REAL CODE ® TERMS & CONDITIONS FOR THE SOFTWARE SERVICE
THESE TERMS AND CONDITIONS FOR THE SOFTWARE SERVICE ARE BETWEEN REAL CODE LTD (hereafter Real Code) AND “YOU” (COLLECTIVELY, THE “PARTIES”).
YOU AGREE THAT THIS AGREEMENT (DEFINED BELOW) IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY LEGAL ENTITY ON WHOSE BEHALF THE SERVICE IS USED (E.G. YOUR EMPLOYER).
YOU MAY HAVE ANOTHER WRITTEN AGREEMENT DIRECTLY WITH REAL CODE LTD THAT SUPPLEMENTS OR SUPERSEDES ALL OR PORTIONS OF THIS AGREEMENT.
“Agreement” means these terms and conditions.
“Appointee” shall have the meaning set forth in Section 2.4 (Appointments).
“Authentication” means the process of technically testing the identity of a Real Code user and - on passing - automatically assigning the privileges required for certain Real Code roles, e. g. the role of Host or of an Appointee.
Circumvention or invalidation of this technical test of identity, for instance by publishing, circulating or passing on login and password information to persons other than the named person to be identified, constitutes a breach of this Agreement.
“Content” means all audio, video, multimedia, data, text, images, documents, computer programs, and any other information or materials uploaded or created by or on behalf of You in connection with Your use of the Service.
“Host licensor” means a named individual to whom the customer’s Subscription administrator has delegated the personal licensing of Named Hosts on the customer’s SME system.
“Information” means personally identifiable information.
“Real Code” is a registered trademark held by Real Code Software Inc and means the product of that company that is licensed by Real Code Ltd and which forms the functional core of the Software which is provided for use via the Service.
“Real Code” also means Real Code Ltd. Real Code Ltd is a limited liability company with registered offices in First Floor, Telecom House, 125-135 Preston Road, Brighton BN1 6AF, United Kingdom. Registered in England and Wales. Company Registration no: 8919593.
“SME system” means the technical meeting environment on which the customer organisation’s Named Hosts run Sessions, the organisation’s users are maintained by its Appointees, its content is held and for which a Platform Subscription must be procured. The technical specification of the SME system is determined by the Subscription Metrics.
"SME system" means Real Code’s system of one or multiple servers used for transactions related to Platform Subscriptions, Host Subscriptions (e.g. procurement, renewal, termination) and the provisioning of the Service.
“Named Host” refers to authenticated named persons licensed to invite to and control Real Code sessions. Host licenses are procured through a Named Host subscription. Named Host licenses are tied to a named person. Making one person’s host license available to another person, for instance by passing on the licensed person’s login and password is strictly prohibited.
“Named Host Subscription" refers to a subscription by which licenses for Named Hosts are purchased for a given term. A Named Host Subscription buys the right to license a specific number of named natural persons for a given term. It is defined by (i) the number of individuals who can be licensed as Named Hosts by it, (ii) the remaining number of Hosts yet to be licensed (iii) the Named Hosts licensed by it, (iv) its term i.e. 1, 2, 3, 4 or 5 years, (v) the Fee for that number of Hosts and term.
Named Hosts are licensed and un-licensed on the customer’s SME system by the customer’s Subscription administrator or Host licensors to whom this power has been delegated. Re-assignment of licenses from one individual to another is permitted to accommodate natural fluctuations of personnel or changes in individual job definitions as they occur in reality. The re-assignment of licenses in order to share a limited number of licenses between a greater number of individuals is a severe breach of this agreement.
Examples for clarification: (i) Reassignment of Named Host A's Host license to another person B who takes over her role in the department is in order as it reflects a real change in the organisation. (ii) Un-licensing of Named Host C as she leaves the business thereby increasing the number of available licenses is also in order as it reflects a real change in the organisation. (iii) Re-assignment of Named Host D's license to person E so that she can run one or several sessions while D is on holiday with D receiving a new Host license after his return to run his next session is not allowed. Such temporary un-licensing of D merely serves the purpose of better exploiting the Host subscription. (iv) Person who uses Real Code only sporadically receives a Host license for these occasions. After use, the license is withdrawn and returned to the "pool". Any such temporary un-licensing is not allowed since F continues to use his Host privileges over time. Un-licensing and re-licensing have occurred solely for the purpose of higher utilisation of the Host Subscription.
“Participant” means anyone, who interacts with the Service in the course of joining or participating in a Session.
“Service” means individually and collectively, the Real Code software service and/or services rendered in connection with the Real Code software service.
“Session” refers to meetings, conferences, sittings or workshops in which the participants make use of the Service to communicate with each other or to document or disclose results of their work. These meetings, conferences, sittings or workshops may occur in a single location or remotely over the network at the same time or at different times.
