SOCIALCAST TERMS OF SERVICE AGREEMENT
IMPORTANT-READ CAREFULLY: BY ACCESSING OR USING THE SERVICE, YOU (THE INDIVIDUAL OR LEGAL ENTITY ACCESSING THE HOSTED SERVICE) AGREE TO BE BOUND BY THESE TERMS OF SERVICE ("AGREEMENT"). IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MUST NOT USE OR ACCESS THE SERVICE, AND YOU MUST NOTIFY THE VENDOR FROM WHICH YOU ACQUIRED ACCESS TO THE SERVICE WITHIN THIRTY (30) DAYS AND REQUEST A REFUND OF THE SUBSCRIPTION FEE, IF ANY, THAT YOU PAID FOR THE SERVICE. YOU SHALL BE LIABLE FOR ANY FAILURE BY YOUR EMPLOYEES AND THIRD PARTY SUBCONTRACTORS TO COMPLY WITH THE TERMS OF THIS AGREEMENT.
EVALUATION ACCESS. If You are accessing or using the Hosted Service for evaluation purposes, Your use of the Hosted Service is only permitted for evaluation purposes and for the evaluation period designated by VMware. Notwithstanding any other provision in this Agreement, an evaluation of the Hosted Service is provided “AS-IS” without indemnification, support or warranty of any kind, expressed or implied.
1. Definitions
"Content" means the audio and visual information, documents, software, products and services contained or made available to You in the course of using the Hosted Service.
"Customer Data" means any data, information or material provided or submitted by You to VMware and/or the Hosted Service in the course of using the Hosted Service.
"Documentation" means that documentation that is generally provided to You by VMware for the Hosted Service, as revised by VMware from time to time, and which may include end user manuals, service descriptions and access instructions regarding the Hosted Service.
"Hosted Service" means Socialcast SaaS or Socialcast Dedicated Cloud, as indicated by the Order.
"Hosted Service Subscription Term" means the time period of Your access to the Hosted Service as specified in the Order.
"Intellectual Property Rights" means all worldwide intellectual property rights including, without limitation, copyrights, trademarks, service marks, trade secrets, know how, inventions, patents, patent applications, moral rights and all other proprietary rights, whether registered or unregistered.
"Named User" means an (a) employee or (b) subcontractor who has been authorized by You to use the Hosted Service in accordance with the terms of this Agreement.
"Order" means (a) a purchase order, enterprise license agreement, or other ordering document issued by You to VMware or a VMware authorized reseller that references and incorporates this Agreement and is accepted by VMware or (b) an online purchase of the Hosted Service placed via an online store authorized by VMware.
"VMware" means VMware, Inc., a Delaware corporation, if You are purchasing Hosted Service Subscriptions for use in the United States and VMware International Limited, a company organized and existing under the laws of Ireland, for all other purchases.
2. Grant and Use Rights
VMware grants to You a non-exclusive, non-transferable, worldwide license to use the Hosted Service for the number of Named Users that You have paid for, solely for Your own internal business purposes and solely during the Subscription Term, subject to the terms and conditions of this Agreement. All rights not expressly granted to You by this Agreement are reserved by VMware and its licensors, if any.
3. Restrictions
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Hosted Service or the Content in any way; (ii) modify or make derivative works based upon the Hosted Service or the Content; (iii) create Internet "links" to the Hosted Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; (iv) reverse engineer the Hosted Service, except as expressly authorized by VMware; (v) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (vii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (viii) interfere with or disrupt the integrity or performance of the Hosted Service or the data contained therein; or (ix) attempt to gain unauthorized access to the Hosted Service or its related systems or networks.
4. Support Services
Support for the Hosted Service shall be provided to You in accordance with the VMware Software as a Service Support Policies located at www.vmware.com/support/policies/saas-support.
