INTERNET MEGAMEETING, LLC
PRIVATE BRANDING ENTERPRISE USER LICENSE AGREEMENT
This is the license agreement ("Private Branding Enterprise User License Agreement" or "Enterprise User License Agreement" or "EntULA" or "Agreement") which states the Terms and conditions for Services and Products provided through or in connection with Internet MegaMeeting, LLC and the Private Branding Enterprise Product of Internet MegaMeeting, LLC. Before you may use the Private Branding Enterprise Product of Internet MegaMeeting, LLC's Enterprise Product, as well as the Services of Internet MegaMeeting, LLC, you must read, agree to, and accept all of the terms and conditions of this agreement and of information which is incorporated in this Agreement by reference. If you do not agree to be bound by all of these terms and conditions, including those expressly incorporated by reference, then do not use Internet MegaMeeting, LLC's Enterprise Product, or the Services of Internet MegaMeeting, LLC.
1. PARTIES TO THIS CONTRACT
Internet MegaMeeting, LLC, a California limited liability company, is the party with whom you are contracting. Internet MegaMeeting, LLC sometimes is referred to as "IMM" or "we" or "us" or "our" in this Agreement, except as is otherwise expressly stated in particular sections. "You" means the Licensee(s) under this Enterprise User's License Agreement as expressly identified in the signature blocks at the end of this Agreement. "Your Users" means any person who uses the Services and Products provided through or in connection with Internet MegaMeeting, LLC and this Enterprise Product License to You from Internet MegaMeeting, LLC, You and Your Users include without limitation a "User" or a "Participant" (in a Hosted Session). "Your Users" or "Your User's" refers to all people who, through the use of your Internet MegaMeeting, LLC Enterprise Product License, use, or continue to use Internet MegaMeeting, LLC's Products, Services, Network Servers and Enterprise Product that you are licensing under this agreement, whether or not you have authorized such use of Your License. That is, You are fully responsible for all uses of Your License, whether or not you have intentionally authorized such use, and you shall be legally responsible for all use of Your License. You agree that this is an agreement between independent contractors, and it is not a joint venture, partnership, employer-employee, agent-principal, trustee-beneficiary, or franchisor-franchisee relationship between You and Internet MegaMeeting, LLC. Neither you nor Internet MegaMeeting, LLC is authorized to bind the other to any contract. You agree that all payments, if any, by You to Internet MegaMeeting, LLC represent fair value for goods and services rendered to you and no such payment by you to Internet MegaMeeting, LLC shall be, or shall be deemed a franchise fee. You do not receive any franchise rights whatsoever.
As is provided in Section 17 below, Your Users shall be deemed limited, non-exclusive, sub-licensees acting under this license, but Your Users shall be restricted solely to end-user status. Your Users shall not have Enterprise User status. You do not have any power or authority to sub-license your Enterprise User status and any attempt to do so shall be void. You shall affirmatively require that Your Users expressly give prior written assent to a Terms of Service Agreement between You and Your Users ("Your TOS"), which includes but is not limited to privacy controls and disclosures, that comply with all the requirements of applicable law to ensure that You and Your Users do not make unlawful use of IMM's Enterprise Product, IMM's Products and Services and IMM's.
You shall be solely and exclusively responsible, and IMM and IMM's contractors and subcontractors shall have absolutely no responsibility, for information and communication content which passes through or is stored on computers of You, your contractors and subcontractors, Your Users, IMM or IMMís contractors or subcontractors via Your use of the IMM Enterprise Product and other IMM Products and Services.
2. SERVICES AND PRODUCTS OF INTERNET MEGEMEETING, LLC.
This Agreement states the terms and conditions upon which Services and Products are offered to you by IMM through its Enterprise Product, as well as through internal networking Servers and Services of IMM and of service providers with whom IMM has contracted or subcontracted for services that are provided to you by IMM. In this Agreement, "IMM Services and Products" will refer to Internet MegaMeeting, LLC's Products, Services, Network Servers and Internet MegaMeeting, LLC's Enterprise Product and those of IMM's contractors and subcontractors.
3. ENTERPRISE ACCOUNT; SECURITY; USER IDs; PASSWORDS
"Your Communications Channels and Bandwidth" shall mean communication channels and communications bandwidth that you provide for Yourself and Your Users on computer servers that You or your suppliers own or control, where such communications channels and bandwidth do not pass through the computer servers of IMM or IMM's contractors and subcontractors (except for accidental or coincidental events which might arise from the nature of the Internet packet switching technology).
