BeingThere video conferencing Software

Last Edit: 6 – 6 – 2011

BeingThere Solutions Pty Ltd ABN 58 125 519 299 (BeingThere) agrees to provide
and the Customer agrees to purchase the Services and the Hardware on the following
terms and conditions:

1. Agreement

1.1 The Agreement for the Services and/or Hardware shall comprise:

(a) written, oral or online purchase order issued by the Customer;
(b) Invoice issued by BeingThere; and
(c) these terms and conditions.

1.2 The Customer agrees to and is bound by this Agreement as amended and
updated from time to time, including the terms and conditions which can be
viewed online at www.beingthere.com.au.

2. Services

2.1 The services (Services) which BeingThere provides will be specified in the
Invoice and may include:

(a) hosted video conferencing;
(b) telephone conferencing;
(c) video recording and streaming;
(d) provision of associated software (Software) and/or
(e) technical support (Technical Support) (clause 2.2(e)).

2.2 BeingThere will provide the Services to the Customer in accordance with
the following terms and conditions:

(a) The Customer’s usage rights and usage quota will be specified in
the Invoice.
(b) Usage is calculated as number of users multiplied by time of each
conference (rounded up to the nearest hour). Total monthly usage
is calculated by adding up all usage for the month;
(c) Unused quota expires at the end of each month and cannot be
credited to the following month or refunded;
(d) Usage in excess of the Usage Quota will be charged to the
Customer at the rate stated on the plan specified in the Invoice;
(e) Technical Support is provided via an online help desk or person
to person and does not include support for the Customer’s
computers, servers or network related devices.

3. Hardware

3.1 The Customer may also purchase hardware (Hardware) from BeingThere
to support the delivery of the Services which may include:

(a) speakerphones;
(b) webcams;
(c) brackets & cables; and
(d) associated equipment.

3.2 The Hardware supplied will be at the Customer’s risk on delivery.

4. Payment

4.1 The Customer must pay for the Services:

(a) monthly in advance for the usage quota, at the rate stated in the
Invoice;
(b) monthly in arrears for any usage above the usage quota, at the rate
stated in the Invoice;
(c) at cost price plus a 10% administration charge for third party
services facilitated by BeingThere such as ISDN gateways,
additional software downloads, licenses, etc; and
(d) in each case within 14 days of issue of an Invoice.

4.2 The Customer must pay for the Hardware upfront. Payment must be
received by BeingThere in full before the Hardware will be delivered and in
any event will remain the property of BeingThere until full payment has
been received. Any repairs to Hardware undertaken by BeingThere shall be
Invoiced to customer at a rate to be agreed and must be paid within 14 days.
4.3 All payments:

(a) will be subject to Goods and Services Tax (GST) in accordance
with Australian GST law;
(b) by credit card will attract a 5% surcharge;
(c) will exclude any shipping costs which will be to the Customer’s
account; and
(d) will be subject to 20% interest per annum accruing on any
overdue payments.

5. Term and termination

5.1 The Agreement shall commence on the date stated on the Invoice and shall
continue for the term stated on the Invoice. The term may be extended by
agreement between the parties or by the Customer continuing to pay
monthly invoices for the Services.
5.2 BeingThere may terminate the Agreement by 30 days written notice to the
Customer without providing reasons. Either party may terminate the
Agreement immediately at any time for a fundamental breach which, for the
avoidance of doubt, includes non-payment or part-payment by the Customer
of an outstanding Invoice, 7 days after notice to rectify the breach was
given by BeingThere.
5.3 If the Agreement is terminated for any reason, the Customer agrees that any
monies paid in advance shall not be refundable.
5.4 Termination is without prejudice to either party s prior accrued rights at law
or under this Agreement including in respect of unpaid Invoices and interest
which may be recovered by BeingThere by a claim for liquidated damages.

6. Permitted usage and Manufacturer’s Rights

6.1 The Customer is entitled to use the Services, Software and/or Hardware
solely for the communication requirements of its business. The Customer
may not on-sell, license or assign its rights in respect of the Services,
Software and/or Hardware.
6.2 The manufacturer’s rights to the Software and/or Hardware do not pass to
the Customer as a consequence of this Agreement and the Customer agrees
not to dispute or infringe those rights. The Customer must agree to and is
responsible for complying with the Software terms and conditions.

7. Warranties

7.1 BeingThere makes no warranty:

(a) as to the suitability, compatibility, functionality, quality, price
effectiveness or efficiency of the Services, Software, Hardware
and/or any Technical Support provided by BeingThere for the use
and business requirements of the Customer; and
(b) that the delivery/operation of the Software, Services, Hardware
and/or any Technical Support will be error-free or uninterrupted.

7.2 All implied conditions and warranties in respect of the provision of, or
failure to provide, Hardware, Software, Services and/or Technical Support
are excluded to the full extent permitted by law, including merchantability,
fitness for a particular purpose, title and non-infringement.
7.3 Warranty coverage for any Software or Hardware supply, installation or
repairs is limited to that provided by the manufacturer and is not provided
by BeingThere. BeingThere provides no warranty that any repairs
undertaken or facilitated by BeingThere will be successful or resolve the
problem.

