RECORDINGS. WE OFFER A VARIETY OF FEATURES THROUGH OUR SERVICES. SOME OF THE FEATURES ALLOW AUDIO AND VIDEO RECORDING OF COMMUNICATIONS BETWEEN YOU AND ANOTHER PARTY (“RECORDINGS”). WE SHALL ALERT YOU IMMEDIATELY BEFORE YOUR USE A FEATURE OF THE SERVICES THAT UTILIZE RECORDINGS. BY USING THE FEATURES OF OUR SERVICES THAT UTILIZE RECORDINGS YOU CONSENT TO OUR RECORDING, STORAGE, AND USE OF SUCH RECORDINGS INCLUDING YOUR NAME, LIKENESS AND VOICE CONTAINED THEREIN. YOU ALSO AGREE TO ABIDE BY YOUR EMPLOYER’S POLICIES AND PROCEDURES, INCLUDING HUMAN RESOURCE POLICIES WHEN USING THE SERVICES. WE USE THE RECORDINGS TO EXTRACT INFORMATION AND DATA TO ALLOW US TO IMPROVE THE SERVICES OFFERED TO YOU AND YOUR EMPLOYER. WE WILL NOT SHARE THE RECORDINGS WITH ANY THIRD-PARTY EXCLUDING YOUR EMPLOYER WITHOUT YOUR CONSENT. WE MAY, HOWEVER, USE AND SHARE THE INFORMATION AND DATA WE EXTRACT FROM THE RECORDINGS IN OUR SOLE AND EXCLUSIVE DISCRETION PROVIDED THAT INFORMATION THAT SPECIFICALLY IDENTIFIES YOU, SUCH AS NAME, ADDRESS, EMPLOYER, AND TELEPHONE NUMBER, IS REMOVED FROM THE INFORMATION CREATING ANONYMOUS DATA AS DEFINED BELOW. PROVIDED THAT YOUR USE OF THE SERVICES HAS NOT BEEN SUSPENDED OR TERMINATED PURSUANT TO THE TERMS CONTAINED HEREIN, YOU SHALL BE PERMITTED TO ACCESS THE RECORDINGS THROUGH OUR SERVICES FOR THE DURATION OF THE MASTER LICENSE AGREEMENT. YOUR ACCESS, HOWEVER, IS LIMITED EXCLUSIVELY TO THE RECORDINGS AND YOU WILL NOT BE PERMITTED OR GRANTED ACCESS TO THE INFORMATION OR DATA DERIVED THEREFROM.
ANONYMOUS DATA. YOU MAY DISCLOSE CERTAIN INFORMATION, INCLUDING CONFIDENTIAL INFORMATION (AS DEFINED BELOW) TO US THROUGH THE USE OF THE SERVICES THAT ALLOWS US TO IDENTIFY COMMON CHARACTERISTICS THAT COULD HAVE STATISTICAL OR PREDICTIVE CAPABILITIES. WE SHALL NOT SHARE ANY INFORMATION WITH THIRD-PARTIES THAT SPECIFICALLY IDENTIFIES YOU. WE SHALL USE AND SHARE INFORMATION AND DATA WHEREIN INFORMATION THAT SPECIFICALLY IDENTIFIES YOU HAS BEEN REMOVED (“ANONYMOUS DATA”). WE MAY ALSO AGGREGATE ANONYMOUS DATA WITH THE ANONYMOUS DATA OF OTHER USERS INTO A DATABASE. THE USE OF ANONYMOUS DATA IS IN OUR SOLE AND EXCLUSIVE DISCRETION.
EMPLOYER’S POLICIES AND PROCEDURES. YOU ARE RESPONSIBLE FOR COMPLYING WITH YOUR EMPLOYER’S POLICIES AND PROCEDURES, INCLUDING ITS HUMAN RESOURCE POLICIES, WHEN ACCESSING AND USING THE SERVICES.
1. Permission to Access and Use the Services.
2. Prohibited Use of Service
You shall not at any time, directly or indirectly:
copy, modify, or create derivative works of the Services, in whole or in part;
rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services;
reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part;
remove any proprietary notices from the Services;
use the Services in any manner or for any purpose that infringes, misappropriates, defames, harasses, or otherwise violates any intellectual property right, or other right of any person, or that violates any applicable law;
use the Services to submit or transmit obscene, libelous, harassing or inappropriate content; and
use the Services in any manner to: (i) transmit, or procure the sending of, any advertising or promotional material including any “junk mail”, “chain letter” or “spam” or any other similar solicitation; (ii) to impersonate or attempt to impersonate Us, Our employees, another user or any other person or entity (including, without limitation, by using e-mail addresses or screen names associated with any of the foregoing); (iii) to engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services , or which, as determined by us, may harm us or users of the Services or expose them to liability; or (iv) upload or use any device, software or routine that interferes with the proper working of the Software and/or the introduction any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
3. User Contributions
Any User Contribution you post to the Services for others to view will be considered non-confidential and non-proprietary. By providing any User Contribution through the Services, you grant us and our affiliates and service providers, and each of their and our licensees, successors and assigns the right to use, reproduce, modify, perform, display, distribute and otherwise disclose to third parties any such material.
