RISK-FREE PILOT EULA

Software License Agreement - EchoSystem

The Echo360, Inc. (Echo360) EchoSystem software ("Software") distributed and licensed to you ("Licensee") hereunder consists of computer software, media, online and electronic documentation together with any updates or portions thereof furnished to you subsequently. This Echo360 Software is proprietary to Echo360, Inc. ("Licensor") and its suppliers. Licensor and its suppliers retain title to and ownership of the Software, including any copies provided herein or electronically or made by the Licensee, and reserves all rights not expressly granted in this software license agreement ("SLA"). Licensee assumes responsibility for the selection of the Echo360 Software to achieve your intended results, and for the installation and use of and results obtained from the Echo360 Software.

Access to Echo360 Ancillary Online Services.

Licensee acknowledges that the Echo360 Software includes features enabling end users to access services that Echo360 makes available to online users from time to time (“Ancillary Online Services”).  For example, Ancillary Online Services may permit students to create and save notes associated with particular coursework, or permit individuals to conduct online discussions related to classes in which they are enrolled.  Licensee acknowledges that Echo360 is not required by this Contract to provide Ancillary Online Services of any kind, and that any Ancillary Online Services actually provided by Echo360 are subject to separate terms and conditions published by Echo360 online within those services (“Online Service Terms”).  No license is granted by this Contract to access or use any Ancillary Online Services.  Licensee is not obligated by this Contract to access or use any Ancillary Online Services, provided that, in the event that Licensee does elect in its sole discretion to use any such Ancillary Online Services, Licensee agrees to abide by all applicable Online Service Terms.

Granting of License

Echo360 hereby grants to Licensee a non-exclusive, non-transferable, non-sublicenseable right and license operate the Echo360 Software only, solely in accordance with applicable documentation provided by Echo360 and solely for Licensee's internal business and educational purposes.  Third-Party Software provided with, or as part of, the Echo360 Software is additionally subject to the terms and conditions identified herein.  The license shall be provided exclusively pursuant to Echo360’s hosting services as described herein in Annex A.

Compliance

Licensee agrees that Echo360 may audit Licensee’s compliance with this Agreement.  Echo360 will provide reasonable prior notice and will conduct any such audit during customary business hours.  Echo360 will bear its own expenses to perform such an audit, provided that, if an audit reveals unregistered or non-procured usage of the Software, Licensee agrees to pay Echo360 all applicable fees according to Echo360’s then-current standard pricing schedules, together with the costs reasonably incurred by Echo360 in connection with the audit.

Term

The SLA shall be effective as long as Licensee possesses a valid, non-expired license key provided by Echo360.  This Agreement will terminate immediately without notice from Echo360 if Licensee fails to comply with any provision of this Agreement.  All licenses to the Software terminate automatically when this Agreement terminates, and Licensee must fully delete all copies of the Software remaining in its possession, including any updates or prior versions, upon termination of this Agreement. 

Retained Rights, Ownership

Echo360 hereby retains all right, title and interest in and to the Echo360 Software, the Documentation and associated intellectual property rights, and Licensee acknowledges that it neither owns nor acquires any rights in any of the foregoing not expressly granted by this SLA.

Consent to Collection of Usage Data

Licensee agrees that the Software may collect and use technical data and related information, including but not limited to technical information about the system and peripherals, that is gathered periodically to facilitate the improvement of the Software or to provide services or technologies to Licensee. Licensee understands and acknowledges that, when Licensee uses the Software, Echo360 may collect or measure data, information, location, statistics or analytics gathered or generated through use of the Echo360 Software in aggregated form (the “Usage Data”).  Usage Data does not include information that personally identifies any individual users.  Licensee understands and agrees that the reporting back of Usage Data to Echo360’s network is done automatically and that Usage Data is proprietary and confidential information of Echo360.  Licensee authorizes Echo360, to the extent any of Licensee’s data may be part of such aggregated information, to forward the Usage Data to Echo360’s network.  BY USING THE SOFTWARE AND/OR RELATED SERVICES, LICENSEE CONSENTS TO THE COLLECTION, USE AND REPORTING OF USAGE DATA.

Restrictions

Echo360 hereby retains all right, title and interest in and to the Echo360 Software, the documentation and associated intellectual property rights, and Licensee acknowledges that it neither owns nor acquires any rights in the Echo360 Software.  Licensee shall own all rights, title to and interests in any and all content that is recorded with the use of the Echo360 Software.  Echo360 reserves all rights not expressly granted in this SLA.

