|
 |
|
|
|
Terms of
Use
PLEASE READ THESE TERMS OF USE (“AGREEMENT” OR “TERMS OF USE”)
CAREFULLY BEFORE USING THE SERVICES OFFERED BY CONVIVA, INC. (“COMPANY”). THIS AGREEMENT SETS
FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE VARIOUS
WEBSITES OWNED AND OPERATED BY COMPANY , INCLUDING, WITHOUT LIMITATION, THE
WWW.CONVIVA.COM WEBSITE AND DOMAIN NAME (“SITES”),
AND ANY OTHER FEATURES, CONTENT, OR APPLICATIONS OFFERED FROM TIME TO TIME BY
THE COMPANY IN CONNECTION THEREWITH (COLLECTIVELY “SERVICE”). BY USING THE SITES OR SERVICE IN ANY
MANNER, INCLUDING BUT NOT LIMITED TO VISITING OR BROWSING THE SITES, YOU AGREE
TO BE BOUND BY THIS AGREEMENT. THIS AGREEMENT APPLIES TO ALL USERS OF THE SITES OR SERVICE, INCLUDING
USERS WHO ARE ALSO CONTRIBUTORS OF CONTENT, INFORMATION, AND OTHER MATERIALS OR
SERVICES ON THE SITES.
Acceptance
of Terms.
The
Service is offered subject to acceptance without modification of all of the
terms and conditions contained herein (the “Terms of Use”) and all other
operating rules, policies and procedures that may be published from time to
time on the Sites by Company. In
addition, some services offered through the Service may be subject to
additional terms and conditions promulgated by Company from time to time; your
use of such services is subject to those additional terms and conditions, which
are incorporated into these Terms of Use by this reference.
The Service is available
only to individuals who are at least 13 years old. You represent and warranty that if you are an individual,
you are at least 13 years old, you are of legal age to agree to these terms and
conditions or you have your parents permission to do so, and that all
registration information you submit is accurate and truthful. Company may, in its sole discretion,
refuse to offer the Service to any person or entity and change its eligibility
criteria at any time. This
provision is void where prohibited by law and the right to access the Service
is revokåed in such jurisdictions.
Modification
of Terms of Use.
Company
reserves the right, at its sole discretion, to modify or replace any of the
Terms of Use, or change, suspend, or discontinue the Service (including without
limitation, the availability of any feature, database, or content) at any time
by posting a notice on the Sites or by sending you an email. Company may also impose limits on
certain features and services or restrict your access to parts or all of the
Service without notice or liability. It is your responsibility to check the Terms of Use periodically for
changes. Your continued use of the
Service following the posting of any changes to the Terms of Use constitutes
acceptance of those changes.
Privacy.
Company's
current Sites privacy statement is located at http://www.conviva.com/privacy/ (the
“Privacy Policy”) and is incorporated into these Terms of Use. For inquiries in regard to the Privacy
Policy, or to report a privacy related problem, please contact privacy@conviva.com.
Rules and Conduct.
As
a condition of use, you promise not to use the Service for any purpose that is
prohibited by the Terms of Use. The
Service (including, without limitation, any Content (as defined below)) is
provided only for your own personal, non-commercial use. You are responsible for all of your
activity in connection with the Service. For purposes of the Terms of Use, the term “Content” includes, without
limitation, any advertisements, advice, suggestions, videos, audio clips,
written forum comments, information, data, text, photographs, software,
scripts, graphics, and interactive features generated, provided, or otherwise
made accessible by Company or its partners on or through the Service.
By way of example, and
not as a limitation, you shall not (and shall not permit any third party to)
either (a) take any action or (b) upload, download, post, submit or
otherwise distribute or facilitate distribution of any content on or through
the Service, that:
·
infringes
any patent, trademark, trade secret, copyright, right of publicity or other
right of any other person or entity;
· is
unlawful, threatening, abusive, harassing, defamatory, libelous,
deceptive, fraudulent, invasive of another's privacy, tortious, obscene,
offensive, or profane;
· constitutes
unauthorized or unsolicited advertising, junk or bulk e-mail
("spamming");
· involves commercial activities
and/or sales without Company’s prior written consent such as contests,
sweepstakes, barter, advertising, or pyramid schemes;
· contains
software viruses or any other computer codes, files, or programs that are
designed or intended to disrupt, damage, limit or interfere with the
proper function of any software, hardware, or telecommunications equipment
or to damage or obtain unauthorized access to any system, data, password
or other information of Company or any third party; or
· impersonates
any person or entity, including any employee or representative of Company.
