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The Agreement (as defined below) is by and between Adigo Inc. or, if
applicable based on your location, one of its affiliates ("Adigo")
and "you". "You" refers to both: (i) the individual
or legal entity purchasing or opening an account for the Products, Services,
or Software ("Customer"); and/or, as the case may be (ii) the
individual installing the Software, or accessing or using the Site, Products,
or Services ("User").
By installing, copying, or otherwise using the Software, or accessing
or using the Site, Products, or Services, you agree to be bound by these
Terms of Use, together with any operating rules, policies (including
the Privacy Policy), price schedules, click thru license agreements,
contractual revenue commitments, or other supplemental documents, whether
or not expressly incorporated herein by reference, published from time
to time by Adigo (collectively, the "Agreement"). Please read
the Agreement carefully before installing, accessing, or otherwise using
the Site, Products, Software or Services. Please print and maintain a
copy of these Terms of Use and each document comprising the Agreement
for your records.
Note for Users who are not Customers: The following provisions of these
Terms of Use do not apply to you: Section 7 (Pricing; Pricing Adjustment;
Promotional Offers), with the exception of references to coupons, credits,
special promotional offers, free or without charge items; Section 8 (Invoices;
Payment Terms; Credit Card Authorization; Prepayment; Refunds); Section
10 (Account Cancellation), with the exception of references to account
cancellation by Adigo after extended non-use; and Section 21 (Indemnity).
If your employer is a Customer and has an existing written Service Order
with Adigo ("Service Order"), the Service Order will govern
(and will be deemed to supersede the applicable terms of the Agreement)
solely to the extent of any conflict between this Agreement and the Service
Order for the Site, Products, Services, and Software covered by that
Service Order.
All capitalized terms used and not otherwise defined in the Agreement
have the following meanings:
"Affiliated Entity" means (i) any licensor or supplier providing
any part of the Products, Software or Services; and (ii) any subsidiary,
affiliate, officer, employee, consultant, or agent, of Adigo.
"Content" means all data, text, images, sounds, computer programs,
and any other information, including, without limitation, everything
that is uploaded by or for you in connection with your use of the Products,
Services, or Software including, but not limited to, photographs, caricatures,
illustrations, designs, icons, articles, audio clips, trademarks, logos,
and video clips.
"Products" means the Adigo products acquired by a Customer
as described in the applicable Service Order for such products that has
been placed with Adigo directly or via an authorized reseller and accepted
by Adigo.
"Services" means the Adigo services acquired by a Customer
as described in the applicable Service Order for such services that has
been placed with Adigo directly or via an authorized reseller and accepted
by Adigo.
"Site" means http://www.adigo.com or any other Adigo owned
or Adigo operated web site, or any successor or parallel web site.
"Software" means the software, including all associated documentation
and other materials, provided to you by Adigo to facilitate your access
to and use of the Products or Services.
"Term" means the duration of the Agreement (i) as provided
in the applicable Service Order, if any; or (ii) commencing upon the
earliest of the date that: (a) you first access or use the Site Products
or Services; or (b) you install the Software, and continuing until the
end of the applicable Services period as designated by Adigo, subject
to earlier termination as provided herein.
Subject to your compliance with the terms and conditions contained in
these Terms of Use, Adigo hereby grants you a non-exclusive license
during the Term: (i) to install the Software (in object code and executable
code format only); and (ii) to use such Software (as installed) solely
in connection with accessing the Site and using the Products or Services.
Subject to your compliance with the terms and conditions contained in
these Terms of Use, Adigo grants to you a non-exclusive, revocable
right to access and use the Services during the Term. Adigo reserves
the right to suspend or discontinue, without notice, all or any part
of the Services, or otherwise terminate the Agreement, at any time
if Adigo reasonably believes that you are in breach of the Agreement
or that your activities may harm Adigo or any other person. Upon the
suspension, termination or expiration of the Agreement, your access
and other rights to the Products or Services will be cancelled and
you agree to discontinue accessing the Site and using the Products
or Services. You are prohibited from reselling or acting as a service
bureau for the Products or Services or any component thereof.
