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IBM Lotus Sametime Unyte Terms of Use
Please read these terms of use carefully before using the Services and associated Software. You may use the Services only if you first accept these terms, which constitute a binding agreement between you (either an individual or an entity) and WebDialogs, Inc. (“WebDialogs”). By using the Services you signify your agreement with these terms, including this Acceptable Use Policy. WebDialogs may modify, alter or otherwise update these terms from time to time. You agree to periodically check back to this location to keep current on the Terms of Use and Acceptable Use Policy governing your use of the Services. Any new or modified terms posted will take effect thirty (30) days after posting. IF YOU DO NOT AGREE WITH THESE TERMS, OR ANY NEW OR MODIFIED TERMS, DO NOT IN ANY MANNER USE THE SERVICES OR PARTICIPATE IN ANY OF THE FUNCTIONALITY OFFERED THEREIN.
  1. These IBM Lotus Sametime Unyte Terms of Use set forth the terms and conditions under which WebDialogs will provide you with access to and use of a Web conferencing service for the purpose of collaboration by meeting participants as described herein. These Terms of Use supplement any WebDialogs Services Agreement or WebDialogs Subscription Agreement in effect between WebDialogs and you or any Order Form. In the event of a conflict between these Terms of Use and any WebDialogs Services Agreement or WebDialogs Subscription Agreement, the provisions of such Services or Subscription Agreement shall prevail. In the event of a conflict between these Terms of Use and any Order Form, the provisions of the Order Form shall prevail.

  2. Definitions. All capitalized terms defined in this Agreement have the meanings set forth herein.
    1. “Acceptable Use Policy” means the Acceptable Use Policy, located on the Internet at www.ibm.com/services/e-business/aup.html, and any subsequent modification in accordance with Section 13, Changes, below.
    2. “Affiliates” means entities that control, are controlled by, or are under common control with a party to these Terms of Use;
    3. "Content" means all data, software and information including, without limitation, any hypertext markup language files, scripts, programs, recordings, sound, video, music, graphics, images, applets or servlets that you create, install, upload or transfer in connection with your use of the Services.
    4. "Services" means the Lotus Sametime Unyte Web conferencing services
    5. "Software" means the software and all associated documentation and other materials provided to you by WebDialogs to facilitate access to and use of the Services.

  3. Software License. Subject to your compliance with these Terms of Use, WebDialogs hereby grants You a revocable, non-exclusive, nontransferable license (i) to install the Software (in object code and executable code format only), and (ii) to use such Software (as installed) solely for the purpose of accessing and using the Services.

  4. Access to Services; Suspension and Cancellation. Subject to your compliance with these Terms of Use, WebDialogs grants you a revocable, non-exclusive, nontransferable right to access and use the Services. The Services are provided with Restricted Rights for U.S. Government users. WebDialogs reserves the right to suspend or discontinue the Service, or any part thereof, (or otherwise terminate these Terms of Use) at any time without notice. WebDialogs may, at any time, revoke your access to the Services for any reason in its sole discretion, including, but not limited to, if WebDialogs believes that You are in breach of these Terms of Use or the Acceptable Use Policy. Upon any cancellation of this Agreement, your access and other rights to the Services will be cancelled and cease. In such event you must cease any further use of the Services and destroy any copies of associated software within your possession and control.

  5. Limitations on Use. Under no circumstances may you resell, redistribute, or make any commercial use of the Services, or use the Services on a timeshare or service bureau basis, or to operate a Website, or otherwise generate income from the Services unless expressly permitted under another written agreement between you and WebDialogs or its Affiliates. The Services are to be used solely for messaging, meetings and collaboration in which you are an active participant, and only as permitted under these Terms of Use, Acceptable Use Policy and other written agreements between you and WebDialogs or its Affiliates related to the Services, if any.

  6. Ownership of Software, Services, and Marks. The Software and Services are licensed, not sold, solely for use under the terms of this Agreement. Except as specifically set forth herein, WebDialogs and its Affiliates retain all right, title, and interest, including all intellectual property rights, relating to or embodied in the Software and Services, including without limitation all technology, software, and copies relating to the Software and 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 and Services are the trademarks of WebDialogs, its Affiliates or its licensors . You are prohibited from using any Marks without the prior written permission of WebDialogs or the owners thereof. WebDialogs reserves all rights not expressly granted in this Agreement.

