IOCOM Reference: UA – 16-1
APPLICABLE TO ALL PARTIES
Section I-1: Binding Contract
This User Agreement is a binding contract. If you accept this User Agreement, it binds both you and IOCOM as of the date that you accept it. As used in this User Agreement, "IOCOM" means IOCOM UK Limited, a UK Private Limited Company and having offices at 3 Dean Trench Street, Westminster, London SW1P 3HB
Section I-2: Enterprise License Agreement
As used in this User Agreement, an "Enterprise License Agreement" is in existence if and only if a license to use IOCOM Software for an indefinite period of time (such as, for example, a Master Software License) has previously been executed by both IOCOM and your affiliated business entity and it is still in full force and effect.
If you are an individual affiliated with a particular business entity; an Enterprise License Agreement is in existence; and you are authorized by your affiliated business entity both to enter into this User Agreement and to download or use IOCOM Software pursuant to the Enterprise License Agreement: you may accept this User Agreement on behalf of your affiliated business entity. In such a case, your affiliated business entity is bound by both this User Agreement and the "Enterprise License" for IOCOM Software. Further, in such a case, unless the context require a different meaning, the term, "you," refers to the affiliated business entity that previously entered into the Enterprise License Agreement with IOCOM and on whose behalf an individual is entering into this User Agreement.
Section I-3: Subscription Agreements Generally
As used in this User Agreement, "Subscription" refers to a right to utilize IOCOM Services during a particular Subscription Term. "Subscription Term" refers to a limited, pre-established period of time during which you are obligated to pay for a Subscription. The Subscription Term of any Subscription (including each Subscription Term for a renewed Subscription) will never exceed three years. A Subscription may include a limited right to use IOCOM Software, as described below in this User Agreement.
You have a "Paid Subscription" if and only if: you have a Subscription; you are contractually obligated to pay, or you have paid, a monetary fee to IOCOM as compensation for the Subscription; and any payment owed by you to IOCOM for the Subscription is not in arrears. If your Subscription is a complementary, trial, or other non-contractual, reduced-fee right to utilize IOCOM Services, you do not have a Paid Subscription.
Section I-4: Master Subscription Agreement
As used in this User Agreement, a "Master Subscription Agreement" is in existence if and only if a contract for a Subscription has previously been executed by both IOCOM and your affiliated business entity and it is still in full force and effect.
If you are an individual affiliated with a particular business entity; a Master Subscription Agreement is in existence; and you are authorized by your affiliated business entity to download or use IOCOM Software or use IOCOM Services pursuant to the Master Subscription Agreement: you may accept this User Agreement on behalf of your affiliated business entity. In such a case, your affiliated business entity is bound by both his User Agreement and the Master Subscription Agreement for IOCOM Services. Further, in such a case, unless the context require a different meaning, the term, "you," refers to the affiliated business entity that entered into the Master Subscription Agreement with IOCOM and on whose behalf an individual is entering into this User Agreement.
Section I-5: Individual Subscription Agreement
In all other situations not described above, including the case where:
· you are an individual desiring to use IOCOM Services; or
· a fully executed Master Subscription Agreement for your affiliated business entity is not in full force and effect (or you are not authorized to act under such a Master Subscription Agreement); or
· you or your affiliated business entity receives a complementary, trial, or other non-contractual, reduced-fee right to utilize IOCOM Services: you may only accept this User Agreement on behalf of yourself as an individual. In such a case, upon acceptance, you as an individual (that is, as a natural person) are personally bound by this User Agreement, and you receive an "Individual Subscription" for IOCOM Services.
Section I-6: Upon Acceptance of This User Agreement
BY ACCEPTING THIS AGREEMENT, YOU, AS AN INDIVIDUAL:
· ARE REPRESENTING AND WARRANTING THAT YOU ARE AT LEAST 13 YEARS OF AGE AND OTHERWISE HAVE THE LEGAL AND ACTUAL CAPACITY TO ENTER INTO, AND BE BOUND BY, A CONTRACT FOR THE SUBJECT MATTER OF THIS USER AGREEMENT;
· ARE REPRESENTING AND WARRANTING THAT THE APPLICABLE LAWS OF YOUR COUNTRY OR JURISDICTION DO NOT PROHIBIT YOU FROM USING IOCOM SOFTWARE OR SERVICES OR FROM ENTERING INTO THIS CONTRACT;
· ARE AGREEING TO BE BOUND BY THIS USER AGREEMENT, INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS ON LIABILITY, AND TERMINATION PROVISIONS; AND
· ARE REPRESENTING AND WARRANTING, TO THE EXTENT THAT YOU ACCEPT THIS USER AGREEMENT ON BEHALF OF YOUR AFFILIATED BUSINESS ENTITY, THAT YOU ARE AUTHORIZED TO ENTER INTO THIS USER AGREEMENT ON BEHALF OF SUCH ENTITY, AND THAT SUCH ENTITY WILL BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT UPON YOUR ACCEPTANCE OF IT.
