Jivox

JIVOX

TERMS AND CONDITIONS OF USE

LAST UPDATED November 13, 2009

IMPORTANT - PLEASE READ CAREFULLY: these terms and conditions constitute a legal agreement ("agreement") between you ("USER". either an individual or an entity) and JIVOX CORPORATION, its AFFILIATES, SUBSIDIARIES, suppliers and licensors (collectively, "JIVOX") and govern your use of the JIVOX online software tool ("ADSLATE") AND RELATED SERVICES.

By checking on the "I Accept" button and ACCESSING, UPLOADING TO, or otherwise using ADSLATE and RELATED ONLINE ADVERTISING CAMPAIGN SERVICES (collectively the "Technologies"), you agree that your use is subject to this agreement. All uses of THE TECHNOLOGIES are additionally subject to JIVOX'S Privacy Policy located at www.jivox.com/privacy ("Privacy Policy"), WHICH JIVOX MAY UPDATE FROM TIME TO TIME. By accepting this agreement, you represent that you are authorized to use the technologies and accept the obligations set forth herein on your own behalf or on behalf of another person or entity. Any and all unauthorized use OF THE TECHNOLOGIES is strictly prohibited.

JIVOX RESERVES THE RIGHT, AT ITS SOLE DISCRETION, TO ALTER OR UPDATE THE TECHNOLOGIES INCLUDING, WITHOUT LIMITATION, FEATURES, SPECIFICATIONS, CAPABILITIES, FUNCTIONS, LICENSING TERMS, RELEASE DATES, GENERAL AVAILABILITY OR OTHER CHARACTERISTICS. By continuing to use the Technologies after any SUCH changes, you agree to be bound by subsequent CHANGES and acknowledge that JIVOX shall have no liability to you as a result of any such CHANGES. all users of The Technologies and content database (defined below) ("users") are governed by this Agreement. User agrees that Jivox may identify it as a Jivox Advertiser on the Jivox Web site, in client lists and other advertising and marketing materials, and that Jivox may issue an Advertiser-approved press release announcing the establishment of the relationship between the companies. Any other uses of user's name and/or logo shall require user's prior written consent. YOUR USE OF THE TECHNOLOGIES ACKNOWLEDGES THAT YOU HAVE READ THIS agreement, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS OF THIS agreement, CLOSE THE WEB BROSWER WINDOW AND DO NOT ACCESS, UPLOAD TO, OR USE THE TECHNOLOGIES.

1. DEFINITIONS

   1. "

      Account

      " means a user profile created by you when accessing and using the Technologies and used to make selections with respect to the creation, management, budget, and distribution of Web-based video advertisements and advertising campaigns incorporating User Content and/or materials from the Content Database.
   2. "

      Content Database

      " means any and all audio and video materials including, without limitation, images, video footage, graphics, text, music and sound available through the Jivox Web Site for incorporation into your Web-based video advertisements through the Technologies.
   3. "

      IPR

      " means any and all intellectual property rights including, without limitation, copyright, trademark, patent or trade secret, pursuant to applicable domestic or international laws.
   4. "

      Jivox Properties

      " means the Content Database, Jivox Web Site, the Technologies, and all IPR in the Content Database, Jivox Web Site and Technologies.
   5. "

      Jivox Web Site

      " means this World Wide Web site, owned by Jivox, and any variations or successors to this Web site (http://www.jivox.com).
   6. "

      User Content

      " means any and all audio and video materials including, without limitation, images, video footage, logos, graphics, text, music, advertisements and sound uploaded or provided to Jivox by you.

2. MODIFICATION

   Jivox may modify, update, change, discontinue, add or remove any or all parts of the Jivox Properties or terms of this Agreement at any time. Changes to this Agreement and the Jivox Web Site shall be effective on the date posted on the Jivox Web Site. Each of the Jivox Properties may have separate registration procedures, terms and conditions, terms of service, user agreements, and/or similar legal agreements governing the use of such Jivox Properties, which are also subject to subsequent change, modification or revocation under their terms. Unless explicitly stated otherwise, all new or modified versions of the Jivox Properties shall also be subject to this Agreement.

3. THIRD PARTY PRODUCTS AND SERVICES

   Jivox may offer third party products and/or services from the Jivox Web Site from time to time. Users assume all risks and liabilities associated with the use of any such third party offerings. Each User's rights may be governed by a separate user agreement or other terms of use provided by the applicable third party provider. Any third party products, content, services or links displayed on the Jivox Web Site are not referrals or endorsements of any product, service or provider.