  7. Restrictions. You agree not to copy, reverse assemble, reverse compile, decompile, or otherwise translate the Software or Service, except as expressly permitted by law without possibility of contractual waiver. Unless expressly permitted in another written agreement between you and WebDialogs or its Affiliates, you may not: (1) use, copy, modify, create derivative works of, distribute, sell, assign, pledge, 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; or (2) You may not remove, deface, cover, alter or obscure any copyright or trademark notices and/or legends or other proprietary notices associated with the Services unless expressly permitted under another written agreement between you and WebDialogs or its Affiliates.

  8. Scheduled Downtime; No Training or Technical Support. The regularly scheduled maintenance for the Services is the first and third Saturdays of each month between the hours of 1am and 3am EST. During that time the Services are not available for use. WebDialogs has no obligation under the terms of this Agreement to provide support or maintenance services in connection with the Software or Services. However, WebDialogs will provide You with telephone support solely to assist You in connecting to a Lotus Sametime Unyte meeting, or as otherwise set forth in a WebDialogs Service Agreement or Subscription Agreement in effect between You and WebDialogs.

  9. Updates; Applicable Terms and Authorization for Auto Updates. WebDialogs may, in its sole discretion, provide, and these Terms of use shall apply to, all updates, supplements, add-on components, features, or other functionality or messages related thereto, including without limitation alterations of functionality, features, storage, security, availability, content, and other information relating to the Software or Services (collectively, "Updates") that WebDialogs may provide or make available generally to its customers after the date that Services commence, subject to any additional terms and conditions provided by WebDialogs applicable to such Updates. You hereby authorize WebDialogs to, and agree that WebDialogs may, in accordance with WebDialogs' standard operating procedures, automatically and in good faith transmit, access, install, and otherwise provide Updates to the Software upon your access to the Service or Software without further notice or need for consent. WebDialogs has no obligation to, and nothing in this Agreement may be construed to require WebDialogs to, create, provide, or install Updates.

  10. NOTICE REGARDING RECORDING AND PRIVACY FEATURES. THE SOFTWARE AND/OR SERVICES MAY ALLOW YOU TO RECORD MEETINGS AND TO COLLECT AND UTILIZE IDENTIFYING INFORMATION ABOUT SERVICE PARTICIPANTS, such as a name that is displayed, transmitted, processed, or stored as part of a meeting or meeting record. THE LAWS OF SOME JURISDICTIONS MAY REQUIRE THE CONSENT OF INDIVIDUALS PRIOR TO RECORDING THEIR COMMUNICATIONS AND/OR RESTRICT COLLECTION, STORAGE, AND USE OF PERSONALLY IDENTIFIABLE INFORMATION. You agree to comply with all applicable laws and to obtain all necessary consents and make all necessary disclosures before using the Software and/or Services.

  11. Data Protection. You agree to allow WebDialogs and its Affiliates to store and use your contact information, including names, phone numbers, and e-mail addresses, anywhere WebDialogs and its Affiliates do business as set forth in the Privacy Policy at http://www.unyte.net/company/privacy.php. You confirm that you are solely responsible for ensuring that any processing and security obligations related to your use of the Services complies with applicable data protection laws. Your contact information shall not be considered personal information processed by WebDialogs on your behalf.

  12. You Retain Ownership of Content. WebDialogs does not claim ownership of any Content. You hereby grant to WebDialogs 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 to You. Except as set forth in this Section 11, You retain all right, title, and interest in and to the Content.

  13. Limited Purpose Access to Content. You acknowledge that the Services are provided by automated means (e.g., uploading Content via the applicable software tools) and that WebDialogs personnel will not access, view, or listen to any Content, except as necessary to perform the Services, including but not limited to the following: (i) if during a Services interruption as necessary to restore the applicable Content at Your request; (ii) if You have requested that WebDialogs 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 WebDialogs in good faith to conform to legal requirements or comply with legal process.

  14. Representations and Warranties About Content. 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 or would infringe any copyright, patent, trademark, trade secret, or other proprietary right of any party, or any rights of publicity or privacy of any party; (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.

  15. Confidentiality. You are responsible for maintaining the confidentiality of your account number and/or password. You are also responsible for all uses of your account, whether or not actually or expressly authorized by you.

  16. Compliance with Applicable Law. Regardless of your location when you access the Services, you agree to comply with all applicable United States export control laws, including those regarding the export of data. You may not export, re-export, divert, transfer or disclose any portion of the Services or any related software or technical information or materials, directly or indirectly, in violation of any applicable export law or regulation. You are also responsible for complying with all other laws, rules, and regulations that may be applicable to your use of the Services.

