|
Vibecast On-Hold Product Agreement
The terms and conditions of the following Vibecast On-Hold Product Agreement
("Agreement") apply to your purchase of Vibecast Audio Appliances and/or related
Vibecast Productions and/or Vibecast Subscription Services all of which may be
collectively referred to as Vibecast Product sold in the United States from
Rhythm and Grooves (“RG”) or an authorized Vibecast Distributor. By accepting
delivery of the Vibecast Product, you agree to be bound to the terms and
conditions of this Agreement. The capitalized terms used throughout this
Agreement are defined in Section 1, below.
If you do not wish to be bound by the terms of this Agreement, including those
provisions setforth in Section 5.5 of this Agreement, you must notify RG
immediately and return your Vibecast Product pursuant to RG Return Policy.
Each Vibecast License allows you to use the Vibecast Product serving a single
Location, as defined below, for a period of 12 months from the date of
installation.
The Vibecast Subscription Service allows you to update the voice over and/or
change musical accompaniment periodically at a reduced rate. You must already
have purchased the Vibecast Appliance to qualify for Vibecast Subscription
Service rates. It is the responsibility of the customer to ensure that updated
information and/or instructions for change are supplied. Failure to do this may
result in the cancellation of the Vibecast Subscription Service. A reactivation
fee may apply.
If you purchase the Vibecast Subscription Services, a separate agreement will
cover the specific terms and conditions of that purchase but the general terms
of this Agreement may apply and be incorporated in that Subscription Service
Agreement.
1. Definition and application
“Vibecast Audio Appliance” means audio hardware provided by Rhythm and Grooves.
"Vibecast Production" means any RG created digital file including its musical
and vocal content.
"Vibecast Subscription Service" means a subscription entitling the Customer to
updated Productions.
“Vibecast Product” means the combination of Rhythm and Grooves provided Vibecast
Audio Appliance; Vibecast Production and/or Vibecast Subscription Services.
“Vibecast License” means RG express written consent to use the Vibecast Product.
"Customer" means the client with whom RG makes this Agreement including a duly
authorized individual acting on behalf of that Customer.
"Caller" means anyone who will ever hear the production as a result of the
Customer's use of the Vibecast Production.
"Location" means any one physical address containing a telephone system owned or
leased or in any other way operated by the Customer. "This Agreement" means the
Agreement between the Customer and RG incorporating these terms and conditions.
"Illegal" means any act or acts which may be deemed to breach criminal law.
2. Agreement Period
2.1 This Agreement remains in force for the period over which you use the
Vibecast Product or until either you or RG notifies the other party of an
intention to terminate the agreement.
2.2 Where a Vibecast Subscription Service has been purchased the Vibecast
Subscription Service will be provided in accordance with the terms of the
Subscription Service Agreement between the parties, using content material
supplied by you. Each Vibecast License allows you to use the Vibecast Product
serving a single Location, as defined above, for a period of 12 months from the
date of installation.
2.3 Yearly Vibecast License renewals and licenses to use the same message at
other locations must be purchased from Vibecast. It is your obligation to
purchase all necessary Vibecast Licenses and the failure to do so may be
actionable.
3. Return Policies; Refunds and Exchanges
3.1 RG return policy can be found on the RG website. Before you attempt to
return any Vibecast Product you must contact us directly to obtain a Return
Material Authorization Number for you to include with your return. You must
return Vibecast Products to us in their original or equivalent packaging. You
are responsible for risk of loss, shipping and handling fees for returning or
exchanging Vibecast Products. Additional fees may apply. If you fail to follow
the return or exchange instructions and policies provided by RG, RG is not
responsible whatsoever for Vibecast Products that are lost, damaged, modified or
otherwise processed for disposal or resale. At RG’s discretion, credit for
partial returns may be less than invoice or individual component prices due to
bundled or promotional pricing. To receive a Return Material Authorization
Number call l RG at: (941) 746-6600.
4. Changed or Discontinued Audio Appliances
4.1 RG policy is one of ongoing update and revision. RG may revise and
discontinue Vibecast Audio Appliances at any time without notice. RG will ship
Vibecast Audio Appliances that have the functionality and performance of the
Audio Appliance ordered, but changes between what is shipped and what is
described in a specification sheet or catalog are possible. Parts used in
repairing or servicing Vibecast Audio Appliances may be new, equivalent-to-new,
or reconditioned.
5. The Customer's Responsibilities
5.1 It is your responsibility to ensure that any claims made in the Vibecast
Production are legal, true and will not cause actionable offense to Callers and
others.
5.2 It is also your responsibility to ensure that the tone and content of The
Vibecast Production will not cause actionable offense to Callers and others and
would be considered to be contrary to public decency and morality.