Additionally, you shall not: (i) take any action that
imposes or may impose (as determined by Company in its sole discretion) an
unreasonable or disproportionately large load on Company’s (or its third party
providers’) infrastructure; (ii) interfere or attempt to interfere with the
proper working of the Service or any activities conducted on the Service; (iii)
bypass any measures Company may use to prevent or restrict access to the
Service (or other accounts, computer systems or networks connected to
the Service); (iv) run Maillist, Listserv, any form of auto-responder or “spam”
on the Service; or (v) use manual or automated software, devices, or other
processes to “crawl” or “spider” any page of the Sites.
You
shall not (directly or indirectly): (i) decipher, decompile, disassemble,
reverse engineer or otherwise attempt to derive any source code or underlying
ideas or algorithms of any part of the Service, except to the limited extent applicable laws specifically
prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of
the Service, or (iii) copy, rent, lease, distribute, or otherwise transfer any
or all of the rights that you receive hereunder. You shall abide by all
applicable local, state, national and international laws and regulations.
Company reserves the right to remove
any Content from the Sites or Service at any time, for any reason (including,
but not limited to, upon receipt of claims or allegations from third parties or
authorities relating to such Content or if Company is concerned that you may
have violated the Terms of Use), or for no reason at all.
Registration.
As a condition
to using certain aspects of the Service, you may be required to register with Company
and select a password and screen name (“Company User ID”). You shall provide Company
with accurate, complete, and updated registration information. Failure to do so shall constitute a
breach of the Terms of Use, which may result in immediate termination of your
Company account. You shall not (i)
select or use as a Company User ID a name of another person with the intent to
impersonate that person; (ii) use as a Company User ID a name subject to any rights
of a person other than you without appropriate authorization; or (iii) use as a
Company User ID a name that is otherwise offensive, vulgar or obscene. Company
reserves the right to refuse registration of, or cancel a Company User ID in
its sole discretion. You are
solely responsible for activity that occurs on your account and shall be
responsible for maintaining the confidentiality of your Company password. You shall never use another user’s
account without such other user’s express permission. You will immediately notify Company in writing of any
unauthorized use of your account, or other account related security breach of
which you are aware.
Fees and Payment.
Company reserves the
right to require payment of fees for certain features of the Service. Should
you elect to subscribe to such features, you shall pay all applicable fees, as
described on the Sites in connection with such features. Company reserves the
right to change its price list and to institute new charges at any time, upon
ten (10) days prior notice to you, which may be sent by email or posted on
the Sites. Use of the Service by you following such notification constitutes
your acceptance of any new or increased charges.
Third Party Sites.
No Emergency
Services.
You expressly agree and understand
that the Service is not intended to support or carry emergency or time-critical
calls or communications to any type of hospital, law enforcement agency, medical
care unit or any other kind of emergency or time-critical service (“Emergency
Services”). Company, its
affiliates or staff are in no way liable for such emergency calls or
communications. By agreeing to these Terms of Use you understand that additional
arrangements must be made to access Emergency Services. To access Emergency Services, you
acknowledge and accept your responsibility to purchase, separately from the
Service, traditional wireless or wireline telephone service and other means of
communication intended for access to Emergency Services. You recognize and agree that Company is
not required to offer Emergency Services or access thereto pursuant to any
applicable local and or national rules, regulation or law. You further acknowledge that Company is
not a replacement for your primary telephone service or any other means of
communication.
Company and Site Content.
You agree that the Service contains
Content specifically provided by Company or its partners and that such Content
is protected by copyrights, trademarks, service marks, patents, trade secrets
or other proprietary rights and laws. You shall abide by all copyright notices, information, and restrictions
contained in any Content accessed through the Service. You shall not sell, license, rent,
modify, distribute, copy, reproduce, transmit, publicly display, publicly
perform, publish, adapt, edit, create derivative works from, or otherwise
exploit any Content or third party submissions or other proprietary rights not
owned by you, (i) without the consent of the respective owners or other valid
right, and (ii) in any way that violates any third party right.