The execution of a Real Code Session requires control by a properly authenticated Host with a valid Named Host license.
“Software” means any executable code loaded into the client computer’s RAM and executed on the client in the course of using the Service.
“Subscription” means the agreement between You and a Reseller of Real Code or Real Code Ltd to use the Service for a given period of time (the Subscription Period). Real Code Subscriptions to the Software Service take two basic forms:
(1) Platform Subscriptions which provide a particular Real Code SaaS deployment. Customers typically require further subscriptions such as Host subscriptions to make actual use of the Real Code deployment.
(2) Named Host Subscriptions by which a specific number of named individuals can be licensed as Named Hosts. ©2015 Real Code Ltd. Registered Office: First Floor, Telecom House, 125-135 Preston Road, Brighton BN1 6AF. Registered in England. Company Registration no: 8919593, www.realcode.co.uk 2
“Subscription Administrator” means the named individual nominated by the customer who coordinates this contract and administers the customer's subscriptions through the Real Code Store. The role can be passed on to another person in the Real Code Store.
“Subscription Metrics” means terms set forth in a separate writing (such as a quote or written agreement between You and Real Code or a Reseller of Real Code) or an invoice describing the scope of Your right to use the Service. The Subscription Metrics typically spell out the subject of the Subscription such as a particular deployment (“Platform”) on which the service is based, the number of Named Session Hosts and the Period for which each Subscription is valid. The Subscription Metrics are incorporated by reference into this Agreement.
“ Subscription Period” means the specific term for which the Subscription is valid.
“Subscription Fee” means the payment due for a given Subscription which is agreed between You and a Real Code Reseller or Real Code Ltd.
2. Use of the Service.
2.1 Authority to Use Service. You represent and warrant that You have all necessary right, power and authority to enter into this Agreement and to perform the acts required of You hereunder including having a valid license to use the software applications that generate Content (such as presentations or file attachments), and the right to submit Content and Your or a Participant’s Information in connection with the Service. Otherwise, You are not permitted to submit such Content or Information to Real Code or the Service.
2.2 Access to Service. You acknowledge that Your ability to access the Service may require the payment of third party fees (such as telephone toll charges, ISP, or airtime charges) and that You are responsible for paying such fees. Real Code is not responsible for any equipment You may need to be able to access the Service.
2.3 Log-In Information. To gain access to and use the Service, You may be required to create a log-in ID and password (“Log-In Information”). You are responsible for all activity occurring under Your Log-In Information, and You must keep Your Log-In Information confidential and not share Your Log-In Information with third parties. Real Code has no obligation or responsibility with regard to Your use, distribution, disclosure, or management of Log-In Information. Notwithstanding the foregoing, Real Code may require You to change Your Log-In Information if such Log-In Information is inconsistent with the terms of this Agreement.
2.4 Appointments. You may appoint individuals within Your organisation or other third parties to administer various functions of the Service (“Appointees”), as applicable. Notwithstanding anything to the contrary set forth in Section 2.3 (Log-In Information) of the Agreement, You may, if applicable, provide to Appointees specific Log-In Information for the sole purpose of enabling such Appointee to administer various functions of the Service in accordance with the terms of this Agreement. You are solely responsible for all acts or omissions of Appointees in connection with the Service.
2.5 Limitations. The Service is not designed or licensed for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems. Without limiting the generality of the foregoing, Real Code and its affiliates specifically disclaim any express or implied warranty of fitness for such purposes. Further, the Service is not designed as the primary repository for the content and minutes of past sessions. Storage of such content is administratively controlled by Your Appointees and occurs for the convenience of Hosts only. Real Code and its affiliates specifically disclaim any express or implied warranty of fitness as a primary content repository.
3.1 The Service. Real Code grants to You a non-exclusive, non-transferable, revocable right to access and use the Service according to the terms and conditions of this Agreement and the applicable Subscription Metrics. The terms of this section 3 apply to You solely if the Subscription Metrics indicate You have a right to use the Service.
3.2. Legitimate use. Within the Subscription Metrics and solely in conjunction with use of the Service, Hosts, Participants or Appointees may load the Software into the temporary memory (e. g. RAM) of a computer and run it for preparing, executing or wrapping up Real Code sessions. You shall not, however, modify, port, adapt or translate the Software. You shall not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software. Real Code reserves all not explicitly granted rights.
3.3. Externals. You may personally license externals, i.e. persons that are not member of the aforementioned organisations, as Named Hosts. The licensing of externals is only permitted to enable these persons to host and support Real Code sessions for the subscribing organisation (You). Commercial dissemination to or the use of Host privileges or of Services by externals for purposes other than those of the subscribing organisation are prohibited. While the Service may be used in the delivery of value added services such as consulting or facilitation, the Service itself may not be hired out, leased, sub-licensed, disseminated, transferred, copied or reproduced.