You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not us, have fully responsibility for such content, including its legality, reliability, accuracy and appropriateness.
We are not responsible, or liable to any third party, for the content or accuracy of any User Contributions posted through the Services.
4. Content Standards
These content standards apply to any and all User Contributions and use of Interactive Services. User Contributions must in their entirety comply with all applicable federal, state, local and international laws and regulations. Without limiting the foregoing, User Contributions must not:
Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, deceiving, embarrassing, annoying, promoting commercial activity, or otherwise objectionable.
Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
Promote, advocate, or assist in any unlawful act, or violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations.
Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
5. Monitoring and Enforcement
We have the right to:
Disclose your identity to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website or Services.
Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Services. YOU WAIVE AND HOLD HARMLESS US AND OUR AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
6. Intellectual Property Rights
The Services and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by us, our licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws. No right, title or interest in or to the Services or any material contained therein is transferred to you, and all rights not expressly granted are reserved by us or our licensors.
If you send or transmit any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), then you hereby assign to us all right, title, and interest in the Feedback, and we are free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever.
All right, title and interest in and to Anonymous Data shall be owned exclusively by us. To the extent that you retain any rights in the Anonymous Data, you hereby assign to us all rights, including intellectual property rights, in and to the Anonymous Data so that we are the sole and exclusive owners of such information. To the extent that state or local laws prohibits you from assigning ownership rights in such the Anonymous Data, you grant us, our successors and assigns, a royalty-free worldwide, sublicensable, transferrable license to host, transfer, process, analyze, distribute, communicate and use Anonymous Data in perpetuity without any compensation to you, your successors, your heirs or your assigns which shall survive the termination or expiration of this Agreement. If you do not consent to the collection and use of Anonymous Data, then you are prohibited from using the Services.
The Services are for your personal use only. If we provide desktop, mobile or other software applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use. You are prohibited from: (a) modifying, translating, adapting, or otherwise creating derivative works or improvements, whether or not patentable, of our proprietary software; (b) reverse engineering, disassembling, decompiling, decoding, or otherwise attempting to derive or gain access to the source code of our proprietary software or any part thereof; (c) removing, deleting, altering, or obscuring any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from our proprietary software, including any copy thereof; (d) renting, leasing, lending, selling, sublicensing, assigning, distributing, publishing, transferring, or otherwise making available our proprietary software, or any features or functionality of it, to any third party for any reason, including by making our proprietary software available on a network where it is capable of being accessed by more than one device at any time; or (e) using our proprietary software in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including any power generation systems; aircraft navigation or communication systems, air traffic control systems, or any other transport management systems; safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire, or other safety response systems; and military or aerospace applications, weapons systems, or environments.
7. Reliance on Information Posted
The information presented through our Services is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.
This Services or our Website may include content provided by third parties, including materials provided by other users, bloggers and third-party licensors, syndicators, aggregators and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by us, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect our opinion. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
8. Term and Termination.
9. Confidential Information.
Restrictions. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or written (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. All Anonymous Data shall be our sole and exclusive Confidential Information.
Permitted Uses. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. Notwithstanding the foregoing, to the extent that such information contains your employer’s Confidential Information or a party with whom you are bound by additional restrictions concerning the use and disclosure of Confidential Information, then you may be bound by additional restrictions on the use and disclosure of such information.
Return of Confidential Information. Excluding Anonymous Data, on the expiration or termination of the Agreement, the receiving Party shall destroy all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the first date of access and use of the Services and will expire five years from such date; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
10. Warranty Disclaimer.
THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND WE HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE AND DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
12. Limitations of Liability.
IN NO EVENT WILL WE, OUR AFFILIATES OR OUR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE THE SERVICES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
13. Other Terms
Governing Law & Arbitration. Any disputes arising out of or relating to the Services, Software or this Agreement (whether in contract, tort or any other legal theory, excluding injunctive relief) (collectively “Disputes”) shall be governed by laws of the state of Florida law regardless of the state or country where the Services are accessed or used, and regardless of any conflict of laws principles. Any Disputes shall be resolved exclusively by final and binding arbitration under the commercial arbitration rules of the American Arbitration Association, to be held in Clearwater, Florida, before an arbitration panel of three arbitrators. The arbitrators shall be vested with the authority to determine the enforceability of the arbitration clause contained within this this Agreement. Either party may enforce the arbitration award in any court of competent jurisdiction. Customer may only resolve disputes with OnUp on an individual basis, and is prohibited from bringing any claim as a plaintiff or a class member in a class, consolidated, or representative action. The prevailing Party of any Dispute shall be entitled to recover their reasonable attorneys’ fees and costs attributable to litigating the Dispute and the arbitrators shall be permitted to award the same to the prevailing Party. If either party pursues claims exclusively and solely for Equitable Relief (as defined above) , then such claims must still be brought exclusively on an individual basis and not as a class member in a class, consolidated, or representative action, but the party asserting such claim may do so through arbitration as described in this Section, or before a court located in Clearwater, Florida, or the United States District Court, Middle District of Florida, Tampa Division wherein each party irrevocably consents to this exclusive venue and waives all arguments that such venue is inconvenient.