Terms of Use
IMPORTANT-READ CAREFULLY:
The TERMS OF USE ("TOU") is a legal agreement between you (either as an individual or any other legal entity) ("You" or "Your") and CoCo Communications Corp. ("CoCo"). Your access to, and use of CoCo websites ("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. For Your reference, You may print the TOU by using the "Print" option on Your browser. By accessing the Website, you confirm your agreement to and acceptance of these terms. CoCo reserves the right to update the TOU at any time without notice to You. You may view the current applicable version of the TOU at any time by clicking on the "Terms of Use" link at the bottom of each Website page.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, CERTAIN COCO WEBSITES INCLUDING, BUT NOT LIMITED TO PASSWORD PROTECTED SITES, MAY CONTAIN TERMS OF USE IN ADDITION TO, OR DIFFERENT FROM THE TOU AND THE TERMS OF USE POSTED ON SUCH WEBSITES SHALL APPLY.
1. Access. CoCo has the right, but not the duty, to terminate or suspend Your access to the Website, without notice, for any conduct that CoCo, in its sole discretion, believes is in violation of any applicable law or is harmful to the interests of another user, a third-party provider, a service provider or CoCo. CoCo makes no representation that the information contained in the Website is appropriate or available for use throughout the world. It is forbidden to access the Website from territories where the legislation provides that the content or use of the Website is illegal. You choose to use the Website on Your own initiative, and it is Your responsibility to ensure that You conform to all applicable local laws.
2. Copyright. CoCo, its suppliers or the original creator of the material own all copyrights to material on the Website and all other intellectual property rights related to the Website. To the extent that CoCo has the right to do so without compensation to third parties, and except for material specifically provided under other terms, CoCo grants You permission to copy materials on the Website solely for Your non-commercial use in support of CoCo products. You agree that any copies of material shall retain all copyright and other proprietary notices in the same form and manner as the original. You may not, without CoCo's permission, "mirror" any material contained on the Website or any other server. Except as specified above, nothing contained herein shall be construed as conferring by implication, estoppel or otherwise any license or right under any trademark, patent, copyright, mask work protection right or any other intellectual property right of CoCo or any third party.
3. Trademarks. CoCo and the CoCo logo are trademarks or service marks, registered or not, of CoCo. Nothing in the Website may be interpreted so as to grant to You, directly or indirectly, the use of a trademark or service mark reproduced on the Website, whether belonging to CoCo or third party suppliers, without the written permission of CoCo.
4. Information Provided to CoCo.
4.1CoCo does not want You to, and You should not, send any confidential or proprietary information to CoCo via the Website. Any submission by You to CoCo, including but not limited to questions, comments, suggestions or the like shall be deemed to be non-confidential and shall become the property of CoCo. Furthermore, by Your submission You grant CoCo an unrestricted, irrevocable license to use, reproduce, display, perform, modify, transmit, and distribute such information. CoCo 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.
5. Links. THE LINKS ON THE WEBSITE WILL LET YOU LEAVE COCO'S SITE. THE LINKED SITES ARE NOT UNDER THE CONTROL OF COCO AND COCO 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. COCO IS NOT RESPONSIBLE FOR WEBCASTING OR ANY OTHER FORM OF TRANSMISSION RECEIVED FROM ANY LINKED SITE. COCO IS PROVIDING THESE LINKS TO YOU ONLY AS A CONVENIENCE, AND THE INCLUSION OF ANY LINK DOES NOT IMPLY ENDORSEMENT BY COCO OF THE SITE.