IF YOU DO NOT UNDERSTAND, OR ARE NOT FLUENT IN, THE ENGLISH LANGUAGE OR IF YOU OTHERWISE DO NOT OR CANNOT AGREE WITH ALL THE TERMS AND CONDITIONS OF THIS USER AGREEMENT: DO NOT ACCEPT THIS USER AGREEMENT, DO NOT DOWNLOAD, INSTALL OR USE IOCOM SOFTWARE, AND DO NOT USE, OR JOIN ANY MEETING SUPPORTED BY, IOCOM SERVICES. INSTEAD, EXIT THIS APPLICATION NOW AND RETURN ANY EQUIPMENT SENT TO YOU BY IOCOM OR AT IOCOM'S DIRECTION. YOU WILL NOT BE CHARGED FOR IOCOM SOFTWARE IF YOU DO NOT DOWNLOAD IT.
Section I-7: Organization of this User Agreement
This User Agreement governs both the situations where:
· You wish to download or use IOCOM Software pursuant to an Enterprise License Agreement; and
· You wish to download or use IOCOM Software or use IOCOM Services pursuant to a Subscription Agreement (either a Master Subscription Agreement or an Agreement for an Individual Subscription).
Enterprise License and Subscription Agreements have different terms and conditions:
· Sections I, II, III and V of this document contain the terms and conditions applicable to you if you are a party to an Enterprise License Agreement.
· Sections I, II, IV and V of this document contain the terms and conditions applicable to you have a Subscription.
GENERAL TERMS AND CONDITIONS
APPLICABLE TO ALL PARTIES
Section II-1: Further Definitions
"IOCOM Software" means any and all computer programs, including Updates and portions of programs that are developed or licensed by IOCOM. For the avoidance of doubt: IOCOM has no obligation to provide any Update to IOCOM Software. Nonetheless, in the event that any Update is provided, the Update constitutes "IOCOM Software" for purposes of this User Agreement and is subject to all the terms and conditions of this User Agreement.
"Update" means any improvement, fix, upgrade, new version or other change in the features, functions or capabilities of IOCOM Software or Services.
"IOCOM Services" means providing IOCOM's web-based communication functionality to you pursuant to a Subscription Agreement. IOCOM Services rely on an Internet-based server hosted exclusively by IOCOM.
"Confidential Information" means any nonpublic information that IOCOM specifically marks or designates, either orally or in writing, as confidential or which, under the circumstances surrounding the disclosure, would be apparent to a reasonable person, familiar with IOCOM's business and the industry, to be of a confidential nature.
"Your Computer" means a single computer in your possession or under your control.
Unless otherwise specified in this User
Agreement, words importing the singular include the plural, words importing
persons include bodies corporate and unincorporated, and references to the
whole include the part; and in each case vice versa. Thus, by way of example and not by way of
limitation, "computer program" includes both a portion of a computer
program and a plurality of computer programs.
Section II-2: Acceptance
In consideration of the mutual promises and covenants set forth in this User Agreement and for other good and valuable consideration, the receipt and sufficiency of which you acknowledge, you agree to be bound by all the terms and conditions of this User Agreement. You may indicate such agreement by pressing the "Accept" button icon that appears when this User Agreement is displayed or by downloading or installing IOCOM Software or by using IOCOM Software or Services.
You agree to the use of electronic communications in order to enter into contracts with IOCOM and to receive notices from IOCOM under such contracts. You waive any rights or requirements under the laws and regulations of any jurisdiction that require a non-electronic signature or delivery of notices, to the full extent permitted under applicable law.
Absent a separate, written agreement with IOCOM to the contrary: you will only use IOCOM Software and Services for collaboration sessions in which you are an active participant and as permitted under both this User Agreement and any applicable Enterprise License or Subscription Agreement.
You may not sublicense, assign or otherwise
transfer any rights under this User Agreement, nor authorize IOCOM Software to
be copied, except as may be expressly permitted in this User Agreement. Notwithstanding anything in this Agreement or
elsewhere to the contrary, IOCOM may, without your consent, freely transfer or
assign its rights and obligations under this Agreement in connection with a
merger, acquisition, or corporate reorganization or upon an acquisition by a
third-party of all or a controlling interest of IOCOM's voting stock or a
purchase of substantially all of IOCOM's assets.
Section II-3: Open Source Modules
Open Source software is comprised of individual software modules, and each module has its own copyright and license conditions.
This product includes a few Open Source software modules, which are separate and distinct from the rest of the software in the product. All of the Open Source modules in IOCOM products are licensed under the applicable Open Source software license agreements. Such Open Source software license agreements, as well as relevant Open Source documentation and source files, are available at http://www.iocom.com/open_source. Open source license material also may be in a file entitled, open_source_licenses.txt, or other materials accompanying the software package.
To extent permitted by applicable law: No warranty is provided with respect to the Open Source software modules. The modules are provided "as is," without a warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. To the extent that any liability nonetheless accrues with respect to open source modules, such liability lies with IOCOM and not the copyright holders for such modules.
Section II-4: Intellectual Property
IOCOM retains all right, title and interest, including intellectual property rights, in and to IOCOM Software and Services and any copies, improvements, derivations and Updates thereof. Nothing in this User Agreement will be construed to grant to you any right, title or interest (including any license) in or to IOCOM Software or Services, except as expressly set out in this User Agreement. Nothing in this User Agreement gives you the right:
· to sublicense or otherwise grant any right to anyone under any portion, or all, of the IOCOM Software or Services; or
· to distribute, import, export, or otherwise provide to anyone any portion, or all, of the IOCOM Software or Services.
