Enhanced Support Agreement
Thank you for choosing enhanced technical support services from Karinca Technologies Ltd. Sti, “Ant Media”. This Enhanced Support Agreement (this “Agreement”) is a legally binding agreement between you (“Customer” or “You”) and Ant Media that describes your rights to use technical support and related services provided by Ant Media related to Ant Media software products and services.
BY INDICATING THAT YOU AGREE TO THESE TERMS DURING PURCHASE OF THE ENHANCED SUPPORT SERVICES, OR BY REQUESTING OR USING THE ENHANCED SUPPORT SERVICES, YOU ACKNOWLEDGE AND AGREE: (1) THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (2) THAT YOU AGREE TO BE BOUND BY EACH AND EVERY TERM OF THIS AGREEMENT; AND (3) IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, THAT YOU HAVE THE POWER AND AUTHORITY TO DO SO AND TO BIND SUCH COMPANY.
IF YOU DO NOT AGREE TO EACH AND EVERY TERM AND CONDITION OF THIS AGREEMENT, YOU MAY NOT USE ENHANCED SUPPORT SERVICES PROVIDED BY ANT MEDIA. If you do not agree with each and every of the terms and conditions of this Agreement, do not take any action that signifies your agreement to this Agreement. Although fees paid to Ant Media hereunder are generally nonrefundable, Ant Media will gladly provide you with a refund of Enhanced Support fees paid if you have not used or taken advantage of any Enhanced Support services from Ant Media and request a refund from us promptly after agreeing to these terms and making payment to Ant Media.
1. Technical Support Enhanced Services.
1.1 Ant Media will provide Customer with the enhanced technical support services (the “Enhanced Services”) described on http://www.Ant Media.com/support/plans-and-services, or other web pages hosted by Ant Media (collectively, the “Ant Media Website”). In the event of any discrepancy between the Ant Media Website and this Agreement, the terms in this Agreement shall control and be given full force and effect.
1.2 Ant Media and Customer agree to work together reasonably and in good faith to facilitate timely and satisfactory delivery of the Enhanced Services by Ant Media. Customer agrees to promptly respond to inquiries from Ant Media when receiving Enhanced Services. Ant Media shall determine the manner of delivering the Enhanced Services in its sole discretion, including without limitation the days and times the Enhanced Services are provided and telephone or other “live” support is available, the manner of delivering the Enhanced Services, the personnel providing the
Enhanced Services, the technical and other resources to be utilized in providing and delivering the Enhanced Services, and the products and services for which the Enhanced Services are provided.
1.3 If Customer is an organization, Enhanced Support is provided to the purchaser of the Enhanced Support and additional support contacts who have a valid Ant Media account on the Ant Media Website.
1.4 Customer acknowledges and agrees that any audio-video content streamed to, from, or through any Ant Media software product or service is the exclusive responsibility of Customer.
1.5 The Enhanced Services are provided pursuant to Ant Media policies and procedures, some of which may be described on the Ant Media Website and all of which may be updated from time to time by Ant Media.
1.6 Ant Media does not provide Enhanced Services with regard to: (i) prior versions of Ant Media software; (ii) improper installation or use of Ant Media software; (iii) software or other products or services not offered, licensed, and provided to you by Ant Media, and the implementation or use of Ant Media software with any of the foregoing; (iv) modified Ant Media code; (v) other products and services not specifically described as within the scope of the Enhanced Services; or (iv) trial, beta, pre-release, or preview versions of Ant Media software or products or services.
1.7 Descriptions of the Enhanced Services provided on the Ant Media Website and in other communications from Ant Media are general descriptions only and are not intended to be “SLAs” or assurances or guarantees of availability, response, or resolution times; the failure of Ant Media to meet any specific availability, response, or resolution commitment shall not be considered a breach of this Agreement and shall not provide the basis for a refund or credit to Customer from Ant Media.
