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Revision effective as of November 29, 2017
Biamp reserves the right to change or modify these Terms at any time and in our sole discretion. If Biamp makes any changes to these Terms, we will provide notice of such changes, such as by updating the "Last Updated" date at the top of these Terms. Your continued use of the Services will confirm your acceptance of the revised Terms. We encourage you to frequently review our Terms to ensure that you understand the terms and conditions that apply to your access to and use of the Services. If you do not agree to any amended Terms, you must immediately stop using the Services.
You may be able to conclude offline transactions with us on the Services using a payment portal. By providing a credit card or other payment method that we accept, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third party payment processor) to charge your payment method for the total amount of your payment (including any applicable taxes and other charges) (an “Order”). If the payment method cannot be verified, is invalid or is otherwise not acceptable, your Order may be suspended or cancelled. You must resolve any problem we encounter in order to proceed with your Order. In the event you want to change or update payment information associated with your account, you can do so at any time by logging into your account and editing your payment information.
Eligibility, Account, and Communication Preferences
The Services are not targeted towards, nor intended for use by, anyone under the age of 18. By accessing or using the Services, you represent and warrant that you (a) are 18 years of age or older; (b) have not been previously suspended or terminated from the Services; and (c) have full power and authority to enter into this agreement and that, in doing so, you will not violate any other agreements to which you are a party.
In order to access and use certain areas or features of the Services, you may be required to register for an online account. Some of these features are hosted by third party service providers, which may require you to register for an online account with such third parties. When registering for an account, either with us or a third party, you must agree to the applicable terms and conditions or you will not be able to use those restricted areas or features of the Services. You must not create an account name that incorporates a trademark without authorization from the trademark owner. We reserve the right to reclaim account names, or to take other reasonable action as necessary, on behalf of any business or individual that holds legal claim, including trademark rights, in a name.
In consideration of your use of the Services, you agree to (a) provide accurate, current and complete account information; (b) maintain and promptly update your account information; (c) maintain the security of your password and accept all risks of unauthorized access to your account and the information you provide to Biamp and others; and (d) promptly notify Biamp if you discover or otherwise suspect any security breaches related to the Services.
By providing us with your contact information, you also consent to receive electronic communications from Biamp. These communications may include information about the communications you send us and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy.
Copyright and Limited License
Unless otherwise indicated on the Services or by Biamp, the Services and all content and other materials therein, including, without limitation, all logos and designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, "Site Materials") are the proprietary property of Biamp or our affiliates, licensors or users and are protected by U.S. and international copyright laws.
Biamp grants you a limited, non-transferable, non-exclusive, non-sublicensable license to access and use the Services and Site Materials; however, such license is subject to these Terms and, except as permitted under applicable law, does not include (a) any resale or commercial use of the Services or Site Materials without our express written consent; (b) distributing, publicly performing or public displaying any Site Materials; (c) modifying or otherwise making any derivative uses of the Services or Site Materials, or any portion thereof; (d) using any data mining, robots or similar data gathering or extraction methods; (e) downloading (other than the page caching) of any portion of the Services, Site Materials or any information contained therein, except as expressly permitted on the Services; and (f) using the Services or Site Materials other than for their intended purposes. Any use of the Services or Site Materials other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use also may violate applicable laws, including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein or otherwise by Biamp, nothing in these Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time.
Notwithstanding anything to the contrary in these Terms, the Services and Site Materials may include software and software components provided by Biamp or a third party that are subject to separate license terms, in which case those license terms will govern such software components.
“Biamp,” "Biamp Systems," “Cornerstone,” “Component,” and any other product or service names, logos or slogans that may appear on the Services are trademarks of Biamp or our affiliates, licensors in the United States and in other countries, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Biamp or the applicable trademark holder. You may not use any metatags or other "hidden text" utilizing "Biamp" or any other name, trademark, or product or service name of Biamp without our prior written permission. In addition, the look and feel of the Services, including all page headers, custom graphics, button icons and scripts, are the service mark, trademark and/or trade dress of Biamp and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product or service names, logos or slogans mentioned on the Services are the property of their respective owners. Reference to any products, services, processes or other information, by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Biamp.
Biamp grants you a limited, non-exclusive right to create a text hyperlink to the Services for non-commercial purposes; provided, that such link does not portray Biamp or any of our products or services in a false, misleading, derogatory or otherwise defamatory manner; provided further, that the linking site does not contain any adult only or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use any of our licensors’ logos or other proprietary graphics to link to the Services without our express written permission. Further, you may not use, frame or utilize framing techniques to enclose any trademark, logo or other proprietary information of Biamp or our affiliates, licensors, including the images found at the Services, the content of any text or the layout/design of any page or form contained on a page on the Services without our express written consent. Except as noted above, you are not conveyed any right or license by implication, estoppel or otherwise in or under any patent, trademark, copyright or proprietary right of Biamp or any third party.
