Electa Live Online Service Agreement
By using the Services or using or installing the Software, you (individually and on behalf of the organization which you represent) agree to all of the terms and conditions of this Agreement. If you do not agree to any of the terms of this Agreement, then do not use the Services or use or install the Software. This Agreement is between you and ELECTA COMMUNICATIONS LTD . ("ELECTA COMMUNICATIONS LTD").
If you are residing in a jurisdiction which restricts the use of internet-based applications according to age, or which restricts the ability to enter into agreements such as this Agreement according to age and you are under such a jurisdiction and under such age limit, you may not enter into this Agreement and download, install or use the Software or use the Services. Furthermore, if you are residing in a jurisdiction where it is forbidden by law to offer or use software for internet telephony, you may not enter into this Agreement and you may not download, install or use the Software or use the Services. By entering into this Agreement you explicitly state that you have verified in your own jurisdiction if your use of each of the Services and the Software is allowed. Your profile may be deleted and this Agreement may be terminated without warning, if we believe that you are under age or your use of the Services or the Software is not allowed.
ELECTA COMMUNICATIONS LTD may modify this Agreement from time to time and such modification shall be effective upon posting by ELECTA COMMUNICATIONS LTD at www.e-lecta.com/serviceagreement.asp. You agree to be bound to any changes to this Agreement when you use the Services after any such modification is posted. It is therefore important that you review this Agreement regularly to ensure you are updated as to any changes.
ARTICLE 1: DEFINITIONS
1.1 The following terms shall have the following meanings when used in this Agreement: "Agreement" means this eLecta Live On-Line Services Agreement; "Authorized Users" means those individuals who are authorized by you to use Services, the Software or Documentation, from time to time, in the manner as more particularly set out herein; "Documentation" means all manuals, documentation and other related materials, or any portion thereof, pertaining to the Services and/or Software provided or made available by ELECTA COMMUNICATIONS LTD to you in conjunction with the Services and/or Software; "Services" means those services, as may be amended from time to time, provided by ELECTA COMMUNICATIONS LTD in respect of the access via the Internet to the Software for the purpose of permitting you and your Authorized Users to use the Software in the manner as more particularly set out herein; and, "Software" means the computer programs and all related files, or any portion thereof, as may be amended from time to time and provided or made available by ELECTA COMMUNICATIONS LTD to you under the terms of this Agreement.
ARTICLE 2: GRANT OF RIGHTS
2.1 ELECTA COMMUNICATIONS LTD hereby grants, and you hereby accept, subject to the terms and conditions of this Agreement, a non-exclusive and non-assignable license to use the Services, Software and Documentation.
2.2 You shall only use the Services, Software and Documentation for your own personal use or in support of your own business and shall not make the Services, Software or Documentation available to any third party, provided however that you may provide access to and permit your Authorized Users to use the Services, Software and Documentation for such purpose. You may, where authorized or permitted by law, permit your children to use the Services and Software as Authorized Users, provided that you supervise such use. You agree to be fully responsible for your Authorized Users', regardless of their age, compliance with this Agreement in such use.
2.3 Except as provided herein, you shall not sublicense, lend or lease the Services, Software or Documentation, or otherwise make the Services, Software or Documentation available, to any third party. You shall not permit the Services, Software or Documentation to be subject to any timesharing, services bureau, subscription services, or rental activities.
2.4 You agree and acknowledge that there are no limits to the number of licenses or rights that ELECTA COMMUNICATIONS LTD may grant to third parties in respect of the Services, Software and Documentation.
2.5 You are solely responsible for the content of any communications by you with third parties (including, Authorized Users), including any communications about, concerning or through the Services or Software. ELECTA COMMUNICATIONS LTD does not condone or allow spam. You agree that you will not use the Services to send unsolicited commercial or other e-mail. You shall not, directly or indirectly, send, submit, post, receive or otherwise facilitate, or in anyway use, or permit to be used, the Services, Software or Documentation, to send, submit, post, receive or otherwise facilitate the transmission of any materials that are abusive, obscene, profane, sexually explicit, threatening, or materials containing blatant expressions of bigotry, racism or hate. You shall comply with all state, provincial, federal and local laws (including, but not limited to export/import laws and laws relating to privacy, obscenity, copyright, trademark, confidential information, trade secret, libel, slander or defamation). Although ELECTA COMMUNICATIONS LTD is not responsible for any such communications, we may delete any such communications of which we become aware, at any time without notice to you. You agree and acknowledge that you shall be responsible and liable for all uses made by yourself or your Authorized Users of the Services, Software or Documentation.
