(Updated on July 11, 2020)
This is a legal agreement between the person or organization (“Customer” or “you”) agreeing to these Terms of Service (“Terms”) and the applicable contracting entities (“Matchless Communications,” “MC,” “us,” or “we”). By accepting these Terms, signing an Order, or using the Services, you represent that you are of legal age and have the authority to bind the Customer to these Terms.
These Matchless Communications Terms of Service apply to your access to and use of Matchless Communications products and services, including subscription services and software applications, functionalities, APIs, tools, interfaces and documentation provided in connection therewith (collectively, “MC Platform”) provided by Matchless Communications, a division of CryptoEnsemble, LLC, or its affiliates (“MC”) or a Matchless Communications’ authorized reseller, distributor or other partner (“MC Partner”). These terms may be modified pursuant to a service agreement or order agreed to between MC, or an MC Partner, and the organization that contracted for your use of the MC Platform (“Customer”), in which case these terms shall apply as modified. Contact your administrator for a copy of any modified terms, if applicable.
Your compliance with these terms is a condition to MC’s obligation to make the MC Platform available. IF YOU DO NOT AGREE TO THE TERMS, THEN DO NOT ACCESS OR USE (OR AUTHORIZE ANYONE TO ACCESS OR USE) THE MC PLATFORM AND CONTACT YOUR ADMINISTRATOR.
1. USE RESTRICTIONS
You agree as follows:
- Not to take any action or omission that would reasonably be expected to (1) disrupt or compromise the integrity or security of the MC Platform, the network of a MC partner or vendor, or the privacy of any other MC customer or (2) cause imminent and material damage to MC or any of MC’s partners, vendors or other customers;
- Not to use or access the MC Platform:
- for any fraudulent, criminal, defamatory, harassing or tortious purpose, or to participate in or promote any illegal activity;
- to breach, violate or infringe intellectual property, privacy or other rights, or misappropriate the property of, any third party;
- to transmit or store any material that contains viruses, time bombs, Trojan horses, worms, malware, spyware or similar programs or materials;
- Not to inspect, possess, use, copy, reverse engineer, or attempt to discover the source code of or used to create any program or other component of the MC Platform, except as expressly permitted by applicable Laws;
- Not to attempt to hack or gain unauthorized access to any network, environment, or system of MC or any of MC’s partners, vendors or other customers;
- Not to sell, resell, license, sublicense, distribute, offer, rent or lease the MC Platform, or otherwise make the MC Platform or any part thereof available to any third party, or use the MC Platform as an agent or on behalf of any party other than Customer and any permitted affiliates;
- Not to access the MC Platform in order to build a competitive product or for the primary purpose of monitoring its availability, performance or functionality, or for benchmarking or competitive purposes,
We reserve the right to enhance, upgrade, improve, or modify features of our Services as we deem appropriate and in our discretion. We will not materially reduce the core functionality or discontinue any Services unless we provide you with prior written notice. We may offer additional functionality to our standard Services or premium feature improvements for an additional cost.
2. INTELLECTUAL PROPERTY RIGHTS AND LICENSES
All rights, title and interest in and to the MC Platform, including intellectual property rights, will remain with MC and belong exclusively to MC. Subject to your compliance with these terms, MC grants you a limited, non-exclusive, non-transferable license to use software applications provided in connection with the MC Platform during the term of the Service Agreement.
You hereby assign to MC all right, title and interest (including intellectual property rights) in and to any new feature, improvement, suggestion, enhancement request, recommendation, correction, idea or other feedback that you may provide to MC relating to the MC Platform (collectively, “Feedback”), and you agree that MC shall be free to use any ideas, concepts, know-how or techniques contained in such Feedback for any purpose whatsoever without compensation to you.