The Software and Services are licensed, not sold, solely for use under
the terms of the Agreement. Except as specifically set forth in the
Agreement, Adigo and the Affiliated Entities retain all their respective
right, title, and interest, including all intellectual property rights,
relating to or embodied in the Software or Services, including without
limitation, all technology, software, and copies relating to the Software
or Services. All graphics, logos, service marks, and trade names, (including
third-party names), product names, and brand names (collectively, the "Marks"),
relating to the Software or Services are the trademarks of Adigo or
an Affiliated Entity. You are prohibited from using any Marks without
the prior written permission of Adigo or the applicable Affiliated
Entity. Adigo reserves all rights not expressly granted in the Agreement.
Adigo may assign telephone numbers, including toll-free telephone numbers,
to you for use in connection with the Products, Services or Software.
All right, title, and interest, including all intellectual property rights,
in the telephone numbers, including toll-free telephone numbers, assigned
hereunder, shall be retained by Adigo or the respective Affiliated Entity.
You agree not to transfer, port or change the responsible organization,
as defined by the Federal Communications Commission or other telecommunications
authority, for any assigned telephone number, including toll-free numbers.
Adigo is the customer of record in connection with the telephone numbers,
including toll-free telephone numbers, assigned hereunder, and may reassign,
cancel, revoke, or change any assigned telephone numbers, including toll-free
telephone numbers, at any time without notice.
You agree not to reverse engineer, decompile, disassemble, translate
or attempt to derive or view the source code of any part of the Products,
Software or Services. Unless expressly set forth herein, you may not
use, copy, modify, create derivative works of, distribute, sell, assign,
pledge, create a security interest in, sublicense, lease, loan, rent,
timeshare, deliver, or otherwise transfer, directly or indirectly,
the Software (in whole or in part) or any rights in the Services. You
may not remove from the Software or Services, or alter or add, any
Marks or copyright notices or other proprietary rights markings. IF
YOU ARE NOT AN EMPLOYEE, INDEPENDENT CONTRACTOR, OR INVITEE OF A CUSTOMER,
YOU ARE NOT AUTHORIZED TO INSTALL OR OTHERWISE USE THE SOFTWARE, PRODUCTS,
OR SERVICES.
The Agreement does not create, and Adigo does not assume, an obligation
to provide any support or maintenance services in connection with the
Products, Software or Services. The regularly scheduled maintenance
for Web Conferencing is 6:00pm Friday to 6:00am Sunday (Pacific Time).
During that time the Services may not be available for use.
The prices charged for the Products, Services or Software you use or
subscribe to shall be at the rates provided in the applicable Service
Order, or, if there is no applicable Service Order, then the rates
in effect when the charges are incurred. All prices are given and must
be paid in U.S. dollars. All prices exclude applicable taxes, duties,
and similar charges, which will be charged to and paid for by you.
You will cause those who access the Services through your account,
including Users, to comply with the terms and conditions of this Agreement.
You agree to pay all amounts due under this Agreement and to be responsible
for all activity in your account for the Services, including payment
of fees incurred at the direction of any User(s).
Unless Adigo otherwise
agrees in writing, Adigo may adjust its prices at any time. In the
event that Adigo adjusts the prices upward more than 15%, Adigo will
notify you via electronic mail, facsimile, telephone, or mail in advance
of the effective date of such price increase. This notice requirement
does not apply to prices for international services, which Adigo may
change, increase, or decrease at any time without prior notice.
Adigo may discontinue or modify coupons, credits, and special
promotional offers at any time without notice. Any Products, Services,
or Software provided without charge or any other special promotional
offer is subject to additional conditions and terms specific to the offer
and Adigo may change those additional terms and conditions at any time.
