Last Updated: January 27th, 2020
Thank you for visiting the memoriaCall Inc. website, mobile application and platforms (the “Platform”) provided by Memoria, Inc. By accessing or using the Platform or any other memoriaCall Inc. products, software, and services provided to you on, from or through the Platform (collectively the “Services”), whether automated or otherwise, you (“Customer”) agree to be bound by these terms of service, the memoriaCall Inc. Privacy Policy and any additional terms and conditions that are referenced below or otherwise may apply to specific areas of the Platform (“Terms” or “Agreement”). Please read these Terms carefully before using the Services. If you do not agree to be bound by any of these Terms, you may not use the Services.
Acceptance of Agreement
These Terms govern your access and use of the Services offered by memoriaCall Inc. and any information displayed on the Platform. By using the Services, you are indicating your acceptance of this Agreement, which thereby becomes a binding contract between you and memoriaCall Inc. You represent that you are legally able to accept these Terms, and affirm that you are of legal age to form a binding contract. memoriaCall Inc.’s acceptance is expressly conditioned upon your assent to all the terms and conditions of this Agreement. The Services are not intended for and should not be used by anyone under the age of 13. By using the Services, you represent and warrant that you meet the foregoing eligibility requirement.
The terms “you,” “your,” “yourself” shall also include your employees, agents, business representatives and any other individuals that you provide access to the Services through your Account (as defined below). You are responsible for ensuring that all persons who access the Services through your account are aware of these Terms and comply with them.
memoriaCall Inc. reserves the right to revise and update these Terms from time to time in its sole discretion. All changes are effective immediately when posted. Your continued use of the Services following the posting of revised Terms means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.
Use of the Services and your responsibilities.
Our Services uses proprietary audio recording, speech and speaker recognition technology to transform voice conversations into legible text. Among other things, memoriaCall Inc. technology makes voice conversations searchable like email or other text communications. The service also enables you to share conversations and associated transcripts with others. We will make the Services available to you. You are responsible for making all arrangements necessary for you to have access to the Services, including the high-speed internet.
The use of the Services is done at your own discretion and risk and with the agreement that you will be solely responsible for Customer Data and the consequences of recording, submitting and publishing Customer Data on or through the Services.
You may only use the Services pursuant to the terms of this Agreement. You are solely responsible for Your and Your End Users’ use of the Services and shall abide by, and ensure compliance with, all Laws in connection with Your and each End User’s use of the Services, including but not limited to Laws related to recording, intellectual property, privacy and export control. Use of the Services is void where prohibited.
a. Registration Information. You may be required to provide information about Yourself in order to register for and/or use certain Services. You agree that any such information shall be accurate. You may also be asked to choose a user name and password. You are entirely responsible for maintaining the security of Your user name and password and agree not to disclose such to any third party.
b. Your Content. You agree that You are solely responsible for the content (“Content”) sent or transmitted by You or displayed or uploaded by You in using the Services and for compliance with all Laws pertaining to the Content, including, but not limited to, Laws requiring You to obtain the consent of a third party to use the Content and to provide appropriate notices of third party rights. You represent and warrant that You have the right to upload the Content to memoriaCall Inc. and that such use does not violate or infringe on any rights of any third party. Under no circumstances will memoriaCall Inc. be liable in any way for any (a) Content that is transmitted or viewed while using the Services, (b) errors or omissions in the Content, or (c) any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to Content. Although memoriaCall Inc. is not responsible for any Content, memoriaCall Inc. may delete any Content, at any time without notice to You, if memoriaCall Inc. becomes aware that it violates any provision of this Agreement, or any law. You retain copyright and any other rights You already hold in Content which You submit, post or display on or through, the Services.