You cannot use the Software on a timeshare or service bureau basis or host, on a subscription basis or otherwise, or use the Software to utilise the Service for a third party unless in the delivery of value added services such as consulting or facilitation within the subscribing organisation’s purposes.
3.4. You nominate a Subscription Administrator who is responsible for the day-to-day administration of Subscriptions in accordance with this Agreement.
3.5. The Subscription Administrator is the addressee of all correspondence from Real Code regarding this Agreement. It is Your responsibility to provide Real Code or its resellers with valid contact information for the Subscription Administrator.
3.6. Real Code is free to add, change or discontinue types of subscription, product or service. Real Code and its resellers are also free to change the price of their offerings for any new Subscription Period.
3.7. Invoicing. Subscriptions will be invoiced when made available. Renewals will be invoiced at the time of renewal for the next Subscription Period.
The customer will pay invoices when due without deductions. Any fees that are not paid when due will accrue interest at a rate of 8% p. a. above the basic interest rate published by the Bank of England.
In case that the customer has culpably neglected to procure Subscriptions, the customer agrees that applicable Subscription Fees become due on the day on which the customer would have had to procure the aforesaid subscriptions or their renewal.
3.8. Cut-off. You declare Your willingness to pay any reasonable cost including legal cost incurred by Real Code in collection of overdue payments. Should You be in arrears with due payments, Real Code or its resellers are entitled to cut You off from further delivery including support. The cut-off shall be lifted upon payment of arrears. Neither Real Code nor its reseller will compensate You for deliveries or benefits that have been withheld during the cut-off period.
4. Ownership of the Service and Marks.
You acknowledge that Real Code and its licensors own all right, title, and interest in: (a) the Service; (b) any Real Code software provided in connection with the Service; and (c) all graphics, logos, service marks, and trade names, including third-party names, product names, and brand names used by Real Code in connection with the Service (the “Marks”). You shall not alter or remove any Marks or Real Code copyright notices included in the Service. Notwithstanding the foregoing, You, Appointees, or Your respective licensors, as applicable, own all right, title, and interest in and to any graphics, logos, service marks, and trade names used by You or Appointees, as applicable, in connection with the Service. You are welcome to send suggestions on improving the Service, but in doing so, You acknowledge and agree that such suggestions will become the property of Real Code, and Real Code has no obligation to compensate You for such suggestions.
5. Trial Use of Service.
This Section 5 (Trial Use of Service) applies to You solely if You have subscribed to the Service on a trial basis.
5.1 Trial Use. In addition to the other terms of this Agreement, as a trial user of the Service, Your right to access and use the Service is limited as provided in the e-mail communication from Real Code acknowledging Your right to use the Service, or as provided in the Web pages describing trial use of the Service. This trial Service might be offered by Real Code at a later time with different features, for a fee, or not at all, as determined by Real Code in its sole discretion. In order to maintain a consistent quality of service, Real Code reserves the right to temporarily suspend trial access to the Service as needed.
5.2 Termination of Trial Service. Your right to use the Service on a trial basis shall expire at the time given when You subscribed to the Service on a trial basis. In addition, Real Code reserves the right, for any reason in its sole discretion without prior notice, to discontinue or suspend Your trial use, and to terminate Your trial Subscription. Your rights and the rights of Participants to access Content submitted to Your account and processed by the Service shall expire immediately upon expiration of Your right to use the Service.
6. Term and Termination.
6.1 Term. Unless renewed, Subscriptions expire at the end of the Subscription Period which is specified on purchase.
6.2.1 By Real Code. Real Code may at any time and upon written notice to You immediately terminate this Agreement and Your access to the Service, or suspend or restrict Your access to the Service in whole or in part, if:
(a) You breach this Agreement and do not cure such breach within five (5) business days of receiving written notice of the breach from Real Code;
(b) You breach Section 2.3 (Log-in Information), Section 3 (Subscriptions) or Section 4 (Ownership of the Service and Marks) of this Agreement;
(c) Real Code determines in its sole and exclusive judgment that terminating Your access to the Service is advisable for security reasons, to protect Real Code from liability, or for the continued normal and efficient operation of the Service.
6.2.2 By You. You may terminate any Subscription for any reason or no reason online or by contacting Real Code customer service at any time with immediate effect. Termination cancels the remaining duration of the Subscription Period for which there shall be no refund.
Termination of the Subscription for a SME system automatically includes termination of all Named Host Subscriptions on that platform by the same date.
Expiration of a Platform Subscription terminates this Agreement regarding that platform.
6.3 Effect of Termination.
6.3.1 Upon termination of this Agreement, You must immediately cease using the Service. Any continued technical availability of the Service does not imply the right to use.