4. BETA RELEASES

   Jivox may make certain Jivox Properties available in a pre-release form or format ("Beta Versions"). The Beta Versions may contain different features and/or functionality than the final version that Jivox intends to make commercially available. Jivox reserves the right to release commercial versions of the Beta Versions if and when it deems appropriate and may alter features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics at any time. Beta Versions may not be suitable for production or commercial use and may contain bugs or errors affecting their proper operation. Beta Versions should not be used to support "mission critical" applications or in environments requiring fail safe or error free performance. You shall comply with all conditions associated with a Beta Version, including, without limitation, installing updated versions of the Technologies to replace a Beta Version.

5. END USER LICENSE

   1. Grant of Licenses.

      1. Technologies and Content Database

         . Provided you are in compliance with the terms and conditions of this Agreement, Jivox hereby grants you a non-exclusive, non-transferable, limited license, without right of sublicense, to: (i) access, upload to and use the Technologies solely to create Web-based video advertisements to be distributed in advertising campaigns by Jivox; and (ii) include materials from the Content Database for incorporation into your Web-based video advertisements created solely through the Technologies. Your license to any materials from the Content Database shall be for a term of twelve (12) months, commencing on the date you accept the terms and conditions of this Agreement, unless otherwise agreed in writing by you and Jivox.

      2. User Content

         . You hereby grant Jivox a world-wide, royalty-free, non-exclusive, perpetual license to: (i) deliver User Content in accordance with the preferences you set using your Account; (ii) secure, encode, reproduce, host, cache, route, reformat, analyze and create algorithms and reports based on access to and use of the User Content; (iii) exhibit, broadcast, publicly display, publicly perform, distribute, copy, store, and/or reproduce the User Content on or through the Technologies; (iv) utilize User Content to test Jivox's internal technologies and processes and (v) utilize User Content for the purpose of marketing and promoting the Jivox service.

   2. Scope of Use.

      1. Responsibility for User Content; Enforcement of IPR

         . You are solely responsible for all matters arising out of or in connection with the User Content including, without limitation, obtaining all rights, approvals, licenses, consents and permissions necessary for Jivox to provide you with services through the Technologies. The Technologies are passive conduits of online content and you acknowledge Jivox is not responsible for preventing or identifying the infringement of any User Content you create nor any of your IPR. Jivox assumes no responsibility for monitoring for possible infringement or enforcing your IPR. You will notify Jivox immediately in the event of any infringement or suspected infringement of IPR.

      2. Third Party Materials

         . The Technologies and Content Database may include third party components that may be subject to their own, separate license agreements. Your use of the Technologies and Content Database is subject to the terms and conditions of such third party license agreements. You shall abide by all restrictions and/or limitations placed on the use of the Content Database by third parties or by Jivox.

   3. Restrictions.

      1. Technologies

         . You are expressly prohibited from: (i) selling, renting, leasing, sublicensing otherwise transferring or distributing any copies of the Technologies to third parties nor use the Technology as part of a transcoding operation; (ii) modifying, translating, reverse engineering, decompiling, or disassembling the Technologies or altering any accompanying documentation; (iii) creating derivative works based upon the Technologies; (iv) altering, destroying or otherwise removing any proprietary notices, images or logos displayed, provided on or embedded within the Technologies; (v) restricting or inhibiting others use or enjoyment of the Technologies; (vi) gaining unauthorized access to other Accounts; (vii) impersonating or otherwise misrepresenting any person or entity, or making false or misleading indications of origin or fact; (viii) using the Technology for anything other than intended; or (ix) interfering with or disrupting the Technologies or Jivox's servers or networks connected thereto, or disobeying any requirements, procedures, policies or regulations of networks connected to the Technologies.

      2. Content Database

         . The Content Database may not be used for any purpose other than the creation of Web-based video advertisements created in combination with the Technologies. Without limiting the foregoing, the Content Database and materials therefore may also not be: (i) used in any pornographic, defamatory, hate-related, violent, or otherwise unlawful manner whether directly or in context or juxtaposition with specific subject matter as determined by Jivox in its sole discretion; (ii) used or displayed on mobile devices, including without limitation, cell phones; provided, that mobile devices accessing the Internet shall not be deemed to constitute a breach of this restriction; or (iii) reproduced, published, displayed or distributed by you in any media whatsoever, except in connection with your use of the Technologies.