1.8 In providing the Enhanced Services, Ant Media may need to download, install, and/or run software on Customer devices or systems. These may include, without limitation, software or services that allow Ant Media to diagnose and resolve problems, remotely view or control Customer devices or systems, and modify their operation or configuration. Customer understands and consent’s to Ant Media’s reasonable utilization of the foregoing technology. Customer acknowledges that Customer is solely and exclusively responsible for granting access to Customer devices or systems and for any effect or impact that doing so may have on such devices or systems. Ant Media does not guarantee or represent that any connection to a Customer device or system will be secure. If Customer is not certain of the effect(s) that Ant Media remotely viewing or controling a Customer device or system will have, Customer should NOT grant ANT MEDIA access to such device or system. ANT MEDIA DISCLAIMS ANY LIABILITY WHATSOEVER ARISING FROM
Ant Media REMOTELY VIEWING OR CONTROLLING A CUSTOMER DEVICE OR SYSTEM.
1.9 ANT MEDIA MAY MAKE WRITTEN, AUDIO, AND/OR VIDEO RECORDS OR RECORDINGS OF THE ENHANCED SERVICES PROVIDED TO CUSTOMER AND INTERACTIONS BETWEEN CUSTOMER AND ANT MEDIA. YOU AGREE ANT MEDIA MAY STORE, COPY, USE, DISSEMINATE, DISTRIBUTE, AND MAKE USE OF SUCH RECORDS AND RECORDINGS IN ANY REASONABLE MANNER IT SEES FIT WITHOUT ANY OBLIGATION TO YOU.
1.10 You agree to not expose Ant Media or its employees providing the Enhanced Services to explicit, indecent, objectionable, adult, or illegal content, or to rude, harassing, or aggressive behavior or language.
2. Requirements to Receive Enhanced Support. In order to request and receive Enhanced Services, Customer must at all times during the Term (as defined below):
2.1 be a licensee of Ant Media Media ServerTM software in good standing;
2.2 have an active “maintenance and support” subscription with Ant Media for License Key (as defined in the Ant Media software license agreement, each a “License Key”) on Customer’s account if obtaining the Enhanced Services with regard to any Ant Media Media Server License Key (Ant Media may agree to waive this requirement upon request for Customers with many License Keys); “maintenance and support” refers to the “standard” maintenance and support plans that are included in Ant Media Media Server monthly subscriptions and offered by Ant Media for an additional fee for Ant Media Media Server perpetual licenses;
2.4 be willing and able to use and make use of third party technologies employed by Ant Media to provide the Enhanced Services (such as web-chat and videoconferencing services).
3. Software EULA; Enhanced versus Standard Maintenance and Support.
3.1 Ant Media is not providing any license to current or future Software, or rights to use any service provided by Ant Media, by this Agreement. EXCEPT AS PROVIDED IN THE FOLLOWING SECTION 3.2, THIS AGREEMENT DOES NOT MODIFY OR SUPERSEDE IN ANY WAY SOFTWARE LICENSE AGREEMENTS, OR SERVICES TERMS AND CONDITIONS, BETWEEN ANT MEDIA AND CUSTOMER.
4. Term; Automatic Renewal; Termination.
4.1 The initial term of this Agreement is the time period for which Customer initially purchased the Enhanced Services (the “Initial Term”). The Initial Term, along with each Renewal Term (as described in Section 4.2 below), are collectively referred to herein as the Term.
4.2 AT THE CONCLUSION OF THE INITIAL TERM AND EACH RENEWAL TERM, THIS AGREEMENT AUTOMATICALLY RENEWS FOR AN ADDITIONAL PERIOD OF TIME EQUAL TO THE PRIOR INITIAL TERM OR RENEWAL TERM (EACH, A “RENEWAL TERM”). CUSTOMER AGREES TO BE AUTOMATICALLY CHARGED AND PAY THE THEN-CURRENT RATE FOR THE ENHANCED SERVICES FOR EACH SUCH RENEWAL TERM UNLESS CUSTOMER CANCELS THE ENHANCED SERVICES OR NOTIFIES ANT MEDIA OF ITS DESIRE TO NOT RENEW THE ENHANCED SERVICES AT LEAST THIRTY (30) DAYS PRIOR TO THE END OF THE THEN-CURRENT INITIAL TERM OR RENEWAL TERM.
4.3 CANCELLATION OR NON-RENEWAL OF THE ENHANCED SERVICES MAY BE ACCOMPLISHED BY CUsTOMER UTILIZING ONE OF THE METHODS PROVIDED BY ANT MEDIA, SUCH AS USING CUSTOMER’S “MY ACCOUNT” PAGE ON THE ANT MEDIA WEBSITE TO CANCEL THE ENHANCED SERVICES.