Adigo will send you an invoice each month setting forth (i) all charges
incurred by you for access to and use of the Products, Services, and
Software since the last invoice date, and (ii) any taxes, regulatory
surcharges, levies, fees, fund contributions, whether federal, state,
local, municipal, or imposed by Adigo to recover costs associated with
complying with regulations, litigation, complaints, settlements, judgments,
adjudications, tax or surcharge requirements ("Surcharges").
Surcharges may be retroactively assessed and Adigo may, in its sole
discretion, either itemize the Surcharges on your invoice or include
them as a gross amount without itemization.
Each invoice is deemed to be valid and correct and due in full unless
you notify Adigo of errors via certified mail and electronic mail within
30 days of the invoice date (“Notice”). All undisputed amounts
contained in the invoice will be due and payable on the due date stated
on the invoice. Upon receipt of any Notice, Adigo will review the invoice
and submit the results of that that review to you within 15 days after
receipt of the Notice (the “Response”). If you are not satisfied
with the Response, you may file for arbitration of the dispute as provided
in Section 28.
You agree to pay the amount due as reflected on each invoice by the
due date stated on the invoice. A late payment fee in the amount of one
and one-half percent per month will be charged to your account if you
fail to pay the invoice in full by the due date. Payments will be credited
to your invoices and account in any manner Adigo determines. Your inclusion
with any payment of any statement referring to payment-in-full or similar
statement will not change, reduce, or dismiss your full payment obligations
and only the actual amount paid will be applied to your invoices and
account. If Adigo uses the services of an attorney or collection service
to collect amounts owed to Adigo, you agree to pay the costs associated
with such collection activity, including but not limited to attorney
fees, collection service fees, court costs, filing fees, fees for process
of service, and/or other costs.
Adigo may process your payment electronically by presenting your bank
routing number, account number, check number (if applicable), and dollar
amount to your bank. Checks will be processed when received regardless
of the date on the check. If your check is returned for any reason, Adigo
may resubmit your payment electronically as described above and may assess
a fee of $100 or the maximum applicable by law to your account and submit
this amount for payment to your bank electronically.
If paying by credit card, only valid credit cards acceptable to Adigo
may be used by you to make payment, and all refunds will be credited
to the card used to make payment. Throughout the Term and until all amounts
due have been paid in full, you hereby authorize Adigo to charge any
credit card provided by you to Adigo, an amount equal to all amounts
due under the Agreement from time to time, including without limitation,
all payments, taxes, and additional fees. If the card cannot be verified,
is invalid or is not otherwise acceptable, the Services may be deferred,
suspended, or cancelled by Adigo without notice and Adigo may generate
invoices for payment. You agree to provide Adigo with any updated information
to keep it current at all times and Adigo may submit charges for processing
even if the card appears to have expired. If requested and required by
Adigo, a credit card authorization form must be completed if you want
to pay by credit card.
Adigo may, at any time, require payment prior to providing or continuing
to provide Products, Services, or Software. All payments, including those
paid in advance, are non refundable.
Customer accounts may be cancelled by (i) the Customer notifying Adigo
via certified mail and electronic mail of its desire to cancel its
account; (ii) the User discontinuing use of the Services, Products,
Software, and Site; and (iii) the payment of any and all amounts due
for the Services, Products, Software, and Site, including those that
are due in connection with a contractual revenue commitment and/or
in connection with a pre-subscribed time period (e.g. weekly, monthly,
annual). Adigo may deactivate, cancel, or terminate your account if
you have not used the account for a period of 365 days. Cancellation
of an account does not terminate the Agreement or reduce or change
your responsibilities under the Agreement.
The Services are conducted electronically and you agree that Adigo may
communicate electronically with you regarding all matters relating
to the Site, Products, Services or Software, including, but not limited
to, educational information and notifications regarding product updates,
incentive and rewards programs, training opportunities and ways to
more efficiently use the Site, Products, Services or Software.
