Symposia Service Terms of Use (User)

Effective May 11, 2012

The following are the terms and conditions of service for the Symposia™ Service, a proprietary software service provided by HarQen, Inc. a Wisconsin corporation with its main office at 1830 N Hubbard St., Suite 700 Milwaukee, WI 53212 USA ("HarQen", "we", "us") which allows users to capture audio data and integrate it with real-time notes and annotations to facilitate sharing and collaboration ("the Symposia Service"). The website http://Symposia.HarQen.com or such other sites from which the Symposia Service or any of its features are made available from time to time is referred to as the "Site".

Please read these terms and conditions of use ("Terms of Use") carefully before using the Symposia Service. Once you click on the "I accept" button, these Terms of Use constitute a binding legal agreement between you and us ("Agreement"). As used in this Agreement, HarQen and you are each a "Party" and collectively, the "Parties."

By clicking on the "I accept" button and completing our registration process, you are agreeing to be bound by all of the Terms of Use as set forth below.

The Symposia Service is provided to you on the condition of your acceptance, without modification, of the Terms of Use.

I. ACCOUNT

To register for and use the Symposia Service, you must complete an online account submission form with accurate information, including first name, last name, e-mail address, and password. Once you have completed the online account submission form and returned this to us we will activate your account ("Account"). To protect your Account, you shall keep your password confidential and take full responsibility for your own and third party activities that occur under or in connection with your Account. If there is any breach of security or unauthorized use of your Account, you agree to notify HarQen immediately by sending an email to support@harqen.com. You will be responsible for any unauthorized use of your Account for all activities prior to notification of HarQen and until HarQen can remedy the unauthorized use under your Account.

If you are employed by or affiliated with a company with which HarQen has entered into an enterprise agreement, you will identify that agreement when creating your Account; these Terms and Conditions may supplement those in your employer’s enterprise agreement but do not override them. If the preceding sentence does not apply to you, then the Terms and Conditions of this Agreement shall govern our respective rights and responsibilities.

You agree that you shall use the Symposia Service only in accordance with the terms of the Use Policy set out in Schedule 1 to these Terms of Use and available at User Policy and incorporated by reference in these Terms of Use, as may be amended or updated by the Symposia Service from time to time as posted on the Symposia Service website at User Terms of Service and in compliance with and all international, national, federal, state and local laws, and the rules, regulations, guidance, guidelines and requirements in effect from time to time, including, without limitation, those laws applicable to the making and recording of telephone calls and data transmission and those concerning the rights and responsibilities of the Parties under this Agreement (collectively, "Applicable Laws").

You shall

  1. use the Symposia Service in accordance with these Terms of Use and the Use Policy in Schedule 1, as these terms and policies may be amended from time to time.;
  2. use commercially reasonable efforts to prevent unauthorized access to or use of the Symposia Service and your Account, and notify us promptly of any such unauthorized access or use; and
  3. use the Symposia Service only in accordance with Applicable Laws. In furtherance of the foregoing, you agree to comply with Applicable Laws regarding the transmission of technical data exported from the United States or the country in which you reside and any Applicable Laws affecting the transmission or posting of content or affecting the privacy of persons.

You acknowledge and understand that there are laws that govern the recording of telephone or other conversations. You, and not HarQen, are responsible for determining whether it is lawful to use any recording feature available via the Symposia Service for your proposed use. You further acknowledge and agree that in each instance when you utilize any recording feature available as part of the Symposia Service, you shall: (i) provide notice to and obtain the prior consent of each person who is able to participate (as a listener, speaker or both) or otherwise access the content of a conference call on the Symposia Service in real time; and (ii) not permit the recording of any person who has not given express prior consent to be recorded. You represent, warrant, covenant and agree that you will not use the Symposia Service to record any conversation except where it is legal under all applicable laws.