6.3.2 Without obligation, Real Code will maintain the SME system and its content for a grace period of up to 3 months beyond the end of the Subscription Period during which the SME system and its content can be brought back into operation by renewal of the Platform Subscription. Real Code will delete the SME system with all content including back-up copies automatically at the end of the grace period, or earlier if instructed by You in writing.
6.3.3 The following Sections of this Agreement shall survive termination of this Agreement: 1. Definitions, 4. Ownership of the Service and Marks, 6.3. Effects of Termination, 7. Content, 8. Notification of Copyright Infringement, 9. Intellectual Property Indemnification, 10. Links and Online Services, 11. Conduct, 12. Investigations, 13. Privacy, 15. Audit, 16. Disclaimer of Warranties, 17. Limitation of Liability, 18. Governing Law, 19. Miscellaneous.
6.4. Refund. In case of termination by Real Code according to sections 6.2.1.a or 6.2.1.b (breach of agreement) You shall not receive any refund of any prepaid account term. In case of 6.2.1.c Real Code shall pay out any prepaid fees on a pro rata basis for the remaining Subscription Period if the reasons for terminating access do not lie in Your conduct or responsibility.
7.1 Your Content. You may upload Content to the Service in connection with Your use of the Service. Real Code does not verify, endorse, or claim ownership of any Content, and You retain all right, title, and interest in and to the Content. Your Content and the Content of Participants which may include personally identifiable information may be stored on Real Code’s servers at Your request or the request of an Appointee, as necessary for Real Code to provide the Service and in accordance with Real Code’s then-current storage policies.
You are solely responsible for Content. For SME systems whose datasheets specify a dedicated restorable back-up, Real Code will produce back-up copies of the platform’s database which will provide at least one restoration point per day for the last 30 days. For SME systems which do not offer a dedicated backup, Your responsibility for Content includes the making and keeping of back-up copies of Content.
Notwithstanding anything to the contrary herein, Real Code has no responsibility or liability for the deletion or accuracy of Content, the failure to store, transmit or receive transmission of Content (whether or not processed by the Service), or the security, privacy, storage, or transmission of other communications originating with or involving use of the Service. Certain Features of the Service enable You to specify the level at which such Service restricts access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content.
7.2 Your Representations and Warranties Regarding Content. You represent and warrant that (a) You are the owner, licensor, or authorised user of all Content; and (b) You will not upload, record, publish, post, link to, or otherwise transmit or distribute Content that: (i) advocates, promotes, incites, instructs, assists or otherwise encourages violence or any illegal activities; (ii) infringes or violates the copyright, patent, trademark, service mark, trade name, trade secret, or other intellectual property rights of any third party or Real Code, or any rights of publicity or privacy of any party; (iii) attempts to mislead others about Your identity or the origin of a message or other communication, or impersonates or otherwise misrepresents Your affiliation with any other person or entity, or is otherwise materially false, misleading, or inaccurate; (iv) promotes, solicits or comprises inappropriate, harassing, abusive, profane, defamatory, libellous, threatening, hateful, obscene, indecent, vulgar, pornographic or otherwise objectionable or unlawful content or activity; (v) is harmful to minors; (vi) contains any viruses, Trojan horses, worms, time bombs, or any other similar software, data, or programs that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, Information, or property of another; or (vii) violates any law, statute, ordinance, or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, or false advertising).
7.3 Real Code Access to Content. You acknowledge that the Service is automated (e.g., Content is uploaded using software tools) and that Real Code personnel will not access, view, or listen to any Content, except as reasonably necessary to perform the Service, including but not limited to the following: (a) respond to support requests; (b) detect, prevent, or otherwise address fraud, security, or technical issues; (c) as deemed necessary or advisable by Real Code in good faith to conform to legal requirements or comply with legal process; or (d) enforce this Agreement, including investigation of potential violations hereof, as further described in Section 12 (Investigations).
7.4 Storage location of content. For SME systems whose datasheet specifies a choice of data center location, Real Code guarantees the storage of content including any back-up copies of content in the location specified by the customer and, if applicable, the specified community cloud. Data at rest is encrypted.
8. Notification of Copyright Infringement.
8.1 Real Code respects intellectual property rights and expects its users to do the same. Real Code will respond to clear notices of copyright infringement, and its response to such notices may include removing or disabling access to the allegedly infringing content, terminating the accounts of repeat infringers, and making good-faith attempts to contact the user who posted the content at issue so that they may, where appropriate, make a counter-notification.