Limited Warranty

THE ECHO360 SOFTWARE AND ANY OTHER MATERIALS, SOFTWARE, EQUIPMENT, DATA AND/OR SERVICES PROVIDED BY ECHO360 ARE SUBJECT TO A NINETY (90) DAY (FROM THE DATE OF FIRST USE) WARRANTY AGAINST ANY DEFECTS OR FAILURES.  IF ECHO360 SOFTWARE OR OTHER MATERIALS, SOFTWARE OR EQUIPMENT PROVIDED BY ECHO360 FAIL TO OPERATE IN ACCORD WITH THE PROVIDED DOCUMENTATION, ECHO360 SHALL REPAIR OR REPLACE THE SOFTWARE TO MAKE IT CONFORMING TO THE DOCUMENTATION.  IN THE EVENT THAT ECHO360 CANNOT MAKE THE SOFTWARE OPERATE IN ACCORD WITH THE DOCUMENTATION WITHIN A REASONABLE PERIOD DETERMINED BY ECHO360, THEN THIS AGREEMENT SHALL TERMINATE AND ECHO360 SHALL REFUND TO LICENSEE ALL FEES AND COSTS PREPAID FOR THE SOFTWARE.  EXCEPT AS OTHER PROVIDED HEREIN, ECHO360 EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF QUALITY, VALUE, OPERABILITY, CONDITION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, SYSTEM INTEGRATION, WORKMANSHIP, SUITABILITY, NON-INFRINGEMENT, AND/OR THE ABSENCE OF DEFECTS THEREIN, WHETHER LATENT OR PATENT.  NO WARRANTY IS MADE BY ECHO360 ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE.  ECHO360 DOES NOT WARRANT THAT THE ECHO360 SOFTWARE OR ANY OTHER INFORMATION, MATERIALS, EQUIPMENT, TECHNOLOGY OR SERVICES PROVIDED UNDER THIS AGREEMENT WILL MEET LICENSEE'S REQUIREMENTS OR THAT THE OPERATION OF THE ECHO360 SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.  LICENSEE ACKNOWLEDGES THAT ECHO360'S OBLIGATIONS UNDER THIS AGREEMENT ARE FOR THE BENEFIT OF LICENSEE ONLY.

Limitation of Liability

IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.  THE CUMULATIVE LIABILITY OF A PARTY TO THE OTHER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE GREATER OF (I) ONE THOUSAND DOLLARS (USD $1,000.00) OR (II) THE TOTAL AMOUNT OF ALL FEES THEN-PAID TO ECHO360 BY LICENSEE DURING THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT, ACT OR OMISSION GIVING RISE TO SUCH LIABILITY.  THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

Confidentiality

  1. Basic duties regarding Proprietary Information.

(a) With regard to information that one Party discloses to the other, the disclosing Party is the “Owner,” and with regard to information it receives from the other, it is the “Recipient.”  The Recipient agrees not to disclose or permit access to the Owner’s Proprietary Information, except to the Recipient’s employees and agents who are informed of the confidential nature of the Proprietary Information and who have agreed in writing or who are otherwise legally bound to treat the Owner’s Proprietary Information in a manner consistent with Recipient’s duties under this Contract.  The Recipient will not use the Owner’s Proprietary Information except (i) as necessary to perform the Recipient’s duties under this Contract; and (ii) in any other manner that this Contract expressly authorizes. Even after termination or expiration of this Contract, the Recipient will continue to treat Proprietary Information received from the other Party in accordance with this Contract, for so long as the information fits the definition of “Proprietary Information,” or until use and disclosure of the information would no longer be restricted even if this Contract remained in full force.

(b) The Recipient’s duties under this section will apply only to (i) information which is marked to clearly identify it as the Owner’s Proprietary Information, or, if disclosed orally, which is identified as Proprietary Information both at the time of disclosure and again in a writing delivered by the Owner within a reasonable time; and (ii) information which, due to its nature or the circumstances surrounding its disclosure, any reasonable person would conclude is intended by the Owner to be considered confidential and proprietary for purposes of this Contract.

  1. Exceptions to confidentiality obligations. 

Even if some information would be considered Proprietary Information according to the definition stated in this Contract, the Recipient will have no duties regarding that information if (i) personnel of Recipient who have not had access to the Owner’s Proprietary Information independently develop the same information; or (ii) the Recipient rightfully obtains the information from some third party, without restrictions on use and disclosure, but only if the Recipient has no knowledge that the third party’s provision of that information is wrongful; or (iii) the information is made available to the general public without any direct or indirect fault of the Recipient. For sake of clarity, Customer agrees that Echo360 will not have liability under this Contract in connection with any disclosures of Customer Content by Customer’s students or faculty members or by any other third parties not acting on Echo360’s behalf.