The IMM Enterprise Product is designed to enable You and Your Users to make limited utilization of IMM servers for account setup, maintenance, conference initiation, User/Host verification and reporting, payment, and related administrative functions but where the principal communications of You and Your Users employ "Your Communications Channels and Bandwidth" on servers owned or controlled by You rather than servers of IMM and its contractors and subcontractors. There are additional provisions below if You have contracted to use the IMM Enterprise Product through channels and bandwidth provided on servers controlled by IMM,
So long as this Enterprise license is in effect, You authorize and permit, and You shall require Your Users to authorize and permit, IMM and IMM's contractors and subcontractors to store User IDs, Passwords, E-mail Addresses, and other Demographic Data of You and Your Users, on a server owned or controlled by IMM or contracted for service to IMM, where that information comes to IMM and IMM's contractors and subcontractors via use of your Enterprise Product License. This information is stored by IMM and its contractors and subcontractors in order to facilitate account setup, maintenance, conference initiation, User/Host verification and reporting, and related functions.
You are entirely responsible for activities conducted by You and by Your Users, including preservation and protection of the confidentiality of the User IDs, passwords, and account information of You and Your Users which comes into possession of You and Your Users.
You agree that you shall immediately notify IMM in writing (which may be by email to email@example.com ) if there is any unauthorized use of an account or password of You or of any of Your Users or any other security breach. IMM shall not be liable for any cost, loss, damage or liability which arises or is alleged to arise from Your failure to comply with this section."
Internet MegaMeeting, LLC makes its Products, Services, Network Servers and Enterprise Product available only to persons who are capable under the applicable law of forming valid contracts. By using the IMM Services and Products, You represent and warrant that the You and Your Users may lawfully enter into this agreement and that you and they have lawful authority to bind yourself and themselves to the terms and conditions of this User Agreement. Furthermore, by entering into this User Agreement, you agree to abide by all laws as they pertain to the use of IMM Services and Products, including but not limited to age requirements and legal competency.
Where this Enterprise License Agreement is signed by one or more natural persons on behalf of a legal entity, each of such natural persons represents and warrants that such natural person has lawful authority to bind that legal entity to the terms and conditions of this Agreement and that such legal entity has the lawful power and authority to enter into and perform this agreement. "Legal Entity" shall mean a corporation, partnership, limited liability company, unincorporated association, cooperative, trust, proprietorship, or any other form of doing business which is recognized as having legal existence under the applicable laws.
5. EFFECTIVE DATE; TERM OF DURATION
This Agreement takes effect immediately. This Agreement applies to You, Your Users and all Third Parties who, through the use of your Internet MegaMeeting, LLC Enterprise Product, use, or continue to use IMM Services and Products.
The initial term of duration of this Agreement shall be twelve months. This Agreement shall automatically renew for a like term of duration if not terminated by You or IMM.
6. AMENDED TERMS AND CONDITIONS
We reserve the right to change the terms and conditions of this Agreement from time to time by notifying You or Your Users of such changes in writing or by posting on the IMM website which You or Your Users use to access IMM Products and Services, or by other electronic notification to You. Such changes shall be made where they are necessary to keep this Agreement and IMM Services and Products in compliance with the laws of the United States and other jurisdictions in which IMM Services and Products are being used, and may be made in such other circumstances as We from time to time may elect (but any such changes not compelled by applicable law shall only take effect after you have been given written notice of such changes) . You agree that your subsequent use or continued use of IMM Services and Products, on or after the date posted changes take effect constitutes your consent to the amended terms and conditions.
7. TERMINATION OF THIS AGREEMENT
Internet MegaMeeting, LLC may terminate this Agreement for cause at any time, and breach of this Agreement by You shall constitute such cause.
You may terminate this Agreement only by giving written notice of termination to Internet MegaMeeting, LLC and ceasing all further use of IMM Services and Products. If you decide after you have entered into this Agreement that you no longer wish to agree with any term or condition of this Agreement, as it may be amended from time to time, then your only remedy is to terminate this Agreement by written notice, to cease use, and to refrain from further use of IMM Services and Products. In that event IMM shall be entitled to keep all payments for services you have made, and you shall remain liable to pay, and shall pay, for all services that You and Your Users have made of IMM Products and Services.
