AVflyer™ Master License and Service Agreement

In order to access the AVflyer™ Services, you are responsible for maintaining and paying for your connection to the Internet.

Your registration for, or use of, the AVflyer™ Services shall be deemed to be your agreement to abide by this Agreement, as it may be amended by us in our sole discretion at any time, including any materials or downloads available at the www.avflyer.com Web site incorporated by reference in this Agreement.

We offer a Free Personal Edition for one named Presenter and a simultaneous capacity of two (2) Users. We also offer 30-day Free Trials for larger capacity usage.

BACKGROUND: We have developed a system for creating and running online meetings and presentations called the AVflyer™ online meeting format. We offer the system as a product called the ezBridge™ online meeting server, comprised of a number of components, that work together to allow customers to conduct online meetings in the AVflyer™ format. The ezBridge™ is a complete system that includes a physical computer server (“Hardware”), an operating system software (together with any related software provided by the developer of the operating system included in the ezBridge™, the “Linux Software”), a number of open source software utilities or special purpose programs (the “Utility Software”), and the application software and related utilities developed by AudioCast Inc. that enable the AVflyer™ meetings (the “AVflyer™ Software”). The ezBridge™ is sold as a complete system, or a “plug and play” appliance. That means all of the components – the Hardware, Linux Software, Utility Software and AVflyer™ Software -- have been tuned to work together as one system called the ezBridge™. The ability to conduct AVflyer™ online meetings is also offered as a Web service, where we maintain the ezBridge™ servers, and the customers receive logins and passwords to access the complete system (“AVflyer™ Services”). References in this Agreement to the “Software” are collective references to the three software components (Linux, Utility and AVflyer™).

The Customer benefits from this standardized approach, since the entire ezBridge™ system may be sold and supported more efficiently and effectively than application software alone that would need to be tuned to different environments. Smaller Customers typically choose AVflyer™ Services, and benefit from the ability to access a robust and reliable system without the hosting requirements of the installed appliance.

This Agreement provides the basic Terms and Conditions related to the Customer’s purchase and license of AVflyer™ Services. Customers seeking to purchase and license the ezBridge™ server should contact sales@avflyer.com. THESE TERMS AND CONDITIONS APPLY (I) UNLESS THE CUSTOMER HAS SIGNED A SEPARATE AGREEMENT WITH US, IN WHICH CASE THE SEPARATE AGREEMENT SHALL GOVERN; OR (II) UNLESS OTHER AUDIOCAST STANDARD TERMS APPLY TO THE TRANSACTION. This Agreement is a master agreement and may be supplemented with our Order Form(s) and supplemental purchasing Schedule(s) – these documents may provide additional terms and conditions related to the Hardware, the Linux Software, the Utility Software, the AVflyer™ Software and/or other products and services.