You will not make any copies of IOCOM Software, nor allow another entity to do so, other than to the extent IOCOM is required by law to permit you to do so.
If you accept this User Agreement, you may be invited to download and install a single copy of IOCOM Software on Your Computer. Also, you may receive, or you may have already received, from IOCOM a computer having a single copy of IOCOM Software already loaded on it. In each such case, you may maintain and use the single copy of IOCOM Software on one computer, as machine-readable object code only. You may make a second copy of IOCOM Software (or the minimum number required by law) for use exclusively as a backup, archival copy. You may not make any other copies of IOCOM Software.
If you download IOCOM Software onto Your Computer, you may (subject to your other contractual obligations) access and use IOCOM Software and Services at that one computer, but not at any other computer (unless you again confirm your acceptance of the IOCOM User Agreement at the other computer).
You will not reverse engineer, decompile, modify, adapt, translate, or prepare a derivative work based upon any IOCOM Software, nor allow another entity to do so. You will not disassemble, reduce to human readable form, nor otherwise attempt to derive the form, content or structure of source code for IOCOM Software, nor allow another entity to do so. You will not provide, rent, lease, resell, lend or otherwise distribute IOCOM Software or Services to any third party. You will not use IOCOM Software and Services on a timeshare basis or as part of the operation of a commercial service agency. You will not use IOCOM Software or Services to operate a website or otherwise generate any income from providing IOCOM Software or Services to others. You will not use IOCOM Software or Services for the development, production or marketing of a service or product related to visual communication. You will not use IOCOM Software or Services for any unlawful purpose.
Thus, by way of example and not of limitation: you will not disassemble, decrypt, modify or otherwise attempt to discover the source code of IOCOM Software nor any communication between executables and other components of IOCOM Software; you will not use IOCOM Software for any purpose other than for IOCOM Services; you will not use IOCOM Software on a client device for any purpose other than to connect to an IOCOM licensed server and conduct a communication session; you will not attempt to subvert the limits enforced by IOCOM Software on a server device; and you will not attempt to exceed the limits IOCOM has set for your account type.
Should you, in violation of this User Agreement, develop, or assist with the development of a modification of IOCOM Software (including, by way of example and not by way of limitation, a derivative work based upon IOCOM Software) that (1) necessarily relies upon IOCOM Software or a derivation thereof and (2) is conceived, authored or made by you or your agents, whether alone or jointly with someone else, such change or modification is referred to in this User Agreement as a "Software Modification." You assign to IOCOM, and further agree, at IOCOM's request, to assign formally to IOCOM, without further compensation, all right, title and interest in and to any such Software Modification.
You grant to IOCOM, and further agree, at IOCOM's request, to grant formally to IOCOM, without further compensation, a royalty-free, worldwide, freely transferable, irrevocable, perpetual license to use and incorporate into IOCOM Software and Services any suggestions, enhancement requests, recommendations or other feedback that you may provide to IOCOM.
You will not remove, change, obscure or otherwise alter any patent, copyright, or trademark notice, or any display of an IOCOM name or logo, that appears in, or in association with, IOCOM Software or Services, nor allow another entity to do so.
Section II-5: Confidentiality
You agree with respect to any Confidential Information disclosed by IOCOM to you:
· to take such steps, including the adoption and enforcement of internal policies, procedures and monitoring mechanisms, as are necessary, to protect the Confidential Information from unauthorized use, reproduction or disclosure;
· to use Confidential Information only for the purposes of any applicable Enterprise License Agreement or as otherwise expressly permitted by this User Agreement;
· not to copy Confidential Information or cause or allow it to be copied, directly or indirectly, in whole or in part, except as required in connection with your use of IOCOM Software and Services pursuant to this User Agreement; and
· not to disclose, transfer, publish or otherwise communicate Confidential Information in any manner to any person, except as permitted under this User Agreement.
In particular, you acknowledge that IOCOM Software contains Confidential Information of IOCOM, regardless of whether or not any portion thereof is the subject of a patent or copyright. You will not allow a competitor of IOCOM to have access, directly or indirectly, to the source code or object code for IOCOM Software. You acknowledge that any of such actions would result in substantial, immediate, irreparable harm to IOCOM. If such actions are taken, you will be liable for all resulting damages, concluding consequential damages, incurred by IOCOM.
All Confidential Information, in tangible or electronic form, under your control will be destroyed, erased or returned to IOCOM promptly upon the earlier of either a written request by IOCOM or the termination of this User Agreement.
The restrictions of this section will not apply to Confidential Information that:
· is or becomes generally available to the public through no breach of this User Agreement by you;
· was in your possession, free of any obligation of confidence, prior to the time of your receipt of it;
· is developed by you independently of any the Confidential Information;
· is rightfully obtained by you from a third party authorized to make such disclosure to you without restriction on the use of the information; or
· is required to be disclosed by law, governmental regulation or Court
Order, provided that you give prompt,
written notice to IOCOM of such legal requirement to disclose, so as to provide
IOCOM a reasonable opportunity to contest such disclosure.