8.2 If You believe that Your work has been used or copied in a way that constitutes copyright infringement and such infringement is hosted on the Service, or on sites linked to or from the Service or in connection with the Service, please provide written notification via regular mail or via fax (not via email or phone) of claimed copyright infringement to Real Code’s Copyright Agent (contact information below), which must contain all of the following elements:
8.2.1 A physical or electronic signature of the person authorized to act on behalf of the owner of the copyright interest that is alleged to have been infringed;
8.2.2 A description of the copyrighted work(s) that You claim have been infringed and identification of what content in such work(s) is claimed to be infringing and which You request to be removed or access to which is to be disabled;
8.2.3 A description of where the content that You claim is infringing is located on the Service;
8.2.4 Information sufficient to permit Real Code to contact You, such as Your physical address, telephone number and e-mail address;
8.2.5 A statement by You that You have a good faith belief that the use of the content identified in Your notice in the manner complained of is not authorized by the copyright owner, its agent or the law; and
8.2.6 A statement by You that the information in Your notice is accurate and, under penalty of perjury, that You are the copyright owner or authorized to act on the copyright owner’s behalf.
8.2.7 Before You file such a notification, please carefully consider whether or not the use of the copyrighted content at issue is protected by the ‘fair use’ doctrine, as You could be liable for costs and attorneys’ fees should You file a takedown notice where there is no infringing use. If You are unsure whether a use of Your copyrighted content constitutes infringement, please contact an attorney before You file Your notice, or reference the content publicly available at www.chillingeffects.org.
8.3 If You believe access to Your content was disabled or removed by Real Code as a result of an improper copyright infringement notice, please provide written notification via regular mail or via fax (not via email or phone) to Real Code’s Copyright Agent (contact information below), which must contain all of the following elements:
8.3.1 A physical or electronic signature of the subscriber;
8.3.2 Identification of the content that was removed from the Service and the location on the Service at which the content appeared before it was removed;
8.3.3 A statement under penalty of perjury that You have a good faith belief that the content was removed or disabled as a result of mistake or misidentification of the content to be removed or disabled;
8.3.4 Information sufficient to permit Real Code to contact You, such as Your physical address, telephone number and e-mail address; and
8.3.5 Before You file such a counter notification, please carefully consider whether or not the use of the copyrighted content at issue is infringing, as You could be liable for costs and attorneys’ fees in the event that a court determines Your counter notification misrepresented that the content was removed by mistake. If You are unsure whether use of the content at issue constitutes infringement, please contact an attorney before You file Your notice, or reference the content publicly available at www.chillingeffects.org.
8.4 Real Code’s Designated Agent for notice of claims of copyright infringement can be reached as follows:
By email: [email protected]
By telephone: +44 (0)345 463 4637
The Designated Agent will not remove content from the Service in response to phone or email notifications regarding allegedly infringing content, since a valid notice of copyright infringement must be signed, under penalty of perjury, by the copyright owner or the person authorised to act on his or her behalf. Please submit such notifications by fax or ordinary mail only. The Designated Agent should be contacted only if You believe that Your work has been used or copied in a way that constitutes copyright infringement and such infringement is occurring on the Service or on sites linked to or from the Service, or in connection with the Service. All other inquiries directed to the Designated Agent will not be responded to. Such inquiries should be made through the feedback procedure referenced in this Section 8.
9. Intellectual Property Indemnification.
9.1. Scope. Real Code will defend any claim brought against You by a third party to the extent that it is based on an allegation that the Service infringes such third-party's patent or copyright of the country in which You have taken delivery of the Service. This country is agreed to be the country named by You as the Real Code "Owner's address". Real Code will pay any damages, costs, and expenses finally awarded (or agreed to by settlement) for any such claim. You must promptly notify Real Code of the claim, give Real Code control of the defence and related settlement negotiations, and provide Real Code with the reasonable assistance (for which Real Code shall pay You reasonable out-of-pocket costs) in defending the claim. If You desire separate legal representation in any such action, You will be responsible for the costs and fees of that separate counsel.
9.2. Remedies. If a Real Code Software product or service deliverable is held to infringe and its use is prohibited or if, in Real Code's reasonable opinion, is likely to become the subject of an infringement claim, You will permit Real Code, at Real Code's option and expense, to (a) procure for You the right to continue to use the Service, or (b) replace or modify it so that it becomes non-infringing and has the same or additional functionality and comparable or improved performance characteristics, or (c) refund the subscription fees for the current term.
9.3. Exceptions. Real Code will have no obligation of defence or indemnity to the extent the infringement claim arises from (a) Real Code's compliance with Your designs, specifications or instructions, (b) use of the Service with non- Real Code Software, equipment, or data, other than as specified in the documentation or otherwise approved by Real Code in writing, (c) the furnishing to You of any information, service, or technical support by a third party, (d) non-subscribed use of the Service.
9.4. Indemnification Limitation. To the extent allowed by applicable law, Real Code's aggregate liability for any infringement claim is limited to the lesser of EUR 100,000 or the amount paid by You for the Service giving rise to the claim. This limit does not apply to expenses incurred by Real Code in defending the claim.