c. Recordings. You are responsible for compliance will all recording laws. The host can choose to record memoriaCall Inc. meetings and Webinars. By using the Services, you are giving memoriaCall Inc. consent to store recordings for any or all memoriaCall Inc. meetings or webinars that you join, if such recordings are stored in our systems. You will receive a notification (visual or otherwise) when recording is enabled. If you do not consent to being recorded, you can choose to leave the meeting or webinar
d. Prohibited Use. You agree that You will not use, and will not permit any End User to use, the Services to: (i) modify, disassemble, decompile, prepare derivative works of, reverse engineer or otherwise attempt to gain access to the source code of the Services; (ii) knowingly or negligently use the Services in a way that abuses, interferes with, or disrupts memoriaCall Inc.’s networks, Your accounts, or the Services; (iii) engage in activity that is illegal, fraudulent, false, or misleading, (iv) transmit through the Services any material that may infringe the intellectual property or other rights of third parties; (v) build or benchmark a competitive product or service, or copy any features, functions or graphics of the Services; or (vi) use the Services to communicate any message or material that is harassing, libelous, threatening, obscene, indecent, would violate the intellectual property rights of any party or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation; (vii) upload or transmit any software, Content or code that does or is intended to harm, disable, destroy or adversely affect performance of the Services in any way or which does or is intended to harm or extract information or data from other hardware, software or networks of memoriaCall Inc. or other users of Services; (viii) engage in any activity or use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Services, or any servers or networks connected to the Services or memoriaCall Inc.’s security systems. (ix) use the Services in violation of any memoriaCall Inc. policy or in a manner that violates applicable law, including but not limited to anti-spam, export control, privacy, and anti-terrorism laws and regulations and laws requiring the consent of subjects of audio and video recordings, and You agree that You are solely responsible for compliance with all such laws and regulations.
e. Limitations on Use. You may not reproduce, resell, or distribute the Services or any reports or data generated by the Services for any purpose unless You have been specifically permitted to do so under a separate agreement with memoriaCall Inc.. You may not offer or enable any third parties to use the Services purchased by You, display on any website or otherwise publish the Services or any Content obtained from a Service (other than Content created by You) or otherwise generate income from the Services or use the Services for the development, production or marketing of a service or product substantially similar to the Services.
RESPONSIBILITY FOR END USERS. You are responsible for the activities of all End Users who access or use the Services through your account and you agree to ensure that any such End User will comply with the terms of this Agreement and any memoriaCall Inc. policies. memoriaCall Inc. assumes no responsibility or liability for violations. If You become aware of any violation of this Agreement in connection with use of the Services by any person, please contact memoriaCall Inc. at memoriaCall Inc. memoriaCall Inc. may investigate any complaints and violations that come to its attention and may take any (or no) action that it believes is appropriate, including, but not limited to issuing warnings, removing the content or terminating accounts and/or User profiles. Under no circumstances will memoriaCall Inc. be liable in any way for any data or other content viewed while using the Services, including, but not limited to, any errors or omissions in any such data or content, or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any data or content.
5. memoriaCall Inc. Obligations for Content. memoriaCall Inc. will maintain reasonable physical and technical safeguards to prevent unauthorized disclosure of or access to Content, in accordance with industry standards. memoriaCall Inc. will notify You if it becomes aware of unauthorized access to Content. memoriaCall Inc. will not access, view or process Content except (a) as provided for in this Agreement and in memoriaCall Inc.’s Privacy Policy; (b) as authorized or instructed by You, (c) as required to perform its obligations under this Agreement; or (d) as required by Law. memoriaCall Inc. has no other obligations with respect to Content.
6. ELIGIBILITY. You affirm that You are of legal age and are otherwise fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement. Although we cannot absolutely control whether minors gain unauthorized access to the Services, access may be terminated without warning if we believe that You are underage or otherwise ineligible.
7. Professional Use. You may subscribe to and use the Services for business purposes, and You agree, if You are an individual, that the Services are being purchased in a business or professional capacity.