6. Product Availability. The availability of the products described on the Website, and the product descriptions, may vary from country to country. You should consult the applicable CoCo 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 Website 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. Limitation of Liability. COCO, ITS RELATED COMPANIES, DIRECTORS, EMPLOYEES, REPRESENTATIVES OR AGENTS SHALL NOT, UNDER ANY CIRCUMSTANCES BE HELD LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF (OR THE INABILITY TO USE) THE WEBSITE OR ANY MATERIAL ON THE WEBSITE. THIS INCLUDES, BUT IS NOT LIMITED TO, THE LOSS OF DATA OR LOSS OF PROFIT, EVEN IF COCO WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF ALL OR PART OF THIS LIABILITY IS FOUND UNENFORCEABLE FOR ANY REASON, THEN COCO'S MAXIMUM AGGREGATE LIABILITY UNDER SUCH CIRCUMSTANCES FOR LIABILITY THAT WOULD OTHERWISE HAVE BEEN LIMITED SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100).
9. Assignment. The TOU may not be assigned or transferred by You without the prior written consent of CoCo. CoCo may assign the TOU to any affiliate or third party in part or in whole.
10. Disputes.
10.1. Any controversy or claim arising out of or in connection with the TOU, its enforcement or interpretation ("Dispute"), except as to the End User License Agreement, below, will be finally resolved solely in accordance with the terms of this Section 10.
10.2. If a Dispute arises, the parties will endeavor to resolve the Dispute through good faith negotiation within forty-five (45) days of notification of the Dispute. If the Dispute cannot be settled through good faith negotiation, CoCo and You will submit the Dispute to non-binding mediation conducted by the American Arbitration Association ("AAA") or any other mutually acceptable alternate dispute resolution organization. Each party shall bear its own expenses but those related to the compensation of the mediator shall be borne equally. The parties, their representatives, other participants and the mediator (and arbitrator, if any) shall hold the existence, content and result of mediation in confidence. If the Dispute is not resolved through mediation, claims may be brought in a state or federal court of competent jurisdiction or resolved through binding arbitration. Notwithstanding the foregoing, CoCo shall be entitled to take immediate legal action where required to protect its confidential or proprietary information, or to obtain any interim injunction.
10.3. Actions on Disputes between the parties with respect to the TOU must be brought in accordance with this Section 10 within two years after the cause of action arises.
11. Governing Law. The validity, construction and performance of this Agreement will be governed by the substantive laws of the State of Washington, without giving effect to any provisions that would result in this Agreement being governed by the law of any jurisdiction other than that of the State of Washington. The parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods. Subject to Section 10, the parties hereby consent to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in King County, Washington for the purposes of adjudicating any matter arising from or in connection with this Agreement. THE PARTIES UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL FOR ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS AGREEMENT AND/OR THE USE OF THE WEBSITE.
12. Access to Password Protected/Secure Areas. Access to and use of password protected and/or secure areas of the Website is restricted to authorized users only. Unauthorized individuals attempting to access these areas of the Website may be subject to prosecution.
13. Data Privacy.
13.1. You and CoCo agree that each shall comply in all respects with all applicable data protection laws and regulations (or any legislation or regulations amending or replacing the same) (together, the "Data Protection Laws").
13.2. You shall in connection with these TOU (i) not do or permit anything to be done through an act or omission which might jeopardize or contravene CoCo's liability under Data Protection Laws; and (ii) enter into such agreements as CoCo shall reasonably require in relation to the cross border migration of personal data.
13.3. You shall indemnify and keep CoCo fully indemnified against any and all liability, loss, damage, costs (including legal costs) and expenses which CoCo, or any CoCo affiliate may incur or suffer whether direct or consequential (including without limitation any economic loss or other loss of profits, business or goodwill) as a result of any breach of Section 13.2.
13.4. WHEN YOU SUBMIT PERSONAL DATA TO COCO ON THE WEBSITE OR WHEN REGISTERING FOR THE WEBSITE, COCO MAY TRANSFER AND/OR RETAIN THE PERSONAL DATA YOU SUBMITTED TO A COUNTRY OUTSIDE THE COUNTRY IN WHICH YOU ARE LOCATED OR FROM WHERE SUCH PERSONAL DATA WAS COLLECTED, WHICH MAY NOT HAVE THE SAME OR EQUIVALENT DATA PRIVACY PROTECTIONS. IF YOU DO NOT APPROVE OF SUCH TRANSFER AND/OR RETENTION, DO NOT SUBMIT PERSONAL DATA TO COCO.