9.5. Exclusive Remedy. This section 9 states the exclusive obligation of Real Code to You regarding any claim of infringement or misappropriation of any third party's intellectual property rights.
10. Links and Online Services.
10.1 Links. Real Code may provide links to other Web sites or resources as part of the Service as a convenience to You. Real Code is not responsible for the contents, products or services on any third party site, and the inclusion of any link does not imply that Real Code endorses the content on such third party sites. You may visit such third party sites solely at Your own risk.
10.2 Online Services.
10.2.1 The Services may facilitate Your access to APIs or other websites maintained by Real Code or third parties offering services (“Online Services”). Your access to and use of any website or online services is not governed or controlled by Real Code. Real Code may at any time, for any reason, modify or discontinue the availability of any website and Online Services.
10.2.2 Real Code does not control, endorse or accept responsibility for websites or Online Services offered by third parties. Any dealings between You and any third party in connection with a website or Online Services, including delivery of and payment for goods and services and any other terms, conditions, warranties or representations associated with such dealings, are solely between You and such third party.
10.2.3 EXCEPT AS EXPRESSLY AGREED BY REAL CODE IN A SEPARATE AGREEMENT, YOUR USE OF WEBSITES AND ONLINE SERVICES IS AT YOUR OWN RISK UNDER THE WARRANTY AND LIABILITY LIMITATIONS OF SECTIONS 16 (DISCLAIMER OF WARRANTIES) AND 17 (LIMITATION OF LIABILITY).
11.1 Use Restrictions. In connection with Your access or use of the Service, You agree not to:
(a) introduce a virus, worm, Trojan horse or other harmful software code or similar files that may damage the operation of a third party’s computer or property or information;
(b) use the Service in any manner that could damage, disable, overburden, or impair any Real Code server, or the network(s) connected to any Real Code server or interfere with any other party’s use and enjoyment of the Service;
(c) attempt to gain unauthorised access to service, materials, other accounts, computer systems or networks connected to any Real Code server or to the Service, through hacking, password mining, or any other means;
(d) obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service;
(e) host, on a subscription basis or otherwise, the Service, including any related application, (i) to permit a third party to use the Service to create, transmit, or protect any content, or (ii) to conduct conferences, online meeting services, or training sessions for a third party other than its duly authorised employees, agents, consultants and/or independent contractors (collectively referred to as “personnel,” hereinafter);
(f) engage in any systematic extraction of data or data fields, including without limitation e-mail addresses;
(g) disclose, harvest, or otherwise collect Information, including e-mail addresses, or other private information about any third party without that party’s express consent;
(h) transmit junk mail, spam, surveys, contests, pyramid schemes, chain letters, or other unsolicited e-mail or duplicative messages;
(i) sell, lease, or rent access to or use of the Service, or otherwise transfer any rights to use the Service under this Agreement (including without limitation, on a timeshare or service bureau basis);
(j) defraud, defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others; or
(k) upload, or otherwise make available, files that contain images, photographs, software, or other material protected by intellectual property laws, including, for example, and not as limitation, copyright or trademark laws (or by rights of privacy or publicity) unless You own or control the rights thereto or have received all necessary consent to do the same.
11.2 Exposure. You acknowledge and agree that by accessing or using the Service, You may be exposed to materials from third parties that are offensive, indecent, or otherwise objectionable. You may report any violations of these terms to Real Code customer service.
Real Code does not generally monitor user activity occurring in connection with the Service. If Real Code becomes aware, however, of any possible violations by You of Sections 7.2 (Your Representations and Warranties Regarding Content), 12.1 (Use Restrictions), or any other provision of this Agreement, Real Code reserves the right to investigate such violations, and Real Code may, at its sole discretion, terminate immediately Your license to use of the Service or change, alter or remove Content, in whole or in part, without prior notice to You. If, as a result of such investigation, Real Code believes that criminal activity has occurred, Real Code reserves the right to refer the matter to, and to cooperate with, any and all applicable law enforcement authorities. Real Code is entitled, except to the extent prohibited by applicable law, to disclose any information, including Information, about You in Real Code’s possession in connection with Your use of the Service to law enforcement or other government officials.
You agree to indemnify and hold Real Code harmless from and against any and all liabilities, costs and expenses, including reasonable attorneys’ fees, related to or arising from Your Content, the Content of Participants, and Your or any Participant’s use of the Service.
13.2.1 Service Use Information. Real Code may collect information regarding Your use of the Service, such as the name of the Internet service provider and the Internet Protocol address through which You access the Internet; the time You access the Service; the Internet address of any referring Web site and the Internet address of the Web site from which You linked directly to Real Code’s web site. Real Code uses this information to support the Services and, unless You have opted-out, to receive communications from Real Code, to send to You communications about Real Code, its products and services.
