Terms of Use

Last Updated: April 14, 2015

 

IMPORTANT-READ CAREFULLY

 

THESE TERMS OF USE (“TOU”) ARE A LEGAL AGREEMENT BETWEEN YOU (EITHER AS AN INDIVIDUAL OR ANY OTHER LEGAL ENTITY) (“YOU” OR “YOUR”) AND SDY Technologies LP. AND ITS AFFILIATES (“DISPERSIVE”). YOUR ACCESS TO, AND USE OF SDY WEBSITES LOCATED AT WWW.DISPERSIVETECHNOLOGIES.COM AND WWW.sdytechnologies.com (EACH A “WEBSITE”) IS SUBJECT TO, AND GOVERNED BY, THESE TOU. BE SURE TO CAREFULLY READ AND UNDERSTAND ALL OF THE RIGHTS AND RESTRICTIONS DELINEATED IN THESE TOU. BY ACCESSING THE WEBSITE, YOU CONFIRM YOUR AGREEMENT TO AND ACCEPTANCE OF THESE TOU (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TOU (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT).  YOU MAY NOT ACCESS OR USE THE WEBSITES OR ACCEPT THESE TOU IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TOU, DO NOT ACCESS AND/OR USE THE WEBSITES.

 

THESE TOU INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.

 

THESE TOU LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.

 

These ToU are subject to occasional revision. We will notify You of any changes to our ToU by posting the new ToU here, after we make the change and we will change the “Last Updated” date above. If we make any substantial changes, we may notify You by prominently posting notice of the changes on our Websites. Any changes to these ToU will be effective upon thirty (30) calendar days following our posting of notice of the changes on our Websites. These changes will be effective immediately for new users of our Websites. Continued use of our Websites following notice of such changes shall indicate Your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.

 

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, CERTAIN FEATURES OF THE WEBSITES INCLUDING, BUT NOT LIMITED TO PASSWORD PROTECTED PORTIONS OF THE WEBSITES, MAY BE SUBJECT TO ADDITIONAL GUIDELINES, TERMS OR RULES, WHICH WILL BE POSTED ON THE WEBSITES IN CONNECTION WITH SUCH FEATURES. ALL SUCH ADDITIONAL TERMS, GUIDELINES, AND RULES ARE INCORPORATED BY REFERENCE INTO THESE TOU. IN THE EVENT OF A CONFLICT BETWEEN THE ADDITIONAL TERMS AND ANY PROVISION IN THESE TOU, THE ADDITIONAL TERMS WILL PREVAIL, BUT ONLY WITH RESPECT TO THE SERVICE TO WHICH THE ADDITIONAL TERMS APPLY.

 

1. Website. SDY has the right, but not the duty, to terminate or suspend Your access to the Websites (or any portion thereof), in its sole discretion without notice.  You agree that SDY will not be liable to You or to any third party for any suspension or termination of Your access to the Websites (or any portion thereof). SDY makes no representation that the information contained in the Websites is appropriate or available for use throughout the world. It is forbidden to access the Websites from territories where the legislation provides that the content or use of the Websites is illegal.  You choose to use the Websites on Your own initiative, and it is Your responsibility to ensure that  You conform to all applicable local laws. SDY reserves the right, at any time, to modify, suspend, or discontinue the Websites (in whole or in part) with or without notice to you. You agree that SDY will not be liable to You or to any third party for any modification, suspension, or discontinuation of the Websites or any part thereof You acknowledge and agree that SDY will have no obligation to provide You with any support or maintenance in connection with the Websites. You agree that SDY is not obligated to create or provide any corrections, updates, upgrades, bug fixes, and/or enhancements of the Websites (each an “Update”). Unless otherwise indicated, any Update shall be subject to these ToU. However, in the event SDY decides to offer an Update, You agree that SDY may amend these ToU in connection with such Update without specific notice to You and that Your use of the Websites following such Update is conditioned upon Your acceptance of any revised ToU. By using the Websites following an Update, You are representing that You have reviewed the then-current version of the ToU and agree to be bound by such version. All Updates will be governed by the version of this ToU published by SDY as of the date You use the Websites following such Update. You acknowledge that (a) the Websites are and will remain the sole property of SDY and is subject to protection under U.S. and foreign copyright laws and (b) all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Websites and content made available through the Websites are owned by SDY or its suppliers or licensors. Neither these ToU nor Your access to the Websites transfers to You or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section. SDY and its suppliers reserve all rights not granted in these ToU.