   Nothing in this Agreement shall be construed to grant, by implication, estoppel, or otherwise, any license or right to use the Technologies or the Content Database except in strict accordance with these terms and conditions. Any and all rights not expressly granted herein are reserved to Jivox, its licensors, suppliers or third party content owners. Upon notice from Jivox or upon your knowledge that any materials in the Content Database are subject to a threatened or actual claim of infringement or violation of another right or any other claim for which Jivox may be liable, or if Jivox withdraws any materials from the Content Database for any good reason, you agree that such materials shall immediately be removed from the Jivox Properties, and shall no longer be available in your advertisements. Jivox shall use its commercially reasonable efforts to provide you with replacement materials of similar quality and quantity in the Content Database, for incorporation into Web-based video advertisements through the Technologies.

6. OWNERSHIP of JIVOX PROPERTIES

   Jivox, its suppliers and licensors own all right, title and interest in and to their respective IPR. In no event shall any Jivox Properties, or a portion thereof, be deemed sold or assigned to any User of the Jivox Properties. Jivox owns any and all trademarks that Jivox uses in connection with the Technologies and any goodwill associated with the use of such marks shall inure to the benefit of Jivox. Jivox does not accept unsolicited feedback. If you provide any feedback about the Technologies to Jivox, Jivox shall own all rights in and to such feedback and any derivative technologies developed on such feedback. You shall take all necessary actions to effect Jivox's rights, including IPR, in and to such feedback.

7. ACCESS AND USE OF JIVOX PROPERTIES BY MINORS

   Use of the Jivox Properties is not intended for minors under the age of 18 ("Minors"). Minors are not authorized by Jivox to use the Jivox Properties, even if Minors set up an Account or accept the terms of this Agreement. Parents or guardians may authorize Minors between the ages of 13 and 17 to use the Jivox Properties, provided they assume all responsibility and legal liability for the conduct of such Minor including, without limitation, monitoring the Minor's access and use of the Jivox Properties. If Jivox learns that anyone under the age of 13 is using the Jivox Properties, Jivox shall require verified parental or guardian consent, in accordance with the Children's Online Privacy Protection Act of 1998 ("COPPA").

8. ACCOUNT ADMINISTRATION

   1. Account and Registration.

      Prior to using one or more of the Jivox Properties, Jivox may require certain information to create an Account. Failure to provide all required data to create an Account may prevent access to any or all Jivox Properties, and failure to maintain accurate Account information may result in suspension or termination of access to any or all Jivox Properties. All Account information is the exclusive property of Jivox. Jivox shall protect and maintain all data collected in setting up the Account in the manner described in the Jivox Privacy Policy located at www.jivox.com/privacy. Users may edit or update their personally identifiable registration data at any time by following the instructions located in the Jivox Privacy Policy.

   2. Password.

      Access to the Account and many Jivox Properties requires a secure, individual password. Passwords must be protected from disclosure or unauthorized use. In the event of a suspected or actual breach of security related to any Jivox Property, Jivox must be immediately notified. Jivox is not liable for any loss and/or damage resulting from the compromising of security with respect to an Account as a result of a User's failure to maintain the confidentiality of passwords.

   3. Termination/Suspension.

      Jivox may terminate or suspend your access to the Jivox Properties, including access to any Account, and any advertising campaign for any reason including but not limited to: (a) should you fail to comply with this Agreement; (b) for any conduct that Jivox believes is infringing or may infringe the IPR of Jivox, its licensors, or other third parties; (c) for any conduct that violates any local, state, federal, or foreign laws or regulations; (d) for insufficient budget amounts maintained in your Account; or (e) for not adhering to the Jivox Advertising Guidelines in Jivox's sole opinion; or (f) if Jivox reasonably determines that your access to the Jivox Properties may be detrimental to Jivox or any third party. In the event your Account is suspended, or your access to the Jivox Properties terminated, your reinstatement shall be subject to such terms and conditions, including without limitation, payment of fees and costs, as Jivox shall require in its sole discretion. Failure to use a paid offering provided by Jivox for a period of not less than six months may result in the deletion of USER videos and other assets.)