13.2.2 Information Collected with Real Code. At Your request or the request of an Appointee, the Service may collect certain information, including but not limited to: (a) non-anonymous contributions in meetings; (b) any other information You provide to the Service, either on Your own accord or as requested by an Appointee, such as Your name, address, phone number, e-mail address, or any other personally identifying information. The Service will record such information. You and Appointees may see such information, and some information, such as “named contributions” or Your questions, may be shared with and stored by other users of the Service at Your request or the request of an Appointee or as an automatic function of the Service. Except as otherwise stated in Section 12 (Investigations), Real Code does not share Your Information with any other third parties.
13.3 Storage and Use of Information. Real Code stores Your Information and the Information of Participants in accordance with Real Code’s then-current storage policies and as requested by You or Your Appointee(s). Real Code will delete Your Information and Information of Meeting Attendees and other Participants from Real Code’s servers ultimately when this Agreement terminates. While Real Code will store the content and minutes of past sessions as specified by Your Appointees for the convenience of Hosts, it expressly disclaims fitness of the Service as a primary data store (archive) for the content and minutes of past sessions.
13.5 Communications from Real Code. Notwithstanding any communications preferences indicated by You, Real Code may send to You service-related e-mails regarding service maintenance events or modifications to the functionality or delivery of the Service.
13.6 Information of Participants. As between Real Code and You, You shall have sole responsibility for any and all Information of Participants used and submitted in connection with the Service, and Real Code shall have no responsibility in connection thereto. You shall comply with all data protection and privacy laws and rules applicable to Information of Participants. You shall defend, indemnify, and hold harmless Real Code from any claim, suit or proceeding brought against Real Code by a Participant in connection with any acts or omissions with regards to such Information of Participants. E-mails related to the Service are generally sent to Participants by You and not by Real Code. As a result, even though certain Participants may have opted-out from receiving communications from Real Code, such Participants may receive certain Service-related e-mails sent by You.
13.7 Publicity. You agree that Real Code may use the fact of Your Use of the Service as a commercial reference, unless You inform Real Code otherwise in writing.
14. Service Level Agreement.
14.1 Service Availability Objective. Real Code’s objective is to provide Service Availability of 99.9% as measured on a monthly basis (“Service Availability Objective”). Service Availability is defined as the time that the Service is capable of receiving, processing, and responding to requests, excluding (a) Scheduled Maintenance, (b) Customer Error Incidents, and (c) Force Majeure.
Service Availability is calculated as a percentage by dividing the number of minutes the Service is available during the applicable month by the number of total minutes in the applicable month, excluding in all cases Scheduled Maintenance, Customer Error Incidents, and Force Majeure.
14.2 Remedy for Failure to Achieve Service Availability Objective. At Your request Real Code will calculate Your Service Availability during a given calendar month. In the event that the Service Availability Objective was not met in a given month, then for each day in such month that the duration of the Service unavailability exceeds four (4) continuous hours, You are entitled to receive a one (1) day Service credit, subject to the Agreement and requirements of this Section 13 (Service Level Agreement). For purposes of calculating the Service Availability Objective, Real Code will only consider the Service unavailable if You opened a trouble ticket relating to the Service unavailability with the Real Code customer support department within three (3) business days of the Service unavailability. To obtain a credit for Real Code’s failure to meet the Service Availability Objective, You must request such credit in writing no later than the calendar month following the month of the Service unavailability giving rise to Your credit request. In the event of a conflict between the data in Your records and Real Code’s records, the data in Real Code’s records shall prevail.
Any Service credit due hereunder will be applied to Your account at the conclusion of the then current Subscription Term. If You purchased the Subscription on a monthly or pay-per use basis, You are not eligible for any credits arising from or relating to Service unavailability. The Service credit offered in this Section 13 (Service Level Agreement) shall be Your sole and exclusive remedy for any failure of the Service or any failure of Real Code to meet the Service Availability Objective. Any unused Service credits shall expire upon termination of this Agreement.
14.3 Support response times. Real Code support will respond to queries You submit via the channels offered on Real Code’s website www.realcode.co.uk/support within 4 work hours.
14.4.1 Scheduled Maintenance is defined as any maintenance performed during Real Code’s standard maintenance windows (currently occurring between Saturday 12:01am British Standard Time (BST) and Sunday at 11:59pm (BST), and weekdays between 6:00pm (BST) and 11:59pm (BST)) and any other maintenance of which You are given at least forty-eight (48) hours advance notice. Real Code may perform maintenance on some or all of the Service in order to upgrade hardware or software that operates or supports the Service, implement security measures, or address any other issues it deems appropriate for the continued operation of the Service.
14.4.2 Customer Error Incident is defined as any Service unavailability resulting from Your applications, Content, or Your equipment, or the acts or omissions of any user of the Service.