13.5. BY AGREEING TO THESE TOU, YOU ARE AGREEING THAT COCO MAY SHARE YOUR PERSONAL DATA AND OTHER INFORMATION (WITH THE EXCEPTION OF ACCOUNT, CREDIT CARD AND ORDERING INFORMATION) WITH THIRD PARTIES IN CASES WHERE COCO BELIEVES YOUR BUSINESS INTERESTS WILL BE SERVED. IF YOU DO NOT APPROVE OF COCO SHARING YOUR PERSONAL DATA AND OTHER INFORMATION IN SUCH A FASHION, DO NOT AGREE TO THESE TOU.
13.6. Please click on the "Privacy Statement" link at the bottom of each Website page for disclosures relating to the collection and use of Your personal information.
14. Software License terms. Any software You download from the Website is governed by (i) the license terms accompanying the software or (ii) if no license terms accompany the software, the terms of Your license agreement with CoCo which accompanied the original product licensed by You which you are updating or (iii) if neither (i) or (ii) is applicable, the End User License Agreement below.
End User License Agreement
This End User License Agreement (the "Agreement") governs the use by your organization (the "Licensee") of products of CoCo Communications Corp. (the "Licensor"). By installing or executing hardware or the Licensed Software, or making any other use thereof, you acknowledge your acceptance of the terms of this Agreement.
References to "Licensed Software" shall apply to all programming, intellectual property, data and documentation of CoCo Communications Corp. provided to your organization (except where a separate agreement is executed by both Licensor and Licensee with respect thereto).
14.1 SCOPE OF RIGHTS. Licensor hereby grants Licensee a nontransferable nonexclusive right and license to install the Licensed Software on computer systems owned, leased, or otherwise controlled by Licensee in its facilities for Licensee's internal business purposes only.
14.2 LIMITATIONS. Licensee shall use the Licensed Software for the purposes specified above and in accordance with the following:
14.2.1 USE. Licensee shall use the Licensed Software only for internal development purposes, and in accordance with the applicable documentation.
14.2.2 MODIFICATIONS AND DERIVATIVES. Modifications or Derivatives of the Licensed Software by Licensee or any other third party is prohibited.
14.2.3 REDISTRIBUTION. Resale or redistribution of the Licensed Software by Licensee is prohibited.
14.2.4 EXPORT. Licensee shall not export or re-export any Licensed Software, documentation, or direct product thereof in violation of any U.S. Export Control Laws, and under no circumstances shall Licensee export the Licensed Software to any country restricted by the U.S. Export Control laws and regulations.
14.2.5 MODIFICATIONS, REVERSE ENGINEERING, RESTRICTIONS. Licensee shall not cause, nor permit either through its direct efforts or through any third party, the direct modification, disassembly, de-compilation, or reverse engineering of the Licensed Software, nor otherwise attempt to discover any source code or trade secret related to the Licensed Software. Any use, copying, or distribution of the Licensed Software not authorized by this License Agreement shall automatically terminate Licensee's rights and License hereunder. Licensee shall not disclose or make available the Licensed Software, or any portion thereof or information contained therein, to any person or entity other than employees of Licensee who need to use them for the purposes specified in Section 1 and who are required to keep them confidential.
14.3 OWNERSHIP/TITLE TO LICENSED SOFTWARE. All proprietary rights, including all patent, copyright, trade secret, trademark, trade name and other proprietary rights, in and to the Licensed Software, are owned by, and shall remain the property of Licensor or its licensors, and are protected by United States copyright laws and the copyright laws of other countries. The License granted under this Agreement does not provide Licensee with title to or ownership of the Licensed Software, and only provides Licensee a right of limited use under the terms and conditions of this Agreement. Under no circumstances shall Licensee sell, rent, sublease, license, sublicense, publish, display, distribute, or otherwise transfer or make the Licensed Software available to any third party. No other rights in and to the Licensed Software or to any and all related proprietary rights are transferred pursuant to this Agreement. Licensee shall not infringe proprietary rights of Licensor.