8. CHARGES AND CANCELLATION. You agree that memoriaCall Inc. may charge to Your credit card or other payment mechanism selected by You and approved by memoriaCall Inc. (“Your Account”) all amounts due and owing for the Services, including taxes and service fees, set up fees, subscription fees, or any other fee or charge associated with Your Account. memoriaCall Inc. may change prices at any time, including changing from a free service to a paid service and charging for Services that were previously offered free of charge; provided, however, that memoriaCall Inc. will provide you with prior notice and an opportunity to terminate Your Account if memoriaCall Inc. changes the price of a Service to which you are subscribed and will not charge you for a previously free Service unless you have been notified of the applicable fees and agreed to pay such fees. You agree that in the event memoriaCall Inc. is unable to collect the fees owed to memoriaCall Inc. for the Services through Your Account, memoriaCall Inc. may take any other steps it deems necessary to collect such fees from You and that You will be responsible for all costs and expenses incurred by memoriaCall Inc. in connection with such collection activity, including collection fees, court costs and attorneys’ fees. You further agree that memoriaCall Inc. may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due. You may cancel your subscription at any time. If you cancel, you will not be billed for any additional terms of service, and service will continue until the end of the current Subscription Term. If you cancel, you will not receive a refund for any service already paid for.
9. TERMINATION. The memoriaCall Inc. website contains information on how to terminate Your Account. If you have purchased a Service for a specific term, such termination will be effective on the last day of the then-current term. Your Order Form may provide that a Renewal Term will begin automatically unless either party provides notice of termination at least thirty (30) days prior to the commencement of the next Renewal Term. If You fail to comply with any provision of this Agreement, memoriaCall Inc. may terminate this Agreement immediately and retain any fees previously paid by You. Sections 1 and 3 through 20, inclusive, shall survive any termination of this Agreement. Upon any termination of this Agreement, You must cease any further use of the Services. If at any time You are not happy with the Services, Your sole remedy is to cease using the Services and follow this termination process.
10. PROPRIETARY RIGHTS. memoriaCall Inc. and/or its suppliers, as applicable, retain ownership of all proprietary rights in the Services and in all trade names, trademarks, service marks, logos, and domain names (“memoriaCall Inc. Marks”) associated or displayed with the Services. You may not frame or utilize framing techniques to enclose any memoriaCall Inc. Marks, or other proprietary information (including images, text, page layout, or form) of memoriaCall Inc. without express written consent. You may not use any meta tags or any other “hidden text” utilizing memoriaCall Inc. Marks without memoriaCall Inc.’s express written consent.
11. COPYRIGHT. You may not post, modify, distribute, or reproduce in any way copyrighted material, trademarks, rights of publicity or other proprietary rights without obtaining the prior written consent of the owner of such proprietary rights. memoriaCall Inc. may deny access to the Services to any User who is alleged to infringe another party’s copyright. Without limiting the foregoing, if You believe that Your copyright has been infringed, please notify memoriaCall Inc. as specified here.
12. EXPORT RESTRICTIONS. You acknowledge that the Services, or portion thereof may be subject to the export control laws of the United States and other applicable country export control and trade sanctions laws (“Export Control and Sanctions Laws”). You and your End Users may not access, use, export, re-export, divert, transfer or disclose any portion of the Services or any related technical information or materials, directly or indirectly, in violation of any applicable export control or trade sanctions law or regulation. You represent and warrant that (i) You and your End Users are not citizens of, or located within, a country or territory that is subject to U.S. trade sanctions or other significant trade restrictions (including without limitation Cuba, Iran, North Korea, Syria, and the Crimea) and that you and your End Users will not access or use the Services, or export, re-export, divert, or transfer the Services, in or to such countries or territories; (ii) You and your End Users are not identified on any U.S. government restricted party lists (including without limitation the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons and Foreign Sanctions Evaders List, the U.S. Department of Commerce’s Denied Parties List, Entity List, and Unverified List, and the U.S. Department of State proliferation-related lists); and (iii) that no Content created or submitted by You or your End Users is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control Laws. You are solely responsible for complying with the Export Control Laws and monitoring them for any modifications.
13. NO HIGH RISK USE. 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/communication systems, air traffic control, and life support or weapons systems. The Services shall not be used for or in any HIGH RISK environment.
14. INJUNCTIVE RELIEF. You acknowledge that any use of the Services contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Services, may cause irreparable injury to memoriaCall Inc., its Affiliates, suppliers and any other party authorized by memoriaCall Inc. to resell, distribute, or promote the Services (“Resellers”), and under such circumstances memoriaCall Inc., its Affiliates, suppliers and Resellers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.