4.4 Either Party may terminate this Agreement if the other Party materially breaches a material term of this Agreement and fails to cure such breach following fifteen (15) days of written notice from the non-breaching Party. Customer is not entitled to a pro-rata or other refund of Fees (as defined below) in the event this Agreement is terminated for Customer’s uncured breach.
4.5 Ant Media may suspend or cease providing the Enhanced Services and terminate this Agreement without owing a refund to you if your use of the Enhanced Services is determined by Ant Media, in its sole and reasonable discretion, to be excessive, illegal, improper, abusive, or harassing.
4.6 Ant Media may terminate this Agreement, and provide a pro-rata refund of Fees paid for Enhanced Services not
performed, upon fifteen (15) days notice to Customer.
4.7 Sections 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11 shall survive termination of this Agreement.
5. Fees. In exchange for the Enhanced Services provided by Ant Media, Customer agrees to pay Ant Media the fees set forth for such Enhanced Services on the Ant Media Website (collectively, “Fees”).
5.1 All Fees are in U.S. Dollars. All Fees are completely nonrefundable.
5.2 Fees are due according to the timeframes and payment methods as stated on the Ant Media Website.
5.3 Ant Media may withhold the Enhanced Services if Customer is past due on any account with Ant Media at any time. In addition, Ant Media may suspend or terminate any Software license granted to Customer by Ant Media if Customer fails to cure any nonpayment hereunder following fifteen (15) days notice by Ant Media to Customer.
5.4 Amounts not paid when due will accrue interest at the lesser of 1.5% per month or the maximum rate permitted by law. Customer shall be responsible for reasonable costs of collection of past due amounts.
6. Non-Solicitation. During the Term and for one (1) year thereafter, Customer will not encourage or solicit any employee or consultant of Ant Media to leave Ant Media for any reason, provided this provision shall not prevent Customer from hiring a Ant Media employee who responds to a general, non-specific, advertisement for employment by Customer.
7. Confidential Information of Ant Media.
7.1 CUSTOMER INFORMATION IS NOT CONFIDENTIAL INFORMATION UNDER THIS AGREEMENT. CUSTOMER IS RESPONSIBLE FOR DELETING OR OBFUSCATING ANY INFORMATION CUSTOMER CONSIDERS CONFIDENTIAL AND THAT ANT MEDIA MAY VIEW OR BE EXPOSED TO WHILE PROVIDING THE ENHANCED SERVICES; ANT MEDIA DOES NOT AGREE TO MAINTAIN THE CONFIDENTIALTY OF ANY CUSTOMER INFORMATION OR MATERIALS.
7.2 “Confidential Information” means any competitively sensitive or secret business, financial, marketing, or technical information disclosed by Ant Media, its officers, employees, or agents. Confidential Information shall include without limitation: (i) intellectual property of Ant Media; (ii) nonpublic information relating to Ant Media’s technology, customers, business plans, promotional and marketing activities, finances, and other business affairs; (iii) third-party information that Ant Media is obligated to keep confidential; (iii) the methodology Ant Media employs to provide the Enhanced Services, along with the ideas, concepts, know-how, methodology, techniques, structures, information, materials,
procedures, training materials, and training aids constituting or related to the Enhanced Services; and (iv) any other information provided by Ant Media that is either designated by Ant Media as confidential or that a reasonable businessperson would conclude to be sensitive, proprietary, confidential, or a trade secret.
7.3 Customer agrees that it will: (i) use Confidential Information received by it solely for purposes of utilizing Ant Media software and the Enhanced Services as permitted under the Software’s applicable license agreement and this Agreement; (ii) maintain the confidentiality of the Confidential Information using at least as great a degree of care as it uses to maintain the confidentiality of its own most confidential information and in no case less than reasonably prudent care; (iii) reasonably communicate the terms and conditions of this Agreement to any employees or contractors who come into contact with the Confidential Information and only disclose Confidential Information to employees and contractors who are subject to a written confidentiality agreement that protects the Confidential Information at least to the same extent as this Agreement; and (iv) not use, export, or re-export Confidential Information except in compliance with applicable laws, rules, and regulations of the United States and other nations.
