Software or Documentation in its possession, or under its control;
  2. All rights granted to User hereunder shall immediately and automatically revert to Telley; and
  3. To the extent applicable, User shall immediately pay to Telley any and all outstanding Fees that may have become due before such expiration or termination.
Confidentiality.
1. Definition. In connection with this Agreement, each party (the "Disclosing Party") may disclose or make available Confidential Information to the other party (the "Receiving Party"). Subject to the exclusions set forth in Section 10.2, "Confidential Information" means any information the Disclosing Party considers confidential or proprietary including any information concerning or otherwise relating to the Disclosing Party's technology, business affairs or operations, products, services, confidential intellectual property, trade secrets, know-how, customers, trade secrets or third party confidential information, whether in oral, written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential." Without limiting the foregoing, the Software, Updates, Documentation, Services payment and financial terms as set forth in Section 7 and in any Order Form shall constitute the Confidential Information of Telley.
2. Exclusions. For purposes of this Agreement, Confidential Information does not include information that, at the time of disclosure: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 9 by the Receiving Party or, where Telley is the Receiving Party, any of its Personnel; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party before being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use, in whole or in part, of any of the Disclosing Party's Confidential Information; or (e) is required to be disclosed under applicable federal, state or local law, regulation, or a valid order issued by a court or governmental agency of competent jurisdiction, provided that the Receiving Party provides the Disclosing Party with notice sufficiently in advance of such disclosure to allow the Disclosing Party to seek an appropriate protective order.
3. Duty of Care. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall for the duration of the Term and for a period of two (2) years thereafter:
  1. Not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
  2. Safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its own sensitive information and in no event less than a reasonable degree of care;
  3. Except as may be permitted under the terms and conditions of Section 10.5, not disclose or permit access to Confidential Information other than to its employees who: (i) need to know such Confidential Information to permit the Receiving Party to exercise its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 10; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 10;
  4. Promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to cooperate with Disclosing Party to prevent further unauthorized use or disclosure; and
  5. Ensure its employees, independent contractors and agents (including, for the avoidance of doubt, where User is the Receiving Party, its Authorized Users') compliance with, and be responsible and liable for any of the foregoing's non-compliance with, the terms of this Section 10.
4. Trade Secrets. Notwithstanding any other provisions of this Agreement, the Receiving Party's obligations under this Section 10 with respect to any Confidential Information that constitutes a trade secret under any applicable law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable laws other than as a result of any act or omission of the Receiving Party or any of its employees, agents, or independent contractors.
5. Compelled Disclosures. If the Receiving Party or any of its employees, agents or independent contractors is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party will: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under this Section 10; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 10.3(d), the Receiving Party remains required by applicable law to disclose any Confidential Information, the Receiving Party will disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose. Notwithstanding anything herein to the contrary, this Agreement shall not prevent any party from disclosing Confidential Information pursuant to 18 U.S.C. Section 1833 or equivalent state or local "whistleblower" laws addressing the right to file a charge, complaint, or report with, or otherwise communicate, cooperate, or participate in any investigation or proceeding that may be conducted by, any federal, state or local government agency or commission.
Representations and Warranties.
1. Mutual Representations and Warranties. Telley and User each represent, warrant, and covenant to the other party that:
  1. As applicable, it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization;
  2. It has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, and authorizations required under this Agreement; and
  3. When executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
2. User Representations and Warranties. User herby represents, warrants, and covenants that User:
  1. Shall safeguard all Software, Documentation (including all copies thereof) and Services from infringement, misappropriation, theft, misuse or unauthorized access;
  2. Shall promptly notify Telley if User becomes aware of any infringement of Telley's Intellectual Property Rights in the Software, Documentation, Services or collectively under the Telley Platform and fully cooperate with Telley in any Action (as defined below) taken by Telley to enforce its Intellectual Property Rights; and
  3. Has all rights and licenses necessary for User's utilization of the Telley Platform as contemplated hereby, including all rights and licenses necessary to transmit the User Content through the Telley Platform.
Disclaimer of Warranties.
1. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, AND TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, NEITHER TELLEY NOR ITS PERSONNEL MAKE ANY, AND AFFIRMATIVELY DISCLAIM ALL, REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED OR ARISING BY STATUTE, CUSTOM, COURSE OF DEALING OR TRADE USAGE, WITH RESPECT TO THE SUBJECT MATTER HEREOF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING AS RELATED TO THE TELLEY PLATFORM. TELLEY AND ITS PERSONNEL SPECIFICALLY DISCLAIM ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITH REGARD TO THE TELLEY PLATFORM. WITHOUT LIMITING THE FOREGOING, THE SOFTWARE AND SERVICES ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS AND USER ASSUMES ALL LIABILITY ARISING FROM OR RELATING TO ITS USE OF OR RELIANCE UPON THE TELLEY SERVICES FOR ANY PURPOSE INCLUDING FOR THE PURPOSES STATED IN SECTION 2 HEREOF.