You may, to the extent the Sites
expressly authorize you to do so, download or copy the Content, and other items
displayed on the Sites for download, for personal use only, provided that you
maintain all copyright and other notices contained in such Content. You shall not store any significant
portion of any Content in any form. Copying or storing of any Content for other than personal, noncommercial
use is expressly prohibited without prior written permission from Company, or
from the copyright holder identified in such Content's copyright notice.
Termination.
Company
may terminate your access to all or any part of the Service at any time, with
or without cause, with or without notice, effective immediately, which may
result in the forfeiture and destruction of all information associated with
your membership. If you wish to
terminate your account, you may do so by following the instructions on the Sites. Any fees paid hereunder are
non-refundable. All provisions of
the Terms of Use which by their nature should survive termination shall survive
termination, including, without limitation, ownership provisions, warranty
disclaimers, indemnity and limitations of liability.
Warranty Disclaimer.
Company has no special
relationship with or fiduciary duty to you. You acknowledge that Company has no
control over, and no duty to take any action regarding: which users gains
access to the Website; what Content you access via the Website; what effects
the Content may have on you; how you may interpret or use the Content; or what
actions you may take as a result of having been exposed to the Content. You
release Company from all liability for you having acquired or not acquired
Content through the Sites. The Sites may contain, or direct you to websites
containing, information that some people may find offensive or inappropriate.
Company makes no representations concerning any content contained in or
accessed through the Sites, and Company will not be responsible or liable for
the accuracy, copyright compliance, legality or decency of material contained
in or accessed through the Sites.
THE
SERVICE (INCLUDING, WITHOUT LIMITATION, ANY CONTENT) IS PROVIDED "AS
IS" AND "AS AVAILABLE” AND IS WITHOUT WARRANTY OF ANY KIND, EXPRESS
OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE,
NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY
WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH
ARE EXPRESSLY DISCLAIMED. COMPANY,
AND ITS DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS
DO NOT WARRANT THAT: (A) THE SERVICE WILL BE SECURE OR AVAILABLE AT ANY
PARTICULAR TIME OR LOCATION; (B) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (C) ANY
CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICE IS FREE OF VIRUSES OR
OTHER HARMFUL COMPONENTS; OR (D) THE RESULTS OF USING THE SERVICE WILL MEET
YOUR REQUIREMENTS. YOUR USE OF THE
SERVICE IS SOLELY AT YOUR OWN RISK.
SOME STATES DO NOT ALLOW LIMITATIONS
ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY
TO YOU.
Electronic
Communications Privacy Act Notice (18USC 2701-2711): COMPANY MAKES NO GUARANTY OF
CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON
THE SITES OR ANY WEBSITE LINKED TO THE SITES. Company will not be liable for
the privacy of email addresses, registration and identification information,
disk space, communications, confidential or trade-secret information, or any
other Content stored on Company’s equipment, transmitted over networks accessed
by the Sites, or otherwise connected with your use of the Service.
Indemnification.
You shall defend, indemnify, and hold harmless Company,
its affiliates and each of its, and its affiliates employees, contractors, directors, suppliers and
representatives from all liabilities, claims, and expenses, including
reasonable attorneys' fees, that arise from or relate to (i) your use or misuse
of, or access to, the Sites, Service, Content (ii) your violation of the Terms
of Use, or (iii) infringement
by you, or any third party using the your account, of any intellectual property
or other right of any person or entity. Company reserves the right to assume the exclusive defense
and control of any matter otherwise subject to indemnification by you, in which
event you will assist and cooperate with Company in asserting any available
defenses.
General Content Disclaimer.
The Content provided by or
through the Service is for entertainment purposes only, and should not be
relied upon. Company makes no
representations or warranties concerning the appropriateness, accuracy,
reliability, usefulness, completeness, or timeliness of such Content. No Content is intended to substitute
for personal advice from a qualified professional. When applicable, always seek the advice of a qualified
professional, and never disregard professional advice or delay in seeking it
because of any Content.
By using the Service, you
agree that Company shall not be responsible for (1) any Content, (2) any person’s
reliance on any such Content, whether or not correct, current and complete, or
(3) the consequences of any action that you or any other person takes or fails
to take based on any Content or otherwise as a result of your use of the
Service.
Limitation of Liability.
