Terms of use  


         
  For Adigo website, products, services and software
The Agreement (as defined below) is by and between Conserto, LLC (dba "Adigo") or, if applicable based on your location, one of its affiliates ("Adigo") and "you". "You" refers to both: (i) the individual or legal entity purchasing or opening an account for the Products, Services, or Software ("Customer"); and/or, as the case may be (ii) the individual installing the Software, or accessing or using the Site, Products, or Services ("User").

By installing, copying, or otherwise using the Software, or accessing or using the Site, Products, or Services, you agree to be bound by these Terms of Use, together with any operating rules, policies (including the Privacy Policy), price schedules, click thru license agreements, contractual revenue commitments, or other supplemental documents, whether or not expressly incorporated herein by reference, published from time to time by Adigo (collectively, the "Agreement"). Please read the Agreement carefully before installing, accessing, or otherwise using the Site, Products, Software or Services. Please print and maintain a copy of these Terms of Use and each document comprising the Agreement for your records.

Note for Users who are not Customers: The following provisions of these Terms of Use do not apply to you: Section 7 (Pricing; Pricing Adjustment; Promotional Offers), with the exception of references to coupons, credits, special promotional offers, free or without charge items; Section 8 (Invoices; Payment Terms; Credit Card Authorization; Prepayment; Refunds); Section 10 (Account Cancellation), with the exception of references to account cancellation by Adigo after extended non-use; and Section 21 (Indemnity). If your employer is a Customer and has an existing written Service Order with Adigo ("Service Order"), the Service Order will govern (and will be deemed to supersede the applicable terms of the Agreement) solely to the extent of any conflict between this Agreement and the Service Order for the Site, Products, Services, and Software covered by that Service Order.

1. Definitions
All capitalized terms used and not otherwise defined in the Agreement have the following meanings:

"Affiliated Entity" means (i) any licensor or supplier providing any part of the Products, Software or Services; and (ii) any subsidiary, affiliate, officer, employee, consultant, or agent, of Adigo.

"Content" means all data, text, images, sounds, computer programs, and any other information, including, without limitation, everything that is uploaded by or for you in connection with your use of the Products, Services, or Software including, but not limited to, photographs, caricatures, illustrations, designs, icons, articles, audio clips, trademarks, logos, and video clips.

"Products" means the Adigo products acquired by a Customer as described in the applicable Service Order for such products that has been placed with Adigo directly or via an authorized reseller and accepted by Adigo.

"Services" means the Adigo services acquired by a Customer as described in the applicable Service Order for such services that has been placed with Adigo directly or via an authorized reseller and accepted by Adigo.

"Site" means http://www.adigo.com or any other Adigo owned or Adigo operated web site, or any successor or parallel web site.

"Software" means the software, including all associated documentation and other materials, provided to you by Adigo to facilitate your access to and use of the Products or Services.

"Term" means the duration of the Agreement (i) as provided in the applicable Service Order, if any; or (ii) commencing upon the earliest of the date that: (a) you first access or use the Site Products or Services; or (b) you install the Software, and continuing until the end of the applicable Services period as designated by Adigo, subject to earlier termination as provided herein.

2. Software License
Subject to your compliance with the terms and conditions contained in these Terms of Use, Adigo hereby grants you a non-exclusive license during the Term: (i) to install the Software (in object code and executable code format only); and (ii) to use such Software (as installed) solely in connection with accessing the Site and using the Products or Services.

3. Access to Services; Suspension and Termination
Subject to your compliance with the terms and conditions contained in these Terms of Use, Adigo grants to you a non-exclusive, revocable right to access and use the Services during the Term. Adigo reserves the right to suspend or discontinue, without notice, all or any part of the Services, or otherwise terminate the Agreement, at any time if Adigo reasonably believes that you are in breach of the Agreement or that your activities may harm Adigo or any other person. Upon the suspension, termination or expiration of the Agreement, your access and other rights to the Products or Services will be cancelled and you agree to discontinue accessing the Site and using the Products or Services. You are prohibited from reselling or acting as a service bureau for the Products or Services or any component thereof.