5. Your Account, Password and Access
You warrant that You and the Named Users understand and agree that the right to access the Hosted Service is granted because You have sponsored their participation, and if at any time You no longer have such right or You no longer extend that sponsorship to them, You must cease their access and use of the website. You are responsible for authorizing and controlling access to the Hosted Service, maintaining the confidentiality of user IDs and passwords and are responsible for any use that occurs under such user IDs and passwords. VMware is not liable for any losses, damages, claims, demands, actions, costs and expenses (including reasonable attorneys’ fees and court costs) arising from or created by any of Your acts or omissions related to the access or use of the Hosted Service. You acknowledge and agree that the content on the Hosted Service, including but not limited to text, software, graphics and other information presented to You is subject to and protected by copyright, trademarks, service marks, patents, or other proprietary rights and relevant law.
6. Intellectual Property Ownership
VMware alone (and its licensors, where applicable) owns all right, title and interest, including all related Intellectual Property Rights, in and to the VMware technology, the Content, the Hosted Service and any underlying software, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the Hosted Service. This Agreement is not a sale and does not convey to You any rights of ownership in or related to the Hosted Service, the VMware technology or the Intellectual Property Rights owned by VMware. The VMware name, all VMware logos, and the product names associated with the Hosted Service are trademarks of VMware or third parties, and no right or license is granted by this Agreement to the VMware name or those logos, product names and trademarks.
7. Payment
The Hosted Service is sold on a subscription basis and includes SaaS Support and Subscription Services (“SnS”) at the level purchased by You. You shall purchase the same level of SnS for all Named Users. SnS is not sold separately.
The subscription fees are quoted and payable in the currencies that VMware currently accepts. Fees shall be due and payable at the beginning of the subscription term, unless otherwise agreed by VMware and You in writing. Payment obligations are non-cancelable and fees paid are non-refundable. Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and such taxes, levies and duties shall be added to the Service fees. The subscription fees of the then current price list are based on annual periods that begin on the subscription start date and each anniversary thereof. If You pay the fees due under this Agreement by credit card, You must be authorized to use the credit card number that You enter when You create a billing account. You authorize us to charge such credit card for all Services that You order for the initial subscription term and each renewal subscription term. You are responsible for maintaining complete and accurate billing and contact information for the Hosted Service.
VMware reserves the right to modify the fees applicable to any Hosted Service upon 30 days prior written notice to You, which notice may be provided by e-mail or at the website; such new prices shall not apply to subscriptions for the Hosted Service that have already been paid for or purchased.
8. Account Information and Data
VMware does not own Customer Data. You, not VMware, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and VMware shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of Your breach), VMware will make available to You, within 30 days of termination of the Agreement, a file of any Customer Data stored by VMware, if You so request at the time of termination. VMware reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, Your non-payment. Upon termination for cause, Your right to access or use Customer Data immediately ceases, and VMware shall have no obligation to maintain, make available to You or forward any Customer Data. VMware shall have the right, but not the obligation, to monitor the Customer Data, including chat rooms and forums, and Your use of the Hosted Service to determine compliance with this Agreement and any operating rules established by VMware, to provide SnS to You and to satisfy any law, regulation or authorized government request. VMware shall have the right in its sole discretion to edit, refuse to post or remove any material submitted to or posted using the Hosted Service. Without limiting the foregoing, VMware shall have the right to remove any material that VMware in its sole discretion, finds to be in violation of the provisions of this Agreement.
9. Data Collection
You acknowledge and agree that VMware may collect certain data and information as a result of Your access or use of the Hosted Service. For terminated accounts, any data related to the Hosted Service that is collected by VMware will only be retained for a period of thirty (30) days from the date that the account was terminated, subject to Section 11. VMware may share personal information with its service providers and suppliers to the extent needed to deliver or provide information on products or services or otherwise support Your business needs relating to the Hosted Service. Third party service providers and suppliers receiving personal information are expected to apply the same level of privacy protection as VMware. They are required to keep confidential the personal information received from VMware and may not use it for any purpose other than as originally intended.
10. Links to Third Party Sites
The Hosted Service may provide links to third-party websites for Your convenience and information. VMware does not endorse or make any representations about third party websites, nor does the inclusion of any link imply any such endorsement. If You access those links, You will leave VMware’s website. VMware is not responsible for webcasting or any other form of transmission received from any third-party sites. VMware does not control those websites and VMware is not responsible for the contents of any third-party websites, any links contained in third-party websites, any changes or updates to third-party websites, or their privacy practices, which may differ from those of VMware. The personal data You may choose to give to such third party websites is not covered by the privacy policy, which may be viewed at http://www.socialcast.com or such other website designated by VMware. VMware encourages You to review the privacy policy of any company before submitting Your personal information. Some third parties may choose to share their personal data collected on their websites with VMware, in which case such data sharing shall be governed by that third party’s privacy policy.