Subject to the terms and conditions of the Agreement, as well as any
additional terms and conditions provided by Adigo, Adigo may, in its
sole discretion, provide you with updates, supplements, add-on components,
features or other functionality or messages related thereto, including,
but not limited to, alterations of functionality, features, storage,
security, availability, content and other information relating to the
Products, Software or Services (collectively, "Updates")
that Adigo may provide or make available generally to its customers
after the date that use of the Services commences. You hereby authorize
Adigo to, and agree that Adigo may, in good faith and in accordance
with the standard operating procedures of Adigo, automatically transmit,
access, install and otherwise provide Updates to the Software without
further notice or your prior consent. Adigo has no obligation to, and
nothing in this Agreement may be construed to require Adigo to, create,
provide or install any Updates. The terms of the Agreement apply to
all Updates.
The Adigo Privacy and Information Security Policy can be accessed at
the Site http://www.adigo.com/privacy.htm ("Privacy Policy"),
and is incorporated herein by this reference and made a part of the
Agreement. The Privacy Policy explains, among other details, how certain
information about you may be processed and used. You hereby acknowledge
that you have accessed and read the Privacy Policy, and you agree to
the Privacy Policy as if the "you" referenced therein is
a reference to you. If you are a resident of California, Adigo is required
in some circumstances to disclose or provide notice of invasion of
certain security systems. You agree that Adigo may do so when required
by either sending an electronic mail notification to the affected California
residents, notifying major statewide media of the invasion or other
measures deemed appropriate in Adigo’s sole discretion and you
agree to receive notice by any of the above methods.
THE PRODUCTS, SOFTWARE, AND SERVICES MAY ALLOW YOU TO RECORD MEETINGS,
TELEPHONE CALLS, AND CONVERSATIONS, AND TO COLLECT AND UTILIZE IDENTIFYING
INFORMATION ABOUT PARTICIPANTS, such as a name, telephone number, IP
address, electronic mail address, physical address, title, or company
that is displayed, transmitted, processed, or stored as part of a meeting
or meeting record. THE LAWS OF SOME STATES OR COUNTRIES REQUIRE THE
CONSENT OF INDIVIDUALS PRIOR TO RECORDING THEIR COMMUNICATIONS OR RESTRICT
THE COLLECTION, STORAGE OR USE OF PERSONALLY IDENTIFYING INFORMATION.
You agree to comply with all applicable laws relating to recording
communications and collecting information, to obtain all necessary
consents and to make all necessary disclosures before using any recording
features in connection with your use of the Software and Services.
You agree to defend, indemnify, and hold Adigo and the Affiliated Entities
harmless from and against any violation of such laws or regulations.
In addition, you agree to defend, indemnify, and hold Adigo and the
Affiliated Entities harmless from and against any claim or action in
connection with the recording, transmittal, deletion or removal of
the recording, or any failure of the recording feature to work or function
properly. You agree that neither Adigo nor the Affiliated Entities
have responsibility regarding (i) the recording of any calls or meetings;
(ii) assuring that the recording feature will work or be available
in any particular instance; (iii) maintaining, storing, or archiving
any recording; and (iv) the permanent deletion of any recordings at
any time, in the sole discretion of Adigo or an Affiliated Entity.
Adigo does not claim ownership of any Content. You hereby grant to Adigo
a nonexclusive, worldwide, royalty-free, fully-paid, transferable license
to host, cache, record, copy and display Content solely for the purpose
of providing the Services. Except as licensed in the Agreement, as
between you and Adigo, you retain all right, title, and interest in
and to the Content.
You acknowledge that the Services are provided by automated means (e.g.,
uploading Content via the applicable software tools) and that Adigo
personnel will not access, view or listen to any Content, except as
permitted under the Privacy Policy or as otherwise necessary to perform
the Services, including, but not limited to, the following: (i) if
necessary during a Services interruption to restore the applicable
Content at your request; (ii) if you have requested that Adigo serve
as host, producer, moderator, or facilitator for any meeting, presentation,
or event as part of the Services; or (iii) as deemed necessary or advisable
by Adigo in good faith to conform to any applicable legal requirement
or legal process. If you are authorized by a Customer to access or
use any recordings or Content, you agree that you will only download,
use or display copies of Content made during use of the Services for
internal business purposes. You are not authorized to download or use
such recordings or Content for the benefit of any third party or to
sell access to or otherwise commercialize any such recording.