4. Ownership of Software, Services, and Marks; Telephone Numbers
The Software and Services are licensed, not sold, solely for use under the terms of the Agreement. Except as specifically set forth in the Agreement, Adigo and the Affiliated Entities retain all their respective right, title, and interest, including all intellectual property rights, relating to or embodied in the Software or Services, including without limitation, all technology, software, and copies relating to the Software or Services. All graphics, logos, service marks, and trade names, (including third-party names), product names, and brand names (collectively, the "Marks"), relating to the Software or Services are the trademarks of Adigo or an Affiliated Entity. You are prohibited from using any Marks without the prior written permission of Adigo or the applicable Affiliated Entity. Adigo reserves all rights not expressly granted in the Agreement.

Adigo may assign telephone numbers, including toll-free telephone numbers, to you for use in connection with the Products, Services or Software. All right, title, and interest, including all intellectual property rights, in the telephone numbers, including toll-free telephone numbers, assigned hereunder, shall be retained by Adigo or the respective Affiliated Entity. You agree not to transfer, port or change the responsible organization, as defined by the Federal Communications Commission or other telecommunications authority, for any assigned telephone number, including toll-free numbers. Adigo is the customer of record in connection with the telephone numbers, including toll-free telephone numbers, assigned hereunder, and may reassign, cancel, revoke, or change any assigned telephone numbers, including toll-free telephone numbers, at any time without notice.

5. Restrictions
You agree not to reverse engineer, decompile, disassemble, translate or attempt to derive or view the source code of any part of the Products, Software or Services. Unless expressly set forth herein, you may not use, copy, modify, create derivative works of, distribute, sell, assign, pledge, create a security interest in, sublicense, lease, loan, rent, timeshare, deliver, or otherwise transfer, directly or indirectly, the Software (in whole or in part) or any rights in the Services. You may not remove from the Software or Services, or alter or add, any Marks or copyright notices or other proprietary rights markings. IF YOU ARE NOT AN EMPLOYEE, INDEPENDENT CONTRACTOR, OR INVITEE OF A CUSTOMER, YOU ARE NOT AUTHORIZED TO INSTALL OR OTHERWISE USE THE SOFTWARE, PRODUCTS, OR SERVICES.

6. No Training or Technical Support; Scheduled Downtime
The Agreement does not create, and Adigo does not assume, an obligation to provide any support or maintenance services in connection with the Products, Software or Services. The regularly scheduled maintenance for Web Conferencing is 6:00pm Friday to 6:00am Sunday (Pacific Time). During that time the Services may not be available for use.

7. Pricing; Pricing Adjustment; Promotional Offers
The prices charged for the Products, Services or Software you use or subscribe to shall be at the rates provided in the applicable Service Order, or, if there is no applicable Service Order, then the rates in effect when the charges are incurred. All prices are given and must be paid in U.S. dollars. All prices exclude applicable taxes, duties, and similar charges, which will be charged to and paid for by you. You will cause those who access the Services through your account, including Users, to comply with the terms and conditions of this Agreement. You agree to pay all amounts due under this Agreement and to be responsible for all activity in your account for the Services, including payment of fees incurred at the direction of any User(s).

Unless Adigo otherwise agrees in writing, Adigo may adjust its prices at any time. In the event that Adigo adjusts the prices upward more than 15%, Adigo will notify you via electronic mail, facsimile, telephone, or mail in advance of the effective date of such price increase. This notice requirement does not apply to prices for international services, which Adigo may change, increase, or decrease at any time without prior notice.

Adigo may discontinue or modify coupons, credits, and special promotional offers at any time without notice. Any Products, Services, or Software provided without charge or any other special promotional offer is subject to additional conditions and terms specific to the offer and Adigo may change those additional terms and conditions at any time.

8. Invoices; Payment Terms; Credit Card Authorization; Prepayment; Refunds
Adigo will send you an invoice each month setting forth (i) all charges incurred by you for access to and use of the Products, Services, and Software not previously invoiced, and (ii) any taxes, regulatory surcharges, levies, fees, fund contributions, whether federal, state, local, municipal, or imposed by Adigo to recover costs associated with complying with regulations, litigation, complaints, settlements, judgments, adjudications, taxes, or surcharge requirements ("Surcharges"). Surcharges may be retroactively assessed and Adigo may, in its sole discretion, either itemize the Surcharges on your invoice or include them in the gross amount without itemization. Surcharges collected by Adigo may exceed or not match the amount remitted to governmental entities.