If you terminate this Agreement then you must cease all use of, and remove from your computer(s), any software associated with IMM Services and Products; and you must destroy any copies of such software, except only that you shall not destroy matter which is reasonably likely to be or to become material evidence in judicial or arbitration proceedings.
Following termination of this Agreement, this Agreement will survive for the limited purpose of governing rights, obligations and responsibilities which arise from events and transactions that occurred prior to such termination; but no right will survive for continued or future use of IMM Services and Products. For example, if you incur charges, liabilities, or obligations to Internet MegaMeeting, LLC which have not yet been paid or discharged at the time you terminate, then you remain obligated to pay such charges and to discharge such liabilities and obligations after you terminate. As a further example, your obligations to respect our copyrights, trademarks, and other intellectual property continue after termination.
If you give written notice of termination, but continue or resume use of IMM Services and Products, then Internet MegaMeeting, LLC may elect in its sole discretion to deem your termination to be ineffective, but IMM retains its rights to immediately terminate, block or restrict without notice your use and Your User's Use.
8. YOUR USER'S INFORMATION; YOUR INFORMATION
To use IMM Products and Services the computers of You and Your Users necessarily must supply information to access, register and use IMM Services and Products. This applies to You and to all of Your Users as well, who, through the use of your Internet MegaMeeting, LLC Enterprise Product License, use, or continue to use IMM Services and Products. You and Your Users may choose, or your computers may automatically function, to send information to us or to our contractors or subcontractors, or exchange it with us and others during the course of your use of IMM Services and Products. You and Your User's Information (also called "Your Information") is defined for the purposes of this Agreement to mean the content and the form of any and all information which you or Your User's computers provide to us, or cause or permit other persons to transmit to us, in connection with use of the IMM Enterprise Product.
This information may include names, email addresses, logins, passwords, Internet Protocol (IP) addresses, and other information required by IMM to provide Services and Products covered in this Agreement. You as Licensee have sole responsibility to verify the accuracy of Your Information and of Your User's Information.
9. COMMUNICATION CONTENT
"Communication Content" means the content and form of any information that You or your Users receive, access, take or otherwise obtain that originated from, was sent from, or was posted by any third party in any manner through use of IMM Services and Products, including without limitation, use of Your Enterprise License on computer servers owned or controlled by You or by IMM. "Third party" means any person not affiliated with Internet MegaMeeting, LLC. You and Your Users are solely responsible for the accuracy, lawfulness, risks and use of the Communication Content. Internet MegaMeeting, LLC does not monitor, select or modify Communication Content, other than the limited information transmitted in Your utilization of IMM servers for account setup, maintenance, conference initiation, User/Host verification and reporting, and related administrative functions. "Third party" means any person not affiliated with Internet MegaMeeting, LLC or with You. It is contemplated that most "Communication Content" of You and Your Users will be transmitted via Your Communications Channels and Bandwidth, except for the limited communications with the computer servers of IMM and IMM's contractors and subcontractors for such administrative functions. If you have contracted in writing to use Communications and Bandwidth provided by IMM, additional provisions below apply.
10. USER-IMPLEMENTED ENCRYPTION OR OTHER SPECIAL SECURITY ISSUES OF USERS
User hereby acknowledges that information that passes through or is retained on MegaMeetingís computer servers has a moderate level of password-access security that is required to enter into a meeting ("Meeting-level Access Security"). After such password access is gained to ameeting then the content of that meeting is generally available to anyone who has acquired such password access to that meeting, or to recorded copies of such meeting. The degree of a Userís password-access security for a meeting is dependent upon the Userís selection of stronger or weaker passwords and the Userís distribution and control of the Userís passwords. User acknowledges that User can implement a higher degree of security within a meeting by applying additional password access, or other encryption controls, to certain kinds of particular information within that meeting and within the recorded records of that meeting ("Encrypted Content Within A Meeting"), but not as to the streaming live audio and live video of the meeting as a whole, or to recordings of the meeting as a whole. It shall be the responsibility of the User (A) to identify the particular portions of its own information and content that requires such a higher level of security within a meeting, and (B) to implement the Userís higher level of security for such information and content that the User transmits or receives. For example, and without limitation, a User can individually encrypt a particular document before transmitting that document within a meeting through the MegaMeeting computer servers, and before storing that particular document on MegaMeeting servers. Then, even if Meeting-level Access Security fails for a meeting as a whole, the User still can maintain the separate higher-level security access to particular content within that meeting. User shall be responsible for selecting and implementing an encryption system or other security system of Userís choice for Encrypted Content Within A Meeting. As an example and without limitation, a User can implement the encryption features of Adobe Acrobat for particular documents that the User identifies as too sensitive to protect solely by Meeting-level Access Security. User shall not provide to MegaMeeting the Userís access passwords for Encrypted Content Within A Meeting. MegaMeeting shall not have any responsibility or liability for encryption or decryption of Userís information and content, nor for control or distribution of Userís access to Encrypted Content Within A Meeting.