1. CHARGES. You (the Customer) agree to pay the charges posted on the AVflyer™ Web Site for the services you purchase. If you sign up only for the Free Personal Edition or a Free Trial, you pay nothing. If you decide to purchase excess capacity beyond the scope of the Free Personal Edition or a Free Trial, you would need to return to the AVflyer™ Web Site and enter the purchase and payment information. If you decide to purchase customization services, training services, or other services (excluding those services available for purchase online via credit card), you would need to provide email, fax or written authorization to us for any such purchase exceeding $100. We will proceed with your verbal instructions for additional purchases under $100, without requiring written authorization. Unless you have made special arrangements for an open account, all charges will be made against the credit card you provide when you sign up online for the AVflyer™ Services. There are no unexpected or hidden fees.
2. PAYMENT TERMS. If you sign up for month-to-month service, your credit card will be billed each month between the 1st and the 5th day of the month, in advance, for that month’s subscribed usage. You may cancel at any time without penalty by sending an email cancellation request to sales@avflyer.com by the 20th day of any month; you will not be billed again provided you cancel by the 20th of the month. You will not receive a refund for services not used. If you sign up for a multi-month contract that includes an incentive, you will not receive a refund for early cancellation. You authorize us to charge your credit card on an ongoing basis, based on the services for which you subscribed online, until you either cancel or your service term has expired. If you have supplemental orders payable on account of via check, we may also charge $25.00 for each NSF check. If any payment is late (except through our fault to charge your credit card), we may charge you a late fee of $29.00 or 15% of the amount that is late, whichever is greater, unless otherwise limited by law, and $15.00 for each collection call.
3. LICENSE OF AVflyer™ SOFTWARE. The AVflyer™ Software is our property. As copyrighted and trademarked material, it is protected by the laws of the United States, individual states, international copyright and trademark laws and treaties, and international trade provisions. Your purchase or use of AVflyer™ Services transfers no title to the AVflyer™ Software. Instead, any use of the AVflyer™ Software must be made in accordance with the terms of this Agreement. We reserve all rights not specifically granted to you by this Agreement. Your rights and obligations under this Agreement are described below. If you violate your obligations, this Agreement and your right to use the AVflyer™ Software terminates immediately. All updates or new versions of the AVflyer™ Software that may be received by you from us without accompanying licenses, or used or accessed by you without additional license disclosure, shall also be governed by this Agreement.
4. Special terms and conditions related to the Linux Software and the Utility Software may be referenced or contained on the applicable Order Forms and Schedule(s). It is your responsibility to familiarize yourself with such terms and conditions and comply with them. Components of the AVflyer™ Services and the ezBridge™ System are open source software subject to special terms – those terms are either disclosed during the download/installation process, or may otherwise be obtained by contacting AudioCast; the Customer is responsible for reviewing and adhering to all such terms.
5. DISTRIBUTED SOFTWARE. Notwithstanding anything to the contrary in this Agreement, any software programming and its related documentation, for use in connection with the ezBridge™ system, which is available subject to a “break the seal” hard-copy license agreement or to a “click-through” electronic license agreement, shall be licensed solely under the terms of such agreement and not under the terms of this Agreement.
6. NO WARRANTY. WE HAVE NOT MADE, NOR DO WE MAKE ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NONINFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. AS TO AUDIOCAST INC. AND ITS ASSIGNEES, YOUR LICENSE IS RECEIVED BY YOU ON AN “AS IS” BASIS.
7. USE OF LICENSE. We grant you the non-exclusive, non-transferable right, for up to the total number of named Presenters and the total number of simultaneous Users (any combination of Participants and Presenters) indicated in your online enrollment form or subsequent written amendment, to use the Software only for your business purposes, subject to the terms and conditions of this Agreement. If you violate the permitted use of this license, your rights under this Agreement will end. You certify to us that you are signing up for these services solely for use in your business -- and not for resale, nor for personal or household purposes. You certify that you will not use this service for the display of “adult” or pornographic material, nor for any mass consumer communications. This license is limited to business-to-business use, and to low volume, small group business-to-consumer use.
8. PERMITTED USERS. You may not provide or otherwise make available AVflyer™ Presenter access in any form to any person other than your employees, independent contractors or consultants, and then solely for evaluation purposes or for working with you in conjunction with your business. Notwithstanding the foregoing, you may invite any third party (including without limitation, customers, vendors, prospects, clients and investors) to be a Participant in an online meeting powered by your AVflyer™ services. Each named Presenter may not share his or her access (login and password) to AVflyer™, however Presenter access may be reassigned at any time by the individual(s) you designate as Coordinator Administrators.