Biamp makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third-party websites accessible by hyperlink from the Services, or websites linking to the Services. Such sites are not under the control of Biamp, and Biamp is not responsible for the contents of any linked site, any link contained in a linked site, or any review, changes or updates to such sites. Biamp provides these links to you only as a convenience, and the inclusion of any link does not imply affiliation, endorsement or adoption by Biamp of any site or any information contained therein. When you leave the Services, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering and protection practices, of any site to which you navigate from the Services.
Biamp may provide third-party content on the Services and may provide links to web pages and content of third parties (collectively, "Third-Party Content") as a service to those interested in this information. Biamp does not control, endorse or adopt any Third-Party Content and makes no representation or warranties of any kind regarding the Third-Party Content, including without limitation regarding its accuracy or completeness. You acknowledge and agree that, to the maximum extent permitted by applicable law, Biamp is not responsible or liable in any manner for any Third-Party Content and undertakes no responsibility to update or review any Third-Party Content.
Third-Party Products, Services and Promotions
Biamp may provide information about or links to third-party products or services on the Services. Your business dealings or correspondence with, or participation in promotions of, such third parties, and any terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and such third party. Biamp is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or promotions or as the result of the presence of third-party information on the Services.
User Content and User Conduct
The Services include interactive features and areas, such as our blog, that allow users to create, post, transmit or store content, including but not limited to text, music, sound, photos, videos, graphics, code, items and other materials (collectively, "User Content"). You understand that User Content you provide may be viewable by others. You agree that you are solely responsible for your User Content and for your use of such interactive areas, and that you use them at your own risk.
By using the interactive areas of the Services, you agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Services any of the following:
You further agree that you will not violate any law, contract, intellectual property or other third-party right or commit a tort, and that you are solely responsible for your conduct while on the Services. You agree that you will abide by these Terms and will not:
Biamp is not responsible or liable for the conduct of, or your interactions with, any users of the Services (whether online or offline), nor is Biamp responsible or liable for any associated loss, damage, injury or harm. Enforcement of these Terms is solely in Biamp's discretion, and the absence of enforcement of these Terms in some instances does not constitute a waiver of Biamp's right to enforce these Terms in other instances. At the same time, Biamp encourages you to report User Content that violates these Terms by contacting us as at firstname.lastname@example.org. In addition, these Terms do not create any private right of action on the part of any third party or any reasonable expectation or promise that the Services will not contain any content that is prohibited by these Terms. As a provider of interactive services, Biamp is not liable for any statements, representations or User Content provided by our users through the interactive area of the Services. Although Biamp has no obligation to screen, edit or monitor any User Content, Biamp reserves the right, and has absolute discretion, to remove, screen or edit any User Content posted or stored on the Services at any time and for any reason without notice, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Services at your sole cost and expense.
Rights in User Content
Except as otherwise provided herein, on the Services or in a separate agreement (such as a submission agreement), Biamp claims no ownership or control over any User Content. However, by submitting User Content, you grant Biamp a nonexclusive, royalty-free, transferable, worldwide and fully sublicensable right to use, store, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such User Content for the purposes of operating and developing the Services. We will obtain permission from you before we use your User Content for our own commercial purposes, unless you expressly grant these rights to Biamp at the time you upload your User Content.
By posting User Content to the Services, you represent and warrant that (a) such User Content is non-confidential; (b) you own and control all of the rights to the User Content that you post or you otherwise have all necessary rights to post such User Content to the Services; (c) the User Content is accurate and not misleading or harmful in any manner; and (d) the User Content, and your use and posting thereof, does not and will not violate these Terms or any applicable law, rule or regulation.
You may obtain keys (“Keys”) from resellers and distributors which grant you the right to download, access and use Biamp software. Biamp makes no representation or warranty as to any Keys obtained from any resellers or distributors and is under no obligation to accept any Keys as valid or authentic. In the event that we do not accept a Key, your sole recourse is with the reseller or distributor which provided you with the Key.