11. LICENSE GRANTED BY IMM TO YOU FOR YOUR USE OF IMM SYSTEMS AND SOFTWARE
Through this Agreement, Internet MegaMeeting, LLC grants you a license to use IMM Services and Products, specifically its Enterprise Product, allowing a limited number of Users to simultaneously participate in Hosted Sessions (concurrent users). The maximum numbers of concurrent Users is fixed based on separate usage level agreements between You and Internet MegaMeeting, LLC. The initial usage level is 50 total concurrent Users. The Enterprise Status conferred upon You by this License is sublicensable and transferrable by you, either directly or indirectly. You may sublicense rights under this Agreement to Your Users solely for limited end user purposes as Hosts or Participants in communications using Your Communications Channels and Bandwidth. You shall not in any circumstances compile, decompile, copy, modify, or reverse engineer the IMM Services and Products, our systems, or our software.
12. YOU WARRANT YOUR AUTHORITY FOR USE OF YOUR INFORMATION
13. PROHIBITED AND RESTRICTED ACTIONS
13.1 Unlawful Activities. You agree that you shall not do, and You shall not suffer Your Users to do, any of the following in connection with your use or their use of IMM Services and Products, or Your Information or Your Users' Information:
(a) violate any law, statute, regulation, or rule having the force of law; this includes without limitation, laws concerning anti-terrorism, money laundering, export control, investment securities, consumer protection, unfair competition, anti-discrimination, false advertising, gambling, wagering, eavesdropping, communication interception, child abuse, elder abuse, "hate" crimes, obscenity, pornography, and insider trading;
(b) make any false, materially misleading, or fraudulent statements or communications to us or to any other person;
(c) engage in fraudulent or otherwise unlawful transactions;
(d) sell or otherwise transfer counterfeit or stolen items or materials;
(e) infringe any copyright, trademark, patent, or other intellectual property of Internet MegaMeeting, LLC or of any third party, nor misappropriate or disclose trade secrets or other proprietary rights without the consent of the owner, nor violate the privacy rights of any person;
(f) engage in defamation, slander, unlawfully harassing, hateful, or threatening activity;
(g) engage in or communicate unlawful obscenity or pornography, or child-harming activity (and you agree that you shall not transmit, post, email, forward, or otherwise use or traffic in material which is lawfully suitable only for adults except in areas and channels of communication that are restricted to Mature Audiences and to which only persons for whom such material is suitable will be given access);
(h) engage in, pass on or transmit any Ponzi or pyramid scheme;
(i) "stalk" or harass any other person;
(j) if you are accessing or using IMM Services and Products in any nation, state or other jurisdiction which restricts such access or usage, then you shall abide by the laws of that place and refrain from any access or use as required by the laws of the applicable jurisdiction and you shall not aid or abet any other person to engage in any activity which is unlawful, or which is constrained or restricted by this Agreement; and you shall not contribute to any such misconduct of any other person.
13.2 Improper, Illegal and Abusive Computer and System Functions. You agree that you shall not:
(a) interfere with, impair or degrade any functions of Internet MegaMeeting, LLC or its Services and Products;
(b) create or purport to create liability for Internet MegaMeeting, LLC;
(c) interfere with the performance by Internet MegaMeeting, LLC's employees of their duties;
(d) create or impose an unreasonable load on Internet MegaMeeting, LLC or its services, functions or infrastructure;
(e) employ any automatic data-mining or search engine, including without limitation any robot, spider, scraper, or similar means to access IMM Services and Products without the express, prior written consent of an authorized officer of Internet MegaMeeting, LLC;
(f) bypass security measures or constraints which Internet MegaMeeting, LLC have created to restrict access to or use of its systems and its data;
(g) transmit any material that constitutes or contains any harmful computer code, including without limitation, any computer virus, Trojan horse, worm, time bomb, denial of service, cancelbot, easter egg, or other computer codes or methods which are harmful to, unlawfully detract from the function or performance of, expropriate, misappropriate, or misuse Internet MegaMeeting, LLC's computers, software, systems or infrastructure, or those of any other person; "transmit" includes without limitation to upload, post, email or otherwise make available;
(h) copy, modify, create derivative works from, reverse-engineer, decompile, duplicate, distribute, or publicly display any matter obtained from Internet MegaMeeting, LLC or its Services and Products, or from any other person by use of IMM Services and Products, without the express prior written consent of Internet MegaMeeting, LLC or other person owning rights in such matter.