9. USE OF THE TECHNOLOGIES

   1. User Content.

      EEach user is solely responsible for any and all User Content. The Technologies are passive conduits of all User Content submitted or uploaded to the Technologies and Jivox is not responsible for the: (a) selection, acquisition, distribution and licensing of User Content in the Technologies; and (b) acquisition and payment of any third party licenses, rights clearances or other permissions needed from any entities to use User Content in connection with the Technologies. Jivox has no obligation (and undertakes no responsibility or liability for any obligation) to review, monitor or oversee any User Content submitted, uploaded, distributed or retrieved in connection with the use of the Technologies. Furthermore, Jivox assumes no responsibility for protecting or enforcing third party rights with respect to User Content, including, without limitation, monitoring the User Content, determining whether User Content is lawful, appropriate or permitted by third parties, for libel, falsehoods, errors or omissions contained in User Content or compliant with Federal Communication Commission or other governmental regulations, or for taking legal action against actual or suspected infringers of User Content.

   2. Payment.

      Users of the Technologies are not required to make a minimum purchase at the time of Account registration. Payment of the Budget Amount designated in the Account is required prior to activation of any advertising campaign to be served by Jivox. Jivox shall charge against the Budget Amount reserved in the Account as the advertising campaign(s) proceed. Upon exhaustion of the Budget Amount, Users shall refresh the Budget Amount to fund further advertising campaigns. All payments shall be made in advance by credit card, and verified in accordance with Jivox's usual administrative procedures, unless Jivox otherwise agrees. In the event you dispute any amount charged against your Account for an advertising campaign, you shall promptly notify Jivox of the disputed amount, and the reason therefore, and Jivox shall use commercially reasonable efforts to resolve the dispute, including investigation of claims of inaccurate or fraudulent reporting of advertisement distribution or views. In the event you have unused budget amounts in your Account, and no advertising campaigns are active, you may request a refund of the unused amount, which Jivox shall process within a commercially reasonable time.

      1. How does Billing Work?

         Most Jivox products are purchased on a monthly subscription basis. A few can be purchased with a one-time fee. For products purchased with a one-time fee, the fee is charged when the purchase is made. For subscription products a monthly fee will be calculated with applicable discounts and shown to you before you sign up. Please note the following regarding how billing works:
         1. When you start a subscription campaign, your card will be charged immediately for the 1st month of the campaign. Subsequent monthly charges will be made on the same day the following month. If you started you subscription on the 29th, 30th or 31st of a month and the following month does not have the corresponding day, your card will be charged on the 1st of the month after the following month. For example if you purchased a subscription on the 12th day of the month whose monthly billing amount is $326.00, you will be charged $326.00 on the 12th of January and your next charge of $326.00 will be on February 12th. If on the other hand you purchased a subscription on the 29th of January, your next charge will be on March 1st since February does not have the 29th, however in a leap year, your next charge will be on February 29th.
         2. Regardless of when your card is charged. You will only pay for the number of ad views that were delivered. Occasionally we may not be able to deliver the monthly ad views during that month in which case the ad views will be carried over to the next month (kind of like "carry-over" minutes on your cell phone plan). If you have any "carry over" ad views at the end of your campaign, your campaign will automatically be extended one day at a time until your entire ad views have been served. After the end of your campaign if you would rather have us not serve the remaining ad views, you may cancel the campaign and the cost of the remaining ad views will be deposited to your Jivox account.
         3. You may request a refund of any amount remaining in your Jivox account at any time, or it will be used for future campaign billings. Refunds will only be made to the credit card used for the purchase. For any other form of refund, please contact Jivox Support.
         4. If you have any amount remaining in your Jivox account or any promotional amount available in your account, these amounts will be used up first by any active campaign before your credit card is charged for any campaign billing.
         5. For custom campaigns, you purchase a number of ad views for a specific duration. In this case, you will be charged the amount for the campaign when you purchase the campaign. As the campaign progresses, we will track how much of the purchased amount has been served. When the campaign reached the end of the period, if we have not been able to serve the purchased number of ad views, the campaign will be automatically extended a day at a time until all of the purchased ad views have been served. If at any time for a custom campaign, you wish to cancel your campaign, you may do so (please see Cancellation Policy).
         6. During your subscription campaign if you edit your campaign you will be asked whether your campaign should be paused. If your campaign is paused, no ad views will be served however your credit card will billing on the due dates for the subscription billing amount. This means your ad views will accumulate and will be served as soon as you restart the campaign.