5.3 You agree that it shall not cause or permit or in any way assist in any
unauthorized dissemination of any defamatory material or any material which
could be considered to be in breach of criminal laws
5.4 Each Vibecast License allows you to use the Vibecast Product serving a
single Location for a period of 12 months from the date of installation.
5.5 You acknowledge and agree that RG shall have the right (but not the
obligation) in its sole discretion, to pre-screen, refuse or remove any project
and/or user provided content that violates this Agreement or is otherwise
objectionable, including, without limitation, projects or content that is
illegal, obscene, indecent, defamatory, incites religious, racial or ethnic
hatred, or violates the rights of others.
5.6 If you do not wish to be bound by this Agreement, you must notify RG
immediately and return your Vibecast Product pursuant to RG Return Policy.
6. Payment Terms; Orders; Quotes; Interest
6.1 Terms of payment are within RG sole discretion, and unless otherwise agreed
to by RG, payment must be received by RG prior to RG acceptance of an order.
Payment for the Products, Productions and Subscription Services will be made by
credit card, wire transfer, or some other prearranged payment method unless
credit terms have been agreed to by RG.
6.2 Subject to the terms of Section 6.1, above, Invoices are due and payable
within the time period noted on the invoice, measured from the date of the
invoice.
6.3 RG may invoice parts of an order separately. Your order is subject to
cancellation by RG, at RG sole discretion.
6.4 RG is not responsible for pricing, typographical, or other errors, in any
offer by RG and reserves the right to cancel any orders resulting from such
errors.
7. Termination of this Agreement by RG
7.1 If you fail to pay any charge when due or otherwise violate the terms of
this Agreement in any other way RG can terminate this Agreement immediately
without prior notification to you.
7.2 If RG terminates this Agreement for any of the reasons stated above, you
will not be entitled to a refund of anything you paid to RG.
7.3 Upon termination of this Agreement, you shall nevertheless remain liable for
all charges due or which would have been payable under this Agreement.
7.4 Subject to the discretion of RG, after termination, if RG agrees that you
may once again be reconnected to the Vibecast Subscription Service, any
reconnection may be subject to an administration charge together with any
outstanding charges payable prior to the reconnection.
8. Termination of the Agreement by The Customer
8.1 You may terminate this Agreement at any time by sending a written notice to
the following address: Rhythm and Grooves, Inc. PO Box 9113, Bradenton, FL.
Notification may also be sent via email to: sales@rhythmandgrooves.com;
provided, however, that such email notice shall be effective only upon receipt
of email acknowledgement from Rhythm and Grooves.
9. Shipping Charges; Taxes; Title; Risk of Loss
9.1 Shipping and handling charges are additional unless otherwise expressly
indicated at the time of sale. Title to Vibecast Products will transfer from RG
to you upon shipment from RG facility. Loss or damage that occurs during
shipping by a carrier selected by RG is RG’s responsibility. Loss or damage that
occurs during shipping by a carrier selected by you is your responsibility. You
must notify RG within 21 days of the date of your invoice or acknowledgement if
you believe any part of your purchase is missing, wrong or damaged. Unless you
provide RG with a valid and correct tax exemption certificate applicable to your
purchase of Vibecast Product and the Vibecast Product ship-to location, you are
responsible for sales and other taxes associated with the order. Shipping dates
are estimates only. Title to software will remain with the applicable
licensor(s).
10. Warranties
10.1 THE LIMITED WARRANTIES APPLICABLE TO RG-BRANDED HARDWARE AUDIO APPLIANCE(S)
CAN BE FOUND IN THE LIMITED WARRANTY STATEMENT ON THE RG WEBSITE OR IN THE
DOCUMENTATION RG PROVIDES WITH THE PRODUCT WHICH ARE HEREBY INCORPORATED IN THIS
AGREEMENT. RG MAKES NO EXPRESS WARRANTIES EXCEPT THOSE STATED IN RG APPLICABLE
WARRANTY STATEMENT IN EFFECT ON THE DATE OF THE INVOICE, PACKING SLIP OR
ACKNOWLEDGEMENT. WARRANTIES AND SUBSCRIPTION SERVICE WILL BE EFFECTIVE, AND RG
WILL BE OBLIGATED TO HONOR ANY SUCH WARRANTIES AND SUBSCRIPTION SERVICES, ONLY
UPON RG RECEIPT OF PAYMENT IN FULL FOR THE ITEM TO BE WARRANTED OR SERVICED.
11. Limitation on assignment
11.1 You may not assign the benefit of this Agreement in whole or in part
without RG’s prior written consent.
11.2 Except with the prior written consent of RG, the Subscription Service shall
not be used by or on behalf of any person other than you or a third party
specified in any documented agreement between you and RG.
