(Date of Last Revision: June 9, 2019)
The tekVizion’s onTAP cloud-based laboratory (hereinafter the “Laboratory”) is owned and operated by tekVizion PVS Inc. (“tekVizion,” “we,” or “us”). The Laboratory provides a comprehensive offering of IP-PBX and Unified Communications vendors in a virtual laboratory for your performance testing and development purposes (the “Services”).
You will be required to register in order to access certain features of the Laboratory. You will choose or be assigned a user name and a password through the Laboratory’s registration process. You are responsible for keeping your user name and password confidential. You are responsible for all activities (whether by you or by others) that occur under your password and account. You agree to notify us immediately of any unauthorized uses of your account or any other breach of security. tekVizion cannot and will not be liable for any loss or damage arising from your failure to keep your account information protected.
Your use of the Laboratory may be subject to a usage fee for the Services according to the schedule located at www.tekvizion.com/services/ontap-pricing. You shall be solely responsible for any and all taxes levied by any applicable taxing jurisdiction that are applied and are in addition to the usage fees for your use of the Services. tekVizion reserves the right to update the fee schedule at any time in its sole discretion and the fees for your use of the Services will be subject to the then-current fee schedule. As the usage fees for the Services are charged after your use of the Services, the usage fees are non-cancellable and non-refundable.
All fees for Services are payable in U.S. dollars and will be charged to you advance of the assignment.
The Laboratory. tekVizion provides the Laboratory solely for your product testing and development purposes. tekVizion and/or its licensors, affiliates or participating vendors own all right, title and interest, including all related intellectual property rights, in and to the Laboratory and components thereof, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you relating to the Services (collectively, “tekVizion IP”). You may not use the tekVizion IP in any manner or for any purpose that would constitute infringement of tekVizion’s or its licensors’, affiliates’ or participating vendors’ intellectual property rights. You may not copy or post any content of the Laboratory in any other public forum, including other websites, web services, or print publications without the written consent of tekVizion. You may download and/or print copies of any documents present in, or generated by, your use of the Laboratory for your internal business purposes. tekVizion or its licensors, affiliates or participating vendors own all trademarks and service marks appearing on the Laboratory. The unauthorized use or misuse of these trademarks and service marks is prohibited.
Your Products. You own all right, title and interest, including all related intellectual property rights, in and to any and all programs, software, devices, or any other products (“User IP”) that you test or develop using the Laboratory and its Services. To the extent applicable, you hereby grant tekVizion and/or its licensors, affiliates or participating vendors a limited license to use the User IP within the Laboratory for your product testing and development purposes. Other than the limited right granted herein, tekVizion and its licensors, affiliates or participating vendors shall have no other rights in or to the User IP.
Your Written Communications to the Laboratory
By forwarding any written suggestions to tekVizion through the Laboratory or by other electronic means, you thereby grant tekVizion a perpetual, royalty-free, world-wide, irrevocable, non-exclusive license to use, reproduce, modify, adapt, publish, translate, create derivative works from, redistribute, and display such suggestions in any form for the purposes of providing the Services and any purpose tangentially related to the Services. No compensation will be paid with respect to tekVizion’s or its sublicensees’ use of your suggestions. tekVizion is under no obligation to post or use any suggestion you may provide and may remove any content or communication at any time in tekVizion’s sole discretion. By providing or submitting a suggestion, you represent and warrant that you own or otherwise control all of the rights to your submitted content and communications as described in this section, including, without limitation, all the rights necessary for you to provide, post, upload, input or submit the content and communications and grant the license above.
You shall not violate the system or network security of the Laboratory, including, without limitation: (a) unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network, (b) unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system or network, (c) interference with service provided to any user, host or network, including, without limitation, mail bombing, flooding, computer worms or viruses, deliberate attempts to overload a system and broadcast attacks, and (d) forging of any tcp-ip packet header or any part of the header information.
You shall not violate any intellectual property rights of tekVizion, it licensors, affiliates or participating vendors, including, but not limited to: (a) resale of any tekVizion services or products unless expressly authorized in writing by tekVizion, (b) creating a username that contains offensive content (offensive content may include, but is not limited to, obscene language, obscene references, threatening or harassing messages, or defamatory statements), and (c) exploiting or attempting to exploit any scripts presented on a web page.
You shall not perform any of the following prohibited activities:
- Falsifying information in applications, contracts and other materials provided to tekVizion including fraudulent use of credit card numbers or “bill to” numbers;
- Forging of message headers or a sender’s identity, or taking any similar action with the intent of bypassing restrictions or limits on access to a specific service or site;
- Creating, forwarding, posting or distributing chain messages of any type (also known as “pyramid” or “ponzi” schemes);
- Attempting to circumvent or alter the processes or procedures to measure time, bandwidth utilization or other methods to document use of tekVizion services;
- Sending unsolicited bulk e-mail (“UBE”, or “SPAM”), which includes but is not limited to the distribution of UBE for commercial, informational, advertising, political, or religious purposes;
- Setting up “mailback” or “drop box” addresses in order to receive responses from UBE, either directly by the Subscriber or by a third party on behalf of the Subscriber;
- Using or submitting any offensive content including, but not limited to, obscene language, obscene references, obscene images, threatening or harassing messages, or defamatory statements;
- Engaging in any of the foregoing activities by using the service of another provider, but channeling such activities through a tekVizion account, remailer, or otherwise through a tekVizion service or using a tekVizion account as a maildrop for responses or otherwise using the services of another provider for the purpose of facilitating the foregoing activities if such use of another party’s service could reasonably be expected to adversely affect a tekVizion service;
- Running a mail server with open relay, i.e. which allows the unchallenged forwarding of e-mail;
- Utilizing programs, scripts or commands to abuse a website, e.g. by using bandwidth excessively; and
- Hosting a web page which acts maliciously against users that visit that page.