Section II-6: Privacy
IOCOM or an IOCOM Affiliate may collect and process information regarding you, to the extent allowed by relevant laws and regulations. An IOCOM Affiliate is any corporation or other entity that, now or in the future: directly or indirectly controls, is controlled by, or is under common control with, IOCOM; or that has entered into a distribution agreement with IOCOM and agreed to take appropriate organizational and technical measures to protect your information.
Section II-7: Limitations on the Usage of IOCOM Software and Services
You are responsible for the content of all communications that you send with IOCOM Software or Services. You are responsible for the content of all communications sent by anyone using your password or account identifier. IOCOM is not responsible for the content of any communication that you send, or that is sent by someone with your password or account identifier, through the use of IOCOM Software or Services.
You will not violate any applicable law or
regulation with your use of IOCOM Software or Services. Thus, by way of example and not by way of
limitation: you will not use IOCOM Software or Services to communicate any
material that is pornographic, obscene, indecent, defamatory, threatening,
harassing, in violation of anyone's intellectual property rights, likely to
result in civil liability, or that is, or assists, criminal conduct. You will not use IOCOM Software or Services
to invade the privacy of another, nor to transmit material that is harmful to
minors or that promotes racism or other forms of improper discrimination. You are solely responsible for any recording
of a communication session using IOCOM Software or Services. You will not use IOCOM Software or Services
to send unsolicited ("spam") communications. You will not use IOCOM Software and Services
in any manner likely to damage or otherwise interfere with the website or
network of another entity.
Section II-8: Export Controls
You acknowledge that IOCOM Software and
Services may be subject to export control laws and regulations of the United
Kingdom and other countries. You
represent and warrant that you will not directly or indirectly export or
otherwise transfer any portion of IOCOM Software or Services in violation of
any applicable export control law or regulation. In particular, you agree that you will not
assist with the transfer of IOCOM Software to any country or other entity
subject to U.S. sanctions nor to any country or other entity where such
transfer is prohibited by U.S. Export Administration Regulations.
Section II-9: Breach
You agree that you will be liable for any and all damages, including consequential damages, incurred by IOCOM as a result of any breach by you of this User Agreement.
Upon your breach of any provision of this User Agreement, including by way of example and not by way of limitation, your failure to make timely payments to IOCOM of all amounts due to IOCOM for your use of IOCOM Software or Services: IOCOM may immediately terminate this User Agreement, as well as any license under IOCOM Software and any Subscription for IOCOM Services that you have; and you must promptly destroy all copies of IOCOM Software in your possession, custody or control.
You acknowledge that any use of IOCOM Software contrary to this User Agreement, including any transfer, copying or disclosure to others of any IOCOM Software, will likely result in substantial, immediate, irreparable harm to IOCOM. Following any action by you with respect to IOCOM Software that is contrary to this User Agreement, IOCOM will be entitled to equitable relief (including, without limitation, preliminary and permanent injunctive relief), without posting a bond or other security.
Section II-10: Disclaimers of Warranties and Limitations On Liability
IOCOM SOFTWARE AND SERVICES ARE MADE AVAILABLE "AS IS," AND IOCOM MAKES NO WARRANTY AS TO THEIR USE OR PERFORMANCE.
IN PARTICULAR, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT OR OTHERWISE REQUIRED BY LAW:
· IOCOM PROVIDES NO WARRANTIES TO YOU, EITHER EXPRESS OR IMPLIED.
· IOCOM DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR OF MERCHANTABLE QUALITY OR OF FITNESS FOR ANY PURPOSE, EXPRESS, IMPLIED, SPECIFIC, GENERAL OR OTHERWISE.
· IOCOM DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF NONINFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS.
· IOCOM DISCLAIMS ANY IMPLIED WARRANTY ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
FOR THE AVOIDANCE OF DOUBT, YOU ACKNOWLEDGE AND AGREE THAT:
· IOCOM MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE IOCOM SOFTWARE OR SERVICES, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY RELATING OR OF ANY CONSEQUENCES THAT MAY RESULT FROM THE IMPLEMENTATION OF ANY RECOMMENDATION IOCOM MAY PROVIDE.
· YOU WILL MAKE NO CLAIM AGAINST IOCOM ON ACCOUNT OF ANY CLAIM OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT.
FOR THE AVOIDANCE OF DOUBT, YOU ACKNOWLEDGE AND AGREE THAT IOCOM MAKES NO WARRANTY OR REPRESENTATION:
· REGARDING THE RESULTS THAT MAY BE OBTAINED THROUGH THE USE OF THE IOCOM SOFTWARE OR SERVICES.
· REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH USE OF THE IOCOM SOFTWARE OR SERVICES.
· THAT IOCOM SOFTWARE OR SERVICES WILL MEET ANY USER REQUIREMENTS.
· THAT THE USE OF IOCOM SOFTWARE OR SERVICES WILL BE SECURE, UNINTERRUPTED, TIMELY OR ERROR-FREE.
· THAT IOCOM SOFTWARE OR SERVICES WILL PROVIDE ANY PARTICULAR QUALITY OF SERVICE, NOR THAT IOCOM SERVICES WILL BE AVAILABLE FOR ANY PERIOD OF TIME.
YOU WILL INDEMNIFY, DEFEND AND HOLD HARMLESS IOCOM, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, DISTRIBUTORS AND RESELLERS FROM ANY THIRD PARTY CLAIM, LIABILITY, DAMAGES AND COSTS (INCLUDING ATTORNEY FEES) ARISING FROM:
· YOUR USE OF THE IOCOM SOFTWARE AND SERVICES.