14. COPYRIGHTS, TRADEMARKS, AND OTHER INTELLECTUAL PROPERTY
We respect the copyright and other intellectual property of other persons. We ask that you also respect intellectual property rights. In appropriate cases we may exercise discretion to limit, terminate or disable the accounts of You or Your Users who are identified as repeat infringers, or to remove or disable access to infringing material. You do not receive any license to use any copyright or other intellectual property of Internet MegaMeeting, LLC except as otherwise is expressly granted herein; no such license shall be implied which is not expressly granted herein.
Copyright © Internet MegaMeeting, LLC 2004 - 2010. All rights reserved.
The following, among others, are trademarks of Internet MegaMeeting, LLC:
"Internet MegaMeeting", "MegaMeeting.com", "MegaMeeting Personal", "MegaMeeting Professional", "MegaMeeting Enterprise" "MegaMeeting Presenter" and "TechHelp".
15. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY ACKNOWLEDGE AND AGREE AS FOLLOWS:
NO WARRANTY. INTERNET MEGAMEETING, LLC, ITS AFFILIATES, SUPPLIERS AND CONTRACTORS PROVIDE IMM SERVICES AND PRODUCTS "AS IS" AND "AS AVAILABLE" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS OR IMPLIED OR STATUTORY. WITHOUT LIMITING THE BREADTH OF THE FOREGOING SENTENCE, WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
FOR THE PURPOSES OF THIS SECTION, "INTERNET MEGAMEETING, LLC, ITS AFFILIATES, SUPPLIERS AND CONTRACTORS" IS INTENDED TO INCLUDE, WITHOUT LIMITATION, INTERNET MEGAMEETING, LLC, OUR LIMITED LIABILITY COMPANY MANAGERS, OFFICERS, EMPLOYEES, AND AGENTS, THE SUPPLIERS OF OUR WEB SITES, OUR INTERNET SERVICE PROVIDERS ("ISPs"), OUR OTHER TECHNICAL AND SERVICE PROVIDERS, OUR RESELLERS, AND ANY PERSONS WHO MAY BE OR BE DEEMED OUR PARTNERS, JOINT VENTURERS, OR PRINCIPALS, EACH AND ALL OF WHOM SHALL BE EXPRESS THIRD PARTY BENEFICIARIES OF THESE DISCLAIMERS OF WARRANTY.
Some states do not allow the disclaimer of implied warranties in some circumstances, so if the laws of such a state apply to your dealings with us and if the requisite circumstances exist in your case, then some portion or all of the foregoing disclaimer may not apply to you. The law of warranty varies from state to state and the law applicable in your particular case may give you specific legal rights.
16. LIMITATIONS AND EXCLUSIONS OF DAMAGES
IN NO EVENT SHALL INTERNET MEGAMEETING, LLC, ITS AFFILIATES, SUPPLIERS AND CONTRACTORS BE LIABLE FOR ANY OF THE FOLLOWING KINDS OF DAMAGES: LOST PROFITS, LOST GOOD WILL, BUSINESS INTERRUPTION; OR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING, OR ALLEGED TO ARISE, OUT OF OR IN CONNECTION WITH OUR SITE, OUR PRODUCTS AND SERVICES, OR THIS AGREEMENT.