Each invoice is deemed to be valid and correct and due in full unless you notify Adigo of errors via certified mail and electronic mail within 30 days of the invoice date (“Notice”). All undisputed amounts contained in the invoice will be due and payable on the due date stated on the invoice. Upon receipt of any Notice, Adigo will review the invoice and submit the results of that that review to you within 15 days after receipt of the Notice (the “Response”). If you are not satisfied with the Response, you may file for arbitration of the dispute as provided in Section 28.

You agree to pay the amount due as reflected on each invoice by the due date stated on the invoice. A late payment fee in the amount of one and one-half percent per month will be charged to your account if you fail to pay the invoice in full by the due date. Payments will be credited to your invoices and account in any manner Adigo determines. Your inclusion with any payment of any statement referring to payment-in-full or similar statement will not change, reduce, or dismiss your full payment obligations and only the actual amount paid will be applied to your invoices and account. If Adigo uses the services of an attorney or collection service to collect amounts owed to Adigo, you agree to pay the costs associated with such collection activity, including but not limited to attorney fees, collection service fees, court costs, filing fees, fees for process of service, and/or other costs.

Adigo may process your payment electronically by presenting your bank routing number, account number, check number (if applicable), and dollar amount to your bank. Checks will be processed when received regardless of the date on the check. If your check is returned for any reason, Adigo may resubmit your payment electronically as described above and may assess a fee of $100 or the maximum applicable by law to your account and submit this amount for payment to your bank electronically.

If paying by credit card, only valid credit cards acceptable to Adigo may be used by you to make payment, and all refunds will be credited to the card used to make payment. Throughout the Term and until all amounts due have been paid in full, you hereby authorize Adigo to charge any credit card provided by you to Adigo, an amount equal to all amounts due under the Agreement from time to time, including without limitation, all payments, taxes, and additional fees. If the card cannot be verified, is invalid or is not otherwise acceptable, the Services may be deferred, suspended, or cancelled by Adigo without notice and Adigo may generate invoices for payment. You agree to provide Adigo with any updated information to keep it current at all times and Adigo may submit charges for processing even if the card appears to have expired. If requested and required by Adigo, a credit card authorization form must be completed if you want to pay by credit card.

Adigo may, at any time, require payment prior to providing or continuing to provide Products, Services, or Software. All payments, including those paid in advance, are non refundable.

9. Account Cancellation
Customer accounts may be cancelled by (i) the Customer notifying Adigo via certified mail and electronic mail of its desire to cancel its account; (ii) the User discontinuing use of the Services, Products, Software, and Site; and (iii) the payment of any and all amounts due for the Services, Products, Software, and Site, including those that are due in connection with a contractual revenue commitment and/or in connection with a pre-subscribed time period (e.g. weekly, monthly, annual). Adigo may deactivate, cancel, or terminate your account if you have not used the account for a period of 365 days. Cancellation of an account does not terminate the Agreement or reduce or change your responsibilities under the Agreement.

10. Electronic Communications
The Services are conducted electronically and you agree that Adigo may communicate electronically with you regarding all matters relating to the Site, Products, Services or Software, including, but not limited to, educational information and notifications regarding product updates, incentive and rewards programs, training opportunities and ways to more efficiently use the Site, Products, Services or Software.

11. Updates; Applicable Terms and Authorization for Auto Updates
Subject to the terms and conditions of the Agreement, as well as any additional terms and conditions provided by Adigo, Adigo may, in its sole discretion, provide you with updates, supplements, add-on components, features or other functionality or messages related thereto, including, but not limited to, alterations of functionality, features, storage, security, availability, content and other information relating to the Products, Software or Services (collectively, "Updates") that Adigo may provide or make available generally to its customers after the date that use of the Services commences. You hereby authorize Adigo to, and agree that Adigo may, in good faith and in accordance with the standard operating procedures of Adigo, automatically transmit, access, install and otherwise provide Updates to the Software without further notice or your prior consent. Adigo has no obligation to, and nothing in this Agreement may be construed to require Adigo to, create, provide or install any Updates. The terms of the Agreement apply to all Updates.

12. Privacy and Information Security Policy
The Adigo Privacy and Information Security Policy can be accessed at the Site http://www.adigo.com/privacy.htm ("Privacy Policy"), and is incorporated herein by this reference and made a part of the Agreement. The Privacy Policy explains, among other details, how certain information about you may be processed and used. You hereby acknowledge that you have accessed and read the Privacy Policy, and you agree to the Privacy Policy as if the "you" referenced therein is a reference to you.