2. USER AGREES THAT USE OF THE TELLEY PLATFORM IS AT USER'S SOLE RISK AND THAT CHANGES MAY PERIODICALLY BE MADE TO THE FOREGOING. NEITHER TELLEY NOR ITS PERSONNEL MAKE ANY REPRESENTATIONS OR WARRANTIES AND, TO THE FULLEST EXTENT ALLOWED BY LAW, EXCLUDE ALL IMPLIED WARRANTIES (INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT) REGARDING: (A) THE ACCURACY, AVAILABILITY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE TELLEY PLATFORM; OR (B) ANY WORK PRODUCT PORTRAYED, TRANSMITTED OR DISPLAYED ON OR RESULTING FROM INSTALLING, DOWNLOADING OR OTHERWISE USING THE TELLEY PLATFORM. FURTHER, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, NEITHER TELLEY NOR ITS PERSONNEL REPRESENT OR WARRANT THAT: (W) THE USE OF THE TELLEY PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE; (X) DEFECTS WILL BE CORRECTED; (Y) THE SOFTWARE OR THE SERVERS THAT MAKE IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (Z) THE USE OF THE TELLEY PLATFORM WILL NOT INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. USER IS RESPONSIBLE FOR IMPLEMENTING SUFFICIENT PROCEDURES AND CHECKPOINTS TO SATISFY ITS PARTICULAR REQUIREMENTS FOR ANTI-VIRUS PROTECTION AND FOR MAINTAINING EXTERNAL MEANS TO RECONSTRUCT ANY LOST DATA.
3. User acknowledges and agrees that neither Telley nor its Personnel are responsible for notifying User or any Authorized Users when the Telley Platform are updated or when the same becomes or will become outdated. The Telley Platform is therefore subject to change without notice to User or any Authorized Users. User further acknowledges and agrees that the inclusion or exclusion of any information in the Telley Platform shall not be considered an opinion or recommendation by Telley and any information included within foregoing is current only as expressly stated therein.
Limitation of Liability.
1. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, TELLEY SHALL NOT BE LIABLE TO USER OR ANY THIRD PARTY FOR: (I) ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE TELLEY PLATFORM; (II) LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA ARISING FROM OR RELATED TO USE OF OR RELIANCE ON THE TELLEY PLATFORM; (III) LOSS RESULTING FROM THE TELLEY PLATFORM'S FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, CONTENT OR DATA, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY; (IV) OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE TELLEY PLATFORM OR ANY OTHER MATERIALS OR SERVICES MADE AVAILABLE BY TELLEY TO USER. THE FOREGOING LIMITATION APPLIES TO ANY CAUSE OF ACTION INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT TELLEY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL TELLEY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED TEN DOLLARS ($10.00). THE LIMITATIONS SET FORTH IN THIS SECTION 13 SHALL APPLY EVEN IF USER'S REMEDIES UNDER THIS AGREEMENT FAIL THEIR ESSENTIAL PURPOSE.
2. THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Indemnification.
1. User Indemnification. User shall indemnify, defend, and hold harmless Telley and its affiliates, and each of its and their respective officers, directors, employees, agents, subcontractors, successors, assigns and Personnel (each, a "Telley Indemnitee") from and against any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of any kind, including reasonable attorneys' fees and the costs of pursuing any insurance providers (collectively "Losses") incurred by Telley or any Telley Indemnitee in connection with any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, including civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise (collectively "Action") by a third party that relates to:
  1. Any actual or alleged infringement, misappropriation, or other violation under any applicable law of any Intellectual Property Rights or other rights of any Person that is caused by User's, its Authorized Users' or any other of User's employees, independent contractors, or agents: (i) use or combination of the Telley Platform with any hardware, software, system, network, service, or other matter whatsoever that is neither provided by Telley nor authorized by Telley in this Agreement or in the Documentation; and (ii) installation, combination, integration, or other use of any other information, materials, or technology directly or indirectly as part of, or in connection with, the Telley Platform that was not otherwise approved by Telley;
  2. Facts that, if true, would constitute a breach by User of any representation, warranty, covenant, or obligation under this Agreement, including those set forth in Sections 2, 3, 6, 7, 10 or 11;
  3. Gross negligence, abuse, misapplication, misuse or more culpable act or omission (including recklessness or willful misconduct) by or on behalf of User or any of its Authorized Users or other employees, independent contractors, or agents, with respect to the Telley Platform or otherwise in connection with this Agreement; or
  4. Use of the Telley Platform by or on behalf of User or any of its Authorized Users or employees, independent contractors, or agents that is outside the purpose, scope or manner of use authorized by this Agreement or an applicable Order Form, including as set forth in Sections 2 and 3 hereof or in any manner contrary to Telley's instructions.