You represent and warrant that you: (i) are the owner or authorized licensee
of any and all Content; and (ii) will not publish, post, upload, record
or otherwise distribute or transmit Content that: (a) infringes any
copyright, patent, trademark, trade secret or other proprietary right
of any person or any rights of publicity or privacy of any person;
(b) violates any law, statute, ordinance, or regulation (including
without limitation the laws and regulations governing export control,
unfair competition, anti-discrimination, or false advertising); (c)
is inappropriate, profane, defamatory, libelous, obscene, indecent,
threatening, harassing or otherwise unlawful; (d) is harmful to minors
or otherwise pornographic; (e) contains any viruses, Trojan horses,
worms, time bombs, cancelbots, corrupted files, or any other similar
software, data, or programs that may damage, detrimentally interfere
with, surreptitiously intercept, or expropriate any system, data, personal
information, or property of another; or (f) is materially false, misleading,
or inaccurate.
You may submit questions or comments to Adigo at http://www.adigo.com/support.asp.
Adigo reserves the right to edit and post such questions or comments
along with answers provided by Adigo, if any. All such communications,
comments, feedback, suggestions, ideas and other submissions related
to the Products, Software or Services and submitted to Adigo (collectively, "Submissions")
will be and remain the property of Adigo, and all worldwide right,
title and interest in all copyrights and other intellectual property
related to any Submissions are hereby assigned (and in the future are
deemed to be assigned) by you to Adigo.
Links within the Site may let you leave the Site and visit web sites
that are not controlled by Adigo. Neither Adigo nor the Affiliated
Entities is responsible for any Content of any such linked web site.
Links are provided only as a convenience and do not imply any endorsement
by Adigo or the Affiliated Entities.
You agree that Adigo may issue one or more press releases announcing
your use of the Products, Services, or Software and that Adigo may
use your name and/or logo on our Site or in any collateral marketing
materials.
You agree (i) not to use the Software or Services for any illegal purposes
and (ii) to comply with all applicable local, state, national and international
laws and regulations, including, but not limited to, laws relating
to recording conversations, privacy, data protection, public displays
or performances and United States export laws and regulations regarding
the transmission of technical data exported from the United States.
You agree not to:
(i) use the Services in connection with chain letters, junk mail, surveys,
contests, pyramid schemes, spamming or any duplicative or unsolicited
messages, or any use of distribution lists to any person who has not
given specific permission to be included in such a process, whether commercial
or otherwise;
(ii) harvest or otherwise collect information about others, including
electronic mail addresses, without their express consent;
(iii) use, download, copy, or provide (whether or not for a fee) to
any person or entity any directory of the users of the Products, Site,
Services or Software, or other user or usage information, or any portion
thereof, other than in the context of your use of the Services as permitted
under the Agreement;
(iv) interfere with any other party's use and enjoyment of the Services,
or use the Services in any manner that could damage, disable, overburden,
impair or otherwise interfere with or disrupt the Site, Services, or
any networks connected to the Services;
(v) attempt to gain unauthorized access to the Services, other accounts,
computer systems or networks connected to the Services through password
mining or any other means;
(vi) use, copy, modify, create derivative works of, distribute, sell,
assign, pledge, create a security interest in, sublicense, lease, loan,
rent, timeshare, deliver, or otherwise transfer, directly or indirectly,
the Software (in whole or in part) or any rights in the Services;
(vii) reverse engineer, modify, decompile, disassemble, translate or
otherwise attempt to derive or view the source code of any part of the
Products, Software or Services;
(viii) defraud, defame, abuse, harass, stalk, threaten or otherwise
violate the legal rights, including rights of privacy and publicity,
of others;
(ix) upload, or otherwise make available, files that contain images,
photographs, software or other material protected by intellectual property
laws, including, but not limited to, copyright or trademark laws, rights
of privacy or publicity, unless you own or control the rights thereto
or have received all necessary consent to do the same;
(x) upload files that contain viruses, Trojan horses, worms, time bombs,
cancelbots, corrupted files or any other similar information that may
damage the operation of another's computer or property or information;
and
(xi) falsify or delete any copyright management information, such as
author attributions, legal or other proper notices or proprietary designations,
labels of the origin or source of software or other material contained
in a file that is uploaded.