· YOUR BREACH OF THIS AGREEMENT.
· ANY ACTIVITY BY A THIRD PARTY USING YOUR IOCOM PASSWORD OR ACCOUNT IDENTIFIER.
· ANY CLAIM THAT IOCOM SOFTWARE OR SERVICES SHOULD PROVIDE ACCESS TO EMERGENCY SERVICES.
· ANY CLAIM THAT YOU HAVE INFRINGED THE INTELLECTUAL PROPERTY OF ANOTHER.
THE IOCOM SOFTWARE AND SERVICES REQUIRE CERTAIN HARDWARE AND INTERNET CONNECTIVITY. IOCOM SOFTWARE AND SERVICES MAY NOT OPERATE ON SOME TYPES OF THIRD-PARTY HARDWARE, IN SOME MULTI-LICENSE SOFTWARE ENVIRONMENTS (E.G., WHERE DIFFERENT TYPES OF SOFTWARE ARE ON THE SAME COMPUTER) OR WITH SOME TYPES OF INTERNET CONNECTIONS. IOCOM DOES NOT REPRESENT OR WARRANT THAT ANY PARTICULAR THIRD-PARTY-SUPPLIED HARDWARE, ANY PARTICULAR MULTI-LICENSE SOFTWARE ENVIRONMENT OR ANY PARTICULAR INTERNET CONNECTION WILL SUPPORT ANY CURRENT OR FUTURE FEATURES OF IOCOM SOFTWARE OR SERVICES.
YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE INDEPENDENTLY VERIFIED THAT IOCOM SOFTWARE AND SERVICES ARE APPROPRIATE FOR THE PURPOSES FOR WHICH YOU INTEND TO USE THEM, AND THAT YOU DID NOT RELY UPON ANY SKILL OR JUDGMENT OF IOCOM IN SUCH SELECTION. YOU ARE USING YOUR OWN DISCRETION TO USE THE IOCOM SOFTWARE AND SERVICES, AND YOU ACCEPT THE ENTIRE RISK ASSOCIATED WITH SUCH USAGE. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES RESULTING FROM YOUR USE OF THE IOCOM SOFTWARE OR SERVICES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL IOCOM BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING BY WAY OF EXAMPLE AND NOT BY WAY OF LIMITATION, LOST PROFITS, LOST SAVINGS, LOSS OF GOODWILL, DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS), NOR FOR EXEMPLARY DAMAGES ARISING OUT OF THE USE OF, OR THE INABILITY TO USE, THE IOCOM SOFTWARE OR SERVICES OR THE PROVISION OF, OR FAILURE TO PROVIDE, SUPPORT, WHETHER ARISING IN TORT, CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF IOCOM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN ALL EVENTS, THE TOTAL LIABILITY OF IOCOM FOR ANY CAUSE OF ACTION RELATED TO THIS AGREEMENT, IOCOM SOFTWARE AND/OR IOCOM SERVICES (REGARDLESS OF THE FORM OF ACTION AND REGARDLESS OF WHETHER THE ACTION ARISES IN TORT OR CONTRACT OR ANY OTHER LEGAL THEORY) WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO, AND RECEIVED BY, IOCOM PURSUANT TO THIS USER AGREEMENT DURING THE 12 MONTHS IMMEDIATELY PRECEDING ANY NOTICE OF THE DISPUTE SERVED UPON IOCOM. SUCH LIMITATIONS OF LIABILITY SHALL NOT APPLY TO DAMAGES FOR BODILY INJURY (INCLUDING DEATH), NOR TO FRAUDULENT CONDUCT.
TO THE EXTENT ALLOWED BY LAW, THE PARTIES EACH WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CLASSWIDE BASIS: EACH WAIVES THE RIGHT EITHER TO JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR TO ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING. TO THE EXTENT ALLOWED BY LAW, THE PARTIES EACH WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.
THE PROVISIONS OF THIS SECTION STATE THE EXCLUSIVE LIABILITY OF IOCOM AND YOUR EXCLUSIVE REMEDY. THE FOREGOING EXCLUSIONS AND LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
SOME TERRITORIES OR JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, OR THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY.
You acknowledge and agree that IOCOM Software and Services are not intended to support or carry any type of emergency communication (including, e.g., calls to any type of hospital, law enforcement agency or medical care unit), nor are they to be used for any other kind of emergency service (including, e.g., "911" calls in the U.S.). You acknowledge and agree that IOCOM Software and Services are not a replacement for any primary telephone service. You acknowledge and agree that IOCOM Software and Services are not required to offer access to emergency services under any regulation, law or other rule. You acknowledge that IOCOM Software and Services have not been tested for, nor has IOCOM certified any IOCOM Software and Services for use in, life-critical or other high risk applications.
Section II-11: Force Majeure
Neither you nor IOCOM will be responsible for any failure to perform, or delay in performing, any of its obligations under this User Agreement, to the extent that such failure or delay results from causes outside the reasonable control of the Party.
Section II-12: Independent Actors
Nothing in this User Agreement will be construed as establishing or implying any agency, partnership, joint venture, franchise, fiduciary, or employment relationship between you and IOCOM. There are no third-party beneficiaries to this User Agreement.
