Vivox

VIVOX, INC.
SOFTWARE LICENSE AGREEMENT

THIS IS A LEGAL AGREEMENT BETWEEN YOU (AN INDIVIDUAL OR AN ENTITY) AND VIVOX, INC. (“Vivox”). READ THIS AGREEMENT CAREFULLY BEFORE YOU CLICK ON THE “I AGREE” BUTTON BELOW. BY CLICKING ON THE “I AGREE” BUTTON AND PROCEEDING TO THE NEXT SCREEN, YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND WILL BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS, CLICK ON THE “BACK” BUTTON IN YOUR BROWSER OR CLOSE THIS WINDOW; YOU ARE NOT PERMITTED TO DOWNLOAD OR DISTRIBUTE THE SOFTWARE.

1. Distribution License. Vivox hereby grants you during the Term, for so long as you rightfully distribute Linden Lab’s open source viewer or a derivative version you created (each, an “LL Viewer”), a nonexclusive, royalty-free, nontransferable worldwide right and license (the “License”), without rights of sublicense, to incorporate the Vivox SLVoice program, in object code form (the “Software”) into the LL Viewer and to copy and distribute the Software as a component of the LL Viewer, provided: (i) you do not charge end users for use of the Software, (ii) the Software is used only with Vivox’s network, and (iii) you and your end users who use the Software must expressly agree to the Vivox Acceptable Use Policy (Attachment A hereto). Use of the Software other than in accordance with this Agreement will constitute infringement of Vivox’s rights in the Software.
   
   
2. Vivox’s Proprietary Rights; Confidentiality; Other Duties
   
   
   1. Acknowledgment of Rights. You acknowledge that (a) all rights, title and interest in and to the Software and SLVoice and any modifications (including without limitation all copyrights, Vivox Marks and other applicable intellectual property rights therein) are owned by Vivox and this Agreement conveys only a limited license to use the Software in accordance herewith, (b) the Software is protected by U.S and international copyright laws and treaties, and (c) Vivox asserts that the Software embodies valuable confidential information of Vivox and its licensors (if any), the development of which required considerable time and money.
      
      
   2. Your Obligations. You agree that you will (a) not alter, reverse engineer, disassemble or decompile the Software, or copy it except for purposes of the distribution authorized under Section 1 above, (b) reproduce on, and not remove from, all copies of the Software all titles, trademarks, and copyright and other proprietary or restrictive legends or notices that are contained on the original or reasonably requested by Vivox, (c) comply with the law, including without limitation, all applicable export control laws, and (d) pay any and all taxes and governmental charges due in connection with your use and distribution of the Software. Each party warrants and represents that it has full authority to enter into this Agreement and that its entry and performance hereof will not violate any other agreement, law or governmental order to which it is subject.
      
      
   3. Trademarks. You may use the Vivox trademarks, service marks, trade names and other identifiers associated with the Software and SLVoice services (the “Marks”) solely in connection with your distribution of the Software hereunder, subject to policies and guidelines established by Vivox. You shall provide Vivox with copies of all advertising and promotional materials you create that display the Marks or refer to Vivox; if at any time Vivox objects that any such uses are inaccurate or misleading or otherwise objectionable, you agree to change the material at your expense to eliminate the objection.
3. Exclusion of Warranties. THE SOFTWARE IS PROVIDED “AS IS,” WITHOUT WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR OTHERWISE, AND ANY USE OF THE SOFTWARE WILL BE AT YOUR SOLE RISK. WITHOUT LIMITATION, VIVOX EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. You expressly agree that Vivox shall have no obligation to maintain or support the Software hereunder.
   
   
4. Limitation of Liability. Regardless of the form of action (whether in contract, tort, breach of warranty or otherwise), IN NO EVENT WILL VIVOX BE LIABLE FOR DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL AND PUNITIVE DAMAGES (INCLUDING LOST PROFITS AND LOST OR DAMAGED DATA, SOFTWARE, DEVICES OR SYSTEMS) ARISING FROM THIS AGREEMENT OR FROM YOUR USE OF THE SOFTWARE, EVEN IF VIVOX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
   
   
5. Term and Termination. The License will continue indefinitely until terminated as provided herein. You acknowledge that the Software may include code or other devices that automatically prevent its operation after termination and you agree that you will not attempt to defeat or circumvent such code or device. You may terminate the License at any time upon written notice to Vivox. Vivox may terminate the License at any time, upon thirty (30) days written notice to you. The License will automatically terminate without notice if you breach any of your obligations hereunder or if your right to distribute the LL Viewer terminates. Upon termination, you may make no further use of the Software and will promptly destroy all tangible and electronic copies in your possession or control. Sections 3-6 will survive termination, which will not affect any rights accrued prior thereto.
   