ARTICLE 3: SERVICES, FEES & PARTNER SITES
3.1 ELECTA COMMUNICATIONS LTD may, from time to time, but is in no way obligated to, provide you and yours Authorized Users with access via the Internet to the Services and Software for the purpose of using the Services and Software in accordance with the terms of this Agreement and in the manner more particularly set out herein.
3.2 You acknowledge and agree that you and your Authorized Users are responsible for obtaining your own access to the Internet and that ELECTA COMMUNICATIONS LTD shall not provide such access or any services in relation thereto. You acknowledge and agree that access to the Services and/or Software may not be available from time to time, may be terminated in whole or in part at any time and without notice, and that ELECTA COMMUNICATIONS LTD shall not, in any event, be responsible to you in any way should you be unable to access the Services and/or Software at any time or from time to time.
3.3 You shall be responsible for ensuring that all Authorized Users who are provided access via the Internet to the Services or Software comply with all duties, obligations and restrictions imposed on you by this Agreement and you shall be responsible for and enforce each Authorized User's compliance therewith.
3.4 Where we offer you the ability to chose your own name(s) in connection with the Services, we will use reasonable efforts to assign such name(s) to you upon your request, provided however that you may not select, and we reserve the right to reject, any name that (i) has already been assigned, (ii) we determine, in our sole discretion, is offensive, violates applicable law, is an attempt to reserve name(s) without the intent to use them, is an attempt to impersonate another, or may interfere or be confused with, violate, exploit, or capitalize on, the name, goodwill, trade name, trademark, registered trademark, service mark, or proprietary or other rights of another. Where we reject a requested name, we may, in our sole discretion, assign an alternate name, ask you to select another name or terminate this Agreement.
3.5 You acknowledge and agree that most information shared or communicated between you or Authorized Users and ELECTA COMMUNICATIONS LTD, the Services or the Software occurs in an unsecured environment, is not treated as confidential, and may be intercepted and read by others. You agree that ELECTA COMMUNICATIONS LTD is not liable for any damages related to communications to or from the Services or Software. You agree with respect to any information provided by you to us that: (i) ELECTA COMMUNICATIONS LTD has no obligation concerning such information; (ii) the information is non-confidential; (iii) ELECTA COMMUNICATIONS LTD may use, disclose, distribute or copy the information and may use any ideas, concepts or know-how contained in the information for any purpose; and (iv) the information is truthful and disclosure of the information does not violate the legal rights of others.
3.6 You shall be permitted, as described above, to provide access codes to Authorized Users. You acknowledge and agree that you are solely responsible for the issuance of such access codes and that ELECTA COMMUNICATIONS LTD will only issue access codes to Authorized Users on your instruction and as your agent.
3.7 You acknowledge and agree that the user identification or access code provided by ELECTA COMMUNICATIONS LTD to you and each Authorized User, so that they may access, utilize or otherwise employ the Services and Software are to be kept secret and confidential. You shall not, and shall cause the Authorized Users to not, disclose the user identification or access code to any other party without the express written permission of ELECTA COMMUNICATIONS LTD. You acknowledge and agree that you shall be responsible for each and every access, use or employment of the Services or Software that occurs in conjunction with such user identifications or access codes, and that ELECTA COMMUNICATIONS LTD is authorized to accept the user identifications and access codes as conclusive evidence that you, or your Authorized Users, as the case may be, have accessed, utilized, or otherwise employed the Services and/or Software.
3.8 You agree that you will not attempt to, nor permit your Authorized Users to, enter restricted areas of ELECTA COMMUNICATIONS LTD's computer system or perform functions that you are not authorized to perform pursuant to this Agreement. ELECTA COMMUNICATIONS LTD may, without notice, suspend your, or any of your Authorized User's, or any other party's access to the Services, Software or Documentation, by deactivating any user identifications or links to the Internet if ELECTA COMMUNICATIONS LTD reasonably suspects that you, or any of your Authorized Users or any other parties are obtaining unauthorized access to ELECTA COMMUNICATIONS LTD's other systems or information, or are using your user identifications or access codes in any other inappropriate manner. These suspensions will be for such periods of time as ELECTA COMMUNICATIONS LTD may determine is necessary to permit the thorough investigation of such suspended activity. Notwithstanding any other provision in this Agreement, ELECTA COMMUNICATIONS LTD may terminate this Agreement, or any portion of the licenses granted herein, immediately without notice it if is determined that you, your Authorized Users or any other parties have undertaken such unauthorized activity or if such unauthorized activity cannot be reasonably explained.