IN NO EVENT SHALL COMPANY, NOR ITS
DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE
LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR
EQUITABLE THEORY WITH RESPECT TO THE SERVICE (INCLUDING, WITHOUT LIMITATION,
ANY CONTENT) (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF
SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR
CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES
(HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE
(REGARDLESS OF THE SOURCE OF ORIGINATION), (III) FOR YOUR RELIANCE ON THE
SERVICE OR (IV) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) ONE-HUNDRED
U.S. DOLLARS ($100.00). SOME
STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL
DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
International/Non-California Use.
Company makes no representation that the Content is
appropriate or available for use in locations outside of California, and
accessing the Service is prohibited from territories where such Content is
illegal. If you access the Service
from other locations, you do so at your own initiative and are responsible for
compliance with local laws.
Dispute Resolution.
A
printed version of the Terms of Use and of any notice given in electronic form
shall be admissible in judicial or administrative proceedings based upon or
relating to the Terms of Use to the same extent and subject to the same
conditions as other business documents and records originally generated and
maintained in printed form. You
and Company agree that any cause of action arising out of or related to the
Service must commence within one (1) year after the cause of action arose;
otherwise, such cause of action is permanently barred.
The
Terms of Use shall be governed by and construed in accordance with the laws of
the State of California, excluding its conflicts of law rules, and the United
States of America. Any dispute arising from or relating
to the subject matter of this Agreement shall be finally settled by arbitration
in San Francisco County, California, using the English language in accordance
with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation
Services, Inc. ("JAMS") then in effect, by one commercial arbitrator
with substantial experience in resolving intellectual property and commercial
contract disputes, who shall be selected from the appropriate list of JAMS
arbitrators in accordance with the Arbitration Rules and Procedures of JAMS.
The prevailing party in the arbitration shall be entitled to receive
reimbursement of its reasonable expenses (including reasonable attorneys' fees,
expert witness fees and all other expenses) incurred in connection
therewith. Judgment upon the award
so rendered may be entered in a court having jurisdiction or application may be
made to such court for judicial acceptance of any award and an order of
enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to
institute an action in a court of proper jurisdiction for injunctive or other
equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the
parties consent to exclusive jurisdiction and venue in the United States
Federal Courts located in the Northern District of California. Use of the
Service is not authorized in any jurisdiction that does not give effect to all
provisions of the Terms of Use, including without limitation, this section.
Integration and Severability.
The
Terms of Use are the entire agreement between you and Company with respect to
the Service and use of the Sites, and supersede all prior or contemporaneous
communications and proposals (whether oral, written or electronic) between you
and Company with respect to the Sites. If any provision of the Terms of Use is found to be unenforceable or
invalid, that provision will be limited or eliminated to the minimum extent
necessary so that the Terms of Use will otherwise remain in full force and
effect and enforceable. The failure of either party to
exercise in any respect any right provided for herein shall not be deemed a
waiver of any further rights hereunder.
Miscellaneous.
Company
shall not be liable for any failure to perform its obligations hereunder where
such failure results from any cause beyond Company’s reasonable control,
including, without limitation, mechanical, electronic or communications failure
or degradation (including "line-noise" interference). The Terms of Use are personal to
you, and are not assignable, transferable or sublicensable by you except with Company's
prior written consent. Company may
assign, transfer or delegate any of its rights and obligations hereunder
without consent. No agency,
partnership, joint venture, or employment relationship is created as a result
of the Terms of Use and neither party has any authority of any kind to bind the
other in any respect. In any
action or proceeding to enforce rights under the Terms of Use, the prevailing
party will be entitled to recover costs and attorneys' fees. All notices under the Terms of Use will
be in writing and will be deemed to have been duly given when received, if
personally delivered or sent by certified or registered mail, return receipt
requested; when receipt is electronically confirmed, if transmitted by
facsimile or e-mail; or the day after it is sent, if sent for next day delivery
by recognized overnight delivery service.
Copyright and Trademark Notices.
Unless
otherwise indicated, the Terms of Use and all Content provided by Company are
copyright © 2008 Conviva, Inc. All
rights reserved.
Rinera, Rinera Networks,
Conviva, the Conviva Logo, LivePass, and Conviva Experience Live are either
trademarks or registered trademarks of Company. The names of actual companies and products mentioned at the
Sites may be the trademarks of their respective owners.
Contact.
You
may contact Company at the following address: Legal Department, 2 Waters Park
Drive, Suite 150, San Mateo, CA, 94403
Effective Date: October 23, 2008
|