13. NOTICE REGARDING RECORDING AND PRIVACY FEATURES
THE PRODUCTS, SOFTWARE, AND SERVICES MAY ALLOW YOU TO RECORD MEETINGS, TELEPHONE CALLS, AND CONVERSATIONS, AND TO COLLECT AND UTILIZE IDENTIFYING INFORMATION ABOUT PARTICIPANTS, such as a name, telephone number, IP address, electronic mail address, physical address, title, or company that is displayed, transmitted, processed, or stored as part of a meeting or meeting record. THE LAWS OF SOME STATES OR COUNTRIES REQUIRE THE CONSENT OF INDIVIDUALS PRIOR TO RECORDING THEIR COMMUNICATIONS OR RESTRICT THE COLLECTION, STORAGE OR USE OF PERSONALLY IDENTIFYING INFORMATION. You agree to comply with all applicable laws relating to recording communications and collecting information, to obtain all necessary consents and to make all necessary disclosures before using any recording features in connection with your use of the Software and Services. You agree to defend, indemnify, and hold Adigo and the Affiliated Entities harmless from and against any violation of such laws or regulations. In addition, you agree to defend, indemnify, and hold Adigo and the Affiliated Entities harmless from and against any claim or action in connection with the recording, transmittal, deletion or removal of the recording, or any failure of the recording feature to work or function properly. You agree that neither Adigo nor the Affiliated Entities have responsibility regarding (i) the recording of any calls or meetings; (ii) assuring that the recording feature will work or be available in any particular instance; (iii) maintaining, storing, or archiving any recording; and (iv) the permanent deletion of any recordings at any time, in the sole discretion of Adigo or an Affiliated Entity.

14. You Retain Ownership of Content
Adigo does not claim ownership of any Content. You hereby grant to Adigo a nonexclusive, worldwide, royalty-free, fully-paid, transferable license to host, cache, record, copy and display Content solely for the purpose of providing the Services. Except as licensed in the Agreement, as between you and Adigo, you retain all right, title, and interest in and to the Content.

15. Limited Purpose Access to Content
You acknowledge that the Services are provided by automated means (e.g., uploading Content via the applicable software tools) and that Adigo personnel will not access, view or listen to any Content, except as permitted under the Privacy Policy or as otherwise necessary to perform the Services, including, but not limited to, the following: (i) if necessary during a Services interruption to restore the applicable Content at your request; (ii) if you have requested that Adigo serve as host, producer, moderator, or facilitator for any meeting, presentation, or event as part of the Services; or (iii) as deemed necessary or advisable by Adigo in good faith to conform to any applicable legal requirement or legal process. If you are authorized by a Customer to access or use any recordings or Content, you agree that you will only download, use or display copies of Content made during use of the Services for internal business purposes. You are not authorized to download or use such recordings or Content for the benefit of any third party or to sell access to or otherwise commercialize any such recording.

16. Representations and Warranties About Content
You represent and warrant that you: (i) are the owner or authorized licensee of any and all Content; and (ii) will not publish, post, upload, record or otherwise distribute or transmit Content that: (a) infringes any copyright, patent, trademark, trade secret or other proprietary right of any person or any rights of publicity or privacy of any person; (b) violates any law, statute, ordinance, or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, or false advertising); (c) is inappropriate, profane, defamatory, libelous, obscene, indecent, threatening, harassing or otherwise unlawful; (d) is harmful to minors or otherwise pornographic; (e) contains any viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software, data, or programs that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, personal information, or property of another; or (f) is materially false, misleading, or inaccurate.

17. Submissions
You may submit questions or comments to Adigo at http://www.adigo.com/support.asp. Adigo reserves the right to edit and post such questions or comments along with answers provided by Adigo, if any. All such communications, comments, feedback, suggestions, ideas and other submissions related to the Products, Software or Services and submitted to Adigo (collectively, "Submissions") will be and remain the property of Adigo, and all worldwide right, title and interest in all copyrights and other intellectual property related to any Submissions are hereby assigned (and in the future are deemed to be assigned) by you to Adigo.

19. Links to Third Party Sites
Links within the Site may let you leave the Site and visit web sites that are not controlled by Adigo. Neither Adigo nor the Affiliated Entities is responsible for any Content of any such linked web site. Links are provided only as a convenience and do not imply any endorsement by Adigo or the Affiliated Entities.