11. Term and Termination of the Hosted Service
This Agreement commences on the date the Agreement is accepted by You and will remain in effect for the Hosted Service Subscription Term (the “ Initial Term”). Upon the expiration of the Initial Term, this Agreement will automatically renew, at VMware’s then current fees, for successive one (1) year terms. Either VMware or You may terminate this Agreement, without cause, or reduce the number of licenses, effective only upon the expiration of the then current term, by notifying the other in writing at least thirty (30) days prior to the expiration of the then current term. If this Agreement is terminated for any reason other than Your breach, VMware will make available to You a file of the Customer Data within thirty (30) days of the termination if You so request at the time of termination. You agree and acknowledge that VMware does not have any obligation to retain Customer Data, and may delete Customer Data, more than thirty (30) days after termination.
All payments must be made for the entire subscription term, even if You terminate the Agreement prior to the expiration of the Hosted Service Subscription Term or any renewal term. If You terminate this Agreement during a fully-paid Hosted Service Subscription Term or any renewal term, You will continue to have access to the Hosted Service for the remainder of the Hosted Service Subscription Term or renewal term, as applicable. Except as expressly set forth in this Agreement, all fees are non-refundable and credits shall not be provided.
VMware may, without prior notice, immediately cease, limit Your access to or suspend Your account and use of the Hosted Service if You fail to comply with any term of this Agreement. VMware expressly reserves the right to suspend Your account and use of the Hosted Service in the event You fail to pay the fees in full and on time. Sections 1, 3, 6-11, and 13-15 shall survive any expiration or termination of this Agreement.
12. Hosted Service Warranty
VMware warrants that the Hosted Service will perform substantially in accordance with the online VMware help documentation for the Hosted Service under normal use and circumstances. If the Hosted Service fails to perform as warranted by this Section, You may provide written notice of such non-conformance to VMware during the Subscription Term. If VMware fails to cure the non-conformance within thirty during the Subscription Term, You may terminate this Agreement.
13. Limitation of Liability and Indemnity
(a) Limitation of Liability. TO THE MAXIMUM EXTENT MANDATED BY LAW, IN NO EVENT WILL VMWARE AND ITS LICENSORS BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO YOU. VMWARE’S AND ITS LICENSORS’ LIABILITY UNDER THIS AGREEMENT WILL NOT, IN ANY EVENT, EXCEED THE SUBSCRIPTION FEES YOU PAID FOR THE SERVICE IN THE PRIOR TWELVE (12) MONTHS, IF ANY. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER VMWARE OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
(b) Further Limitations. VMware’s licensors shall have no liability of any kind under this Agreement and VMware’s liability with respect to any third party software provided with the Hosted Service shall be subject to Section 13(a). You may not bring a claim under this Agreement more than eighteen (18) months after the cause of action arises.
You agree to indemnify and hold VMware and its affiliates and suppliers harmless from any and all claims, liability and expenses, including reasonable attorneys' fees and costs, arising out of Your use of the Hosted Service or breach of this Agreement (collectively referred to as "Claims"). VMware reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any Claims. You agree to reasonably cooperate as requested by VMware in the defense of any Claims.
14. Warranty Disclaimer
THE EXPRESS WARRANTY IN SECTION 12 ABOVE IS IN LIEU OF AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VMWARE AND ITS LICENSORS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE) REGARDING OR RELATING TO THE SERVICE, THE DOCUMENTATION, OR ANY MATERIALS OR SERVICES FURNISHED OR PROVIDED TO YOU UNDER THIS AGREEMENT. VMWARE AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICE WILL OPERATE UNINTERRUPTED OR THAT IT WILL BE FREE FROM DEFECTS OR THAT THE SERVICE WILL MEET OR IS DESIGNED TO MEET YOUR BUSINESS REQUIREMENTS.