  1. Compliance with legal duties. 

The Recipient will not be in breach of this Contract by delivering some or all of the Owner’s Proprietary Information to a court for enforcement of Recipient’s rights under this Contract or in response to a valid public records request, to law enforcement officials, and/or to governmental agencies, but only if it limits the disclosure to the minimum amount that will comply with applicable law (such as in response to a subpoena) or that is necessary to enforce its legal rights against the Owner. Unless prevented by law, the Recipient agrees to notify the Owner as far in advance as reasonably possible before the Recipient delivers the Owner’s Proprietary Information to any of those third parties.  If requested by the Owner, and if permitted by law, the Recipient will cooperate with the Owner, at the Owner’s expense, in seeking to limit or eliminate legal requirements that compel disclosure, or in seeking confidential treatment by the applicable court, law enforcement officials and/or governmental agencies.

  1.  Attorneys and accountants. 

The Recipient may permit its attorneys and accountants to view the Owner’s Proprietary Information, provided that they are under legal and/or professional duties to maintain the information’s confidentiality, and only for purposes of advising the Recipient regarding its legal rights and duties.

  1. Due diligence.

In the event that the Recipient is required to make information available to potential acquirers or investors to enable them to conduct due diligence, the Recipient may permit access to the Owner’s Proprietary Information only if the third party conducting due diligence agrees in writing to treat the information in a manner consistent with Recipient’s duties under this Contract.

  1.  Treatment of Ancillary Online Services Data.

 Each Party agrees that all proprietary interests (e.g., copyrights) in Ancillary End User Content generated by individual users of Ancillary Online Services shall be considered the property of the individuals who submitted such materials.  Echo360 further agrees to treat all Ancillary End User Content, as well as all Statistical Viewer Usage Information, in accordance with applicable provisions of its published Online Service Terms (including, e.g., Echo360’s applicable privacy policies).

Indemnification of Licensee

Echo360 agrees to indemnify, defend and hold harmless Licensee from and against any and all losses, liabilities, costs (including reasonable attorneys' fees), reasonable expenses and damages resulting from any claim by any third party that the Echo360 Software infringes or misappropriates, as applicable, such third party's U.S. patent rights issued as of the Effective Date, or such third party's copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America, provided that, notwithstanding the foregoing, Echo360 shall have no obligation under this section if (A) the alleged infringement arises, in whole or in part, due to modification of the Echo360 Software by Licensee, on Licensee's behalf; or (B) if such alleged infringement arises, in whole or in part, due to combination or integration of the Echo360 Software with hardware, software and/or technology not supplied by Echo360 hereunder, if such infringement would have been avoided by use of the Echo360 Software absent such combination or integration; or (C) to the extent the third party's claim or allegation or infringement is directed to Licensee's application of the Echo360 software to a particular use, but not directed to the Echo360 software in and of itself.  As a condition of Echo360's obligations under this section, if any claim for which indemnity is or may be sought hereunder is made or appears reasonably possible, Licensee agrees (i) promptly to notify Echo360 in writing; (ii) to cooperate with Echo360, and to allow Echo360 sole authority to control the defense and settlement of such claim; and (iii) to permit Echo360, at Echo360's sole discretion provided that such settlement completely and forever releases Licensee from all liability with respect to the claim or unless Licensee provides prior written consent, to enable Licensee to continue to use the Echo360 Software, or to modify or replace any such infringing material to make it non-infringing, provided that, if Echo360 determines that none of the foregoing alternatives is reasonably available, Licensee shall, upon written request from Echo360, cease use of, and, if applicable, return, such materials as are the subject of the relevant infringement claim and, once returned, be entitled to a pro rata refund.  This section states Echo360's entire obligations and Licensee's sole remedy with respect to any third-party claim of infringement brought against Licensee.