20. Publicity and Press Release
You agree that Adigo may issue one or more press releases announcing your use of the Products, Services, or Software and that Adigo may use your name and/or logo on our Site or in any collateral marketing materials.

21. Compliance with Applicable Law
You agree (i) not to use the Software or Services for any illegal purposes and (ii) to comply with all applicable local, state, national and international laws and regulations, including, but not limited to, laws relating to recording conversations, privacy, data protection, public displays or performances and United States export laws and regulations regarding the transmission of technical data exported from the United States.

22. Use Restrictions
You agree not to:
(i) use the Services in connection with chain letters, junk mail, surveys, contests, pyramid schemes, spamming or any duplicative or unsolicited messages, or any use of distribution lists to any person who has not given specific permission to be included in such a process, whether commercial or otherwise;

(ii) harvest or otherwise collect information about others, including electronic mail addresses, without their express consent;

(iii) use, download, copy, or provide (whether or not for a fee) to any person or entity any directory of the users of the Products, Site, Services or Software, or other user or usage information, or any portion thereof, other than in the context of your use of the Services as permitted under the Agreement;

(iv) interfere with any other party's use and enjoyment of the Services, or use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Site, Services, or any networks connected to the Services;

(v) attempt to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services through password mining or any other means;

(vi) use, copy, modify, create derivative works of, distribute, sell, assign, pledge, create a security interest in, sublicense, lease, loan, rent, timeshare, deliver, or otherwise transfer, directly or indirectly, the Software (in whole or in part) or any rights in the Services;

(vii) reverse engineer, modify, decompile, disassemble, translate or otherwise attempt to derive or view the source code of any part of the Products, Software or Services;

(viii) defraud, defame, abuse, harass, stalk, threaten or otherwise violate the legal rights, including rights of privacy and publicity, of others;

(ix) upload, or otherwise make available, files that contain images, photographs, software or other material protected by intellectual property laws, including, but not limited to, copyright or trademark laws, rights of privacy or publicity, unless you own or control the rights thereto or have received all necessary consent to do the same;

(x) upload files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files or any other similar information that may damage the operation of another's computer or property or information; and

(xi) falsify or delete any copyright management information, such as author attributions, legal or other proper notices or proprietary designations, labels of the origin or source of software or other material contained in a file that is uploaded.

23. Indemnity
If you are a Customer, you agree to defend, indemnify and hold forever harmless Adigo and the Affiliated Entities, including their officers, shareholders, directors, partners, employees, representatives, attorneys, and agents, and each of them, against and in respect of any and all claims, demands, losses, costs, expenses, obligations, liabilities, actions, causes of action, judgments, damages, recoveries, and deficiencies, including interest, penalties, and actual attorneys' fees that they or any of them incur or suffer, which arise, result from, or are related to the Software or Services, including, but not limited to, (i) any actual or alleged violation of the Agreement or applicable law by you or any person accessing the Services using your password or access key, and (ii) any actual or alleged infringement or violation of any intellectual property, privacy or other right of any person or entity by you or any person accessing the Services using your password or access key.

24. DISCLAIMER OF WARRANTIES
THE SOFTWARE, SERVICES, AND PRODUCTS ARE PROVIDED "AS IS" AND "WITH ALL FAULTS" AND WITHOUT ANY WARRANTY. ADIGO AND THE AFFILIATED ENTITIES HEREBY DISCLAIM ALL WARRANTIES, CONDITIONS AND DUTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR WARRANTY AGAINST INFRINGEMENT, OR AGAINST INTERFERENCE WITH ENJOYMENT OF THE SOFTWARE OR SERVICES; ANY IMPLIED WARRANTY OR DUTY OF ACCURACY, SYSTEM INTEGRATION OR COMPATIBILITY, WORKMANLIKE EFFORT, OR LACK OF NEGLIGENCE. THE FOREGOING DISCLAIMERS INCLUDE, BUT ARE NOT LIMITED TO, ANY WARRANTY, DUTY OR CONDITION THAT (i) THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED, RELIABLE, AVAILABLE AT ANY PARTICULAR TIME, SECURE, ERROR-FREE, VIRUS-FREE OR CORRESPOND TO ANY CONDITION; (ii) THAT MESSAGES OR REQUESTS WILL BE DELIVERED; (iii) THAT DEFECTS WILL BE CORRECTED; OR (iv) THAT THE SOFTWARE, SERVICES, CONTENT, SYSTEMS, SERVERS OR INFORMATION THAT IS IN OR UTILIZED BY THE SOFTWARE OR SERVICES WILL BE FREE OF HARMFUL ASPECTS.

