Terms & Conditions
eztalks.com maintains this website as a service to its clients and general public. By using the website you are agreeing to comply with the following Terms & Conditions. Please review the following Terms & Conditions.
The following Terms and Conditions govern your use of the ezTalks website and the materials that are accessible on or from the site. Please read them carefully before entering the site, and refer to them as necessary as you explore the ezTalks website. Your use of the site means that you accept the Terms and Conditions. If you do not agree with these Terms and Conditions, please do not visit or use the ezTalks website.
The content, organization, gathering, compilation, magnetic translation, digital conversion and other matters related to the website are protected under applicable copyrights, trademarks, service marks, trade names and other proprietary (including but not limited to intellectual property) rights. The copying, redistribution, use or publication by a User of any such content or any part of the website is strictly prohibited. The User does not acquire ownership rights to any content or document obtained through the website. The posting of information or materials on the website does not constitute a waiver of any right in such information and materials.
3.1. Rights to Use Terms & Conditions
3.2. Limitations on Use
Except to the extent permitted by applicable law, Customer agrees, on behalf of itself and its users, not to (i) modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, decompile or attempt to decipher any code relating to the Terms & Conditions and/or ezTalks technology; (ii) knowingly or negligently access or use the Terms & Conditions in a manner that abuses or disrupts the ezTalks networks, security systems, user accounts, or Terms & Conditions of ezTalks or any third party, or attempt to gain unauthorized access to any of the above through unauthorized means, (iii) transmit through or post on the Terms & Conditions any material that is deemed abusive, harassing, obscene, slanderous, fraudulent, libelous or otherwise objectionable or unlawful; (iv) market, offer to sell, and/or resell the Terms & Conditions to any unauthorized third party; (v) use the Terms & Conditions in violation of ezTalks policies, applicable laws, ordinances or regulations; (vi) use the Terms & Conditions to send unsolicited or unauthorized advertising, junk mail, or spam; (vii) harvest, collect, or gather information or data regarding other users without their consent; (viii) transmit through or post on the Terms & Conditions any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright, data privacy or right of publicity; (ix) transmit or post on the Terms & Conditions any material that contains software viruses or other harmful or deleterious computer code, files or programs; (ix) use the Terms & Conditions directly or indirectly for competitive benchmarking or other competitive analysis if Customer is a direct competitor of the applicable Service; (x) make any representations with respect to ezTalks or this Terms & Conditions (including, without limitation, that ezTalks is a warrantor or co-seller of any of Customer’s products and/or services). ezTalks shall have sole and exclusive discretion to determine applicability of the restrictions set forth above and any violations thereof.
3.3. Proprietary Rights
Except for the limited subscription rights granted herein, Customer has no right, title or interest in or to the Terms & Conditions or any components provided by ezTalks in connection with the Terms & Conditions or any intellectual property rights related thereto. Customer acknowledges that ezTalks or its licensors retain all proprietary right, title and interest in and to, or practiced in connection with, the ezTalks and any components, including, without limitation, all modifications, enhancements, derivative works, configuration, translations, upgrades and interfaces thereto.
4.1. Indemnification by ezTalks
ezTalks shall indemnify and defend Customer against any third party Infringement Claim brought against Customer, and pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to such Infringement Claim; provided that: (i) Customer promptly notifies ezTalks in writing of an Infringement Claim such that ezTalks is not prejudiced by any delay of such notification; (ii) ezTalks will have sole control over the defense and any settlement of any Infringement Claim; and (iii) Customer will provide reasonable assistance in the defense of same. ezTalks will reimburse Customer for reasonable expenses incurred in providing such assistance. ezTalks shall not enter into any settlement agreement which imposes any obligation on Customer without Customer’s prior written consent. For the purposes of this Agreement, “Infringement Claim” means any claim, suit or proceeding brought against a Customer based on an allegation that the Terms & Conditions, as used by Customer in accordance with this Agreement and the applicable documentation, infringes upon any patent, copyright or violates any trade secret rights of any third party.
4.2. Infringement Cures
If Customer’s use of any of the Services is, or in ezTalks’s opinion is likely to be, enjoined as a result of an Infringement Claim, ezTalks shall, at its sole option and expense, either (i) procure for Customer the right to continue to use the Services as contemplated herein, or (ii) replace or modify the Terms & Conditions to make their use non-infringing without degradation in performance or a material reduction in functionality. If options (i) and (ii) above are not reasonably available, ezTalks may, in its sole discretion and upon written notice to Customer, terminate this Agreement, cancel access to the Services and refund to Customer any prepaid, but unused Fees.
ezTalks assumes no liability, and shall have no liability, for any Infringement Claim based on (i) Customer’s access to and/or use of the Terms & Conditions following notice of an Infringement Claim; (ii) any modification of the Terms & Conditions by Customer or at its direction; (iii) Customer’s combination of the Terms & Conditions with third party programs, services, data, hardware, or other materials; or (iv) any trademark or copyright infringement involving any marking or branding not applied by ezTalks or involving any marking or branding applied at Customer’s request.
4.4. Exclusive Remedy
THE FOREGOING STATES EZTALKS SOLE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIM HEREUNDER.
4.5. Indemnification by Customer
Customer shall indemnify and defend ezTalks against any third party claim brought against ezTalks or alleging that any Customer Content submitted by Customer infringes upon any patent or copyright, or violates trade secret or privacy rights of any party, and shall pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim; provided that: (i) ezTalks promptly notifies Customer in writing of such a claim such that Customer is not prejudiced by any delay of such notification, (ii) Customer will have sole control over the defense and any settlement of any such claim, and (iii) ezTalks will provide reasonable assistance in the defense of same. Customer will reimburse ezTalks for reasonable expenses incurred in providing such assistance. ezTalks may participate in the defense or settlement of such a claim with counsel of its own choice and at its own expense; however, ezTalks shall not enter into any settlement agreement or otherwise settle any such claim without Customer’s express prior written consent.
5. Disclaimer of Warranties
YOUR USE OF THE TERMS & CONDITIONS IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EZTALKS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
EZTALKS MAKES NO WARRANTY THAT (I) THE TERMS & CONDITIONS WILL MEET YOUR REQUIREMENTS, (II) THE TERMS & CONDITIONS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE TERMS & CONDITIONS WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
6. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT EZTALKS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF EZTALKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE TERMS & CONDITIONS; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL EZTALKS’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID EZTALKS IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS & CONDITIONS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE TERMS & CONDITIONS.