Acceptable Use Policy (AUP)
1. BACKGROUND: Users of these service(s) (the "Service"), through the act of utilizing the Service, agree to adhere to this Acceptable Use Policy (the "Policy") of the Service provider (the "Provider"). This Policy outlines acceptable use of the Service, as well as permissible and prohibited conduct for using the Service, and is in addition to the restrictions contained in any associated Service Agreement with the Provider. It is the responsibility of the user to comply with this Policy. Provider reserves the right to immediately terminate the Service if a user engages in any of the prohibited activities listed in this Policy or if a user uses the Service in a way, which is contrary to this Policy. The user is responsible for all activities conducted under its account. The user is responsible for adhering to any policy set forth by any other service provider accessed through the Service, and Provider, and Providerís suppliers and providers, assume no responsibility or liability for a userís failure to comply with the Policy. THE USER ACKNOWLEDGES THAT THE SERVICES ARE PROVIDED USING THE SOFTWARE, OTHER TECHNOLOGY AND SERVICES OF MERCER ROAD CORP. ("VIVOX"); that Vivox may have access to information about or provided by the user, including diagnostic information sent automatically after a problem or error, and that such access and related use is agreed to by the user; and that Vivox is the intended beneficiary of the userís covenants, representations and indemnities hereunder and may enforce its rights directly against the user.
2. PROHIBITED USES AND ACTIVITIES: Users shall not provide inaccurate or misleading information to the Provider or use the Service to: (i) access any other person's computer or computer system, software, or data without their knowledge and consent; or breach the security of another user; or attempt to circumvent the user authentication or security of any host, network, system, or account, which includes, but is not limited to, accessing data not intended for the user, logging into or making use of a server or account the user is not expressly authorized to access, or probing the security of other hosts, networks, or accounts; or use automated means (such as robots and spiders) to obtain information from the Providerís or Vivoxís website or, though it, from other websites; (ii) interfere with computer networking or telecommunications service to any user, host or network, including, without limitation, denial of service attacks, flooding of a network, overloading a service, improper seizing and abuse of operator privileges and attempts to "crash" a host; (iii) violate the rules, regulations, or policies applicable to any network, server, computer database, or service that accessed by the user; (iv) transmit, re-transmit, or store any content or to engage in any activity that infringes the intellectual property rights or privacy rights of Provider, Vivox or any individual, group or entity, including but not limited to any rights protected by any copyright, patent, trademark, trade secret, trade dress, right of privacy, right of publicity, moral rights or other intellectual property right now known or later recognized by statute, judicial decision or regulation; (v) host, post, transmit, or re-transmit any content or material that is threatening, harassing, obscene, indecent, pornographic, hateful, malicious, racist, defamatory, libelous, treasonous, excessively violent or promotes the use of violence, or provides instruction, information or assistance in causing or carrying out violence against any government, organization, group or individual, or provides guidance, information or assistance with respect to causing damage or security breaches to Providerís or Vivox's network or to the network of any other service provider; (vi) commit an act that constitutes a criminal offense, gives rise to civil liability, or otherwise violates any applicable local, state, federal or international law, or (vii) encourage conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, federal or international law.
3. SECURITY: In all cases, the user is solely responsible for the security of any device or application it chooses to connect to the Service, including any data stored on or communications passed.
4. TRADEMARKS AND COPYRIGHTS. "Vivox," "Powered by Vivox" and similar marks are the property of Vivox. All other names, graphics, logos, marks and trade names used in connection with this Service, are the property of the Provider and its suppliers and may not be used without permission for any purpose. All copyrights in the Providerís website and materials are owned by Provider; however, the copyright in the Vivox website and Service and all related materials are owned by Vivox or its suppliers unless otherwise stated.
5. DISCLAIMER OF WARRANTIES. THE SERVICE IS PROVIDED "AS IS" AND "WITH ALL FAULTS," AND PROVIDER AND VIVOX HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION (I) WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND (II) ANY WARRANTIES CONCERNING THE SECURITY, RELIABILITY OR PERFORMANCE OF THE SERVICE. Certain states prohibit the disclaimer of warranties in certain cases, so the above may not apply to the user in all instances. THE DOWNLOADING OR SUBMISSION OF ANY MATERIALS IS DONE AT THE USERíS OWN RISK, AND THE USER IS SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO ANY CONTENT, IMAGE, COMPUTER SYSTEM OR DATA THAT MAY RESULT FROM USING THE SERVICE.
6. EXCLUSION OF DAMAGES. TO THE FULLEST EXTENT ALLOWED BY LAW, NEITHER THE PROVIDER NOR VIVOX SHALL BE LIABLE FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING INCIDENTAL, SPECIAL, EXEMPLARY AND PUNITIVE DAMAGES, RESULTING FROM THE USE OR PROVISION OF THE SERVICE, EVEN IF THE POSSIBILITY OF SUCH DAMAGES IS KNOWN. Certain states prohibit the limitation of liability in certain cases, so the above may not apply to the user in all instances.