Section II-13: Severability and Waiver
If any provision of this User Agreement, or any part thereof, is found by any court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable, the illegality, invalidity or unenforceability of such provision or part of a provision will not affect the other provisions of this User Agreement or the remainder of each provision in question, which shall remain in full force and effect. Each invalid, illegal or unenforceable provision will be treated by any such court or administrative body as modified to the least extent necessary to rectify its invalidity, illegality or unenforceability and achieve, to the greatest extent possible, the economic, legal and commercial objectives of the illegal, invalid or unenforceable provision. Each such invalid, illegal or unenforceable provision will be enforced as so modified.
No failure by IOCOM to exercise or enforce, and no delay by IOCOM in exercising or enforcing, any right, remedy or provision of this User Agreement will operate as a waiver of such right, remedy or provision. No single or partial exercise or enforcement of any right, remedy or provision by IOCOM will preclude any other or further exercise or enforcement by IOCOM of such right, remedy or provision or the exercise or enforcement of any other right, remedy or provision.
Section II-14: Dispute Resolution
If you and IOCOM cannot resolve any dispute (other than an alleged breach of Section II-5 of this User Agreement), the exclusive procedure for handling the dispute will be binding arbitration. Any arbitration under this User Agreement must be administered in accordance with UK law. The arbitration must be held in UK. This provision for arbitration is specifically enforceable by either you or IOCOM.
With respect to an alleged breach by you of Section II-5 of this User Agreement (relating to an alleged misuse of IOCOM Confidential Information), you agree that IOCOM will have sole discretion to seek resolution of the dispute either through arbitration as provided for in this Section II-14 or by bringing suit in the UK.
All arbitrations pursuant to this User Agreement will be conducted in accordance with UK Law. Any and all facets of any controversy or claim arising out of or relating to this User Agreement or to its breach (other than an alleged breach by you of Section II-5) will be settled by such binding arbitration. Except as otherwise provided by applicable law, the decision of the arbitrator in accordance herewith will be final and binding. The arbitrator will have the power to issue and grant permanent injunctive relief and other equitable orders and remedies.
To the extent authorized by applicable law, any such arbitration shall be conducted in confidence. Each Party will pay its own expenses for the arbitration, and the expenses of the arbitrator will be equally shared, subject to reimbursement to the prevailing Party as described below.
The award of the arbitrator, which will not include punitive damages, will be final and binding upon the Parties, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. In addition to the award, the arbitrator shall have the discretion to award the prevailing Party all or part of its attorneys' fees and costs, including fees associated with the arbitration, if the arbitrator determines that the positions taken by the other Party on material issues of the dispute were without substantial foundation.
Nothing shall prevent a Party to this User Agreement from applying to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction or other equitable relief to preserve the status quo or prevent irreparable harm pending the selection and confirmation of an arbitrator.
Discovery will not include depositions or interrogatories, except as the arbitrator expressly allows upon a showing of need. If disputes arise concerning discovery requests, the arbitrator shall have sole and complete discretion to resolve the disputes. The Parties and arbitrator shall be guided in resolving discovery disputes by the Federal Rules of Civil Procedure.
Section II-15: Governing Law
The User Agreement will be interpreted, and the rights and liabilities of the Parties will be determined, in accordance with the laws of the United Kingdom, without regard to the conflicts of laws principles thereof. To the extent that the User Agreement contemplates and permits either you or IOCOM to bring an action in court of competent jurisdiction, you and IOCOM agree to submit irrevocably to the laws of the UK , and that such courts will be the exclusive venue for all Parties in any such proceedings. The User Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
ENTERPRISE TERMS AND CONDITIONS
UNDER AN ENTERPRISE LICENSE AGREEMENT
The following additional terms and conditions apply to you if and only if you are party an Enterprise License Agreement (as defined in Section I).
Section III-1: Authority
You represent and warrant that an Enterprise License Agreement, as defined in Section I of this User Agreement, is in existence. To the extent that an Enterprise License Agreement is not in existence or you are not authorized to accept this User Agreement on behalf of your affiliated business entity or you use IOCOM Software for a purpose not authorized by your affiliated business entity, you (as a natural person) will be bound by the terms and conditions of Sections I, II, IV and V this User Agreement.
Section III-2: Entire Agreement
This User Agreement is incorporated into any Enterprise License Agreement that may exist between you and IOCOM. This User Agreement and associated Enterprise License Agreement constitute the entire agreement between you and IOCOM with respect to IOCOM Software and Services and supersedes all other prior agreements and understandings, oral and written, between you and IOCOM with respect to the subject matter hereof. This User Agreement may only be modified by a writing issued by an authorized officer of IOCOM.
If there is any conflict between the provisions of this User Agreement and the Enterprise License Agreement, the terms of the Enterprise License Agreement will prevail.
Section III-3: Term
This User Agreement will be effective as of the date you accept it and will remain effective until terminated pursuant to the terms of the Enterprise License Agreement.
SUBSCRIPTION TERMS AND CONDITIONS
UNDER A SUBSCRIPTION AGREEMENT
The following additional terms and conditions apply to you if you are not a party to an Enterprise License Agreement (as defined in Section I).