25. NO LIABILITY FOR CONTENT
YOU AGREE THAT NEITHER ADIGO NOR THE AFFILIATED ENTITIES WILL BE LIABLE FOR (i) ANY CONTENT, INCLUDING BUT NOT LIMITED TO, CONTENT THAT IS SENT, RECEIVED, HELD, RELEASED OR OTHERWISE CONNECTED IN ANY RESPECT TO THE SOFTWARE OR SERVICES; (ii) CONTENT THAT IS SENT BUT NOT RECEIVED; (iii) ANY ACCESS TO OR ALTERATION OF CONTENT; (iv) ANY CONTENT SENT USING OR INCLUDED IN THE SERVICES, INCLUDING BUT NOT LIMITED TO, ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE, OR ILLEGAL CONTENT; OR (v) ANY INFRINGEMENT OF ANOTHER'S RIGHTS IN ANY CONTENT, INCLUDING PRIVACY, INTELLECTUAL PROPERTY OR DATA PROTECTION RIGHTS.

26. EXCLUSION OF CERTAIN DAMAGES
YOU ACKNOWLEDGE AND AGREE THAT THE CONSIDERATION THAT ADIGO IS CHARGING HEREUNDER DOES NOT INCLUDE ANY CONSIDERATION FOR ASSUMPTION BY ADIGO OF THE RISK OF ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES THAT MAY ARISE IN CONNECTION WITH YOUR USE OF THE SITE, PRODUCTS, SERVICES, OR SOFTWARE, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, OR NEGLIGENCE OR NEGLIGENT MISREPRESENTATION. ACCORDINGLY, YOU AGREE THAT NEITHER ADIGO NOR ANY AFFILIATED ENTITY SHALL BE RESPONSIBLE TO YOU FOR ANY LOSS-OF-PROFIT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF YOUR ACCESS OR USE OF THE SITE, PROJECT, SERVICES, OR SOFTWARE.

YOU AGREE THAT THESE EXCLUSIONS AND THE BELOW LIMITATION ON LIABILITY WILL APPLY EVEN IF ANY REMEDY AVAILABLE TO YOU FAILS OF ITS ESSENTIAL PURPOSE.

27. LIMITATION ON LIABILITY
EXCEPT FOR DAMAGES THAT ARE REQUIRED BY LAW, YOU AGREE THAT ALL DAMAGES ARE EXCLUDED, EXCEPT FOR THE DIRECT DAMAGES THAT ARE ACTUALLY INCURRED BY YOU WHICH ARE LIMITED TO THE GREATER OF (i) THE AMOUNT THAT YOU ACTUALLY PAID FOR THE SERVICES DURING THE BILLING PERIOD (QUARTERLY OR MONTHLY) IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM, REGARDLESS OF THE FORM OF ACTION OR NATURE OF THE CLAIM OR (ii) ONE DOLLAR (US$1.00).

28. Arbitration
Any claim, controversy, or dispute arising out of or in connection with the interpretation, performance, or breach of the Agreement, including any claim based on contract, tort, or statute, shall, at the request of any party to this Agreement, be submitted to and determined in final and binding arbitration. The arbitration shall be conducted before a single arbitrator in accordance with the then existing Commercial Arbitration Rules of the American Arbitration Association and conducted at a location determined by the arbitrator in Denver County, Colorado. The arbitrator shall determine the prevailing party and shall include in the award that party's actual attorney's fees, costs, and expenses incurred in connection with the arbitration, including the preparation therefor, and in enforcing any award granted therein. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof.

29. Survivability
All provisions of the Agreement other than the rights and license provided in Sections 2 and 3 of these Terms of Use shall survive any cancellation, termination, expiration, or suspension of the Agreement, to the extent necessary to enforce the provisions hereof.