 

2. License; Restrictions. Subject to these ToU, SDY grants You a non-transferable, non-exclusive, revocable, limited license to use the Websites for Your personal use. The rights granted to You in these ToU are subject to the following restrictions: (a) You shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Websites, whether in whole or in part, or any content displayed on the Websites; (b) You shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Websites; (c) You shall not access the Websites in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Websites may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. All copyright and other proprietary notices on the Websites (or on any content displayed on the Websites) must be retained on all copies thereof.

 

3. Trademarks. All logos, trademarks or service marks, registered or not, displayed on the Websites are our property or the property of other third parties. Nothing in the Websites may be interpreted so as to grant to You, directly or indirectly, the use of a logo, trademark or service mark reproduced on the Website, whether belonging to SDY or a third party, without the written permission of SDY or such third party.

 

4. Communications and Information Provided to Dispersive.

 

4.1. SDY will treat any information You provide to SDY via the Websites (including via submission of an email, chat message, filling out a service request or any other method of submission) as non-confidential and non-proprietary and You agree that You will not submit to SDY any information that You consider to be confidential or proprietary. Any submission by You to Dispersive, including but not limited to questions, comments, suggestions or the like is at Your own risk and that SDY has no obligations (including without limitation obligations of confidentiality) with respect to such submission. Furthermore, by Your submission,  You agree that all submissions are deemed non-confidential and non-proprietary and You grant SDY an unrestricted, irrevocable license to record, use, reproduce, display, perform, modify, transmit, and distribute such information. SDY shall be free to use any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever, including but not limited to developing, manufacturing, and marketing products incorporating such information.

 

4.2.  Information provided by You via the Website, including written or oral communications or other electronic means, may be recorded for quality assurance, diagnostic and training purposes. By submitting information using the Website,  You consent to such recordation and usage as described in Section 4.1, above.

 

5. Links. THE LINKS ON THE WEBSITES WILL LET YOU LEAVE DISPERSIVE'S SITE. THE LINKED SITES ARE NOT UNDER THE CONTROL OF SDY AND SDY IS NOT RESPONSIBLE FOR THE CONTENTS OF ANY LINKED SITE OR ANY LINK CONTAINED IN A LINKED SITE, OR ANY CHANGES OR UPDATES TO SUCH SITES. SDY IS NOT RESPONSIBLE FOR WEBCASTING OR ANY OTHER FORM OF TRANSMISSION RECEIVED FROM ANY LINKED SITE. SDY IS PROVIDING THESE LINKS TO YOU ONLY AS A CONVENIENCE, AND THE INCLUSION OF ANY LINK DOES NOT IMPLY ENDORSEMENT BY SDY OF THE SITE.

 

6. Product Availability. The availability of the platforms, solutions and products described on the Website, and their descriptions, may vary from country to country. You should consult the applicable SDY affiliate or authorized distributor for availability of specific products in Your area.

 

7. Export of Information. The United States Export Controls laws prohibit the export of certain technical data and software to certain territories. No content from the Websites may be downloaded or otherwise exported in violation of United States law or any other local law from where You may be accessing the Website. You agree to comply with all United States and foreign Federal, State and local laws and regulations applicable to the use of the Website.

 

8. Acceptable Use Policy.  You agree not to: (a) upload, transmit, or distribute to or through the Websites any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) send through the Websites unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c) use the Websites to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (d) interfere with, disrupt, or create an undue burden on servers or networks connected to the Websites, or violate the regulations, policies or procedures of such networks; (e) attempt to gain unauthorized access to the Websites (or to other computer systems or networks connected to or used together with the Websites) whether through password mining or any other means; (f) harass or interfere with any other user’s use and enjoyment of the Websites; or (g) use software or automated agents or scripts to produce multiple accounts on the Websites, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Websites (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Websites for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file). We reserve the right (but have no obligation) to investigate and/or take appropriate action against You in our sole discretion if You violate any provision of these ToU or otherwise create liability for us or any other person. Such action may include terminating Your access to the Websites, and/or reporting You to law enforcement authorities.

 

9. Indemnification. You agree to indemnify and hold SDY (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) Your use of, or inability to use, the Websites; (b) Your violation of these ToU; or (c) Your violation of applicable laws or regulations. SDY reserves the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify us, and You agree to cooperate with our defense of these Dispersive. You agree not to settle any matter without the prior written consent of Dispersive. SDY will use reasonable efforts to notify You of any such claim, action or proceeding upon becoming aware of it.

 

10. Release. You hereby release and forever discharge the SDY (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Websites. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

 

11. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, DISPERSIVE, ITS RELATED C  h these ToU or the use of any product or service provided by SDY that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to You and Dispersive, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the ToU.