In the event of any actual or potential violation of the prohibited activities above, tekVizion reserves the right to (i) suspend or terminate, either temporarily or permanently, any or all services provided by tekVizion to Subscriber, (ii) block and/or filter any abusive activity or (iii) take any other actions as deemed appropriate by tekVizion in its sole discretion. Such actions may also subject you to civil or criminal liability and tekVizion may refer violators to civil or criminal authorities for prosecution and will cooperate fully with applicable authorities.
The Initial Term of this Agreement is specified in the Sales Contract (and, together with all periods of extension, the “Term”). On the last day of the Term, the Term will extend for a successive period equal to the length of the Initial Term, unless either party notifies the other in
writing at least sixty (60) days prior to the end of the then-current Term of its intent that the Term not so extend. In the event that the Term is so extended, the Subscription Fee for the period of such extension shall equal the Subscription Fee applicable to the period of equal length immediately preceding such period of extension (the “Preceding Period”), plus any applied discount, shall be due upon extension of the Term, and shall be payable as invoiced. tekVizion will invoice Subscription Fees for any period of extension in a manner substantially consistent with the payment schedule that applied during the Preceding Period.
This License Agreement shall begin upon the date you register with the Laboratory and shall continue in force until terminated by one of the Parties.
Effect of Termination. Upon termination, your right to access or use the Laboratory immediately ceases. You are solely responsible for removing your information from the Laboratory prior to any termination. Upon termination, tekVizion will have no obligation to maintain, forward, or return any of your data.
Federal and State Laws
When using the Laboratory you shall obey all applicable federal, state and local laws. Any use of the Laboratory that violates any applicable laws will be grounds for discontinuing your rights to access the Laboratory.
Third Party Software
We will provide you with access to certain third-party software products not owned by tekVizion as part of the Services. WE MAKE NO WARRANTY WHATSOEVER REGARDING ANY SOFTWARE PRODUCT OR RELATED SUPPORT SERVICES THAT WE MAY PROVIDE AND, AS BETWEEN YOU AND US, SUCH PRODUCTS AND THEIR RELATED SUPPORT SERVICES ARE PROVIDED “AS IS.”
Relationship of the Parties
You and tekVizion agree that nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales relationship, or employment relationship between us. You will have no authority to make or accept any offers or representations on our behalf or on the behalf of other users of the Site.
Except as otherwise required by law, each party shall keep all Confidential Information in confidence and shall not without the other party’s prior written consent, disclose or otherwise make available, directly or indirectly, any Confidential Information to anyone other than that party’s employees and of their representatives who need to know the same in the performance of each respective obligations hereunder.
- “Confidential Information” means all information concerning you or your affiliates or any of their respective businesses, assets, products, services, employees, or customers (including students), or of any third party in the possession of you or any of your affiliates, that is designated by you or any of your affiliates as confidential or proprietary or that is customarily or legally required to be protected from public disclosure, regardless of whether such information is provided to tekVizion orally, in writing or other tangible form, via email or in electronic form, or is obtained through visual observation. Confidential Information includes, without limitation, access information, account data, end-user personal information, technical, financial or business information or data; strategies and plans; research and development plans and results; pricing information; information regarding products and services or product or service models, prototypes or samples; product schematics, documentation and manuals; proprietary methods, techniques, designs and processes; inventions, works of authorship, trade secrets and discoveries; software source code and object code; data, algorithms and flow-charts used by or for, or otherwise relating to, such software; lists of or data regarding actual or potential customers or suppliers; and any information based on or derived from any Confidential Information.
- Confidential Information shall not include any information that: (a) was known to the other party prior to execution of this License Agreement without an obligation to keep it confidential; (b) was lawfully obtained by the other party from a third party without any obligation of confidentiality; (c) is, at the time of disclosure, in the public knowledge; (d) becomes part of the public knowledge after disclosure by publication or otherwise, except by breach of this License Agreement; (e) developed by or for the other party independently and apart from this License Agreement and without use of the Confidential Information; or (f) is otherwise knowledge possessed by the other party or its employees as the result of their industry experience or education.
- If a party is required to disclose or make available any Confidential Information of the other party pursuant to a valid court order or other legal requirement, the party shall promptly notify the other party of such requirement in writing as soon as commercially reasonable and cooperate and assist the other party in any efforts undertaken by the other party to limit the disclosure. Notwithstanding the foregoing, in all cases of a required disclosure, Disclosing Party shall limit the information disclosed or made available to the minimum required by law.
