Vyew Service Agreement
Terms for Use of Vyew Services
This is a legal agreement ("Agreement") between You and Simulāt, Inc. ("Company"), for use of the Vyew services ("Services") which You selected or initiated, which may include a set of collaboration tools including Web Conferencing and Phone Conferencing. "You" refers to the individual who registered and/or provided in the Vyew website his or her credit card or other payment mechanism for the Services or, if the Services are being purchased on behalf of an entity by an individual authorized to purchase the Services on behalf of such entity, then "You" refers to such entity. If You do not agree with the terms of this Agreement, do not continue your transaction and do not use or join any meeting supported by the Services.
Any software associated with the Services is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
The Company may at its sole discretion modify the features of the Services from time to time without prior notice. The Company will provide the Services in accordance with this Agreement.
2. RESPONSIBILITY FOR CONTENT OF YOUR COMMUNICATIONS.
You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such Content originated. This means that You, and not the Company, are entirely responsible for all Content that You upload, post, email, transmit or otherwise make available via the Service. The Company does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. The ownership of any Content uploaded by you does not transfer to the Company in full or in part; therefore, the Company does not have any intellectual property rights to any of the Content uploaded by You. You further agree not to 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. Although the Company is not responsible for any such communications, the Company may terminate or delete any such communications of which the Company becomes aware, at any time without notice to You.
3.1 There is a basic level of the Service that is absolutely FREE where You may be exposed to advertisement and promotions ("Adverts"). You understand that while our advertising policy is not to run offensive or indecent Adverts, the user may come across Adverts that they find objectionable. Under no circumstances will the Company be liable in any way for any Adverts, including, but not limited to, any errors or omissions in any Adverts, or any loss or damage of any kind incurred as a result of the use of any Adverts posted, emailed, transmitted or otherwise made available via the Service.
To report an offensive, indecent, or objectionable Advert, please email .
3.2 You are not obligated to purchase any of the Services. If You elect to purchase Service packages or additional Services, you may elect to provide a credit card or other payment mechanism selected by You. You agree that the Company may charge to Your credit card or other payment mechanism selected by You and approved by the Company for Your Prepaid Account ("Your Account") and all amounts due and owing for the Services, including service fees, subscription fees, overage fees, international phone call fees, or any other fee or charge associated with Your use of the Services. If there are any annual, monthly or similar periodic fees for Your subscription, these fees will be billed automatically to the credit card designated during the registration process for the Services, or subsequently designated to the Company at the start of the subscription period and at the start of each renewal period, unless You terminate Your subscription before the relevant period begins. The Company may change prices at any time without prior notice. You agree that in the event The Company is unable to collect the fees owed to the Company for the Services through Your Account, the Company 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 the Company in connection with such collection activity, including collection fees, court costs and attorneys' fees. You further agree that the Company 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. All payments authorized by you into Your Account are final. There is no refunding of Your Account regardless of whether you use the Services or not.
4. UPGRADING OR DOWNGRADING YOUR SERVICE LEVEL
4.1 If you upgrade your service level from one package to a higher priced package, the Company will charge you thus: 1) If you pay monthly, your first payment will be the difference between the higher priced package and your current package price, whereby monies received by Company for your current package price is pro-rated based on the actual number of days until your scheduled monthly payment date. Your regularly scheduled monthly payment date will remain the same as your initial purchase date, with subsequent monthly charges at the higher package price. 2) If you pay annually (or every two years), your first payment will be the difference between the higher priced package and your current package price, whereby monies received by Company for your current package price is pro-rated based on the actual number of days until your annual (or every two year) renewal date. The date of upgrade shall become your new annual (or every two year) renewal date.
4.2 If you purchase or upgrade additional services that are charged on a monthly basis, your first payment for those additional services will be the price of the additional services pro-rated based on the actual number of days until your next monthly payment date. Your scheduled monthly payment date will remain the same as your initial purchase date, with the full price of the additional services reflected in subsequent monthly charges. If you purchase additional services that are charged on an annual basis, your first payment for those additional services will be the full price of the additional service. The renewal date for such annual additional services will be the date of upgrade the subsequent year.