15. NO WARRANTIES. YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED “AS IS” AND memoriaCall Inc., ITS AFFILIATES, SUPPLIERS AND RESELLERS 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. memoriaCall Inc., ITS AFFILIATES, SUPPLIERS AND RESELLERS MAKE NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR THAT THE SERVICES WILL MEET ANY USER’S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF THE SERVICES IS AT YOUR SOLE RISK. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU RESULTING FROM THE USE OF THE SERVICES. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SERVICES REMAINS WITH YOU. memoriaCall Inc. DOES NOT ASSUME ANY RESPONSIBILITY FOR RETENTION OF ANY USER INFORMATION OR COMMUNICATIONS BETWEEN USERS. memoriaCall Inc. CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SERVICES. USE IS AT YOUR OWN RISK.
16. INDEMNIFICATION. You agree to indemnify, defend and hold harmless memoriaCall Inc., its affiliates, officers, directors, employees, consultants, agents, suppliers and Resellers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys’ fees) arising from Your use of the Services, Your violation of this Agreement or the infringement or violation by You or any other user of Your account, of any intellectual property or other right of any person or entity or applicable law.
17. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL memoriaCall Inc. OR ITS AFFILIATES, SUPPLIERS OR RESELLERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS 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 memoriaCall Inc., ITS AFFILIATES, SUPPLIERS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, memoriaCall Inc.’S, ITS AFFILIATES’, SUPPLIERS’ AND RESELLERS’ MAXIMUM CUMULATIVE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES (IF ANY) IN THE TWELVE (12) MONTHS PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH CLAIMS. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to You.
18. PRIVACY AND OTHER POLICIES. Use of the Services is also subject to memoriaCall Inc.’s Privacy Policy, a link to which is located at the footer on memoriaCall Inc.’s website. The Privacy Policy, and all policies noticed at memoriaCall Inc. are incorporated into this Agreement by this reference. Additionally, You understand and agree that memoriaCall Inc. may contact You via e-mail or otherwise with information relevant to Your use of the Services, regardless of whether You have opted out of receiving marketing communications or notices.
19. MISCELLANEOUS
19.1 Choice of Law and Forum. This Agreement shall be governed by and construed under the laws of the State of California, U.S.A., as applied to agreements entered into and to be performed in California by California residents. Except as provided in Exhibit B, the Parties consent to the exclusive jurisdiction and venue of the state courts located in and serving Santa Clara County, California and the federal courts in the Northern District of California.
19.2 Waiver and Severability. Failure by either Party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.
19.3 General Provisions. This Agreement embodies the entire understanding and agreement between the Parties respecting the subject matter of this Agreement and supersedes any and all prior understandings and agreements between the Parties respecting such subject matter, except that if You or Your company have executed a separate written agreement or you have signed an order form referencing a separate agreement governing your use of the Services, then such agreement shall control to the extent that any provision of this Agreement conflicts with the terms of such agreement. memoriaCall Inc. may elect to change or supplement the terms of this Agreement from time to time at its sole discretion. memoriaCall Inc. will exercise commercially reasonable business efforts to provide notice to You of any material changes to this Agreement. Within ten (10) business days of posting changes to this Agreement (or ten (10) business days from the date of notice, if such is provided), they will be binding on You. If You do not agree with the changes, You should discontinue using the Services. If You continue using the Services after such ten-business-day period, You will be deemed to have accepted the changes to the terms of this Agreement. In order to participate in certain Services, You may be notified that You are required to download software and/or agree to additional terms and conditions. Unless expressly set forth in such additional terms and conditions, those additional terms are hereby incorporated into this Agreement. This Agreement has been prepared in the English Language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes.
19.4 Beta Site. Customer agrees that this Beta Site www.memoria-inc.com constitutes confidential and proprietary information of Memoria, Inc., that usage of the Beta Site will constitute using such confidential and proprietary information of Memoria, Inc., and that Customer will keep Customer’s use of the Beta Site confidential and not attempt to reverse engineer it. Customer further agrees that Customer’s use of the Beta Site constitutes an experimental use and hereby assigns any improvements and feedback provided by Customer to Memoria, Inc. and agrees to disclose any such improvements and feedback to Memoria, Inc.