Indemnification of Echo360

Licensee agrees to indemnify, hold harmless and, at Echo360's option, defend Echo360 from and against any losses, liabilities, costs (including reasonable attorneys' fees) or damages resulting from (i) Licensee's negligence or willful misconduct; (ii) a breach by Licensee of its obligations, representations or warranties hereunder; and (iii) any claim by any third party that the Echo360 Software infringes such third party's intellectual property rights, if such alleged infringement arises, in whole or in part, due to modification of the Echo360 Software by Licensee, on Licensee's behalf, or if such alleged infringement arises, in whole or in part, due to combination or integration of the Echo360 Software with hardware, software, equipment and/or technology not supplied by Echo360 hereunder, if such infringement would have been avoided by use of the Echo360 Software absent such combination or integration, provided that Licensee shall not settle any claim unless such settlement completely and forever releases Echo360 from all liability with respect to such claim or unless Echo360 provides its prior written consent to such settlement, and further provided that Echo360 shall have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.

Echo360 will not have any responsibility or liability under this Agreement in connection with claims made by third parties to the extent they are directed at (i) modifications of any Echo360 Software or Capture Appliance, (ii) use or combination of any Echo360 Software or Capture Appliance with materials, media, content, information or methods not provided by Echo360 under this Agreement, including Licensee Content, (iii) use of any Open Source Software (as defined herein), any of the Third Party Software listed in Annex B, or any products other than Echo360 Software or Capture Appliances, (iv) use of any Echo360 Software or Capture Appliance other than in accordance with the Documentation, and/or (v) use of any Echo360 Software or Capture Appliance in a manner not expressly authorized by this Agreement (all of the foregoing circumstances, “Licensee’s Assumed Risks”).   In the event that any third party threatens or institutes against Echo360 a legal action based on claims arising from Licensee’s Assumed Risks, Licensee agrees to assume the defense of such claim at its expense if Echo360 so requests.  Licensee agrees to indemnify Echo360 against all damages, liabilities and expenses, including attorneys’ fees and court costs, arising in connection with those claims, and to pay on Echo360’s behalf any monetary awards that a court orders Echo360 to pay based on those claims.  If Licensee assumes the defense of such a claim, it agrees not to settle the claim unless the settlement fully releases Echo360, without imposing future duties on Echo360 or admitting any liability on Echo360’s behalf, or unless Echo360 provides a signed, written consent to the settlement in advance. Even in cases when Licensee has assumed the defense at Echo360’s request, Licensee will permit counsel appointed by Echo360, at Echo360’s expense, to consult and assist in Licensee’s defense and settlement of the third-party claims. To be clear, nothing in this section modifies or limits rights or remedies that Echo360 may have related to a breach of this Agreement by Licensee.

If the laws or constitution of the jurisdiction in which Licensee is formed or located prohibit Licensee from indemnifying Echo360 as set forth above, then Licensee agrees that the occurrence of any condition, event, act or omission constituting any of Licensee’s Assumed Risks will be considered a material breach of this Agreement by Licensee.

Software Export

Licensee shall not export, directly or indirectly, the Echo360 Software, technical data and/or direct products thereof (i) to any country that is not a signatory to the Berne Convention for the Protection of Literary and Artistic Works and the Universal Copyright Convention, (ii) to any country or person for which the U.S. government requires an export license or other approval without first obtaining such license or approval, or (iii) otherwise in violation of any U.S. export regulations

Severability

If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision shall be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability.  The invalidity or unenforceability of one or more of the provisions contained in this Agreement shall not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.

Government Use

The Echo360 Software is a "commercial item," as that term is defined at 48 C.F.R. 2.101 (OCT 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (SEPT 1995) and is provided to the U.S. Government only as a commercial end item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), all U.S. Government Licensees and end users acquire the Echo360 Software with only those rights set forth herein.

Termination

The license is effective until terminated. You may terminate it at any time by returning and/or destroying the Echo360 Software together with all copies. This license will also terminate immediately without notice from Licensor if Licensee fails to comply with any provision of this SLA. Licensee must destroy all copies of the Echo360 Software, including any updates or prior versions, upon termination of this SLA.

Controlling Law and Complete Agreement

This SLA shall be construed and interpreted under the laws of the Commonwealth of Virginia, without regard to the conflict of laws principals thereof or to the United Nations Convention for the International Sale of Goods. If any provision of this SLA, or portion thereof, is found to be unenforceable, such provision shall be enforced to the maximum extent possible and the remainder of this SLA shall continue in full force and effect.

 

ANNEX A

 

HOSTING SERVICES DESCRIPTION, DEFINITIONS AND SLA’S

Echo360's managed hosting environment is located in a SAS70 Type II certified data center.  Echo360's managed hosting environment is available 24x7x365, excluding the maintenance periods outlined in Annex B, and is protected using enterprise-grade firewall technology and authentication within Echo360’s product.  Physical access to the managed hosting environment is restricted to authorized Echo360 personnel only. 