12. Limitation of Liability
12.1 For the avoidance of doubt, RG has no obligation duty or liability in
Agreement and/or tort for breach of statutory duty or otherwise beyond that of a
duty to exercise reasonable skill and care.
12.2 In any event and in no circumstance shall RG be liable for any loss either
direct or indirect of profits, business or anticipated savings or any other
direct or indirect consequential loss arising out of the provision of the
Vibecast Subscription Service to you.
12.3 In no circumstance shall RG be liable for any loss whether direct or
indirect arising from the content of any information supplied by you for use in
the production by RG.
12.4 Under no circumstances shall RG be liable for loss whether direct or
indirect of profits, business or anticipated savings or for any direct or
indirect consequential loss whatsoever by the failure of, or any problem
experienced by you in it's use of the production.
12.5 YOU AGREE THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF PRODUCT,
SUBSCRIPTION SERVICES AND PRODUCTIONS, RG IS NOT LIABLE OR RESPONSIBLE FOR ANY
AMOUNT OF DAMAGES ABOVE THE AMOUNT INVOICED FOR THE APPLICABLE PRODUCT.
12.6 Each provision of this condition is to be construed as a separate
limitation applying and surviving even if for any reason one or other of the
said provisions is held inapplicable or unreasonable.
13. Indemnity
13.1 Without prejudice to any other rights or remedies which RG may have against
you, you agree to protect, indemnify and hold RG harmless from any and all loss
or expenses sustained by reason of any breach of this Agreement and any actions,
proceedings, claims or demands in any way connected with this Agreement brought
on by or threatened against RG by a third party which are caused by or arise
from any action of RG carried out pursuant to your instructions.
13.2 You shall indemnify RG against any actions, proceedings, claims or demands
in any way connected with this Agreement brought or threatened against RG by a
third party which are caused by or arise from any act or default of RG carried
out pursuant to your instructions.
14. Force Majeure
14.1 RG is not liable for any breach of this Agreement if the breach was caused
by an act of God, insurrection or civil disorder, war or military operations,
national or local emergency, acts of omissions of government, highway authority
or other competent authority, RG compliance with any statutory obligation,
industrial disputes of any kind (whether or not involving RG employees), fire,
lightening, explosion, flood, subsidence, weather of exceptional severity, acts
of omission of persons whom RG is not responsible (including in particular other
telecommunication service providers and postal service providers), or any other
cause whether similar or dissimilar outside RG reasonable control.
15. Governing Law
15.1 THE PARTIES AGREE THAT THIS AGREEMENT, ANY SALES THERE UNDER, OR ANY CLAIM,
DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER
PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, AND
EQUITABLE CLAIMS) BETWEEN CUSTOMER AND RG arising from or relating to this
agreement, its interpretation, or the breach, termination or validity thereof,
the relationships which result from this agreement, RG advertising, or any
related purchase SHALL, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BE
GOVERNED BY THE LAWS OF THE STATE OF FLORIDA, WITHOUT REGARD TO CONFLICTS OF
LAWS RULES.
16. Binding Arbitration.
16.1 ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR
OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY,
COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND RG, its
agents, employees, principals, successors, assigns, affiliates (collectively for
purposes of this paragraph, "RG") arising from or relating to this Agreement,
its interpretation, or the breach, termination or validity thereof, the
relationships which result from this Agreement (including, to the full extent
permitted by applicable law, relationships with third parties who are not
signatories to this Agreement), RG advertising, or any related purchase SHALL BE
RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY THE
NATIONAL ARBITRATION FORUM (NAF) under its Code of Procedure then in effect
(available via the Internet at http://www.arb-forum.com , or via telephone at
1-800-474-2371). The arbitration will be limited solely to the dispute or
controversy between customer and RG. NEITHER CUSTOMER NOR RG SHALL BE ENTITLED
TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR ARBITRATE ANY
CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL
CAPACITY. This transaction involves interstate commerce, and this provision
shall be governed by the Federal Arbitration Act 9 U.S.C. sec. 1-16 (FAA). Any
award of the arbitrator(s) shall be final and binding on each of the parties,
and may be entered as a judgment in any court of competent jurisdiction. RG will
be responsible for paying any arbitration filing fees and fees required to
obtain a hearing to the extent such fees exceed the amount of the filing fee for
initiating a claim in the court of general jurisdiction in the state in which
you reside. Each party shall pay for its own costs and attorneys' fees, if any.
However, if any party prevails on a statutory claim that affords the prevailing
party attorneys' fees, or if there is a written agreement providing for fees,
the Arbitrator may award reasonable fees to the prevailing party, under the
standards for fee shifting provided by law.
#703008.3
|