7.4 Customer may disclose Confidential Information to the extent required to comply with any law, order, or rule, or regulation of any applicable governmental agency, authority, or judicial authority; provided, however, that prior to any such disclosure, Customer shall notify Ant Media of Customer’s intent to disclose Confidential Information and reasonably assist Ant Media in any effort to prevent such disclosure.
7.5 Upon receipt of a written request from Ant Media, Customer will return all Confidential Information disclosed to it by Ant Media.
7.6 Customer will not use, repeat, perform, reverse engineer, copy, duplicate, modify, or create derivative works of any Confidential Information. Customer will not alter, remove, or obscure any proprietary notices contained in the Confidential Information. To the extent Customer obtains any rights in and to any Confidential Information or derivatives or improvements thereto, Customer hereby assigns all such rights to Ant Media.
7.7 The Parties agree that any actual, threatened, or anticipated disclosure of Confidential Information by Customer will cause immediate, irreparable harm to Ant Media for which equitable and any other legal remedies may be awarded. Ant Media may seek injunctive relief to protect the Confidential Information and Customer waives any requirement that Ant Media post a bond or other security in order to pursue injunctive relief.
7.8 Ant Media is the owner of, and expressly retains any and all rights in and to, the Confidential Information and any
other proprietary information of Ant Media. The Confidential Information is the exclusive intellectual property of Ant Media or its licensors and protected by copyright laws and international treaties as well as other intellectual property laws and treaties. Ant Media or its licensors retain all right, title, and interest in and to the Confidential Information, and all copies thereof, and in all related copyrights, patents, Ant Media trademarks, and any other intellectual and industrial property and proprietary rights, including without limitation any registrations, applications, renewals, and extensions of such rights.
8. Disclaimer of Warranty and Limitations of Liability.
8.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANT MEDIA PROVIDES THE ENHANCED SERVICES WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR COMMUNICATION WITH CUSTOMER. ANT MEDIA SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ANT MEDIA DOES NOT WARRANT THAT THE ENHANCED SERVICES WILL MEET CUSTOMER’S NEEDS, THAT THE ENHANCED SERVICES WILL BE ERROR-FREE, OR THAT THE ENHANCED SERVICES WILL BE PROVIDED WITHOUT INTERRUPTION OR DELAY.
8.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ANT MEDIA BE LIABLE HEREUNDER FOR ANY LOST PROFITS OR LOST BUSINESS OPPORTUNITIES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE.
8.3 ANT MEDIA ‘S TOTAL LIABILITY UNDER THIS AGREEMENT WILL NOT, IN ANY EVENT, EXCEED THE FEES, IF ANY, PAID BY CUSTOMER FOR THE ENHANCED SERVICES UNDER THIS AGREEMENT.
8.4 THE FOREGOING LIMITATIONS AND DISCLAIMERS IN THIS SECTION 8 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER Ant Media HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. CUSTOMER AND ANT MEDIA AGREE THAT, GIVEN THE FEES CHARGED, THIS LIMITATION OF LIABILITY IS REASONABLE AND FAIR, AND THAT Ant Media WOULD NOT HAVE ENTERED INTO
THIS AGREEMENT OR PROVIDED THE ENHANCED SERVICES WITHOUT THE LIMITATIONS OF LIABILITY AND DISCLAIMER OF WARRANTIES PROVIDED IN THIS SECTION 8.
9. Trademarks and Publicity.
9.1 Customer is granted no right, title, license to, or interest in any Ant Media trademarks, copyrights, or other intellectual property rights owned or held by Ant Media, and Customer hereby agrees to not use Ant Media trademarks without Ant Media’s prior written consent. Notwithstanding the foregoing, Customer agrees that any use of Ant Media trademarks, whether permitted or otherwise, shall inure to the sole benefit of Ant Media.
9.2 Customer agrees that Ant Media may use Customer’s name, organization name, logos, and other identifying information to identify Customer as a Ant Media customer in marketing and similar efforts, such as marketing collateral, trade show signage, and website content. Customer agrees that such use of its name or logos shall be without royalty or other obligation to Customer by Ant Media.