WITHOUT LIMITING THE BREADTH OF THE KINDS OF DAMAGES EXCLUDED BY THE PRECEDING SENTENCE, INTERNET MEGAMEETING, LLC, ITS AFFILIATES, SUPPLIERS AND CONTRACTORS SHALL NOT BE LIABLE FOR ANY OF THE FOREGOING KINDS OF DAMAGES ARISING OR RESULTING FROM: (a) ANY USE OR INABILITY TO USE IMM SERVICES AND PRODUCTS; (b) ANY COST OF ACQUIRING SUBSTITUTE GOODS AND SERVICES; (c) ANY UNAUTHORIZED ACCESS TO, DEGRADATION OF, OR ALTERATION OF THE CONTENTS OF TRANSMISSIONS OF YOU OR ANY THIRD PARTY; (d) ANY CONDUCT OR COMMUNICATIONS OF ANY THIRD PARTY BY USE OF IMM SERVICES AND PRODUCTS; (e) THE CONTENTS OR QUALITY OF ANY RECORDING, ANY FAILURE TO SUCCESSFULLY RECORD, OR LOSS, DESTRUCTION OR DELETION OF MATTER THAT ANY PARTY RECORDS OR ATTEMPTS TO RECORD USING IMMíS PRODUCTS OR SERVICES; OR (f) ANY OTHER MATTER OR CIRCUMSTANCE RELATED TO IMM SERVICES AND PRODUCTS.
IN ANY CIRCUMSTANCE WHERE INTERNET MEGAMEETING, LLC, ITS AFFILIATES, SUPPLIERS AND CONTRACTORS MAY HAVE LIABILITY TO YOU THAT IS NOT EXCLUDED BY THE FOREGOING, THEN ANY SUCH LIABILITY TO YOU AND TO ANY THIRD PARTY IS LIMITED IN AMOUNT TO THE GREATER OF (A) ONE HUNDRED DOLLARS ($100), AND (B) THE AMOUNT OF FEES (IF ANY) YOU HAVE PAID TO US IN THE NINETY (90) DAYS IMMEDIATELY PRIOR TO THE EVENTS ALLEGEDLY GIVING RISE TO THE CLAIMED LIABILITY.
FOR THE PURPOSES OF THIS SECTION "INTERNET MEGAMEETING, LLC, ITS AFFILIATES, SUPPLIERS AND CONTRACTORS" IS INTENDED TO INCLUDE, WITHOUT LIMITATION, INTERNET MEGAMEETING, LLC, OUR LIMITED LIABILITY COMPANY MANAGERS, OFFICERS, EMPLOYEES, AND AGENTS, THE SUPPLIERS OF OUR WEB SITES, OUR INTERNET SERVICE PROVIDERS ("ISPs"), OUR OTHER TECHNICAL AND SERVICE PROVIDERS, OUR RESELLERS, AND ANY PERSONS WHO MAY BE OR BE DEEMED OUR PARTNERS, JOINT VENTURERS, OR PRINCIPALS, EACH AND ALL OF WHOM SHALL BE EXPRESS THIRD PARTY BENEFICIARIES OF THESE DAMAGE EXCLUSIONS AND LIMITATIONS.
Some states do not allow exclusion or limitation of incidental or consequential damages in some circumstances, so if the laws of such a state apply to your dealings with us and if the requisite circumstances exist in your case, then some portion or all of the foregoing exclusion and limitation may not apply to you. The law varies from state to state and the law applicable in your particular case may give you specific legal rights.
You agree to indemnify us ("Internet MegaMeeting, LLC, its affiliates, suppliers and contractors" as defined in the sections which disclaim warranties and limit and exclude damages), and to hold us harmless, from any claim, cost, liability or demand or any third party (including but not limited to Your Users), including reasonable attorneys fees, which arises or is alleged to arise from:
(a) breach by you or by anyone for whom you bear responsibility of this Agreement or of any of the materials which this Agreement incorporates by reference; or
(b) violation by you or by anyone for whom you bear responsibility of any law or of the rights of any third party.
18. PROVISIONS OF GENERAL APPLICATION
18.1 Entire Agreement. This written Agreement, including any matter that is expressly incorporated in this Agreement by reference, constitutes the entire Agreement between you and Internet MegaMeeting, LLC and it governs your use of IMM Services and Products. This Agreement supercedes any prior negotiations and agreements between you and Internet MegaMeeting, LLC. There are no oral terms to this Agreement. This Agreement can only be amended or altered in writing. Please note the separate section of this agreement concerning amendment of it. Your purchase or use of particular services and products of Internet MegaMeeting, LLC, or of third-party content or third-party software, may be governed by additional written terms and conditions specified when you purchase or access such particular services and products.