Thank you for visiting the memoriaCall Inc. website, mobile application and platforms (the “Platform”) provided by Memoria, Inc. By accessing or using the Platform or any other memoriaCall Inc. products, software, and services provided to you on, from or through the Platform (collectively the “Services”), whether automated or otherwise, you (“Customer”) agree to be bound by these terms of service, the memoriaCall Inc. Privacy Policy and any additional terms and conditions that are referenced below or otherwise may apply to specific areas of the Platform (“Terms” or “Agreement”). Please read these Terms carefully before using the Services. If you do not agree to be bound by any of these Terms, you may not use the Services.
Acceptance of Agreement
These Terms govern your access and use of the Services offered by memoriaCall Inc. and any information displayed on the Platform. By using the Services, you are indicating your acceptance of this Agreement, which thereby becomes a binding contract between you and memoriaCall Inc. You represent that you are legally able to accept these Terms, and affirm that you are of legal age to form a binding contract. memoriaCall Inc.’s acceptance is expressly conditioned upon your assent to all the terms and conditions of this Agreement. The Services are not intended for and should not be used by anyone under the age of 13. By using the Services, you represent and warrant that you meet the foregoing eligibility requirement.
The terms “you,” “your,” “yourself” shall also include your employees, agents, business representatives and any other individuals that you provide access to the Services through your Account (as defined below). You are responsible for ensuring that all persons who access the Services through your account are aware of these Terms and comply with them.
memoriaCall Inc. reserves the right to revise and update these Terms from time to time in its sole discretion. All changes are effective immediately when posted. Your continued use of the Services following the posting of revised Terms means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.
Use of the Services and your responsibilities.
Our Services uses proprietary audio recording, speech and speaker recognition technology to transform voice conversations into legible text. Among other things, memoriaCall Inc. technology makes voice conversations searchable like email or other text communications. The service also enables you to share conversations and associated transcripts with others. We will make the Services available to you. You are responsible for making all arrangements necessary for you to have access to the Services, including the high-speed internet.
The use of the Services is done at your own discretion and risk and with the agreement that you will be solely responsible for Customer Data and the consequences of recording, submitting and publishing Customer Data on or through the Services.
You may only use the Services pursuant to the terms of this Agreement. You are solely responsible for Your and Your End Users’ use of the Services and shall abide by, and ensure compliance with, all Laws in connection with Your and each End User’s use of the Services, including but not limited to Laws related to recording, intellectual property, privacy and export control. Use of the Services is void where prohibited.
a. Registration Information. You may be required to provide information about Yourself in order to register for and/or use certain Services. You agree that any such information shall be accurate. You may also be asked to choose a user name and password. You are entirely responsible for maintaining the security of Your user name and password and agree not to disclose such to any third party.
b. Your Content. You agree that You are solely responsible for the content (“Content”) sent or transmitted by You or displayed or uploaded by You in using the Services and for compliance with all Laws pertaining to the Content, including, but not limited to, Laws requiring You to obtain the consent of a third party to use the Content and to provide appropriate notices of third party rights. You represent and warrant that You have the right to upload the Content to memoriaCall Inc. and that such use does not violate or infringe on any rights of any third party. Under no circumstances will memoriaCall Inc. be liable in any way for any (a) Content that is transmitted or viewed while using the Services, (b) errors or omissions in the Content, or (c) any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to Content. Although memoriaCall Inc. is not responsible for any Content, memoriaCall Inc. may delete any Content, at any time without notice to You, if memoriaCall Inc. becomes aware that it violates any provision of this Agreement, or any law. You retain copyright and any other rights You already hold in Content which You submit, post or display on or through, the Services.