10. Indemnification. Customer agrees to defend, indemnify, and hold harmless Ant Media, its affiliates, and each of their respective officers, directors, shareholders, unitholders, members, employees, agents, advisors, and representatives, against all liabilities, costs, and expenses, including reasonable attorneys fees, related to or arising out of the Enhanced Services.
11.1 This Agreement, along with referenced terms on the Ant Media Website: (i) contains Ant Media and Customer’s entire understanding with respect to the Enhanced Services and other subject matter hereof; (ii) sets forth Ant Media’s entire liability and Customer’s exclusive remedy with respect to the Enhanced Services and other subject matter hereof; and (iii) supersedes any prior or contemporaneous agreements, representations, understandings, promises, descriptions, purchase orders, communications, or proposals, whether oral or written, between Ant Media and Customer with respect to the Enhanced Services and other subject matter hereof. Additional or different terms contained in any Customer or third-party document, including but not limited to purchasing documents, are hereby expressly objected to and rejected by Ant Media.
11.2 This Agreement may be executed by Customer indicating its acceptance of these terms during the purchasing of Enhanced Services on the Ant Media Website, or by facsimile or electronic signature if permitted by Ant Media, and in such case in counterparts, each of which, when taken together, will constitute one and the same Agreement.
11.3 Ant Media may update this Agreement and the Ant Media Website from time to time. In the event of a material change to this Agreement, Ant Media will provide you notice of such change via email and such change will take effect upon such notice to you.
11.4 Headings under this Agreement are intended only for convenience and shall not affect the interpretation of this Agreement. References herein to the singular include the plural, and vice versa. If an ambiguity or question of intent or meaning arises with respect to any provision of this Agreement, this Agreement will be construed as being drafted jointly by Ant Media and Customer, and no presumption or burden of proof will arise favoring or disfavoring either Party by virtue of authorship of any of the provisions of this Agreement.
11.5 No failure of either Party to exercise or enforce any of its rights under this Agreement will act as a waiver of those rights. This Agreement may only be modified, or any rights under it waived, by a written document executed by the party against which it is asserted.
11.6 Customer shall not assign this Agreement or any interest in this Agreement without the prior written consent of Ant Media. Ant Media may assign this Agreement or any interest in this Agreement, in whole or in part, without the consent of Customer.
11.7 If any provision of this Agreement is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this Agreement will not be affected.
11.8 This Agreement shall not be construed to create any employment, partnership, joint venture, franchise, agency, or endorsement relationship between Customer and Ant Media or construed to authorize either Party to enter into any commitment or agreement binding on the other Party.
11.9 The parties each represent and warrant they are authorized to enter into this Agreement and comply with its terms.
11.10 Except for Customer’s obligations to pay Fees and other amounts due under to this Agreement, neither Party shall be in default by reason of any failure in performance of this Agreement if such failure arises, directly or indirectly, out of causes beyond the direct control or foreseeability of such party, including without limitation default by subcontractors or suppliers, acts of God or of the public enemy, terrorist acts, United States or foreign governmental acts, fire, flood, epidemic, strikes, or freight embargoes.
11.11 This Agreement will be governed by the laws of the State of New York without regard to its choice of law
principles. Customer and Ant Media agree to submit to the exclusive jurisdiction and venue of the United States Federal District Court for the District of Colorado in connection with any dispute arising out of this Agreement. The United Nations’ Convention for the International Sale of Goods shall not apply to this Agreement.
11.12 Any notice required by this Agreement to any Party shall be in writing and in English, addressed as set forth in this Section, and deemed to be sufficient and effective: (i) upon sending if given in writing by certified mail, postage prepaid, return receipt requested, or by overnight delivery by an internationally recognized carrier; or (ii) upon sending if given in writing by email and acknowledged by the receiving Party or followed within five (5) business days by a writing delivered as stated in subsection “(i)”, above. Customer’s address for notices hereunder is the email address provided by Customer on the Ant Media Website when purchasing the Enhanced Services or establishing Customer’s account with Ant Media on the Ant Media Website. Ant Media’s address for notices hereunder is Karinca Teknoloji Ltd. Sti. Sogutozu Mah. No: 43 Ankara / Turkey. Either party may update their address for notices hereunder by notifying the other party as provided in this section.