30. Governing Law; Exclusive Forum; Jurisdiction
The Agreement and all causes of action related to the Software or Services will be governed by and construed in accordance with the laws of the state of Colorado, United States of America, without giving effect to the conflict-of-laws principles thereof that would require application of the laws of a different state or jurisdiction. Proper venue shall be in Denver County, Colorado. You hereby consent to the personal and subject matter jurisdiction of the state and federal courts located in that state and county. You hereby waive all defenses of lack of personal jurisdiction and forum non conveniens, and agree that any claim or cause of action arising out of or related to the Agreement must be commenced by you within one (1) year after the date upon which the cause of action arose.

31. Construction
The Agreement shall be construed so as to render it enforceable and effective to the maximum extent possible in order to effect the intention of the Agreement. Section headings are for convenience and reference and shall not be used in construction of the Agreement. The masculine, feminine and neuter genders, and the singular and plural number or tense, each shall be deemed to include the others whenever the context requires.

32. Severability
If any provision of the Agreement is declared by a court of competent jurisdiction or arbitrator to be invalid, illegal or unenforceable, the remaining portions shall not be affected thereby and shall remain in effect as if the Agreement had been accepted the invalid portion eliminated.

33. Waiver
The failure of Adigo or the Affiliated Entities to exercise or enforce any right or provision of the Agreement will not constitute a waiver of such right or provision. No waiver is effective unless it is in writing and signed by the waiving party.

34. Force Majeure
Neither Adigo nor the Affiliated Entities will be liable for any non-performance or delay in performance caused by any event beyond the reasonable control of such party including, but not limited to, wars, hostilities, revolutions, riots, civil commotions, national emergencies, epidemics, fire floods, earthquakes, forces of nature, explosions, embargos, interruptions in power, telephone, cable, internet, or other service, or any acts of God.

35. Third Party Beneficiaries; Assignment
The Affiliated Entities are the only third party beneficiaries to the Agreement. No party may assign the Agreement, or any rights or obligations hereunder, whether by contract, operation of law, or otherwise without the express written consent of the other party to the Agreement, except that Adigo may assign the Agreement to one or more of the Affiliated Entities without your prior consent.

36. Export Restrictions
You acknowledge that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Software and Services. Without limiting the foregoing, you acknowledge that the Software and Services are or may be an "encryption item" subject to controls under the Export Administration Regulations promulgated by the U.S. Department of Commerce. You agree not to export or re-export the Software or Services in any form in violation of the export laws of the United States or any foreign jurisdiction. You agree to defend, indemnify and hold Adigo and the Affiliated Entities harmless from and against any violation of such laws or regulations.

37. Entire Agreement
The Agreement constitutes the entire agreement between Adigo and you with respect to the Site, Products, Software and Services and supersedes all other, prior or contemporaneous communications and proposals, whether electronic, oral, or non-electronic, between Adigo and you regarding the subject matter covered by the Agreement. You agree that any term or condition contained in any document, including, but not limited to, a purchase order, acknowledgement, electronic mail, or other document that you may now or later provide to Adigo, will have no effect and that the Agreement is the only contract between Adigo and you regarding the Site, Products, Software or Services and may be amended only as set forth herein. The application of the United Nations Convention on the International Sale of Goods is hereby expressly excluded. The performance of the Agreement by Adigo is subject to existing laws and legal process, and you agree that Adigo may comply with law enforcement or regulatory requests or requirements notwithstanding any contrary term of the Agreement. You acknowledge that a printed version of the Agreement and of any notice given to you in electronic form will be admissible in judicial or administrative proceedings based upon or relating to the Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

38. Amendments
Adigo may, at any time, amend any provision of the Agreement by posting notice of such amended provision(s) on the Site. The amended provisions will automatically become effective on the later of (i) ten (10) days after they are posted on the Site, or (ii) the effective date specified in such posting. By using the Site, Products, Software or Services after such effective date, you agree to be bound by any such amended provisions. Therefore, you agree to periodically visit the Site to examine any such amended provisions. Any amendment proposed by you will be effective only if accepted by Adigo in writing signed by an authorized representative of Adigo.

39. Notices
Other than notices of amendments, governed by Section 37, and notices regarding invoices and payments, governed by Section 8, all notices, demands, and other communications shall be sent by certified mail or reputable overnight delivery courier with a delivery acknowledgement, addressed to you at the address provided by you in Adigo's records, and to Adigo at Adigo, 3090 South Jamaica Court, Suite 306, Aurora, Colorado 80014. Notices are considered given when they are actually received by the addressee.

Revised January 1, 2010


 
terms of use