   3. Cancelations.

      Your subscription to Jivox Web Advertising Campaigns can be cancelled at any time. Your campaign cancellation will occur immediately. There is no penalty or cancellation fee; however, you will lose any discount you may have earned by signing up for a multi-month subscription.
      1. Your campaign will be cancelled effective immediately and you will not be charged for the remainder of your subscription. For any unused ad views you purchased for that month, you will receive a credit into your account. This credit will appear in the Accounts tab.
      2. If you received a discount for signing up for a longer subscription period e.g. 3-month, 6-month etc. you will lose that discount amount if you cancel before the end of the subscription period for the months that you have already run the campaign. For example if you purchase a 3-month campaign and cancel in the second month, you will be charged 2 months worth of the discount you received. The net effect of this will be as if you simply purchased the campaign on a month-month (non-discounted) basis. A charge for the discount amount will be adjusted against any balance in your account from the cancellation. If the balance is insufficient to cover the discount amount, you will be charged the difference to your credit card.
      3. Custom campaigns (i.e. non-subscription campaigns) do not receive any discounts, and may also be cancelled at any time. The entire balance (if any) remaining from the amount paid for the campaign will appear as a credit in your account (see the Accounts Tab).
      4. You may request a refund for any credit amount in your account at any time.
      5. Refunds where eligible will only be made to the credit card used for the original charge. No cash refunds will be made. If you would like refunds on another credit card or some other form of payment, please contact Jivox Support.
      6. To cancel your subscriptions please go to the accounts page on the site and click on the button to cancel your campaign subscription

   4. Other Campaign Types:

      Other campaign types can be cancelled at any time. You campaign cancellation will take effect the first day of the subscription month following the month of cancellation i.e. you will not be charged any fees for advertising services beyond the end of the subscription month of cancellation. Advertisement Distribution and Results. Jivox shall distribute Users' advertisements via the categories of online publisher(s) Users indicate in their Account preferences. Jivox does not guarantee that advertisements shall be distributed via any specific online publishers, or that any specific Internet users shall view the advertisements. Jivox does not guarantee the results or effectiveness of any advertisements.

   5. Rights in Advertisements; Use.

      Jivox shall own all right, title and interest in and to the advertisements created through the use of the Jivox Properties, except as you and Jivox may otherwise agree in writing. Advertisements created through use of the Jivox Properties may not be displayed, distributed or otherwise used by you, but may only be distributed by Jivox to online publishers through the Technologies. You retain whatever rights you have in User Content, subject to Jivox's non-exclusive, perpetual license as set forth herein

10. COMPLIANCE WITH U.S. LAWS

    The Technologies are of U.S. origin. You shall adhere to all applicable state, federal, local and international laws and treaties in all jurisdictions in which you use the Technologies, including, without limitation, all end-user, end-use and destination restrictions issued by U.S. and other governments and the U.S. Export Administration Act and its associated regulations. For clarity, you, and not Jivox, shall be responsible for ensuring that your use of the Technologies does not constitute a criminal offense, give rise to civil liability or otherwise violate any applicable law, regulation or ordinance, including, without limitation, U.S. law, regarding the transmission of copyrighted, trademarked content or personally-identifiable information or controlled technical data.

11. DISCLAIMER OF WARRANTIES

    JIVOX MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE OF THE SUITABILITY OF THE TECHNOLOGIES FOR YOUR PURPOSES, THAT THE USE OF THE TECHNOLOGIES SHALL BE SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT THE TECHNOLOGIES SHALL FUNCTION PROPERLY IN COMBINATION WITH ANY THIRD PARTY TECHNOLOLGY, HARDWARE, SOFTWARE, SYSTEMS OR DATA. THE TECHNOLOGIES ARE PROVIDED "AS IS" AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE TECHNOLOGIES MAY BE SUBJECT TO INTERRUPTION, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS AND ELECTRONIC COMMUNICATIONS AND JIVOX IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, DELIVERY FAILURES, OR ANY OTHER DAMAGE RESULTING FROM EVENTS BEYOND JIVOX'S REASONABLE CONTROL.

12. WARRANTY; INDEMNIFICATION

    You represent and warrant that you shall: (1) obtain all necessary rights in and to the User Content, including without limitation IPR, to use, upload, store, serve, transmit, distribute, publicly perform, publicly display, and otherwise exploit User Content through the Technologies; (2) ensure that all User Content does not violate the copyright, trademark, patent, trade secret or other intellectual property right of any third party; (3) comply with all federal, state and local laws and regulations that are applicable to the use, transmission and distribution of the User Content hereunder; and (4) abide by all the terms of this Agreement. You shall defend, indemnify and hold Jivox harmless against any and all claims, damages, costs and expenses (including reasonable attorneys' fees and litigation expenses) arising out of or in connection with your breach of this Agreement, or the warranties set forth herein.