2. Indemnification Procedure. Whenever Telley seeks indemnification pursuant to this Section 14 (in such role as "Indemnitee"), it: (a) shall send User (in such role as "Indemnitor") prompt and reasonable written notice of any facts or circumstances which may give rise to any relevant Actions, provided that any failure to provide such notice promptly shall not relieve Indemnitor of its obligations hereunder except to the extent it is materially prejudiced thereby; (b) Indemnitor may request reasonable cooperation by the Indemnitee, at the Indemnitor's expense, in the defense of such Actions; and (c) Indemnitor may exercise the right to control the defense and settlement of any such Actions; provided, that (i) the Indemnitor shall not, without the prior written approval of Indemnitee, settle or dispose of any Action; and (ii) Indemnitee shall have the right to participate in the defense at its own expense.
3. Equitable Relief. User acknowledges that a breach or threatened breach by User, its Authorized Users, or any of its employees, independent contractors, or agents of any of the provisions of Sections 2, 3, 6, 7, 10 or 11 of this Agreement would give rise to irreparable harm to Telley for which monetary damages would not be an adequate remedy and which would be difficult to ascertain. In the event of such a breach or a threatened breach, Telley will, in addition to any and all other rights and remedies that may be available to it at law, at equity or otherwise in respect of such breach, be entitled to equitable relief, including, without limitation, a restraining order, an injunction, specific performance, and any other relief that a court of competent jurisdiction may provide, without any requirement to (a) post a bond or other security; or (b) prove actual damages or that monetary damages will not afford an adequate remedy.
Force Majeure. For purposes hereof, a "Force Majeure Event" means any circumstances or causes beyond a party's reasonable control including strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, pandemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or User equipment, loss and destruction of property.
1. Telley Failure to Perform. In no event will Telley be liable or responsible to User, its Authorized Users, or any of its other employees, independent contractors, or agents, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any Force Majeure Event.
2. User Failure to Perform. If a Force Majeure Event causes User to fail to perform any of its obligations under this Agreement, User shall give prompt written notice to Telley stating the period of time the occurrence is expected to continue and shall use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event. Should such delay or failure continue uninterrupted for thirty (30) days without mitigation, Telley may terminate this Agreement in accordance with Section 9.1(c).
Miscellaneous
1. Choice of Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without effect to any other choice or conflict of law provision or rule. Any Action arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted exclusively in the courts within the State of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such Action and waives any objection based on improper venue or forum non conveniens.
2. Waiver of Jury Trial. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
3. Relationship between the Parties. The relationship between Telley and User established by this Agreement is that of independent contractors. No joint venture or partnership is established by this Agreement. Neither party is the agent, broker, partner, employee, or legal representative of the other for any purpose.
4. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (excluding "take-down" notices as set forth in Section 8) shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective Parties at the addresses as may be designated by a party from time to time.
5. Entire Agreement. This Agreement and to the extent applicable any and all schedules, exhibits, or other agreements attached hereto or referenced herein, including any applicable Order Forms, constitute the sole and entire agreement between User and Telley with respect to the subject matter contained herein, and supersede all prior and contemporaneous understandings, agreements, representations and warranties, whether written, oral or otherwise, with respect to such subject matter hereof.
6. No Assignment. User shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Telley's prior written consent, which consent Telley may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting the foregoing, any merger, consolidation or reorganization involving User (regardless of whether User is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Telley's prior written consent is required. No delegation or other transfer will relieve User of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section is void. Telley may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without User's consent. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
7. Successors and Assigns. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
8. Amendment; Waiver. Except as expressly set out in this Agreement, it may only be amended, modified or supplemented by an agreement in writing and signed by authorized representatives of each of the Parties hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
9. Severability. If any term or provision of this Agreement is deemed invalid, illegal, or unenforceable by any court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect the enforceability of any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, a court or other tribunal of competent jurisdiction may modify this Agreement to fullest extent permitted by law such that the remainder of the provisions not deemed invalid, illegal, or unenforceable may continue in full force and effect, provided that that such modification does not materially alter the original intent of the Parties hereto.
10. Survival. Notwithstanding any expiration or termination of this Agreement, any provisions of this Agreement which by their terms are intended to survive expiration or termination of this Agreement shall so survive and continue in full force and effect including Sections 2, 3, 6, 7, 10, 11, 12, 13, 14, 16.6, 16.7, 16.10 and 16.11.
11. Interpretation. For purposes of this Agreement, (a) the words "include," "includes" and "including" shall be deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. Whenever the context so requires, each pronoun or verb used herein shall be construed in the singular or the plural sense and each capitalized term defined herein and each pronoun used herein shall be construed in the masculine, feminine or neuter sense. All schedules, exhibits or other agreements, including any applicable Order Forms referred to herein, shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth herein. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement. The symbol "$", and all references to cash amounts, refer to United States dollars.