14.4.3 Force Majeure is defined as natural disasters, acts of terrorism, labour action, fire, flood, earthquake, governmental acts, orders, or restrictions, denial of service attacks and other malicious conduct, utility failures, or any other cause of Service unavailability that was beyond Real Code’s reasonable control.
14.4.4 Work hours are defined as the hours between 09:00 and 17:00 hours BST, Monday to Friday excluding Bank Holidays.
You agree to keep all usual and proper records and books of account and all usual and proper entries relating to its use of the Service. Real Code may cause an audit and/or inspection to be made of the applicable records and facilities in order to verify compliance with this Agreement. Any such audit shall be conducted by an auditor selected by Real Code. Any audit and/or inspection shall be conducted during regular business hours at Your facilities with advance notice of at least 10 days. You agree to provide Real Code’s designated audit or inspection team access to the relevant records and facilities and prompt and reasonable cooperation in the audit. You shall pay Real Code the full amount of any underpayment revealed by the audit plus interest from the date such payments were due under the terms of this Section 15 (Audit). Notwithstanding the foregoing, if such audit reveals an underpayment by more than five percent (5%) for the period covered by the audit report, You shall pay all of the fees and costs associated with such audit and the amount underpaid with interest from the date such payment was due pursuant to this Section 14 (Audit). This provision does not limit any additional rights and remedies at law or in equity that Real Code may have due to unauthorised use of the Service.
16. DISCLAIMER OF WARRANTIES.
16.1 THE SERVICE AND THE SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE BASIS” “WITH ALL FAULTS” AND WITHOUT WARRANTY OF ANY KIND. TO THE FULL EXTENT PERMITTED BY LAW, REAL CODE AND ITS AFFILIATES DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SYSTEM INTEGRATION OR COMPATIBILITY, WORKMANLIKE EFFORT, LACK OF NEGLIGENCE, QUIET ENJOYMENT, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, REAL CODE DOES NOT WARRANT OR REPRESENT THAT THE SERVICE WILL BE CONTINUOUS, SECURE, RELIABLE, ACCESSIBLE, UNINTERRUPTED OR ERROR-FREE, OR THAT REAL CODE’S SERVERS AND SOFTWARE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT REAL CODE’S SECURITY PROCEDURES AND MECHANISMS WILL PREVENT THE LOSS OR ALTERATION OF OR IMPROPER ACCESS TO INFORMATION OR CONTENT BY THIRD PARTIES.
16.2 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
17. Limitation of Liability.
17.1 NEITHER REAL CODE NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE THE SERVICE OR ANY SOFTWARE OR ACCESS DATA, INFORMATION OR CONTENT, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE AND BASED ON ANY THEORY OF LIABILITY INCLUDING STATUTE, BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF REAL CODE OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
17.2 REAL CODE’S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE AMOUNT PAID BY YOU FOR THE SERVICE IN THE LAST TWELVE (12) MONTHS, IF ANY. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SERVICE MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED. REAL CODE’S SUPPLIERS SHALL HAVE NO LIABILITY TO YOU FOR ANY REASON.
17.3 THE LIMITATIONS ON LIABILITY IN THIS SECTION 17 (LIMITATIONS OF LIABILITY) ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE. Nothing contained in this Agreement limits Real Code’s liability to You in the event of death or personal injury resulting from Real Code’s gross negligence.
18. Governing Law.
By accessing and using the Service, You and Real Code agree that all matters relating to this Agreement and Your access to, or use of, the Service shall be governed by and construed in accordance with the substantive laws in force in England. To the extent allowed by applicable law, the terms of the United Nations Convention on the International Sale of Goods will not apply.
Each party will, at its own expense, comply with any applicable law, statute, administrative order or regulation. An action at law under this agreement may only be brought before a court of appropriate jurisdiction in the state whose law governs this agreement under the terms of this section 18. If a party initiates legal proceedings related to this agreement, the prevailing party will be entitled to recover reasonable attorney’s fees.
You are solely responsible for Your familiarity and compliance with any laws that may prohibit You from participating in or using any part of the Service. If any provision of this Agreement is held to be invalid or unenforceable, then such provision shall be construed, as nearly as possible, to reflect the intentions of the Parties, and all other provisions will remain in full force and effect. Either party’s failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by the waiving Party in writing. Your rights hereunder may not be assigned or transferred to any third party. Each Party will provide the other with written notice under this Agreement by sending the other party notice as follows: (a) for You, notice will be sent to the e-mail address associated with Your account, and (b) for Real Code, notice will be sent to Real Code Ltd, Beach House, 57 Beach Road, Littlehampton BN17 5JH, United Kingdom,
20. General Counsel.
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SME System is a trading name of Real Code Ltd based in London, UK.