13. LIMITATION OF LIABILITY

    TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL JIVOX BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE TECHNOLOGIES, EVEN IF JIVOX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR EXCLUSIVE REMEDY AND JIVOX'S TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THIS AGREEMENT FOR ANY REASON SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BY YOU, UP TO THE AMOUNTS PAID DIRECTLY TO JIVOX FOR USE OF THE TECHNOLOGIES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE FOR ANY REASON. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU. THE PROVISIONS OF THIS SECTION DO NOT WAIVE OR LIMIT JIVOX'S ABILITY TO OBTAIN INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR BREACH OF THIS AGREEMENT.

14. GOVERNMENT RESTRICTED RIGHTS

    If the Technologies are licensed for use by the United States or in the performance of a U.S. government prime contract or subcontract, you agree that the Technologies are delivered as: (1) "commercial computer software" as defined in DFARS 252.227-7013, Rights in Technical Data Noncommercial Items (Oct 1988), DFARS 252.227-7014 Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation (Jun 1995), and DFARS 252.211-7015 Technical Data Commercial Items (May 1991); (2) as a "commercial item" as defined in FAR 2.101; or (c) as "restricted computer software" as defined in FAR 52.227-19, Commercial Computer Software Restricted Rights (Jun 1987); whichever is applicable. The use, duplication, and disclosure of the Technologies by the Department of Defense shall be subject to the accompanying license agreement provided in DFARS 227.7202 (Oct 1998). All other use, duplication or disclosure of the Technologies by the U.S. government shall be subject to the accompanying license agreement and restrictions set forth in FAR 52.227-19 (c), Commercial Computer Software Restricted Rights (June 1987), or FAR 52.227-14, Rights in Data General Alternative III (Jun 1987). Contractor/licensor is Jivox Corporation, 1400 Fashion Island Boulevard, San Mateo, CA 94404.

15. CHOICE OF LAW; ARBITRATION

    Except for claims arising out a breach by you of Section E, the exclusive remedy for all disputes and claims relating in any way to, or arising out of, this Agreement or your use of the Technologies shall be final and binding arbitration. The arbitration shall be conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") before a panel of three arbitrators and conducted in the State of California in accordance with the AAA procedures then in effect. California law, to the extent permitted, shall govern all substantive aspects of the dispute. Notwithstanding the foregoing, to the extent that you have breached or have indicated your intention to breach this Agreement in any manner (including, without limitation, any breach that may impact Jivox's IPR, or a breach by reverse engineering), Jivox may seek injunctive relief, or any other appropriate relief, in any court of competent jurisdiction and Jivox reserves the right to seek all remedies available at law or in equity for violations of this Agreement. For clarity, the United Nations Convention of Contracts for the International Sale of Goods shall not govern this Agreement.

16. ENTIRE AGREEMENT

    This Agreement constitutes the complete and exclusive agreement between you and Jivox with respect to its subject matter. If any provision of this Agreement is held unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. You and Jivox are independent contractors, no joint venture, partnership, employment, agency or exclusive relationship exists between you and Jivox as a result of this Agreement or your use of the Technologies as authorized hereunder. The failure of you or Jivox to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision. You may not transfer or assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of Jivox. This Agreement shall inure to the benefit of and be binding upon Jivox's or your respective successors and permitted assigns.

17. CONTACTING JIVOXM

    Jivox Corporation 1400 Fashion Island Boulevard San Mateo, CA 94404 Copyright © 2009 Jivox Corporation and/or its licensors, all rights reserved. Jivox and AdSlate are the trademarks of Jivox Corporation.

18. DMCA NOTIFICATION

    Jivox respects the intellectual property rights of others and expects Users to do the same. In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf, Jivox will respond expeditiously to claims of potential copyright infringement committed using the Jivox Properties. Copyright owners or a party authorized to act on behalf of an owner, should please report potential copyright infringement by completing the following DMCA notice and delivering . Upon receipt, Jivox will take whatever action, in its sole discretion, it deems appropriate, including removal of the potentially infringing material and/or termination of the potential infringer's Account.

© 2009, Jivox Corporation. All rights reserved.