You retain all rights to your Content (defined below) and we do not own or license your Content. We may use, modify, reproduce and distribute your Content in order to provide and operate the Services, according to your instructions. You warrant that (i) you have the right to upload or otherwise share Content with us, and (ii) your uploading or processing of your Content in the context of our Services does not infringe on any rights of any third party. Each party agrees to apply reasonable technical, organizational and administrative security measures to keep Content protected in accordance with industry standards. We will not view, access or process any of your Content, except: (a) as authorized or instructed by you or your users in this Agreement or in any other agreement between the parties, or (b) as required to comply with our policies, applicable law, or governmental request. You agree to comply with all legal duties applicable to you as a data controller by virtue of the submission of your Content within the Services. Your Content, including any personal data (as defined under applicable law, which includes, but is not limited to, the General Data Protection Regulation EU 2016/679 or “GDPR” and data protection laws of the European Union, European Economic Area, Switzerland (collectively, the “EEA+”), and the United Kingdom) is processed by us as a data processor acting on your behalf (in your capacity as data controller). We will use and process your Content in order to provide the Services and fulfill our obligations under the Agreement, and in accordance with your instructions as represented in this Agreement. Notwithstanding anything to the contrary, this Section 2 expresses the entirety of our obligations with respect to your Content. “Content” means any files, documents, recordings, chat logs, transcripts, and similar data that we maintain on your or your users’ behalf, as well as any other information you or your users may upload to your Service account in connection with the Services.
3. DATA PRIVACY
You are solely responsible for (i) all use of the Services by you and your users, (ii) maintaining lawful basis for the collection, use, processing and transfer of Content, and (iii) providing notices or obtaining consent as legally required in connection with the Services. We do not send emails asking for your usernames or passwords, and to keep your accounts secure, you should keep all usernames and passwords confidential. We are not liable for any loss that you may incur if a third party uses your password or account. We may suspend the Services or terminate the Agreement if you, your users, or attendees are using the Services in a manner that is likely to cause harm to us or to other customers. You agree to notify us immediately and terminate any unauthorized access to the Services or other security breach.
4. COMPLIANCE WITH LAWS
In connection with the performance, access and use of the Services under the Agreement, each party agrees to comply with all applicable laws, rules and regulations including, but not limited to export, privacy, and data protection laws and regulations. Each party represents that it is not named on any U.S. government denied-party list. Further, Customer shall not permit its users to access or use any Service or Content in a U.S. embargoed country or in violation of any U.S. export law or regulation. If necessary and in accordance with applicable law, we will cooperate with local, state, federal and international government authorities with respect to the Services. Notwithstanding any other provision in these Terms, we may immediately terminate the Agreement for noncompliance with applicable laws.
WE WARRANT THAT THE SERVICES WILL CONFORM TO THE SERVICE DESCRIPTIONS UNDER NORMAL USE. WE DO NOT REPRESENT OR WARRANT THAT (i) THE USE OF OUR SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, OR OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA, (ii) OUR SERVICES WILL MEET YOUR REQUIREMENTS, OR (iii) ALL ERRORS OR DEFECTS WILL BE CORRECTED. USE OF THE SERVICES IS AT YOUR SOLE RISK. OUR ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER THIS WARRANTY WILL BE, AT OUR SOLE OPTION AND SUBJECT TO APPLICABLE LAW, TO PROVIDE CONFORMING SERVICES, OR TO TERMINATE THE NON-CONFORMING SERVICES OR THE APPLICABLE ORDER, AND PROVIDE A PRO-RATED REFUND OF ANY PREPAID FEES FROM THE DATE YOU NOTIFY US OF THE NON-CONFORMANCE THROUGH THE END OF THE REMAINING TERM. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, THEREFORE SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMERS LOCATED IN THOSE JURISDICTIONS.
6. FREE SERVICES AND TRIALS
Your right to access and use any free Services is not guaranteed for any period of time and we reserve the right, in our sole discretion, to limit or terminate your use of any free versions of any Services by any individual or entity. If you are using the Services on a trial or promotional basis (“Trial Period”), your Trial Period and access to the Services will terminate (i) at the end of the Trial Period stated in your Order, or (ii) if no date is specified, 30 days after your initial access to the Services, (iii) or upon your conversion to a subscription. During the Trial Period, to the extent permitted by law, we provide the Services “AS IS” and without warranty or indemnity, and all other terms otherwise apply. We may modify or discontinue any trials or promotions at any time without notice.
7. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MC 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 MC, ITS AFFILIATES, SUPPLIERS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, MC’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.
8. AGREEMENT TO ARBITRATE; WAIVER OF CLASS ACTION.
If you are located in the United States, you agree to resolve disputes only on an individual basis, through arbitration. The parties expressly waive any right to bring any action, lawsuit, or proceeding as a class or collective action, private attorney general action, or any other proceeding in which any party acts or proposes to act in a representative capacity.