  17. Indemnity. You agree to defend, indemnify, and hold harmless WebDialogs and its Affiliates and their officers, directors, employees, consultants, agents and suppliers from and against any and all third party claims, liabilities, damages, and/or costs (including, but not limited to, fees, costs and other expenses of attorneys and expert witnesses) arising out of or related to: (i) your use of the Software or Services, (ii) any violation of this Agreement or applicable law by you, or (iii) actual or alleged infringement by you, or any person accessing the Services using your password or access key, of any intellectual property or privacy or other right of any third party, or (iv) any unauthorized use of WebDialogs’ Products or Services.

  18. DISCLAIMER OF WARRANTIES. THE SERVICES (INCLUDING ANY ASSOCIATED SOFTWARE, DOCUMENTATION, INFORMATION AND MATERIALS) ARE PROVIDED TO YOU “AS IS” AND WEBDIALOGS, ITS AFFILIATES AND SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

    WITHOUT LIMITING THE FOREGOING, THE SERVICES ARE NOT DESIGNED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION/COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, WEBIALOGS, ITS AFFILIATES, SUPPLIERS AND RESELLERS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSE.

  19. Acceptance of Risk. WebDialogs will make commercially reasonable efforts to deliver secure and reliable Services. Notwithstanding the foregoing, You acknowledge and agree that: (i) use of the Services is at your sole risk; (ii) any material and/or data downloaded or otherwise obtained through the use of the Services is at your own discretion and risk; (iii) you will be solely responsible for any damages to you resulting from your use of the Services; and (vi) the entire risk arising out of use or performance of the Services remains with you.

  20. LIMITATION OF LIABILITY AND EXCLUSION OF DAMAGES. IN NO EVENT WILL WEBDIALOGS OR ITS AFFILIATES, SUPPLIERS OR RESELLERS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS OR DAMAGE) ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICES, OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT SERVICES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF WEBDIALOGS, ITS AFFILIATES OR SUPPLIERS OR RESELLERS HAVE BEEN ADVISED OF OR ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE MAXIMUM AGGREGATE LIABILITY OF WEBDIALOGS, ITS AFFILIATES OR SUPPLIERS OR RESELLERS AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO YOUR USE OR ATTEMPTED USE OF THE SERVICES WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES, IF ANY. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to you.

  21. Geographic Scope
    Although you may have accessed the Services outside of the United States of America, WebDialogs’ delivery of the Services will only occur within the United States of America, and WebDialogs’ obligations hereunder are valid only in the United States of America.

  22. Governing Law; Exclusive Forum. These Terms of Use, and the relationship between you and WebDialogs resulting from your use or attempted use of the Services, and the resolution of any dispute arising out of that relationship, shall all be governed by and construed in accordance with the laws of the State of New York, without regard to any conflict of law principles or provisions. You agree that any legal action or proceeding arising out of or related in any manner to these Terms of Use, or the relationship between you and WebDialogs resulting from these Terms of Use or your use or attempted use of the Services, shall be brought exclusively in the United States District Court for the Southern District of New York in White Plains, New York; or, if jurisdiction is not available in that court, in the New York State Supreme Court in Westchester County, New York. The parties expressly waive any right to a jury trial for disputes related to the subject matter of this Agreement. Unless otherwise provided by local law without the possibility of contractual waiver or limitation, any legal or other action related to a breach of this Agreement must be commenced no later than two (2) years from the date on which the cause of action arose.

  23. Injunctive Relief. Your use of the Services in violation of these Terms of Use would cause irreparable harm to WebDialogs, its Affiliates and suppliers for which no adequate remedy at law exists, and under such circumstances WebDialogs, its Affiliates and suppliers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.

  24. Miscellaneous. If any part of this Agreement is determined to be invalid or unenforceable, then such invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement will continue in effect. If any provision(s) is found to be contrary to law, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. WebDialogs' failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision unless agreed to by WebDialogs in a writing signed by a duly authorized representative of WebDialogs. WebDialogs reserves the right to modify these Terms of Use, and related Acceptable Use Policy at any time by providing such revised terms to You. Your continued use of the Software or Services shall constitute your acceptance to be bound by any such revised terms and conditions.

  25. Entire Agreement. The Agreement (including any accompanying WebDialogs Service Agreement or Subscription Agreement) constitutes the entire agreement between WebDialogs and You with respect to the Software and Services and supersedes all other (prior or contemporaneous) communications and proposals, whether electronic, oral, or non-electronic, between WebDialogs and You regarding them. You agree that any terms or conditions contained in any document, including but not limited to a purchase order, acknowledgement, email, or other document that You may now or later provide to WebDialogs, will have no effect and that this Agreement is the only contract between WebDialogs and You regarding the Software and Services and may only be amended as set forth herein.