 

14.3. Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this Section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with these ToU (“Arbitration Rules”). The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within one hundred (100) miles of Your residence, unless You reside outside of the United States (in which case hearing will be held in the capital of Your country), and unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

 

14.4. Additional Rules for Non-appearance Based Arbitration. If non-appearance arbitration is elected as provided above, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.

 

14.5. Authority of Arbitrator. The arbitrator will decide the rights and liabilities, if any, of You and Dispersive, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the Arbitration Rules, and these ToU. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon You and Dispersive.

 

14.6. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between You and SDY in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, You AND SDY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.

 

14.7. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither You nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court located in Atlanta, Arizona.

 

14.8. Confidentiality. No part of the procedures shall be open to the public or the media. All evidence discovered or submitted at the hearing is confidential and may not be disclosed, except by written agreement of the parties, pursuant to court order or unless required by law. This Section shall not prevent a party from submitting to a court of law any information necessary to enforce this Arbitration Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.

 

14.9. Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.

 

14.10. Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.

 

14.11. Survival of Agreement. This Arbitration Agreement will survive the termination of Your relationship with Dispersive.

 

14.12. Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located in Atlanta, Arizona for such purpose.

 

14.13. Governing Law. These ToU and any action related thereto will be governed and interpreted by and under the laws of the State of Arizona, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

 

15. Tools. SDY support tools (“Tools”) are made available on a revocable license basis by SDY to customers purchasing certain of Dispersive‘s support offers.

 

You are advised that the Tools may contain diagnostic capabilities that allow Dispersive, authorized SDY partners, and authorized customer administrators to capture packets, run diagnostics, capture key strokes and information from endpoints including contact lists, and remotely control and monitor end-user devices.  You are responsible for enabling these diagnostic capabilities, for ensuring Your users are aware of activities or potential activities and for compliance with any legal requirements with respect to use of the Tools and diagnostic capabilities on its network, including, without limitation, compliance with laws regarding notifications regarding capture of personal data, call recording and wiretapping.

 

16. Software License Terms. Any software You download from the Websites (including Tools) is governed by the applicable SDY End User License.

 

17. Disclaimers.

 

17.1. WHILE SDY ATTEMPTS TO PROVIDE ACCURATE INFORMATION ON THE WEBSITE, IT ASSUMES NO RESPONSIBILITY FOR THE ACCURACY OF THE INFORMATION. SDY MAY CHANGE THE INFORMATION ON THE WEBSITE, OR THE PRODUCTS MENTIONED, AT ANY TIME WITHOUT NOTICE.  YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE WEBSITES IS AT YOUR SOLE RISK AND THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WEBSITES AND ANY MATERIAL, SERVICES OR INFORMATION PROVIDED BY THE WEBSITES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND SDY (AND ITS LICENSORS AND SUPPLIERS) SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, TITLE, QUIET ENJOYMENT, ACCURACY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE WEBSITES OR ANY CONTENT OR MATERIAL ON THE WEBSITE.

 

17.2. SDY MAKES NO WARRANTY THAT (i) THE WEBSITES WILL MEET YOUR REQUIREMENTS, (ii) ACCESS TO THE WEBSITES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITES WILL BE ACCURATE OR RELIABLE, AND (iv) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.

 

17.3. ACCESS TO AND USE OF THE WEBSITED, INCLUDING ANY MATERIAL, TOOLS OR SOFTWARE DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS THEREFROM.

 

17.4. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SDY OR THROUGH OR FROM THE WEBSITES SHALL CREATE ANY WARRANTY.

 

18. Consumer Complaints. In accordance with California Civil Code §1789.3, You may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

 

19. Electronic Communications. The communications between You and SDY use electronic means, whether You use the Websites or send us emails, or whether SDY posts notices on the Websites or communicates with You via email. For contractual purposes, You (a) consent to receive communications from SDY in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that SDY provides to You electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect Your non-waivable rights.

 

20. Miscellaneous. These ToU constitute the entire agreement between the parties with respect to the use of the Websites. Our failure to exercise or enforce any right or provision of these ToU shall not operate as a waiver of such right or provision. The Section titles in these ToU are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation.” If any provision of these ToU is, for any reason, held to be invalid or unenforceable, the other provisions of these ToU will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to SDY is that of an independent contractor, and neither party is an agent or partner of the other.

 

21. Contact Information. Dispersive’s contact information for any end-user questions, complaints or claims with respect to the Websites is: nhernandez@sdytechnologies.com