14.4 FEES AND PAYMENTS. Licensee hereby agrees to pay any and all fees for use of the Licensed Software to Licensor promptly as they become due for so long as the Licensed Software is installed or executed on Licensee's system or Licensee otherwise makes any use of the Licensed Software.
14.5 NO WARRANTY. The Licensed Software is being delivered "AS IS". Except as expressly stated in writing, Licensor and its affiliates, subcontractors, and representatives make no representation or warranties in respect of the Licensed Software and specifically disclaim all other warranties, expressed or implied, oral or written, including, without limitation, any implied warranties of merchantable quality or fitness for a particular purpose.
14.6 LIMITATIONS ON LIABILITY. In no event shall Licensor be liable for any direct, indirect, incidental, special, statutory, punitive, exemplary or consequential damages, or for any lost profits, savings, or revenues of any kind, or for any downtime, loss of use, or lost or damaged data, regardless of whether Licensor has been advised of the possibility of such damages or if such damages are foreseeable. The cumulative liability of Licensor to Licensee for all claims relating to the Licensed Software or this Agreement, regardless of the form of action, whether in contract or tort, including negligence, strict liability, or otherwise, shall not exceed the total amount of all fees paid to Licensor hereunder. This limitation shall apply even in the event of a fundamental or material breach or a breach of the fundamental or material terms of this agreement.
14.7 LICENSEE ACKNOWLEDGMENT. Licensee acknowledges that it has read this Agreement and understands it, and that by installing or executing the Licensed Software, or making any other use of it, Licensee agrees to be bound by its terms and conditions. Licensee further agrees that, except for separate written agreements between Licensor and Licensee, this Agreement is the complete and exclusive statement of the rights and liabilities of the parties with respect to licensing of the Licensed Software.
14.8 GOVERNING LAW. This Agreement shall in all respects be governed by the laws of the State of Washington. This Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention of Contracts for the International Sale of Goods, the application of which is expressly excluded.
14.9 GENERAL PROVISIONS. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms.
15. Forward-Looking Statements. Some of the information on this Website may contain forward-looking statements. These statements are only predictions based on our current expectations and projections about future events. Because these forward-looking statements involve risks and uncertainties, there are important factors that could cause CoCo's actual results, level of activity, performance or achievements to differ materially from the results, level of activity, performance or achievements expressed or implied by the forward-looking statements. In this regard, You should specifically consider the numerous risks outlined in our SEC filings.
16. Disclaimers.
16.1 WHILE COCO ATTEMPTS TO PROVIDE ACCURATE INFORMATION ON THE WEBSITE, IT ASSUMES NO RESPONSIBILITY FOR THE ACCURACY OF THE INFORMATION. COCO MAY CHANGE THE INFORMATION ON THE WEBSITE, OR THE PRODUCTS MENTIONED, AT ANY TIME WITHOUT NOTICE. MATERIAL, INCLUDING SOFTWARE, ON THE WEBSITE AND THE WEBSITE ITSELF IS PROVIDED "AS IS" AND COCO DOES NOT PROVIDE ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. COCO SPECIFICALLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE WEBSITE OR ANY CONTENT OR MATERIAL ON THE WEBSITE.
16.2 COCO MAKES NO WARRANTY THAT (i) THE WEBSITE WILL MEET YOUR REQUIREMENTS, (ii) ACCESS TO THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE WILL BE ACCURATE OR RELIABLE, AND (iv) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
16.3 ANY MATERIAL OR SOFTWARE DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE 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 FROM THE DOWNLOAD OF ANY SUCH MATERIAL OR SOFTWARE.
16.4 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COCO OR THROUGH OR FROM THE WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOU.
This constitutes the entire agreement between the parties with respect to the Website and its use and, except with respect to CoCo Websites containing additional or different terms of use, supersedes all prior agreements, proposals, communications between the parties and understandings, whether written or oral.