3.9 ELECTA COMMUNICATIONS LTD may, from time to time, provide certain Services on a fee basis. Where you elect to receive such Services, you agree to pay, through the payment mechanism selected by you and approved by us, all amounts due and owing for such Services as more particularly set out in the order confirmation provided at the time that you ordered such Services. All amounts paid for prepaid services are non-refundable. We may amend our Services and/or the amounts that we charge for same at any time, without prior notice. Fees do not include any applicable sales, use, excise, value-added or other taxes or governmental charges, and you shall be responsible for, and shall promptly pay, same. If ELECTA COMMUNICATIONS LTD terminates this Agreement because of your breach of its terms, you shall not be entitled to the refund of any unused portion of any fees you have already paid. You agree that ELECTA COMMUNICATIONS LTD may collect interest at the lesser of 1.5% per month (18% per annum) or the highest amount permitted by law on any amounts not paid when due.
3.10 You may register for the Services through one of our partners or resellers of our Services. In such cases, you hereby consent to ELECTA COMMUNICATIONS LTD providing your contact, billing and other information related to the provision of Services to you to such partner or reseller to enable ELECTA COMMUNICATIONS LTD and such partner or reseller to administer your relationship and to provide the Services to you.
ARTICLE 4: TITLE & BACKUP
4.1 You agree that title to and ownership of the Services, Software (including all source code) and Documentation and any modifications made thereto and all intellectual property rights therein shall at all times be held by ELECTA COMMUNICATIONS LTD or its suppliers.
4.2 You shall not have any right, title or ownership interest in the Services, Software and Documentation except the limited right to use the Services, Software and Documentation as explicitly provided in this Agreement.
ARTICLE 5: CONFIDENTIALITY
5.1 Unless required otherwise by law, all information exchanged between us will be considered non-confidential. If you wish to exchange confidential information, such exchange will be made under a separate confidentiality agreement.
5.2 Notwithstanding the forgoing, you acknowledge and agree that the Services, Software and Documentation contain valuable confidential information and proprietary technology of ELECTA COMMUNICATIONS LTD and its suppliers. The Services, Software and Documentation, other than through its normal usage, shall be kept in confidence and not used for any purpose other than as permitted hereunder and shall not be disclosed to any third party except as required for you to use the Services and Software.
5.3 You may not create derivatives from or modify, decompile or reverse engineer the Software or do anything that will reveal or generate the source code of the Software. Any such act will be deemed to constitute a trespass on the rights, titles and interests of ELECTA COMMUNICATIONS LTD and its suppliers.
ARTICLE 6: WARRANTIES, INDEMNIFICATION AND LIMITATION OF LIABILITY
6.1 You acknowledge that you have or will have independently determined that the Services, Software and Documentation meets your requirements and that you shall not rely on any representation made, or information provided, by ELECTA COMMUNICATIONS LTD as to the suitability of the Services, Software or Documentation for any particular purpose.
6.2 You agree to indemnify and hold harmless ELECTA COMMUNICATIONS LTD from and against any claims, demands or causes of action whatsoever, and shall defend or settle all claims and actions brought against ELECTA COMMUNICATIONS LTD by third parties arising out of or related to your use of the Services, Software or Documentation and any third party access or use of same, howsoever such claim or action shall have occurred or arose.
6.3 EXCEPT AS OTHERWISE EXPLICITLY SET OUT HEREIN ELECTA COMMUNICATIONS LTD EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS CONCERNING THE SERVICES, SOFTWARE OR DOCUMENTATION, INCLUDING ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF DESIGN, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT OR PERFORMANCE AND ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS THAT MIGHT OTHERWISE ARISE DURING THE COURSE OF DEALING, USAGE OR TRADE AND THOSE WHICH MAY BE IMPLIED BY LAW. THIS AGREEMENT SETS OUT THE ENTIRE EXTENT OF ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS IN RESPECT OF THE SERVCIES, SOFTWARE AND DOCUMENTATION AND NO AGENT OF ELECTA COMMUNICATIONS LTD IS AUTHORIZED TO ALTER SAME. ALL ALTERATIONS SHALL BE IN WRITING AND SIGNED BY ELECTA COMMUNICATIONS LTD.
6.4 YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE SERVICES, SOFTWARE AND DOCUMENTATION.
6.5 IN NO EVENT SHALL ELECTA COMMUNICATIONS LTD OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS OR AGENTS BE LIABLE FOR ANY GENERAL, INCIDENTAL, DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR OTHER DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION YOUR USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE SERVICES, SOFTWARE OR, DOCUMETATION, OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.
6.6 THE CONSIDERATION BEING PAID HEREUNDER DOES NOT INCLUDE ANY CONSIDERATION FOR ELECTA COMMUNICATIONS LTD TO ASSUME ANY RISKS BEYOND THOSE EXPRESSLY ASSUMED HEREIN AND IF ANY SUCH RISKS WERE TO BE ASSUMED BY ELECTA COMMUNICATIONS LTD, ELECTA COMMUNICATIONS LTD WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT CHARGING SUBSTANTIALLY HIGHER FEES.