4.3 There are limited package downgrade options available and no refunds. Subscribers that wish to move from a higher priced package to a lower priced package must let the current service level expire then repurchase at the desired service level (or use the Free version). To downgrade in this way, please email . You will be notified by email the procedures that the Company will take to downgrade your account.
4.4 Subscribers that wish to remove additional services from their account must let the current additional services expire first then repurchase any desired additional services. No refunds are available. To downgrade in this way, please email . You will be notified by email the procedures that the Company will take to downgrade your account. There are no refunds for paid for additional services.
5. NO COMMERCIAL USE.
Other than using the Services for collaboration and conferencing in which You are an active participant, and as permitted under the terms and conditions of this Agreement or other written agreements between You and the Company, You may not resell, distribute, make any commercial use of, or use on a timeshare or service bureau basis.
6. PROPRIETARY RIGHTS.
The Company and/or its suppliers, as applicable, retain ownership of all proprietary rights in the Services and in all trade names, trademarks and service marks associated or displayed with the Services. You will not remove, deface or obscure any of the Company's or its suppliers' copyright or trademark notices and/or legends or other proprietary notices on, incorporated therein, or associated with the Services. You may not reverse engineer, reverse compile or otherwise reduce to human readable form any software associated with the Services.
7.1 You may terminate this Agreement by providing written notice to the Company via e-mail to or in My Account. Such termination will be effective on the later of: (a) the last day of the term (if your Agreement has a fixed term), or (b) at the end of the period already paid by You. There is no refund for any paid amount due to Your termination of the Services.
7.2 You agree that the Company may, under certain circumstances and without prior notice, immediately terminate Your account, any associated email address, and access to the Service. Cause for such termination shall include, but not be limited to, (a) breaches or violations of the Agreement or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) discontinuance or material modification to the Service (or any part thereof), (d) unexpected technical or security issues or problems, (e) extended periods of inactivity, (h) engagement by you in fraudulent or illegal activities, and/or (i) nonpayment of any fees owed by you in connection with the Services. Termination of your Vyew account includes (a) removal of access to all offerings within the Service, (b) deletion of your password and all related information, files and content associated with or inside your account (or any part thereof), and (c) barring of further use of the Service. Further, you agree that all terminations for cause shall be made in the Companyâ€™s sole discretion and that the Company shall not be liable to you or any third party for any termination of your account, any associated email address, or access to the Service.
8. DEALINGS WITH ADVERTISERS
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that the Company shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Service.
The Service may provide, or third parties may provide, links to other World Wide Web sites or resources. Because the Company has no control over such sites and resources, you acknowledge and agree that the Company is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that the Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
10. 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 the Company, its affiliates, suppliers and any other party authorized by the Company to resell, distribute, or promote the Services ("Resellers"), and under such circumstances the Company, 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.
11. NO WARRANTIES.
YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED "AS IS" AND THE COMPANY, 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. THE COMPANY, 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, REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICES, REGARDING ANY TRANSACTIONS ENTERED INTO 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. You agree to indemnify, defend and hold harmless the Company, 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. Without limiting the foregoing, the Services are not designed or licensed for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems. Without limiting the generality of the foregoing, the Company, its affiliates, suppliers and Resellers specifically disclaim any express or implied warranty of fitness for such purposes.
12. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY 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 THE COMPANY, ITS AFFILIATES, SUPPLIERS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, THE COMPANY'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 PREVIOUS 12 MONTHS. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to You.
13.1 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. The parties consent to the exclusive jurisdiction and venue of the courts located in and serving Alameda County , California.
13.2 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.
13.3 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. The Company may change the terms of this Agreement at any time by posting modified terms on its website. 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. All notices or other correspondence to the Company under this Agreement must be sent to , or other address as provided by the Company for such purpose. Any and all rights and remedies of the Company upon Your breach or other default under this Agreement will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity on the Company, and the exercise of any one remedy will not preclude the exercise of any other. The captions and headings appearing in this Agreement are for reference only and will not be considered in construing this Agreement.
Page last updated: Jan 2008