9. ADDITIONAL PROHIBITED USES OF LICENSE. You may not, and you may not authorize anyone else to: (i) reverse engineer, disassemble, decompile, or make any attempt to discover the source code of the AVflyer™ Software, or access the AVflyer™ Services in order to (a) build a competitive product or service, (b) build a product or service using similar ideas, features, functions, graphics, “look and feel” or capability of the AVflyer™ Services, or (c) copy any ideas, features, functions, graphics, “look and feel” or capability of the AVflyer™ Services; (ii) exceed your capacity limit if you have the Free Personal Edition, or exceed your capacity limit by more than 20% without advance written approval from us if you are paying for AVflyer™ Services; (iii) prevent, alter or interfere with the display of any copyright, trademark, or proprietary right notice or our logo incorporated in the Software or included in any materials we give you; (iv) sell, resell, license, sublicense, transfer, assign, distribute or otherwise make available to any third party the AVflyer™ Services except as specifically described in paragraph 5 of this Agreement; (v) modify or make derivative works based on the AVflyer Services; (vi) create Internet “links” to the AVflyer™ Services or “frame” or “mirror” the AVflyer™ Services on any other server or wireless or Internet based device, except as specifically instructed by us.
10. WE ARE NOT RESPONSIBLE FOR PERSONS NOT BEING ABLE TO CONNECT TO AVFLYER™ ONLINE MEETINGS FOR ANY REASON WHATSOEVER.
11. COPYRIGHT AND PERFORMANCE FEES: You certify to us that you have the legal right to publish the content you intend to publish on the Internet via AVflyer™, and that doing so will not violate any copyright or other law protecting intellectual property. You agree it is your responsibility to pay all royalties, licensing fees, performance fees and the like which relate to your Free Trial.
12. INDEMNIFICATION BY YOU: YOU WILL INDEMNIFY (REIMBURSE) US FOR ALL OF OUR COSTS AND LIABILITIES ARISING OUT OF YOUR USE OF AVFLYER™ SERVICES (FOR EXAMPLE, IF WE ARE SUED FOR SLANDER, LIBEL OR COPYRIGHT VIOLATION BECAUSE OF THE MATERIAL YOU CHOSE TO PUBLISH), EXCEPT TO THE EXTENT OUR COSTS AND LIABILITIES ARISE OUT OF OUR OWN GROSS NEGLIGENCE, BAD FAITH OR WILFULL MISCONDUCT. THESE PROMISES WILL CONTINUE AFTER THIS AGREEMENT ENDS.
13. PATENT AND PROPRIETARY RIGHTS INDEMNITY. We will defend, at our own expense, any action brought against you to the extent that it is based upon a claim that the AVflyer™ Software infringes upon any registered United States patent, copyright or trademark, and will satisfy your obligation under any settlement or judgment in such action. As a condition to receiving this indemnity, you must (i) give us prompt notice that such action has been commenced or threatened, (ii) permit us to have sole control of the defense and settlement of such action, (iii) provide reasonable assistance and cooperation to us, at our expense, in defending such action, (iv) if we so elect, permit us to replace or modify the AVflyer™ Software, without materially affecting its functionality, so that it becomes non-infringing and (v) if we so elect, cease using the AVflyer™ Services.
14. LIMITATIONS ON LIABILITY. IN NO EVENT SHALL ANY PARTY’S AGGREGATE LIABILITY, AND THAT OF ITS RESPECTIVE OFFICERS, AGENTS, EMPLOYEES AND LICENSORS, EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL ANY PARTY, AND/OR ITS RESPECTIVE OFFICERS, AGENTS, EMPLOYEES AND LICENSORS, BE LIABLE TO ANYONE HEREUNDER, OR ARISING OUT OF OR IN ANY WAY CONNECTED OR RELATED TO, ANY AVFLYER™ SERVICES, INCLUDED BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR ANY INFORMATION OR CONTENT OBTAINED FROM OR THROUGH TH ESERVICES, OR ANY INTERRUPTION, FAILURE, INACCURACY, ERROR OR OMISSION IN THE SERVICES, FOR ANY INDIRECT, PURNITIVE, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING LOSS OF CUSTOMER PRESENTATIONS, DATA, REVENUE OR ECONOMIC BENEFIT) OR LOST PROFITS, REGARDLESS OF CAUSE, AND EVEN IF THE PARTY FROM WHOM DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S OFFICERS, AGENTS, EMPLOYEES AND LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
15. DEFAULT. If you fail to pay us as agreed, we will have the right to (i) charge your checking or credit card account and/or sue you for all past due payments AND ALL PAYMENTS TO BECOME DUE IN THE FUTURE FOR THE UNEXPIRED TERM, and other charges you owe us. You will also pay for our reasonable collection and legal costs. THIS AGREEMENT IS GOVERNED BY ILLINOIS LAW, AND YOU AGREE IN THE EVENT OF YOUR DEFAULT OR ANY DISPUTE YOU MAY HAVE CONCERNING THIS AGREEMENT THAT THE EXCLUSIVE JURISDICTION IN DETERMINING SUCH DISPUTES SHALL BE THE RESPECTIVE STATE COURTS OF COOK COUNTY, ILLINOIS.
16. ASSIGNMENT. YOU AGREE THAT YOU MAY NOT ASSIGN (TRANSFER) THIS AGREEMENT TO ANYONE ELSE. YOU AGREE THAT WE MAY SELL OR ASSIGN ANY OF OUR INTERESTS TO A NEW OWNER OR A SECURED PARTY (“Third Person”) WITHOUT NOTICE TO YOU.
17. MISCELLANEOUS. If you make a purchase based on periodic payments, you authorize us to obtain credit and other information about your company and its principals. For your convenience, we may accept a facsimile copy of any Order or supplemental purchase Schedule, with facsimile signatures. You agree a facsimile copy will be treated as an original and will be admissible as evidence.
18. PRIVACY POLICY and WEB SITE TERMS AND CONDITIONS. Each of the Privacy Policy, and the general Web site Terms and Conditions, as updated from time to time at our sole discretion, as found at www.avflyer.com, is hereby incorporated by reference into this Agreement.
19. REFERENCE SITE. Unless you instruct us that you are not satisfied with the AVflyer™ Services, we are authorized to refer to you as a successful user of AVflyer™, provided we will not post your identity or logo on our Web site or in any electronic or printed materials without your prior permission. You may be eligible for Case Study coverage – please inquire if this opportunity interests you.
20. These terms and conditions were last updated on April 11, 2005. They may be modified at any time in our sole discretion via the posting of new terms and conditions on our web site. Your continued use of AVflyer™ constitutes acceptance of any new terms and conditions. We reserve the right to cancel your AVflyer™ services at any time for any reason.