Disclaimer of Warranties
THE SERVICES OFFERED ON OR THROUGH THE Laboratory ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. THIS INCLUDES ANY LISTING OF ANY THIRD-PARTY GOODS OR SERVICE PROVIDER INCLUDED IN THE Laboratory. ANY THIRD-PARTY GOODS OR SERVICE PROVIDER IS SUPPLIED AS A CONVENIENCE TO THE USER AND LISTING DOES NOT CONSTITUTE SPONSORSHIP, AFFILIATION, PARTNERSHIP, OR ENDORSEMENT. tekVizion and its licensors, affiliates or participating vendors DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES TO THE FULLEST EXTENT OF THE LAW, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
tekVizion and its licensors, affiliates or participating vendors DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE Laboratory, MATERIAL ON THE Laboratory IN TERMS OF ITS CORRECTNESS, ACCURACY, TIMELINESS, RELIABILITY OR OTHERWISE.
By providing THE SERVICES on the Laboratory, tekVizion and its licensors, affiliates or participating vendors do not in any way promise that the SERVICEs will remain available to you. tekVizion is entitled to terminate all or part of any of the Laboratory at any time, in its sole discretion without notice to you.
YOU ASSUME the RISK OF ANY AND ALL DAMAGE OR LOSS FROM your USE OF, OR INABILITY TO USE the SERVICES.
Limitation of Liability
THE LIABILITY OF tekVizion and its licensors, affiliates or participating vendors, employees, agents, representatives and third party service providers WITH RESPECT TO ANY AND ALL CLAIMS ARISING OUT OF THE USER’S USE OF THE Laboratory, OR THE RENDITION OF SERVICES OBTAINED THROUGH THE Laboratory, WHETHER BASED ON WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED, IN THE AGGREGATE, amount of fees paid by you to tekVizion during the six (6) months prior TO THE DATE SUCH CLAIM ALLEGEDLY AROSE.
IN NO EVENT WILL tekVizion or its licensors, affiliates or participating vendors BE LIABLE TO ANY PARTY FOR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES FOR ANY USE OF THE Laboratory, OR ON ANY OTHER HYPERLINKED WEBSITE OR POP-UP ADVERTISER, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA ON the User’s INFORMATION HANDLING SYSTEM OR OTHERWISE, EVEN IF tekVizion IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
You agree to indemnify tekVizion and its licensors, affiliates or participating vendors, affiliates, employees, agents, representatives and third party service providers and you agree to defend and hold each of them harmless, from any and all claims, demands, actions, liability, fines, penalties and expenses, whether based on warranty, contract, negligence, strict liability or otherwise, that may arise from any of your acts through the use of the Laboratory. Such acts may include but are not limited to: submissions, unauthorized use of material obtained through the Laboratory or breaches of the terms of this Agreement.
This Laboratory may contain links to other third-party websites. Such third-party sites are maintained by persons or organizations over which tekVizion exercises no control. tekVizion expressly disclaims any responsibility for the content or results from your use of such third-party links.
Change of Control
In the event of a change of control of tekVizion or the sale of substantially all of tekVizion’s assets, all rights of tekVizion hereunder shall be transferable without notice to you.
tekVizion respects the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide tekVizion’s copyright agent with the following information.
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- Description of the copyrighted work that you claim has been infringed;
- The location on the Laboratory of the material that you claim is infringing;
- Your address, telephone number and e-mail address;
- A statement that your claim of infringement is based on a good faith belief; and
- A statement made under penalty of perjury that the information you have provided is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
tekVizion’s copyright agent for notice of claims of copyright infringement on the Laboratory can be reached as follows: firstname.lastname@example.org.
Severability. If any term or provision in the Agreement is found to be void, against public policy, or unenforceable by a court of competent jurisdiction and such finding or order becomes final with all appeals exhausted, then the offending provision shall be deemed modified to the extent necessary to make it valid and enforceable. If the offending provision cannot be so modified, then the same shall be deemed stricken from the Agreement in its entirety, and the remainder of this Agreement shall survive with the said offending provision eliminated.
Typographical Errors. Information on the Laboratory may contain technical inaccuracies or typographical errors. We attempt to make the Laboratory’s postings as accurate as possible, but tekVizion does not warrant the content of the Laboratory is accurate, complete, reliable, current, or error-free.
Headings. Condition and section headings are for convenience of reference only and shall not affect the interpretation of this Agreement.
Controlling Law and Venue. It is understood and agreed that all the construction and interpretation of this Agreement and the relationship between the parties shall at all times and in all respects be governed by the internal laws of the State of Texas, without giving effect to the conflict of laws provisions thereof. Venue of any action brought to enforce or relating to this Agreement or arising out of the relationship between the parties shall be brought exclusively in the courts of Collin County, Texas.
tekVizion PVS Inc.
3701 W. Plano Parkway
Plano, TX 75075