c. Recordings. You are responsible for compliance will all recording laws. The host can choose to record memoriaCall Inc. meetings and Webinars. By using the Services, you are giving memoriaCall Inc. consent to store recordings for any or all memoriaCall Inc. meetings or webinars that you join, if such recordings are stored in our systems. You will receive a notification (visual or otherwise) when recording is enabled. If you do not consent to being recorded, you can choose to leave the meeting or webinar
d. Prohibited Use. You agree that You will not use, and will not permit any End User to use, the Services to: (i) modify, disassemble, decompile, prepare derivative works of, reverse engineer or otherwise attempt to gain access to the source code of the Services; (ii) knowingly or negligently use the Services in a way that abuses, interferes with, or disrupts memoriaCall Inc.’s networks, Your accounts, or the Services; (iii) engage in activity that is illegal, fraudulent, false, or misleading, (iv) transmit through the Services any material that may infringe the intellectual property or other rights of third parties; (v) build or benchmark a competitive product or service, or copy any features, functions or graphics of the Services; or (vi) use the Services to communicate any message or material that is harassing, libelous, threatening, obscene, indecent, would violate the intellectual property rights of any party or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation; (vii) upload or transmit any software, Content or code that does or is intended to harm, disable, destroy or adversely affect performance of the Services in any way or which does or is intended to harm or extract information or data from other hardware, software or networks of memoriaCall Inc. or other users of Services; (viii) engage in any activity or use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Services, or any servers or networks connected to the Services or memoriaCall Inc.’s security systems. (ix) use the Services in violation of any memoriaCall Inc. policy or in a manner that violates applicable law, including but not limited to anti-spam, export control, privacy, and anti-terrorism laws and regulations and laws requiring the consent of subjects of audio and video recordings, and You agree that You are solely responsible for compliance with all such laws and regulations.
e. Limitations on Use. You may not reproduce, resell, or distribute the Services or any reports or data generated by the Services for any purpose unless You have been specifically permitted to do so under a separate agreement with memoriaCall Inc.. You may not offer or enable any third parties to use the Services purchased by You, display on any website or otherwise publish the Services or any Content obtained from a Service (other than Content created by You) or otherwise generate income from the Services or use the Services for the development, production or marketing of a service or product substantially similar to the Services.
RESPONSIBILITY FOR END USERS. You are responsible for the activities of all End Users who access or use the Services through your account and you agree to ensure that any such End User will comply with the terms of this Agreement and any memoriaCall Inc. policies. memoriaCall Inc. assumes no responsibility or liability for violations. If You become aware of any violation of this Agreement in connection with use of the Services by any person, please contact memoriaCall Inc. at memoriaCall Inc. memoriaCall Inc. may investigate any complaints and violations that come to its attention and may take any (or no) action that it believes is appropriate, including, but not limited to issuing warnings, removing the content or terminating accounts and/or User profiles. Under no circumstances will memoriaCall Inc. be liable in any way for any data or other content viewed while using the Services, including, but not limited to, any errors or omissions in any such data or content, or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any data or content.
5. memoriaCall Inc. Obligations for Content. memoriaCall Inc. will maintain reasonable physical and technical safeguards to prevent unauthorized disclosure of or access to Content, in accordance with industry standards. memoriaCall Inc. will notify You if it becomes aware of unauthorized access to Content. memoriaCall Inc. will not access, view or process Content except (a) as provided for in this Agreement and in memoriaCall Inc.’s Privacy Policy; (b) as authorized or instructed by You, (c) as required to perform its obligations under this Agreement; or (d) as required by Law. memoriaCall Inc. has no other obligations with respect to Content.
6. ELIGIBILITY. You affirm that You are of legal age and are otherwise fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement. Although we cannot absolutely control whether minors gain unauthorized access to the Services, access may be terminated without warning if we believe that You are underage or otherwise ineligible.
7. Professional Use. You may subscribe to and use the Services for business purposes, and You agree, if You are an individual, that the Services are being purchased in a business or professional capacity.