   
6. General. Neither this Agreement nor the License may be assigned, licensed, sublicensed, sold, mortgaged, pledged or otherwise disposed of by you, in whole or part, without the prior written consent of Vivox, and any attempt to do so in violation of the foregoing will be void and of no effect. This document contains the entire agreement between the parties relating to the matters covered by it, superseding all other oral or written representations, understandings, proposals or communications between the parties. Only a written instrument signed by an authorized representative of each party may modify this Agreement. If any provision of this Agreement is for any reason void or unenforceable in any respect, the remainder of the Agreement shall remain in effect. This Agreement will be governed by the substantive laws (but not the conflict of laws provisions) of the Commonwealth of Massachusetts, U.S.A., excluding the United Nations Convention on Contracts for the International Sale of Goods. You agree that any litigation regarding the interpretation, breach or enforcement of this Agreement will be filed in and heard by the state or federal courts with jurisdiction to hear such disputes in Massachusetts, U.S.A., and you hereby submit to the personal jurisdiction of such courts.
   
   

PLEASE INDICATE THAT YOU UNDERSTAND AND ACCEPT THESE TERMS BY CLICKING THE “I AGREE” BUTTON BELOW TO START THE DOWNLOAD OF THE SOFTWARE.

IF YOU DO NOT ACCEPT THESE TERMS, CLICK ON THE “BACK” BUTTON IN YOUR BROWSER OR CLOSE THIS WINDOW. You will not be authorized or able to download or distribute the Software.

 

ATTACHMENT A
Acceptable Use Policy (AUP)

1. BACKGROUND: Users of the online voice services provided by Vivox, Inc. (“Vivox”) (the “Service”), through the act of utilizing the Service, agree to adhere to this Acceptable Use Policy (the “Policy”). Vivox reserves the right to immediately terminate a user’s access to the Service if the user engages in any of the activities prohibited by this Policy or uses the Service contrary to this Policy. Each user is responsible for all activities conducted under its account. The user is also responsible for adhering to any policy set forth by any other service provider accessed through the Service; Vivox, and its suppliers and providers, assume no responsibility or liability for a user’s failure to comply with the Policy. The user acknowledges that Vivox may have access to information about or provided by the user, including diagnostic information sent automatically after a problem or error, and agrees to such access and use.
   
   
2. PROHIBITED USES AND ACTIVITIES: Users shall not provide inaccurate or misleading information to Vivox 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 Vivox’s 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 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 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 their owners and suppliers and may not be used without permission for any purpose. 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 all users in all instances.
   
   THE DOWNLOADING OR SUBMISSION OF ANY MATERIALS IS DONE AT THE USER’S 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, VIVOX SHALL NOT 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: Vivox does not routinely monitors the activity of Service accounts for violation of this Policy. Vivox reserves 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 other users. If the Service is used in a way that Vivox, in their sole discretion, believe violate this Policy, it may take any responsive actions they deem appropriate, including, but are not limited to, the immediate suspension or termination of all or any portion of the Service. Vivox will have no liability for any of these responsive actions. These actions are not exclusive remedies and Vivox may take any other legal or technical action deemed appropriate. The user expressly authorizes Vivox 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 making available personally identifiable information about users to law enforcement or system administrators. The failure 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. The 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. The user agrees to indemnify, defend and hold harmless Vivox 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 policy related to the Service. The foregoing user indemnification will survive any termination of the user’s agreements with Vivox .
   
   
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 constitute the entire agreement between the parties concerning the use of the Service. 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. Vivox 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. Vivox may revise its Acceptable Use Policy from time to time without prior notice. Any changes will be presented in the latest version at the Vivox web site. All revised copies of the Policy are effective immediately upon a user’s first use of the Service after the change has been posted.

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