7. ENFORCEMENT OF THIS POLICY. Provider does not routinely monitor the activity of Service accounts for violation of this Policy. Although Provider has no obligation to monitor the Service and/or the network, Provider, and its suppliers (which includes Vivox), reserve the right at any time to monitor usage, transmissions, and content from time to time to operate the Service; to identify violations of this Policy; and/or to protect the network, the Service and/or Providerís users. If the Service is used in a way that Provider or its suppliers, in their sole discretion, believe violate this Policy, Provider or its suppliers, may take any responsive actions they deem appropriate. These actions include, but are not limited to, the immediate suspension or termination of all or any portion of the Service. Neither Provider nor its suppliers will have any liability for any of these responsive actions. These actions are not Providerís exclusive remedies and Provider or its suppliers may take any other legal or technical action they deem appropriate. User expressly authorizes Provider and its suppliers to cooperate with (i) law enforcement authorities in the investigation of suspected legal violations, and (ii) any system administrators at other Internet service providers or other network or computing facilities in order to enforce this Policy. This cooperation may include Provider making available personally identifiable information about users to law enforcement or system administrators. The failure of Provider or of its suppliers to enforce this Policy, for whatever reason or for no reason, shall not be construed as a waiver of any right to do so at any time. User agrees that if any portion of this Policy is held invalid or unenforceable, such portion will be construed consistent with applicable law as nearly as possible, and the remaining portions will remain in full force and effect. User agrees to indemnify, defend and hold harmless Provider and its affiliates, suppliers, providers, and agents against all claims and expenses (including reasonable attorney fees) resulting from users engaging in any of the prohibited activities listed in this Policy or resulting from users violating the Policy or any other posted Provider policy related to the Service. Userís indemnification will survive any termination of the Service Agreement.
We cannot ensure that your private communications and other personally identifiable information will not be disclosed to third parties. For example, we may be forced to disclose information to the government or third parties under certain circumstances, or third parties may unlawfully intercept or access transmissions or private communications. Additionally, we can (and you authorize us to) disclose any information about you to private entities, law enforcement or other government officials as we, in our sole discretion, believe necessary or appropriate to investigate or resolve possible problems or inquiries. You acknowledge and agree that we may transfer such information (including, without limitation your personally identifiable information or personal data) to the United States or other countries or may share such information with our licensees and agents in connection with the Service. You agree that we may communicate with you via telephone, email and any similar technology for any purpose relating to the Service and any services or software, which may in the future be provided by us or on our behalf. You expressly permit Vivox and the Provider to upload hardware and Operating System information from your computer to analyze and optimize your Service experience, improve and maintain the Service and/or provide you with customer service. You are subject to the terms and conditions, privacy customs and policies of Vivox and the Provider while using the Service. Since we do not control other privacy policies of third parties, different rules may apply to their use or disclosure of the personal information you disclose to others. Solely for the purpose of patching and updating the Service and ensuring the integrity of the Service, you hereby grant us permission to: (i) upload Service related file information and data from your computer; and (ii) download Service files to you. You acknowledge that any and all account data is stored and is resident on our servers; that any and all communications that you make through the Service (including, but not limited to, written and spoken messages solely directed at another user or group of users) traverse through our servers, may or may not be monitored by us or our agents, and may be intercepted and stored by us and our Partners temporarily (including as part of the transmission process) or permanently; and that you have no expectation of privacy in any such communications; and you expressly consent to such monitoring, interception and storage of communications you send and receive.
8. ARBITRATION. Except for the right of a party to seek equitable relief, any disputes arising under or related to this Agreement ("Dispute"), excluding any Dispute relating to the validity or infringement of any intellectual property right, will be resolved by negotiation, mediation and, if necessary, arbitration, as follows. The party raising such Dispute will promptly advise the other party in writing describing in reasonable detail the nature of such Dispute ("Notice of Dispute"). The parties will negotiate in good faith to resolve the Dispute, but if they have not done so within thirty (30) days, the parties will submit the Dispute to a mutually agreed mediation organization. If the parties are unable to resolve the Dispute within sixty (60) days after delivery of the Notice of Dispute, then the Dispute will be resolved by a single arbitrator in a final and binding arbitration under the then current procedural rules of the American Arbitration Association. All proceedings will be conducted in the English language in Boston, Massachusetts. The arbitrator will have no power to modify the terms or conditions of this Agreement, or to award punitive damages. Any award rendered in such arbitration may be enforced by either party in any Court of competent jurisdiction.
9. GENERAL TERMS. This Agreement is governed by the laws of the Commonwealth of Massachusetts. No agency, partnership, joint venture, employment or franchise relationship is intended or created by this Agreement. This AUP and the Service Agreement required by the Provider constitute the entire agreement between the parties concerning the use of the Service. The Providerís failure to enforce any right or provision of this Agreement will not be deemed a waiver of such rights. In no case shall the Provider be deemed in breach of this Agreement if its delay or failure to perform is due to flood, fire, storm, earthquake, war, civil disturbance or other cause beyond its reasonable control. If any provision of this Agreement is found to be unenforceable, it shall be deemed modified to the least extent needed to make the provision enforceable; the remaining terms of this Agreement shall remain in full force and effect. The Provider reserves the right to disclose any information about any user as required by a court order or as recommended by counsel in the context of any action by any government entity or other third party.
10. CHANGES TO THIS POLICY. Provider may revise its Acceptable Use Policy from time to time without notice. Any changes will be presented in the latest version at the Providerís web site. All revised copies of the Policy are effective immediately upon posting.