18.2 Choice of Law and Choice of Forum. This Agreement, and the relationship between you and Internet MegaMeeting, LLC, shall be governed by the laws of the State of California, U.S.A., without regard to its conflict of laws provisions. You and Internet MegaMeeting, LLC agree to submit to the exclusive personal jurisdiction and venue of the courts located within Los Angeles County, California, U.S.A.
18.3 Statute of Limitations. You and Internet MegaMeeting, LLC agree that any claim or cause of action arising or alleged to arise out of, or related to, this Agreement, the use of IMM Services and Products, must be filed within one (1) year after such cause of action arose, or else such claim or cause of action shall be permanently barred. You and Internet MegaMeeting, LLC agree that this limitation applies regardless of any statute or law to the contrary which might otherwise apply.
18.4 Interstate and International Use; Export Controls. You recognize that the Internet is global in nature. IMM Services and Products are intended to be offered only in jurisdictions where such Services and Products and the manner in which they are offered are lawful. If IMM Services and Products are not lawful in the nation, state, or other jurisdiction where you are located, then do not use or attempt to use IMM Services and Products in that place. If you are accessing or using IMM Services and Products in any nation, state or other jurisdiction which restricts such access or usage, then you shall abide by the laws of that place and refrain from any access or use as required by the laws of the applicable jurisdiction. You also agree that you shall comply with all applicable laws concerning transmission of technical data, including without limitation, the export of technical data from the United States or from the jurisdiction in which you reside or are accessing IMM Services and Products.
IMM Services and Products, or some uses of them, may be subject to the export control laws of the United States . You agree that you shall not export, re-export, disclose, or transfer any IMM Services and Products, or any technical matter related to IMM Services and Products, nor shall you use IMM Services and Products, in violation of applicable export control laws and regulations.
18.5 Restriction of Rights Concerning Government Usage. IMM Services and Products comprise Restricted Rights in accord with DFARS Section 227.7202 et seq. If you are using IMM Services and Products as a representative of the United States Department of Defense, or as a representative of any other governmental agency of any nation, state or locality, then you acknowledge that IMM Services and Products, and any portion of them, are "Commercial Computer Software" (cf. DFARS Section 252.227-7014) and any documentation is "Commercial Computer Software Documentation," all of which were developed exclusively at private expense by Internet MegaMeeting, LLC and its predecessors, 14900 Ventura Boulevard, Suite 310, Sherman Oaks, CA 91403. You do not receive any rights to reproduce or modify IMM Services and Products or any associated software.
18.6 Non-Transferability. You cannot transfer or loan your Enterprise Product License, without the prior express written consent of Internet MegaMeeting, LLC, except as follows:
18.6.1 You may grant a sub-license to Your Users, strictly for end use, pursuant to Your EntULA; and
18.6.2 Prior, express written consent of IMM after full written disclosure by You to IMM of all material facts, shall be required before any direct or indirect transfer of control of Your Enterprise License. For this purpose "transfer of control" shall mean any change in ownership or voting power which effects an actual change in power of management of a Legal Entity which is a Licensee under this Agreement, and any change of ownership or voting power of such Legal Entity which exceeds 20% shall be deemed such an actual change in power of management The written consent of IMM shall not be unreasonably withheld or delayed after full disclosure and written request for consent.
18.6.3 If You are a natural person, then you may not take a partner, or contribute, sell, loan, or otherwise transfer this License or any part of it, to any other natural person or to any Legal Entity, without prior, express written consent of IMM after full disclosure to IMM of all material facts.
18.7 No ReSale or Re-Transmission.
(i) Except for provisions outlined in this agreement, or in a separately executed Resellers Agreement, you have no right to resell or re-transmit IMM Services and Products;
18.8 No Third Party Beneficiaries. Except as is otherwise expressly stated in this Agreement, there shall be no third party beneficiary of this Agreement.
18.9 Waiver and Severability. A failure of Internet MegaMeeting, LLC to exercise a right or provision of this Agreement shall not operate as a waiver of such right or provision. If a court of competent jurisdiction shall determine that any provision of this Agreement, or of any expressly incorporated document, is invalid, then it is agreed that the Court shall endeavor to revise such provision to give it such effect as is legally valid; and to the extent that a provision is invalid that provision shall be severed and the remainder of this Agreement enforced.
18.10 Rights and Remedies Cumulative. All rights and remedies of Internet MegaMeeting, LLC under this Agreement or provided by law and equity shall be deemed cumulative and not exclusive of each other, and the exercise of one remedy shall not preclude the exercise of any other.