8. CHARGES AND CANCELLATION. You agree that memoriaCall Inc. may charge to Your credit card or other payment mechanism selected by You and approved by memoriaCall Inc. (“Your Account”) all amounts due and owing for the Services, including taxes and service fees, set up fees, subscription fees, or any other fee or charge associated with Your Account. memoriaCall Inc. may change prices at any time, including changing from a free service to a paid service and charging for Services that were previously offered free of charge; provided, however, that memoriaCall Inc. will provide you with prior notice and an opportunity to terminate Your Account if memoriaCall Inc. changes the price of a Service to which you are subscribed and will not charge you for a previously free Service unless you have been notified of the applicable fees and agreed to pay such fees. You agree that in the event memoriaCall Inc. is unable to collect the fees owed to memoriaCall Inc. for the Services through Your Account, memoriaCall Inc. may take any other steps it deems necessary to collect such fees from You and that You will be responsible for all costs and expenses incurred by memoriaCall Inc. in connection with such collection activity, including collection fees, court costs and attorneys’ fees. You further agree that memoriaCall Inc. may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due. You may cancel your subscription at any time. If you cancel, you will not be billed for any additional terms of service, and service will continue until the end of the current Subscription Term. If you cancel, you will not receive a refund for any service already paid for.
9. TERMINATION. The memoriaCall Inc. website contains information on how to terminate Your Account. If you have purchased a Service for a specific term, such termination will be effective on the last day of the then-current term. Your Order Form may provide that a Renewal Term will begin automatically unless either party provides notice of termination at least thirty (30) days prior to the commencement of the next Renewal Term. If You fail to comply with any provision of this Agreement, memoriaCall Inc. may terminate this Agreement immediately and retain any fees previously paid by You. Sections 1 and 3 through 20, inclusive, shall survive any termination of this Agreement. Upon any termination of this Agreement, You must cease any further use of the Services. If at any time You are not happy with the Services, Your sole remedy is to cease using the Services and follow this termination process.
10. PROPRIETARY RIGHTS. memoriaCall Inc. and/or its suppliers, as applicable, retain ownership of all proprietary rights in the Services and in all trade names, trademarks, service marks, logos, and domain names (“memoriaCall Inc. Marks”) associated or displayed with the Services. You may not frame or utilize framing techniques to enclose any memoriaCall Inc. Marks, or other proprietary information (including images, text, page layout, or form) of memoriaCall Inc. without express written consent. You may not use any meta tags or any other “hidden text” utilizing memoriaCall Inc. Marks without memoriaCall Inc.’s express written consent.
11. COPYRIGHT. You may not post, modify, distribute, or reproduce in any way copyrighted material, trademarks, rights of publicity or other proprietary rights without obtaining the prior written consent of the owner of such proprietary rights. memoriaCall Inc. may deny access to the Services to any User who is alleged to infringe another party’s copyright. Without limiting the foregoing, if You believe that Your copyright has been infringed, please notify memoriaCall Inc. as specified here.
12. EXPORT RESTRICTIONS. You acknowledge that the Services, or portion thereof may be subject to the export control laws of the United States and other applicable country export control and trade sanctions laws (“Export Control and Sanctions Laws”). You and your End Users may not access, use, export, re-export, divert, transfer or disclose any portion of the Services or any related technical information or materials, directly or indirectly, in violation of any applicable export control or trade sanctions law or regulation. You represent and warrant that (i) You and your End Users are not citizens of, or located within, a country or territory that is subject to U.S. trade sanctions or other significant trade restrictions (including without limitation Cuba, Iran, North Korea, Syria, and the Crimea) and that you and your End Users will not access or use the Services, or export, re-export, divert, or transfer the Services, in or to such countries or territories; (ii) You and your End Users are not identified on any U.S. government restricted party lists (including without limitation the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons and Foreign Sanctions Evaders List, the U.S. Department of Commerce’s Denied Parties List, Entity List, and Unverified List, and the U.S. Department of State proliferation-related lists); and (iii) that no Content created or submitted by You or your End Users is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control Laws. You are solely responsible for complying with the Export Control Laws and monitoring them for any modifications.
13. NO HIGH RISK USE. 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/communication systems, air traffic control, and life support or weapons systems. The Services shall not be used for or in any HIGH RISK environment.
14. INJUNCTIVE RELIEF. You acknowledge that any use of the Services contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Services, may cause irreparable injury to memoriaCall Inc., its Affiliates, suppliers and any other party authorized by memoriaCall Inc. to resell, distribute, or promote the Services (“Resellers”), and under such circumstances memoriaCall Inc., its Affiliates, suppliers and Resellers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.