If you are a Customer, you agree to defend, indemnify and hold forever
harmless Adigo and the Affiliated Entities, including their officers,
shareholders, directors, partners, employees, representatives, attorneys,
and agents, and each of them, against and in respect of any and all
claims, demands, losses, costs, expenses, obligations, liabilities,
actions, causes of action, judgments, damages, recoveries, and deficiencies,
including interest, penalties, and actual attorneys' fees that they
or any of them incur or suffer, which arise, result from, or are related
to the Software or Services, including, but not limited to, (i) any
actual or alleged violation of the Agreement or applicable law by you
or any person accessing the Services using your password or access
key, and (ii) any actual or alleged infringement or violation of any
intellectual property, privacy or other right of any person or entity
by you or any person accessing the Services using your password or
access key.
THE SOFTWARE, SERVICES, AND PRODUCTS ARE PROVIDED "AS IS" AND "WITH
ALL FAULTS" AND WITHOUT ANY WARRANTY. ADIGO AND THE AFFILIATED ENTITIES
HEREBY DISCLAIM ALL WARRANTIES, CONDITIONS AND DUTIES OF ANY KIND, WHETHER
EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE,
OR WARRANTY AGAINST INFRINGEMENT, OR AGAINST INTERFERENCE WITH ENJOYMENT
OF THE SOFTWARE OR SERVICES; ANY IMPLIED WARRANTY OR DUTY OF ACCURACY,
SYSTEM INTEGRATION OR COMPATIBILITY, WORKMANLIKE EFFORT, OR LACK OF NEGLIGENCE.
THE FOREGOING DISCLAIMERS INCLUDE, BUT ARE NOT LIMITED TO, ANY WARRANTY,
DUTY OR CONDITION THAT (i) THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED,
RELIABLE, AVAILABLE AT ANY PARTICULAR TIME, SECURE, ERROR-FREE, VIRUS-FREE
OR CORRESPOND TO ANY CONDITION; (ii) THAT MESSAGES OR REQUESTS WILL BE
DELIVERED; (iii) THAT DEFECTS WILL BE CORRECTED; OR (iv) THAT THE SOFTWARE,
SERVICES, CONTENT, SYSTEMS, SERVERS OR INFORMATION THAT IS IN OR UTILIZED
BY THE SOFTWARE OR SERVICES WILL BE FREE OF HARMFUL ASPECTS.
YOU AGREE THAT NEITHER ADIGO NOR THE AFFILIATED ENTITIES WILL BE LIABLE
FOR (i) ANY CONTENT, INCLUDING BUT NOT LIMITED TO, CONTENT THAT IS
SENT, RECEIVED, HELD, RELEASED OR OTHERWISE CONNECTED IN ANY RESPECT
TO THE SOFTWARE OR SERVICES; (ii) CONTENT THAT IS SENT BUT NOT RECEIVED;
(iii) ANY ACCESS TO OR ALTERATION OF CONTENT; (iv) ANY CONTENT SENT
USING OR INCLUDED IN THE SERVICES, INCLUDING BUT NOT LIMITED TO, ANY
THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE, OR ILLEGAL CONTENT; OR
(v) ANY INFRINGEMENT OF ANOTHER'S RIGHTS IN ANY CONTENT, INCLUDING
PRIVACY, INTELLECTUAL PROPERTY OR DATA PROTECTION RIGHTS.