8. Liability and indemnity

8.1 BeingThere excludes all liability to the full extent permitted by law in
respect of any loss (Loss) including loss of profits, direct, indirect and
consequential loss, damages, business interruption, damage to reputation,
injury or death of any person, costs (including legal costs) or any other loss
suffered by the Customer as a consequence of or in any way relating to the
Services, Software, Technical Support and/or Hardware, howsoever arising
and including claims against BeingThere for alleged breach of contract or
negligence. The Customer must not use the Services where interruption to
Service could cause loss of life or injury.
8.2 To the full extent permitted by law, the Customer releases BeingThere from
all claims in respect of any Loss suffered by the Customer as a consequence
of or in any way relating to the Services, Software, Technical Support
and/or Hardware, howsoever arising and including claims against
BeingThere for alleged breach of contract or negligence. The Customer
accepts all risk in respect of the Services, Software, Technical Support
and/or Hardware.
8.3 Without in any way limiting the scope of the exclusion and releases set out
above, the parties agree (for the avoidance of doubt) that BeingThere
excludes all liability, and the Customer releases BeingThere from all
claims, in respect of Loss arising from or relating to:

(a) interruptions to or temporary unavailability of the Services,
Software, Hardware and/ or Technical Support;
(b) modifications, suspension of or cancellation of the Services,
Software, Hardware and/or Technical Support by BeingThere;
(c) quality or speed of the Services, Software, Hardware and/ or
Technical Support;
(d) IT network/infrastructure security breaches resulting from use of
the Services;
(e) the content or effect of any Technical Support or advice provided
by BeingThere to the Customer. The Customer is responsible for
seeking independent advice regarding its particular business and
IT requirements;
(f) any failure by the Customer to comply with all applicable laws
and the terms of this Agreement in using the Services, Software
or Hardware including in respect of obtaining permissions of all
guest users being streamed via the video conferencing Services;
(g) the contents or nature of any videos uploaded by the Customer
through the use of the Services and any consequences of their
posting or publication. The Customer is solely responsible for
these matters;
(h) the incorrect use or maintenance by the Customer s or its guest
users, of the security mechanisms such as passwords, unique
conference URLs and PIN controlled access to conferences
provided by BeingThere. It is the Customer s responsibility to use
these correctly to ensure privacy of their meetings at all times;

8.4 The Customer agrees to indemnify BeingThere for any Loss suffered by
BeingThere (or a third party to whom BeingThere is liable or may be
liable), as a consequence of any breach of applicable laws or the terms of
this Agreement.
8.5 The Customer is entirely responsible for any and all activities which occur
under or in connection with its account and agrees to indemnify BeingThere
from any claims in respect of any Loss suffered by it or any third parties as
a consequence of or in connection with the Customer’s or its guests’ use of
the Services, Software or Hardware, infringement of any intellectual
property or manufacturer’s rights. The Customer must immediately notify
BeingThere of any unauthorized use of its account or any other known
breach.
8.6 BeingThere is not in any manner responsible for the content of Customer’s
recordings (Recordings) and provides no warranty that it screens or reviews
the contents of the Recordings. BeingThere does not undertake or assume
any duty to monitor the BeingThere site for inappropriate content, though it
may elect to do so from time to time. The Customer understands that by
using the BeingThere site or Services, it may be exposed to content
published by third parties that is inaccurate, misleading, illegal, offensive,
indecent or objectionable. BeingThere excludes all liability which may arise
from such content including, but not limited to, claims for defamation, libel,
slander, infringement, invasion of privacy and publicity rights, obscenity,
pornography, profanity, fraud, or misrepresentation. The Customer releases
BeingThere from any liability in respect of such content including, but not
limited any Loss incurred as a result of the use of any content.
8.7 To the extent (if any) that the exclusion of liability in clause 8.1 does not
exclude all liability which may be owed by BeingThere to the Customer,
the maximum liability of BeingThere to the Customer shall (subject to the
requirements of applicable statutes) not be greater than the total sum of the
payments received by BeingThere from the Customer pursuant to this
Agreement in the three month period prior to which any claim was lodged.

9. Video Streaming

9.1 All audio/video Recordings generated by the Customer or its guests through
the use of the Services will be stored on the BeingThere servers and deemed
to be public information which can be viewed, published, modified, copied
and/or shared by members of the general public unless the Customer
notifies BeingThere at the time of generating the Recording that the
Recording is private. The parties agree further that:

(a) no Recording shall be subject to any obligation of confidence on
the part of BeingThere , and BeingThere shall not be liable for
any use or disclosure of any Recording.
(b) the Customer grants BeingThere a worldwide, non-exclusive,
royalty-free, license to view, use, modify, publish or display the
Customer’s Recordings or any portion of its Recordings through
any medium for the purpose of promoting the BeingThere
business.
(c) The Customer can request BeingThere to delete any of its
Recordings from the BeingThere servers, but acknowledges that
BeingThere cannot control and accepts no liability for existing
copies of the Recording which may be or become publicly
available;
(d) BeingThere reserves the right to delete any Recordings from the
Service that BeingThere deems to be inappropriate at any time
and will notify the Customer if this occurs.

10. Miscellaneous
10.1 The partes agree that the Agreement constitutes the whole agreement
between the parties and that there are no other representations or warranties
relied upon save as set out in the Agreement.
10.2 The Agreement can only be amended in writing, signed by the parties
(which includes email signatures).
10.3 A delay in exercising any right shall not constitute a waiver.
10.4 The Agreement is governed by the laws of Western Australia and the
parties submit to the jurisdiction of the Courts of Western Australia.
10.5 If any provision of the Agreement is void or unenforceable, the provision
will be severed and the remainder of the Agreement will continue.

11. DEFINITIONS

Customer means the party named as the customer in the Invoice;
Invoice means the invoice or invoices specifying the Hardware and/or
Services purchased (or to be purchased) by the Customer from BeingThere;
Manufacturer’s Rights means all trade marks, copyrights, patents, registered
designs, intellectual property rights and other industrial or technical rights in
relation to the Software and/or the Hardware;
Recording means any audio/video content that is recorded and stored on the
BeingThere servers for live streaming or viewing at a later date.