Section IV-1: Entire Agreement
This User Agreement is incorporated into any Subscription Agreement that may exist between you and IOCOM. This User Agreement and associated Subscription Agreement constitute the entire agreement between you and IOCOM with respect to the subject matter hereof and supersedes all other prior agreements and understandings, oral and written, between you and IOCOM with respect to the subject matter hereof.
This User Agreement may only be modified by a writing issued by an authorized officer of IOCOM. Any IOCOM Software Updates and future IOCOM Services (if any) may be licensed under additional or different terms. This User Agreement shall not prejudice the statutory rights of any Party dealing as a consumer.
Section IV-2: Usage
If your Subscription is not a Paid Subscription, you may use IOCOM Software or Services to participate in collaboration sessions: no more than six hours in any one calendar day; and no more than 10,000 minutes in any one calendar month. Further, if your Subscription is not a Paid Subscription: you may not initiate more than 50 collaboration sessions with IOCOM Software or Services in any one calendar day; and you are not entitled initiate any collaboration session having more than one participant in addition to yourself. IOCOM has the right to terminate your Subscription, in accordance with Section IV-5 below, if you exceed any of the usage limits set forth in this paragraph.
If you do not have a Paid Subscription and you do not participate in a collaboration session for a period of 90 consecutive days, IOCOM has the right to terminate your Subscription in accordance with Section IV-5 below.
If your use of IOCOM Software and Services depends upon the use of a computer or Internet connection owned or controlled by another entity, you represent and warrant that such other entity consents to your use of IOCOM Software and Services with such computer or Internet connection.
Section IV-3: No Obligation for Technical Support
IOCOM is not obligated to provide any support to you. IOCOM may, or may not, offer support to assist you in using IOCOM Software and Services. If IOCOM does offer such support, at any time and without prior notice, IOCOM may, at its sole discretion, discontinue or otherwise modify or limit such support. Further, at any time and without prior notice, IOCOM may, at its sole discretion and without prior notice, delete any records pertaining to your usage of IOCOM Software or Services.
Section IV-4: Termination of Your Subscription Generally
You may not cause your Subscription to terminate before the end of your Subscription Term. You may cause a Subscription with an Auto-Renew feature to terminate at the end of the Subscription Term by providing a Notice of Termination to IOCOM at least two business days before the end of the Subscription Term. Such Notice of Termination must be made by providing Relevant Termination Information to IOCOM through the IOCOM Customer Portal. The Relevant Termination Information includes your full name, the account identifier provided to you by IOCOM, and a statement that you wish to terminate your IOCOM Subscription. The IOCOM Customer Portal is found at: https://account.iocom.com. Upon receipt of a Notice of Termination from you, IOCOM may, without further notice to you, disable your ability to use IOCOM Software and Services.
Any fees you have paid to IOCOM are non-refundable. To the extent that you have paid IOCOM for a Subscription, you provide a Notice of Termination to IOCOM, and the Subscription Term has not expired, you will receive no refund for the time between the Notice to IOCOM and the termination of your Subscription.
In its sole discretion, IOCOM has the right to discontinue offering IOCOM Services for a Paid Subscription after the end of any Subscription Term. Notwithstanding the foregoing, if you have paid IOCOM in advance for a Subscription for a particular Subscription Term, that particular Subscription Term has not expired, and IOCOM terminates your Subscription without cause, you will receive a pro-rata refund for the unexpired portion of your Subscription Term; IOCOM will have no further liability to you as a result of terminating your Subscription without cause.
If you have a Paid Subscription, IOCOM has the right to amend this User Agreement at the end of any Subscription Term by publishing an amended user agreement on the IOCOM website and providing notice to you of such publication. You acknowledge and agree that you will signify your acceptance of any amended user agreement by using IOCOM Services during a Subscription Term that begins after such publication.
If you do not have a Paid Subscription, IOCOM has the right to amend this User Agreement at any time by publishing an amended user agreement on the IOCOM website and providing notice to you of such publication. You acknowledge and agree that you will signify your acceptance of any amended user agreement by using IOCOM Services after such publication.
Upon termination of your Subscription by either you or IOCOM, you will cease any further use of IOCOM Services and destroy or return all copies of IOCOM Software within your possession, custody or control. You will remain liable for all fees incurred or accrued by you as of the termination of the Subscription.
IOCOM has no obligation to provide Updates to IOCOM Software. If IOCOM does provide an Update, however, you may be requested to enter into an amended user agreement as a precondition to downloading or using an Update. If you do not accept the amended user agreement, you have no right to receive or use any Update.
IOCOM may, at its sole discretion, modify, upgrade, downgrade, update, expand or contract the features of IOCOM Software and Services from time to time without notice to you and without refunding any payment to you or otherwise incurring any liability to you.
If (i) you fail to comply with any provision of this User Agreement; (ii) IOCOM is unable to verify or authenticate any information you provide to IOCOM (including information you provide when ordering or registering for a Subscription); or (iii) information that you provide is incomplete or inaccurate, IOCOM may terminate your Subscription, without any notice or without incurring any liability to you.