15. NO WARRANTIES. YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED “AS IS” AND memoriaCall Inc., ITS AFFILIATES, SUPPLIERS AND RESELLERS 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. memoriaCall Inc., ITS AFFILIATES, SUPPLIERS AND RESELLERS MAKE NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR THAT THE SERVICES WILL MEET ANY USER’S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF THE SERVICES IS AT YOUR SOLE RISK. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU RESULTING FROM THE USE OF THE SERVICES. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SERVICES REMAINS WITH YOU. memoriaCall Inc. DOES NOT ASSUME ANY RESPONSIBILITY FOR RETENTION OF ANY USER INFORMATION OR COMMUNICATIONS BETWEEN USERS. memoriaCall Inc. CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SERVICES. USE IS AT YOUR OWN RISK.
16. INDEMNIFICATION. You agree to indemnify, defend and hold harmless memoriaCall Inc., its affiliates, officers, directors, employees, consultants, agents, suppliers and Resellers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys’ fees) arising from Your use of the Services, Your violation of this Agreement or the infringement or violation by You or any other user of Your account, of any intellectual property or other right of any person or entity or applicable law.
17. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL memoriaCall Inc. OR ITS AFFILIATES, SUPPLIERS OR RESELLERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS 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 memoriaCall Inc., ITS AFFILIATES, SUPPLIERS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, memoriaCall Inc.’S, ITS AFFILIATES’, SUPPLIERS’ AND RESELLERS’ MAXIMUM CUMULATIVE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES (IF ANY) IN THE TWELVE (12) MONTHS PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH CLAIMS. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to You.
18. PRIVACY AND OTHER POLICIES. Use of the Services is also subject to memoriaCall Inc.’s Privacy Policy, a link to which is located at the footer on memoriaCall Inc.’s website. The Privacy Policy, and all policies noticed at memoriaCall Inc. are incorporated into this Agreement by this reference. Additionally, You understand and agree that memoriaCall Inc. may contact You via e-mail or otherwise with information relevant to Your use of the Services, regardless of whether You have opted out of receiving marketing communications or notices.
19. MISCELLANEOUS
19.1 Choice of Law and Forum. This Agreement shall be governed by and construed under the laws of the State of California, U.S.A., as applied to agreements entered into and to be performed in California by California residents. Except as provided in Exhibit B, the Parties consent to the exclusive jurisdiction and venue of the state courts located in and serving Santa Clara County, California and the federal courts in the Northern District of California.
19.2 Waiver and Severability. Failure by either Party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.
19.3 General Provisions. This Agreement embodies the entire understanding and agreement between the Parties respecting the subject matter of this Agreement and supersedes any and all prior understandings and agreements between the Parties respecting such subject matter, except that if You or Your company have executed a separate written agreement or you have signed an order form referencing a separate agreement governing your use of the Services, then such agreement shall control to the extent that any provision of this Agreement conflicts with the terms of such agreement. memoriaCall Inc. may elect to change or supplement the terms of this Agreement from time to time at its sole discretion. memoriaCall Inc. will exercise commercially reasonable business efforts to provide notice to You of any material changes to this Agreement. Within ten (10) business days of posting changes to this Agreement (or ten (10) business days from the date of notice, if such is provided), they will be binding on You. If You do not agree with the changes, You should discontinue using the Services. If You continue using the Services after such ten-business-day period, You will be deemed to have accepted the changes to the terms of this Agreement. In order to participate in certain Services, You may be notified that You are required to download software and/or agree to additional terms and conditions. Unless expressly set forth in such additional terms and conditions, those additional terms are hereby incorporated into this Agreement. This Agreement has been prepared in the English Language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes.
19.4 Beta Site. Customer agrees that this Beta Site www.memoria-inc.com constitutes confidential and proprietary information of Memoria, Inc., that usage of the Beta Site will constitute using such confidential and proprietary information of Memoria, Inc., and that Customer will keep Customer’s use of the Beta Site confidential and not attempt to reverse engineer it. Customer further agrees that Customer’s use of the Beta Site constitutes an experimental use and hereby assigns any improvements and feedback provided by Customer to Memoria, Inc. and agrees to disclose any such improvements and feedback to Memoria, Inc.