You may submit questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information or materials about Biamp and the Services (collectively, "Feedback"). Feedback, whether submitted through the Services or otherwise, is non-confidential and shall become the sole property of Biamp. Biamp shall own exclusive rights, including all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You agree to defend, indemnify and hold harmless Biamp and our affiliates, partners, independent contractors, service providers and consultants and our respective directors, officers, employees and agents (individually and collectively, the "Biamp Parties"), from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or related to: (a) your use of the Services and Site Materials; (b) any User Content or Feedback you provide; (c) your violation of these Terms; and (d) your violation of the rights of another.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND SITE MATERIALS ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY BIAMP. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BIAMP DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SERVICES AND SITE MATERIALS. BIAMP DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR SITE MATERIALS ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE.
WHILE BIAMP ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SERVICES SAFE, BIAMP CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR OUR SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD.
Some jurisdictions do not allow the disclaimer of implied terms in contracts with consumers, so some or all of the disclaimers in this section may not apply to you.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BIAMP OR THE BIAMP PARTIES, BE LIABLE FOR ANY COMPENSATORY, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE SERVICES OR SITE MATERIALS, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM BIAMP OR THE BIAMP PARTIES, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO RECORDS OF BIAMP AND THE BIAMP PARTIES, PROGRAMS OR SERVICES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF BIAMP AND THE BIAMP PARTIES, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES OR SITE MATERIALS EXCEED THE AMOUNT YOU PAID TO ACCESS OR USE THE SERVICES AND SITE MATERIALS.
Dispute Resolution; Arbitration
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH BIAMP AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, "Disputes") arising out of or related to a violation of Section 10 or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Biamp agree (a) to waive your and Biamp';s respective rights to have any and all Disputes arising from or related to these Terms or the Services resolved in a court, and (b) to waive your and Biamp's respective rights to a jury trial. Instead, you and Biamp agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
No Class Arbitrations, Class Actions or Representative Actions
You and Biamp agree that any Dispute arising out of or related to these Terms or the Services is personal to you and Biamp and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Biamp agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Biamp agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
Federal Arbitration Act
You and Biamp agree that these Terms affect interstate commerce and that the enforceability of this Section 17 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the "FAA"), to the maximum extent permitted by applicable law.
Notice; Informal Dispute Resolution
You and Biamp agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Biamp shall be sent by certified mail or courier to:
9300 S.W. Gemini Drive
Beaverton, Oregon 97008
Your notice must include (a) your name, postal address, email address and telephone number, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent to the email address you provided at registration and will include (x) our name, postal address, email address and telephone number, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and Biamp cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Biamp may, as appropriate and in accordance with this Section 17, commence an arbitration proceeding or, to the extent specifically provided for in Section 17.1, file a claim in court.
Except for Disputes arising out of or related to a violation of Section 10 or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Biamp agree that (a) any arbitration will occur in Portland, Oregon, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the Arbitration Service of Portland, which are hereby incorporated by reference, and (c) that the state or federal courts located in Multnomah County, Oregon have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county where you reside if the Dispute meets the requirements to be heard in small claims court.
Authority of Arbitrator
As limited by the FAA, these Terms and the applicable Arbitration Service of Portland rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
Rules of Arbitration Service of Portland
The rules of Arbitration Service of Portland and additional information about Arbitration Service of Portland are available on the Arbitration Service of Portland website. By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the rules of Arbitration Service of Portland or (b) waive your opportunity to read the rules of Arbitration Service of Portland and any claim that the rules of Arbitration Service of Portland are unfair or should not apply for any reason.
If any term, clause or provision of this Section 17 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 17 will remain valid and enforceable. Further, the waivers set forth in Section 17.2 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
You may not use or otherwise export or re-export any software from or related to the Services (“Software”) or any content contained therein, except as authorized by United States law and the laws of the jurisdiction in which the Software or any content was obtained. In particular, but without limitation, the Software and the content contained therein may not be exported or re-exported (a) into any U.S. embargoed countries, or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. By using the Services, you represent and warrant that you are not located in any such country or on any such list.
Governing Law and Venue
These Terms and your access to and use of the Services shall be governed by and construed and enforced in accordance with the laws of the State of Oregon, without regard to conflict of law rules or principles (whether of the State of Oregon or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved in the state or federal courts located in Multnomah County, Oregon.
Modifications to the Services
Biamp reserves the right to modify or discontinue, temporarily or permanently, the Services or any content, features or portions thereof at any time without prior notice and without obligation or liability to you. You agree that Biamp will not be liable for any modification, suspension or discontinuance of the Services or any part thereof.
Notwithstanding any of these Terms, Biamp reserves the right, without notice and in our sole discretion, to terminate your right to use the Services, or any portion of thereof, and to block or prevent your future access to and use of the Services or any portion thereof.
If any term, clause or provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that term, clause or provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.