6.7 NOTWITHSTANDING ANY OTHER PROVISION CONTAINED HEREIN, ELECTA COMMUNICATIONS LTD AND ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS AND AGENTS 'S TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT AND THE LICENSE AND USE OF THE SERVICES, SOFTWARE OR DOCUMENTATION UNDER ANY AND ALL CIRCUMSTANCES, ARISING IN ANY MANNER WHATSOEVER, SHALL BE LIMITED TO THE GREATER OF: (A) FIVE ($5.00) US DOLLARS, OR (B) THE LICENSE FEES ACTUALLY PAID BY YOU TO ELECTA COMMUNICATIONS LTD UNDER THIS AGREEMENT IN THE ONE YEAR PERIOD IMMEDIATELY PRECEDING THE FINAL ACT OR EVENT WHICH GAVE RISE TO SUCH LIABILITY.
6.8 SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
ARTICLE 7: NONASSIGNABILITY
7.1 You shall not assign this Agreement or any of your rights hereunder without the prior written consent of ELECTA COMMUNICATIONS LTD.
ARTICLE 8: TERMINATION
8.1 The Services, Software and/or Documentation may be amended, revised, replaced or terminated, in whole or in part, by ELECTA COMMUNICATIONS LTD, at its sole discretion, at any time and from time to time, without notice.
8.2 In addition, ELECTA COMMUNICATIONS LTD may, at its sole discretion, at any time and from time to time, without notice, suspend your right to use any of the Services, Software and/or Documentation and/or terminate this Agreement or any of the licenses granted hereunder. Without limiting the foregoing, this Agreement and the licenses granted herein may be terminated by ELECTA COMMUNICATIONS LTD immediately, without notice, if any of the following events of default occur: (1) if you materially fail to perform or comply with this Agreement or any provision hereof; (2) if you fail to strictly comply with the provisions of Article 2 (Grant of Rights), Article 5 (Confidentiality), Article 7 (Non-assignbility); (3) if you become insolvent or admit in writing your inability to pay your debts as they mature or make an assignment for the benefit of creditors; (4) if a petition under any foreign or Bulgarian bankruptcy act, receivership statute or the like, as they now exist or as they may be amended, is filed by you; or (5) if such a petition is filed by any third party or an application for a receiver is made by anyone and such petition or application is not resolved in favor of you within ninety (90) days.
8.3 Upon termination of this Agreement, you shall immediately cease and desist all use of the Services, Software and Documentation.
ARTICLE 9: SURVIVAL
9.1 Your obligations under this Agreement will survive the termination of this Agreement, or of any license granted under this Agreement, for whatever reason.
ARTICLE 10: GENERAL
10.1 This Agreement contains the entire understanding and agreement between us respecting the subject matter hereof. This Agreement may not be supplemented, modified, amended, released or discharged except in the manner described above or by an instrument in writing signed by each party's duly authorized representative. All captions and headings in this Agreement are for purposes of convenience only and shall not affect the construction or interpretation of any of its provisions. Any waiver by either party of any default or breach hereunder shall not constitute a waiver of any provision of this Agreement or of any subsequent default or breach of the same or a different kind. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
10.2 All notices, authorizations and requests in connection with this Agreement shall be deemed to be made in Bulgaria, Sofia and to be given (i) immediately if personally delivered or if provided by e-mail, (i) five days after being deposited in the mail, postage prepaid, certified or registered, return receipt requested; or (ii) one day after being sent by overnight courier, charges prepaid; and addressed as first given above or to such other address as the party to receive the notice designates by written notice to the other.
10.3 The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the Republic of Bulgaria. The Services shall be deemed to be provided from Bulgaria, United States of America or any country member of the European Union and this Agreement to be, in all respects, a Bulgarian contract.
10.4 ELECTA COMMUNICATIONS LTD has the following address of registration: No 13, 25th September Str, 9300 Dobrich, BGR. VAT # BG124709274.
10.5 Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of the prohibition or unenforceability without invalidating the remaining provisions of this Agreement and any prohibition or unenforceability in any jurisdiction will not invalidate or render unenforceable that provision in any other jurisdiction. For any provision severed there will be deemed substituted a like provision to accomplish the intent of the parties as closely as possible to the provision as drafted, as determined by any court or arbitrator having jurisdiction over any relevant proceeding, to the extent permitted by the applicable law.
10.6 The parties have requested that this Agreement and all documents relating thereto be drawn up in English.