YOU ACKNOWLEDGE AND AGREE THAT THE CONSIDERATION THAT ADIGO IS CHARGING
HEREUNDER DOES NOT INCLUDE ANY CONSIDERATION FOR ASSUMPTION BY ADIGO
OF THE RISK OF ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES THAT MAY ARISE
IN CONNECTION WITH YOUR USE OF THE SITE, PRODUCTS, SERVICES, OR SOFTWARE,
INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF CONFIDENTIAL OR
OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF
PRIVACY, FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE
CARE, OR NEGLIGENCE OR NEGLIGENT MISREPRESENTATION. ACCORDINGLY, YOU
AGREE THAT NEITHER ADIGO NOR ANY AFFILIATED ENTITY SHALL BE RESPONSIBLE
TO YOU FOR ANY LOSS-OF-PROFIT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL
DAMAGES ARISING OUT OF YOUR ACCESS OR USE OF THE SITE, PROJECT, SERVICES,
OR SOFTWARE.
YOU AGREE THAT THESE EXCLUSIONS AND THE BELOW LIMITATION ON LIABILITY
WILL APPLY EVEN IF ANY REMEDY AVAILABLE TO YOU FAILS OF ITS ESSENTIAL
PURPOSE.
EXCEPT FOR DAMAGES THAT ARE REQUIRED BY LAW, YOU AGREE THAT ALL DAMAGES
ARE EXCLUDED, EXCEPT FOR THE DIRECT DAMAGES THAT ARE ACTUALLY INCURRED
BY YOU WHICH ARE LIMITED TO THE GREATER OF (i) THE AMOUNT THAT YOU
ACTUALLY PAID FOR THE SERVICES DURING THE BILLING PERIOD (QUARTERLY
OR MONTHLY) IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM, REGARDLESS
OF THE FORM OF ACTION OR NATURE OF THE CLAIM OR (ii) ONE DOLLAR (US$1.00).
Any claim, controversy, or dispute arising out of or in connection with
the interpretation, performance, or breach of the Agreement, including
any claim based on contract, tort, or statute, shall, at the request
of any party to this Agreement, be submitted to and determined in final
and binding arbitration. The arbitration shall be conducted before
a single arbitrator in accordance with the then existing Commercial
Arbitration Rules of the American Arbitration Association and conducted
at a location determined by the arbitrator in Los Angeles County, California.
The parties shall have the right to conduct discovery in accordance
with California Code of Civil Procedure Section 1283.05, the provisions
of which are incorporated herein. The arbitrator shall determine the
prevailing party and shall include in the award that party's actual
attorney's fees, costs, and expenses incurred in connection with the
arbitration, including the preparation therefor, and in enforcing any
award granted therein. Judgment upon any award rendered by the arbitrator
may be entered by any state or federal court having jurisdiction thereof.
All provisions of the Agreement other than the rights and license provided
in Sections 2 and 3 of these Terms of Use shall survive any cancellation,
termination, expiration, or suspension of the Agreement, to the extent
necessary to enforce the provisions hereof.
The Agreement and all causes of action related to the Software or Services
will be governed by and construed in accordance with the laws of the
state of California, United States of America, without giving effect
to the conflict-of-laws principles thereof that would require application
of the laws of a different state or jurisdiction. Proper venue shall
be in Los Angeles County, California. You hereby consent to the personal
and subject matter jurisdiction of the state and federal courts located
in that state and county. You hereby waive all defenses of lack of
personal jurisdiction and forum non conveniens, and agree that any
claim or cause of action arising out of or related to the Agreement
must be commenced by you within one (1) year after the date upon which
the cause of action arose.
The Agreement shall be construed so as to render it enforceable and effective
to the maximum extent possible in order to effect the intention of
the Agreement. Section headings are for convenience and reference and
shall not be used in construction of the Agreement. The masculine,
feminine and neuter genders, and the singular and plural number or
tense, each shall be deemed to include the others whenever the context
requires.