Section IV-5: Termination of Your Subscription by IOCOM
If you do not have a Paid Subscription or if you breach this User Agreement: at any time, without prior notice and without incurring any liability to you, IOCOM may, at its sole discretion (1) terminate your Subscription or (2) modify, degrade or disable some or all features of the IOCOM Services and Software available to you. Upon terminating your Subscription, IOCOM may:
· terminate this User Agreement with you as well as your license for IOCOM Services and IOCOM Software; and
· disable your ability to use IOCOM Services and IOCOM Software.
IOCOM reserves the right, but does have any obligation, to reinstate your Subscription after it has been terminated, with the same or different use restrictions than were in place before the termination of your Subscription.
Section IV-6: Fees and Service
IOCOM has the right to make your Subscription, the continuation or renewal of your Subscription, or support for IOCOM Software and Services contingent upon your registration and payment of fees to IOCOM. You represent and warrant that all information provided by you to IOCOM is truthful and complete.
IOCOM has the right, at its sole discretion, to set the amount of the fees and the terms of payment for a Subscription at the beginning of any Subscription Term. IOCOM retains the right, at its sole discretion, unilaterally to change the fees and terms of payment upon the end of a Subscription Term or upon your acceptance of an Update.
If you elect to obtain a Paid Subscription, IOCOM will send you an invoice or charge your credit card or debit card, pursuant to the terms and conditions of this User Agreement and any associated Subscription Agreement. If provided for in your Subscription Agreement, IOCOM has the right to obtain, from your designated credit or debit card, a periodic payment for IOCOM Services in advance of the Subscription Term for a Subscription. Should IOCOM determine that you have not timely paid amounts owed to IOCOM, IOCOM may immediately terminate your Subscription in accordance with the provisions of Section IV-5 above.
Due to costs incurred for external PSTN (Public Switched Telephone Network) inbound and outbound dialing on the IOCOM Global Cloud service, IOCOM may bill for and may restrict PSTN usage. PSTN calls will be billed at $0.03 USD per minute, rates are subject to change. To avoid PSTN usage charges, PSTN access can be removed from your account. Please contact email@example.com to make this change. Note that this change only affects PSTN calls and does not apply to H.323 or SIP connections.
Section IV-7: Password, Account Identifier and Node Name
A Subscription cannot be shared. Any one Subscription (including each password and account identifier associated with that one Subscription) will only be used by you or on one endpoint collaboration device. A single Subscription may not be used by a plurality of users on a plurality of endpoint collaboration devices. A password and account identifier may not be used simultaneously on different endpoint devices.
You will ensure that all passwords and any other confidential account identifiers assigned to you by IOCOM are maintained in confidence. You are responsible for all usage of IOCOM Services conducted under any of password or account identifier assigned to you. You must notify IOCOM promptly of any unauthorized access to, or use of, IOCOM Services. Should you ever breach the conditions of this User Agreement with respect to your Password or Account Identifier, IOCOM may immediately terminate your Subscription in accordance with the provisions of Section IV-5 above.
You may also be given the opportunity to provide a node name by which you can be identified during a communication session. You will not use a node name that is pornographic, harmful to minors or otherwise deemed offensive or unprofessional by IOCOM. IOCOM has the sole and exclusive discretion to determine whether or not a node name is offensive or unprofessional. Should IOCOM determine that a node name that you have chosen is offensive or unprofessional, IOCOM may terminate your Subscription in accordance with Section IV-5 above.
Section IV-8: Notice
Except as otherwise provided in this User Agreement, a Notice will be given to IOCOM when both of the following steps are taken:
1. A copy of the Notice is sent to IOCOM either via email at firstname.lastname@example.org or, if the relevant Subscription Agreement or Enterprise License Agreement so provides, a copy of the Notice is sent to IOCOM via the IOCOM Customer Portal (found at https://account.iocom.com); and
A copy of the Notice is mailed,
via registered mail, postage prepaid, to the following address:
IOCOM UK Limited
3 Dean Trench Street
A Notice to Customer will be given when a copy of the Notice is sent to the email address provided by Customer when ordering or registering for a Subscription.
SURVIVABILITY AND ACKNOWLEDGEMENT
APPLICABLE TO ALL PARTIES
Section V-1: Survivability
For the avoidance of doubt, the following sections will survive termination of this User Agreement: Introduction (Sections I-1 though I-7); Further Definitions (Section II-1); Intellectual Property (Section II-4); Confidentiality (Section II-5); Export Controls (Section II-8); Breach (Section II-9), Disclaimers of Warranties and Limitations on Liability (Section II-10); Severability and Waiver (Section II-13); Dispute Resolution (Section II-14); Governing Law (Section II-15); Entire Agreement (Section III-2); Entire Agreement (Section IV-1); Termination of Your Subscription Generally (Section IV-4); Termination of Your Subscription by IOCOM (Section IV-5); Password, Account Identifier and Node Name (Section IV-7); and Notice (Section IV-8).
Section V-2: Agreement to Be Bound
YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THIS USER AGREEMENT AND UNDERSTAND ITS TERMS AND CONDITIONS. BY CLICKING ON THE "ACCEPT" BUTTON ICON THAT APPEARS WHEN THIS USER AGREEMENT IS DISPLAYED, BY INSTALLING THE IOCOM SOFTWARE OR BY USING THE IOCOM SOFTWARE OR SERVICES, YOU EXPRESSLY CONSENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS USER AGREEMENT.
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