Data Redundancy

Licensee’s data will be redundantly stored on multiple drives and is designed to sustain concurrent drive failures by quickly detecting and repairing any lost redundancy. 

Data Retention

The retention policy regarding Licensee Content is user configurable in the EchoSystem.  Licensee acknowledges that the data retention settings in the EchoSystem will affect storage used, and Echo360’s default data retention policy (independent of retention of backups, as described above) is as follows: 

  • Output products (streamed or downloadable to end users) will be retained for 12 months
  • “old master” file (used for re-editing) will be retained for 1 month
  • Retention of output products and gold masters excludes offline archival solution for output products over 12 months old or gold master files over 1 month old

Definitions

1.  Definitions

The following capitalized terms will have the definitions set forth below:

1.1  “System Uptime” will mean the total amount of time during any calendar month, measured in minutes, during which Licensee has the ability to access the features and functions of the Managed Services according to the Access Protocols.

1.2  “Scheduled Downtime” will mean the total amount of time during any calendar month, measured in minutes, during which Licensee is not able to access the Managed Services, according to the Access Protocols, due to planned system maintenance performed by Echo360, as set forth in the table below.  Echo360 will exercise reasonable efforts to perform scheduled system maintenance between the hours of 8:00pm and 6:00am Eastern Standard Time.  Echo360 reserves the right to change the aggregated times set forth in the table below, provided that Echo360 provides reasonable prior notice prior to modifying such Scheduled Downtime.

 

When Scheduled Downtime will occur on a regular basis:

Purpose of Scheduled Downtime:

Maximum Duration of Scheduled Downtime:

Each Weekend

system maintenance

2 hours

Each Weekend

database maintenance

2 hours

Once per calendar month

application/OS maintenance

6 hours

Once per calendar quarter

system maintenance/upgrades

3 hours per server

 

1.3  “Unscheduled Downtime” will mean the total amount of time during any calendar month, measured in minutes, during which Licensee is not able to access the features and functions of the Managed Services according to the Access Protocols, other than Scheduled Downtime, as defined above, and excluding periods of unavailability resulting from reasons outside Echo360’s control (e.g., failure of Licensee’s internal systems or issues outside the Managed Environment itself, such as Internet or telecommunications failures).

1.4  “System Availability” will mean, with respect to any particular calendar month, the ratio obtained by subtracting Unscheduled Downtime during such month from the total time during such month, and thereafter dividing the difference so obtained by the total time during such month.  Represented algebraically, System Availability for any particular calendar month is determined as follows:

 

NOTE:  “Total Monthly Time” is deemed to include all minutes in the relevant calendar month minus scheduled down time, to the extent such minutes are included within the Term of this Agreement.

1.5  “Media Turnaround Time” will mean the difference in time between the time that the raw media arrives at the third party data center provider and the time the media is made available in the EchoSystem.

2.  System Performance

2.1 System Availability:  Echo360 will undertake commercially reasonable measures to ensure that System Availability equals or exceeds 99% during each calendar month (the “Service Standard”), provided that any Unscheduled Downtime occurring as a result of (i) Licensee’s breach of any provision of this Agreement; (ii) non-compliance by Licensee with any provision of this Annex A; (iii) incompatibility of Licensee’s equipment or software with the Managed Services; (iv) poor or inadequate performance of Licensee’s systems; (v) force majeure (as contemplated in the Agreement); or (vi) any matters outside Echo360’s reasonable control, shall not be considered toward any reduction in System Availability measurements.  For all purposes under this Annex, Licensee agrees that the Managed Services are considered available and accessible at all times when the third party data center ("the Managed Environment") itself is operational and accessible within the data center where the EchoSystem Server Software is hosted, and in no event will Echo360 have responsibility for any inability of Licensee to access the Managed Services due to Internet or telecommunications failures, failures of Licensee’s internal systems, or due to any other issues occurring outside the Managed Environment itself

2.2  Media Turnaround Time:  Echo360 will undertake commercially reasonable measures to ensure that Media Turnaround Time is 12 hours per one hour of recorded media, provided that any failures occurring as a result of (i) Licensee’s breach of any provision of this Agreement; (ii) non-compliance by Licensee with any provision of this Annex B; (iii) incompatibility of Licensee’s equipment or software with the Managed Services; (iv) poor or inadequate performance of Licensee’s systems; (v) force majeure (as contemplated in the Agreement); or (vi) any matters outside Echo360’s reasonable control, shall not be considered toward any reduction in System Availability measurements.  For all purposes under this Addendum, Licensee agrees that the Managed Services are considered available and accessible at all times when the Managed Environment itself is operational and accessible within the data center where the EchoSystem Server Software is hosted, and in no event will Echo360 have responsibility for any inability of Licensee to access the Managed Services due to Internet or telecommunications failures, failures of Licensee’s internal systems, or due to any other issues occurring outside the Managed Environment itself.