18.11 Captions, Headings and Links. Captions, headings and links in this Agreement are for reference only and shall not be considered when construing this Agreement.
19.1 Your Notices to Us. Any notice which you are permitted or required to give to Internet MegaMeeting, LLC under this Agreement shall be in writing and shall be delivered by U.S. mail, certified, first class or express mail, and prepaid; or shall be delivered by a nationally recognized commercial delivery service which provides delivery tracking (such as Federal Express or UPS) addressed to:
Internet MegaMeeting, LLC
Attn: Daniel Richmond
14900 Ventura Boulevard
Sherman Oaks, CA, U.S.A. , 91403
19.2 Our Notices to You; Your Email Address for Notices.
20. INJUNCTIVE RELIEF
You agree that any use of IMM Services and Products contrary to the terms of this Agreement, as amended from time to time, or any sublicensing, transfer, copying or disclosure of technical matter related to IMM Services and Products is likely to cause irreparable harm to Internet MegaMeeting, LLC, its members, affiliates, providers, and suppliers, as well as to authorized sublicensees and Resellers of IMM Services and Products, for which pecuniary compensation alone would be insufficient. You agree that under such circumstances Internet MegaMeeting, LLC, its members, affiliates suppliers, authorized sublicensees and Resellers shall be entitled to temporary, preliminary and permanent injunctive and other equitable relief, without posting bond or security.
21. RECORDING COMMUNICATION CONTENT
Depending upon the particular IMM Services and Products for which You have contracted, You may be provided by IMM with a capability to record the Communication Content of Your sessions, either onto servers selected by You or onto MegaMeeting.comís servers. If recorded on MegaMeeting.com servers, a Host who has access through Your passwords thereafter can download the recorded Communication content from MegaMeetingís servers to a computer selected by the Host. You agree that You are solely and exclusively responsible for the conduct of Hosts who exercise access to IMM Services and Products pursuant to Your contract with IMM. A Host can deal with the recorded Communication Content at the Hostís discretion without any supervision or controls by MegaMeeting. MegaMeeting reserves the right, however, to limit or terminate Your access to IMM Services and Products if You or Your Host violates any prohibition or restriction of Section 12 above, or as otherwise provided by law. MegaMeeting does not claim any ownership or control of the recorded Communication Content, but leaves those issues exclusively to You and the Host that chose to record the matter, except in the rare case where MegaMeeting might claim rights to particular content independently of the Hostís session, such as by trademark, copyright or patent. The decision whether to record or not is made by the Host, not by MegaMeeting. The MegaMeeting recording capability is designed to automatically post a notice on the computer screen of each prospective participant that a Host has elected to record the particular session. You agree that you shall not cause or suffer disablement or concealment of the notice to participants of recordation. A prospective participant should not enter the session if the prospective participant does not wish to be recorded. Similarly, any participant can terminate participation in a recorded session at any time. If the Host has chosen to record to computers controlled by MegaMeeting, any recording made by a Host before termination by a participant may remain on MegaMeetingís computers, available for download by the Host of the session. MegaMeeting automatically deletes recorded matter from MegaMeetingís operating computers after a limited period of time, which may be less than 30 days. MegaMeeting does not undertake any responsibility to back up recordings that a Host has chosen to make to computers controlled by IMM. It is a Hostís choice and responsibility to promptly download recorded matter that a Host wishes to preserve before that matter is deleted by MegaMeeting. MegaMeeting disclaims any resposibility for the contents, quality of recording, failure to successfully record, loss, destruction or deletion of matter that You or a Host chooses to record. You and any Host using Your access who chooses to record matter are soley responsible for insuring that such recordation complies with the laws and regulations of any governmental authority having jurisdiction over any portion of the communications.
22. SERVERS AND BANDWIDTH PROVIDED BY IMM
If You have contracted for IMM to provide servers and bandwidth, that fact must be expressly stated in writing in Your contract. You acknowledge that computer equipment, software, networks, and the Internet inherently are subject to failures, many of which are wholly or partially beyond the control of IMM. IMM agrees to use its best efforts in good faith to keep servers and bandwidth in operation and reasonably available for use during the days and hours for which IMM has specifically contracted to provide service and bandwidth, but IMM does not and cannot warrant or guarantee against failure or loss of service.