15. Other Provisions
(a) Governing Law. This Agreement is governed by the laws of the State of California, United States of America, unless mandated by other law. The United Nations Convention for the International Sale of Goods shall not apply.
(b) Assignment. This Agreement and any Orders, and any of Your rights or obligations thereunder, may not be assigned, subcontracted or transferred by You, in whole or in part, whether voluntary, by operation of contract, law or otherwise, without the prior written consent of VMware. Any attempted assignment or transfer in violation of the foregoing will be null and void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
(c) Compliance with Laws; Export Control; Government Regulations. Each party shall comply with all laws applicable to the actions contemplated by this Agreement. You shall also abide by the Health Insurance Portability and Accountability Act, laws related to data privacy, international communications and the transmission of technical or personal data. You are responsible for all activity occurring under Your account and those of the Named Users, including the activities of the Named Users. You shall: (i) notify VMware immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to VMware immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by You or any Named User to violate this Agreement or the intellectual property rights of third parties; and (iii) not impersonate another user or provide false identity information to gain access to or use the Hosted Service. You acknowledge that the Hosted Service and the underlying software are of United States origin, are provided subject to the U.S. Export Administration Regulations, may be subject to the export control laws of the applicable Territory, and that diversion contrary to applicable export control laws is prohibited. You represent that: (1) You are not, and are not acting on behalf of, (a) any person who is a citizen, national, or resident of, or who is controlled by the government of any country to which the United States has prohibited export transactions or (b) any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; and (2) You will not permit the Hosted Service or the underlying software to be used for, any purposes prohibited by law, including any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons. The Hosted Service, underlying software and any accompanying Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Hosted Service, underlying software and Documentation by the U.S. Government shall be governed solely by the terms and conditions of this Agreement.
(d) Force Majeure. VMware will not be liable for inadequate performance to the extent caused by a circumstance beyond its reasonable control, including, without limitation, failure of the internet, labor strikes or shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, material shortages and other acts not caused by VMware.
(e) Modification. This is the entire agreement between the parties relating to the subject matter hereof and all other terms are rejected. VMware reserves the right to modify the terms of this Agreement at any time without prior notice. Customer is responsible for reviewing the terms of service on a regular basis and abiding by any modified terms. The waiver of a breach of any term hereof shall in no way be construed as a waiver of any term or other breach hereof. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law the remaining provisions of this Agreement shall remain in full force and effect.
(f) Notices. Any notice delivered by VMware to You under this Agreement will be delivered via mail, email or fax.
(g) Additional Purchases. All Orders are subject to this Agreement. No Orders are binding on VMware until accepted by VMware. Orders issued to VMware do not have to be signed to be valid and enforceable. Notwithstanding the foregoing, Orders for the Hosted Service may be placed via an online store authorized by VMware.
(h) Waiver. The waiver of a breach of any provision of this Agreement shall not constitute a waiver of any other provision or any subsequent breach.
(i) Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
(j) Construction. The headings of sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word ‘including’ means “including but not limited to.”
(k) Third Party Rights. Other than as expressly set out in this Agreement, this Agreement does not create any rights for any person who is not a party to it, and no person who is not a party to this Agreement may enforce any of its terms or rely on any exclusion or limitation contained in it.
(l) Order of Precedence. In the event of conflict or inconsistency among this Agreement and the Order, the following order of precedence shall apply: (a) this Agreement and (b) the Order. With respect to any inconsistency between this Agreement and an Order, the terms of this Agreement shall supersede and control over any conflicting or additional terms and conditions of any Order, acknowledgement or confirmation or other document issued by You, unless the parties execute a written agreement expressly indicating: (i) that such Order shall modify this Agreement; or (ii) that the terms of such Order shall supersede and control in the event of any inconsistency.
(m) Entire Agreement. This Agreement, including accepted Orders and any amendments hereto, contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all previous or contemporaneous communications, representations, proposals, commitments, understandings and agreements, whether written or oral, between the parties regarding the subject matter hereof.
(n) Contact Information. Please direct legal notices or other correspondence to VMware, Inc., 3401 Hillview Avenue, Palo Alto, California 94304, United States of America. If You have any questions concerning this Agreement, please send an email to info@vmware.com.