If any provision of the Agreement is declared by a court of competent
jurisdiction or arbitrator to be invalid, illegal or unenforceable,
the remaining portions shall not be affected thereby and shall remain
in effect as if the Agreement had been accepted the invalid portion
eliminated.
The failure of Adigo or the Affiliated Entities to exercise or enforce
any right or provision of the Agreement will not constitute a waiver
of such right or provision. No waiver is effective unless it is in
writing and signed by the waiving party.
Neither Adigo nor the Affiliated Entities will be liable for any non-performance
or delay in performance caused by any event beyond the reasonable control
of such party including, but not limited to, wars, hostilities, revolutions,
riots, civil commotions, national emergencies, epidemics, fire floods,
earthquakes, forces of nature, explosions, embargos, interruptions
in power, telephone, cable, internet, or other service, or any acts
of God.
The Affiliated Entities are the only third party beneficiaries to the
Agreement. No party may assign the Agreement, or any rights or obligations
hereunder, whether by contract, operation of law, or otherwise without
the express written consent of the other party to the Agreement, except
that Adigo may assign the Agreement to one or more of the Affiliated
Entities without your prior consent.
You acknowledge that the laws and regulations of the United States restrict
the export and re-export of commodities and technical data of United
States origin, including the Software and Services. Without limiting
the foregoing, you acknowledge that the Software and Services are or
may be an "encryption item" subject to controls under the
Export Administration Regulations promulgated by the U.S. Department
of Commerce. You agree not to export or re-export the Software or Services
in any form in violation of the export laws of the United States or
any foreign jurisdiction. You agree to defend, indemnify and hold Adigo
and the Affiliated Entities harmless from and against any violation
of such laws or regulations.
The Agreement constitutes the entire agreement between Adigo and you
with respect to the Site, Products, Software and Services and supersedes
all other, prior or contemporaneous communications and proposals, whether
electronic, oral, or non-electronic, between Adigo and you regarding
the subject matter covered by the Agreement. You agree that any term
or condition contained in any document, including, but not limited
to, a purchase order, acknowledgement, electronic mail, or other document
that you may now or later provide to Adigo, will have no effect and
that the Agreement is the only contract between Adigo and you regarding
the Site, Products, Software or Services and may be amended only as
set forth herein. The application of the United Nations Convention
on the International Sale of Goods is hereby expressly excluded. The
performance of the Agreement by Adigo is subject to existing laws and
legal process, and you agree that Adigo may comply with law enforcement
or regulatory requests or requirements notwithstanding any contrary
term of the Agreement. You acknowledge that a printed version of the
Agreement and of any notice given to you in electronic form will be
admissible in judicial or administrative proceedings based upon or
relating to the Agreement to the same extent and subject to the same
conditions as other business documents and records originally generated
and maintained in printed form.
Adigo may, at any time, amend any provision of the Agreement by posting
notice of such amended provision(s) on the Site. The amended provisions
will automatically become effective on the later of (i) ten (10) days
after they are posted on the Site, or (ii) the effective date specified
in such posting. By using the Site, Products, Software or Services
after such effective date, you agree to be bound by any such amended
provisions. Therefore, you agree to periodically visit the Site to
examine any such amended provisions. Any amendment proposed by you
will be effective only if accepted by Adigo in writing signed by an
authorized representative of Adigo.
Other than notices of amendments, governed by Section 37, and notices
regarding invoices and payments, governed by Section 8, all notices,
demands, and other communications shall be sent by certified mail or
reputable overnight delivery courier with a delivery acknowledgement,
addressed to you at the address provided by you in Adigo's records,
and to Adigo at Adigo Inc., 999 North Sepulveda Boulevard, Suite 500,
El Segundo, California 90245. Notices are considered given when they
are actually received by the addressee.
Revised June 7, 2005
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