2.3  Access to Support:

Online

For the fastest response time, please use our Licensee Portal:

http://echo360.com/support/customer-portal/

OR use Echo360’s support request form:

http://echo360.com/support-request

Both of those contact methods immediately inject Licensee’s support request into Echo360’s input queue for triage and assignment. Licensee will receive an automated reply that includes a case number for future reference.

Via telephone

Telephone support is available during Echo360 business hours.

North America, South America, Europe and Asia:

+1 703 667 7500

Support hours are Monday – Friday between 8AM – 8PM Eastern Time (ET) excluding Echo360 holidays.

England, Scotland, Wales and Ireland:

+08008620777
Support hours are Monday – Friday between 0900 to 0100 local UK time excluding Echo360 holidays.

Australia and New Zealand:

+ 61 8 9221 6004

Support hours are Monday – Friday between 8AM – 5PM Western Daylight Time (WDT) +900 UTC excluding Echo360 holidays.

Support Escalations

If for any reason a support issue is not being resolved in a way that meets Licensee’s business needs, Licensee may request escalation of the issue by contacting Echo360’s representatives (or their designees provided in writing):

Sean Evans – Manager Technical Support

sevans@echo360.com

Office:  703 667 7568

Mobile:  703 298 8238

Robert Stoneking – Vice President Client Services & Operations

rstoneking@echo360.com

Office:  703 621 1296

Mobile:  301 518 0971

3.  Measurement and reports

3.1 System Monitoring and Measurement:  Echo360 will provide for monitoring of System Availability on an ongoing basis.  All measurements of System Availability will be calculated on a monthly basis for each calendar month during the Term.

4.  Licensee Requirements

4.1 Minimum System:  The service standards set forth in this Annex assume that Licensee and/or its end users, as applicable, meet Echo360’s published minimum system standards for compatibility, such as by using compatible browser software for access to Echo360’s hosted offerings.

4.2  Additional Licensee Obligations:  Except as otherwise agreed between the Parties in an Addendum to this Agreement or pursuant to a separate written agreement, Licensee is responsible for (i) maintenance and management of its computer network(s), servers, software, Web site(s), and any equipment or services related to maintenance and management of the foregoing; and (ii) correctly configuring Licensee’s systems in accordance with the Access Protocols.

4.3 Reporting of Unscheduled Downtime:  Licensee must promptly notify Echo360 in the event Unscheduled Downtime occurs.

4.4  Non-Performance by Licensee:  The obligations of Echo360 set forth in this Annex A will be excused to the extent any failures to meet such obligations result in whole or in part from Licensee’s or its Authorized Users’ failure(s) to meet the foregoing requirements.

5.  CREDITS

There are no credits or refunds available for any breach of the Hosted SLAs.

 

ANNEX B

 

THIRD PARTY SOFTWARE

For purposes of this Agreement, the “Third Party Software” includes the software products listed below that may be provided by Echo360 as a convenience to Licensee, including any updates to the same that may be provided in the future.  Licensee acknowledges that particular Third Party Software products may or may not be provided to Licensee, depending upon the particular Echo360 product purchased or licensed by Licensee.

Ateme H.264 video codec

Apple QuickTime*

Java Runtime Environment (JRE)*

Microsoft Windows Media Encoder*

Texas Instruments H.264 video codec*

Wowza*

Notes:

1.  If a particular Third Party Software product listed above is not marked with an asterisk, and if that Third Party Product is provided to Licensee within particular Echo360 Software (or embedded within a Capture Appliance), the particular Third Party Software product is subject to the license(s) applicable to that Echo360 Software under this Agreement.

2. Third Party Software products marked with an asterisk (*) in the list above are subject to any “click-through” or similar “end user license agreement” made available by the applicable third party vendor. Licensee acknowledges that, if provided to Licensee, such products are provided only as a convenience to Licensee, and are not licensed by Echo360 to Licensee under this Agreement.