Copyright © 1998-2012 VMware, Inc. All rights reserved. VMware software products are protected by one or more U.S. Patent Numbers D617,808, D617,809, D617,810, D617,811, 6,075,938, 6,397,242, 6,496,847, 6,704,925, 6,711,672, 6,725,289, 6,735,601, 6,785,886, 6,789,156, 6,795,966, 6,880,022, 6,883,095, 6,940,980, 6,944,699, 6,961,806, 6,961,941, 6,970,562, 7,017,041, 7,055,032, 7,065,642, 7,069,413, 7,069,435, 7,082,598, 7,089,377, 7,111,086, 7,111,145, 7,117,481, 7,149,310, 7,149,843, 7,155,558, 7,222,221, 7,260,815, 7,260,820, 7,269,683, 7,275,136, 7,277,998, 7,277,999, 7,278,030, 7,281,102, 7,290,253, 7,343,599, 7,356,679, 7,386,720, 7,409,487, 7,412,492, 7,412,702, 7,424,710, 7,428,636, 7,433,951, 7,434,002, 7,447,854, 7,447,903, 7,467,067, 7,475,002, 7,478,173, 7,478,180, 7,478,218, 7,478,388, 7,484,208, 7,487,313, 7,487,314, 7,490,216, 7,500,048, 7,506,122, 7,516,453, 7,529,897, 7,543,301, 7,555,747, 7,565,527, 7,571,471, 7,577,722, 7,581,064, 7,590,715, 7,590,982, 7,594,111, 7,596,594, 7,596,697, 7,599,493, 7,603,704, 7,606,868, 7,620,523, 7,620,766, 7,620,955, 7,624,240, 7,630,493, 7,636,831, 7,657,659, 7,657,937, 7,665,088; 7,672,814, 7,680,919, 7,689,986, 7,693,996, 7,694,101, 7,702,843, 7,707,185, 7,707,285, 7,707,578, 7,716,446, 7,734,045, 7,734,911, 7,734,912, 7,735,136, 7,743,389; 7,761,917; 7,765,543; 7,774,391; 7,779,091; 7,783,779; 7,783,838; 7,793,279; 7,797,748; 7,801,703, 7,802,000; 7,802,248; 7,805,676; 7,814,495; 7,823,145; 7,831,661; 7,831,739; 7,831,761; 7,831,773; 7,840,790; 7,840,839; 7,840,993; 7,844,954; 7,849,098; 7,853,744; 7,853,960; 7,856,419; 7,856,531; 7,856,637; 7,865,663; 7,869,967; 7,886,127; 7,886,148; 7,886,346; 7,890,754; 7,895,437; 7,908,646; 7,912,951; 7,921,197; 7,925,850; 7,933,981; 7,934,017; 7,934,020; 7,941,401; 7,941,470; 7,941,827; 7,945,436; 7,945,761; 7,945,908; 7,945,958; 7,958,558; 7,962,647; 7,966,315; 7,966,615; 7,970,938; 7,971,015; 7,971,047; 7,971,182; 7,975,165; 7,984,254; 7,984,264; 7,984,304; 8,001,083; 8,001,322; 8,005,787; 8,006,043; 8,010,667; 8,010,701; 8,013,859; 8,015,367; 8,015,388; 8,019,861; 8,024,506; 8,024,779; 8,028,071; 8,037,032; 8,037,227; 8,037,280; 8,046,468; 8,056,076; 8,060,342; 8,060,722; 8,060,875; 8,060,877; 8,060,883; 8,069,250; 8,074,045; 8,086,822; 8,095,525; 8,095,929; 8,095,931; 8,099,607; 8,099,568; 8,117,410; 8,127,014; 8,127,107; 8,127,301; 8,141,075; 8,141,163; 8,145,752; 8,145,763; 8,145,836; 8,146,082; 8,151,263; 8,166,107; 8,166,211; 8,166,253; 8,166,349; 8,166,474; 8,166,475; 8,166,554; 8,171,033; 8,171,140; 8,171,141; 8,171,142; 8,171,278; 8,171,338; 8,171,345; 8,171,482; 8,171,488; 8,171,491; 8,171,548; 8,176,493; 8,180,729; patents pending.