II. INTELLECTUAL PROPERTY RIGHTS

Subject to the terms and conditions of these Terms of Use, HarQen hereby grants you a limited, revocable, non-exclusive, non-transferable right to use the Symposia Service provided that your Account is active and you are in compliance with all of your responsibilities under this Agreement. This right includes the right to access and use the online software applications provided by HarQen as part of the Symposia Service (the "Software").

HarQen expressly reserves all right, title and interest in and to the Symposia Service. You acknowledge and agree that HarQen, and/or its licensors own all intellectual property rights in and relating to and arising out of the Symposia Service. Except as expressly stated herein, these Terms of Use do not grant you any rights in, or to any patents, copyrights, database rights, trade names, trade marks (whether registered or unregistered) or any other rights on licenses in respect of the Symposia Service.

III. INFORMATION RIGHTS AND RESPONSIBILITIES

While your Account is active, you have the right to use the data (including confidential information) you generate by your use of the Symposia Service (collectively, "User Data"). You give HarQen permission to record, copy, transmit, use, store, modify and otherwise use your User Data, but only for purposes of providing the Symposia Service to you and optimizing the Symposia Service. In addition, you give HarQen permission to search User Data in order to create Aggregate Analytics Data (defined below). Your User Data shall not be disclosed by HarQen to any third parties except to HarQen’s service providers and other users with authorized access to the Symposia session in which you participated. HarQen shall be responsible for its service providers’ use of your User Data, including ensuring that such service providers comply with the restrictions in this Agreement with respect to your User Data.

Aggregate Analytics Data is created by HarQen independently of the Symposia Service and it is agreed that HarQen is the sole owner of any Aggregated Analytics Data. "Aggregate Analytics Data" means (i) aggregated data elements derived from your use of the Symposia Service that do not identify any individual, company or business or disclose the subject matter of any call and (ii) any results from analysis of the User Data. For example, personal information such as names, email addresses and telephone numbers are not included in Aggregate Analytics Data (because they identify individuals or their companies), but call metrics such as call duration, number of participants and geographic locations of the callers may be included in Aggregate Analytics Data.

Nothing in these Terms of Use shall purport to vary any terms in your employment or service contract in respect of any ownership rights relating to any User Data derived from or used in connection with the Symposia Service.

From time to time, HarQen may find it necessary to access your Account. For instance, HarQen may access your Account for support, maintenance or security-related reasons. In such event, HarQen may if practicable, provide you notice of its intent to do so. Regardless of whether such notice is provided, you hereby acknowledge and consent to such access.

HarQen shall own all right title and interest to all Aggregate Analytics Data.

If you are covered by an enterprise agreement, you are considered an "Affiliated User" and you should consult the enterprise agreement concerning that status. Otherwise, you are considered an individual user of Symposia Services as soon as your Account is activated by HarQen. Thereafter, you may invite participants to join into sessions you establish. Those invitees are considered "Unaffiliated Users" under this Agreement. If your Account with HarQen is terminated, Unaffiliated Users may lose access to those sessions that were created using your account and in which each of those Unaffiliated Users was a participant. You agree to guarantee each Unaffiliated User to whom you provide access to Symposia Services complies with all of the user obligations contained in this Agreement and to indemnify and hold HarQen harmless from any loss, cost or damage resulting from any Unaffiliated User’s failure to do so. Likewise you agree to indemnify and hold HarQen harmless for any loss, cost or damage resulting from any party’s use of Symposia Services using your Account or password(s).

IV. PRIVACY

HarQen’s complete Privacy Policy and Safe Harbor Policy are available at http://Symposia.HarQen.com/policies/privacy and http://Symposia.HarQen.com/policies/safeharbor, respectively. By using the Symposia Service, you acknowledge the terms of HarQen’s Privacy Policy and Safe Harbor Policy.

V. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY

THE SYMPOSIA SERVICE, THE SITE AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SYMPOSIA SERVICE OR THE SITE ARE PROVIDED BY HARQEN ON AN "AS IS" AND "AS AVAILABLE" BASIS.

TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY SET OUT IN THE TERMS AND CONDITIONS, HARQEN DISCLAIMS AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE SYMPOSIA SERVICE OR THE AVAILABILITY OR OPERATION OF THE SYMPOSIA SERVICE OR THE SITE OR ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SITE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. HARQEN DOES NOT WARRANT THAT THE SYMPOSIA SERVICE, THE SITE, INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SYMPOSIA SERVICE OR THE SITE, OUR SERVERS OR E-MAIL SENT FROM HARQEN SHALL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

HARQEN DOES NOT WARRANT THAT YOUR USE OF THE SYMPOSIA SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR THAT THE SYMPOSIA SERVICE WILL MEET YOUR REQUIREMENTS. HARQEN IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR ANY OTHER LOSS OR DAMAGE RESULTING FROM THE TRANSFER OF DATA OVER COMMUNICATIONS NETWORKS AND FACILITIES, INCLUDING THE INTERNET, AND YOU ACKNOWLEDGE THAT THE SYMPOSIA SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, SUSPENSIONS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.

YOU EXPRESSLY AGREE THAT YOUR USE OF THE SYMPOSIA SERVICE AND THE SITE IS AT YOUR SOLE RISK.

HARQEN SHALL NOT BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY, WHETHER IN CONTRACT OR IN TORT, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, AND CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SYMPOSIA SERVICE OR THE SERVICES PROVIDED UNDER THIS AGREEMENT.

You are solely responsible for statements, content, data or information contained in or created by any use of the Symposia Service (collectively, the "Content"). HarQen shall not be liable for and specifically disclaims any liability for or relating to: (i) any Content and any actions resulting from your use of the Symposia Service or use of the Content in connection with it; or (ii) any damages of any kind arising from any interruption to or suspension of the Symposia Service or the Site.

VI. SERVICE LEVELS

You acknowledge and agree that there may be interruptions in service or events that are beyond our control. While we use commercially reasonable efforts to keep the Symposia Service accessible, HarQen does not guarantee, and shall have no liability to you for, any unavailability of the Symposia Service. Because we do not control the security of the Internet or other networks you use to access the Symposia Service, we cannot be, and are not responsible for, the security of information that you choose to communicate to or via the Symposia Service or HarQen while it is being transmitted. In addition, we are not responsible for any data lost during transmission.

VII. TERM & TERMINATION

Your Symposia Service Account shall become active once HarQen has set up your Account following completion of your registration.

You may terminate your Account by serving written notice to HarQen via an e-mail to support@harqen.com.

Without prejudice to any rights that have accrued under these Terms of Use or any of its other rights or remedies, HarQen may at any time suspend your Account, disable your passwords or access to all or part of the Symposia Service and/or terminate your Account with immediate effect by giving written notice to you if (i) you breach any material term of these Terms of Use, including for the avoidance of doubt, the Use Policy; or (ii) the enterprise agreement governing your use of and subscription to the Symposia Service expires or is terminated for any reason including for breach of a material term of such agreement. HarQen shall not be under any obligation to provide any services or to make the Symposia Service available to you while you remain in breach of any provision of these Terms of Use. HarQen may also terminate your Account by serving reasonable written notice to you.

Upon any termination of your Account: (i) HarQen will cease providing the Symposia Service to you; (ii) all rights, licenses and permissions granted hereunder shall terminate; and (iii) ALL OF YOUR DATA INCLUDING, WITHOUT LIMITATION, ALL NOTES AND RECORDINGS MADE BY OR CONTRIBUTED BY YOU IN OR USING THE SYMPOSIA SERVICE, WILL NO LONGER BE AVAILABLE TO YOU.

VIII. MODIFICATIONS TO POLICIES

HarQen reserves the right to change or modify these Terms of Use or any policy governing the Symposia Service, and any notice required to be given by HarQen shall be deemed given immediately upon the posting thereof at User Policy in the case of this Agreement and User Policy, Privacy Policy, EU Safe Harbor policy in the case of any applicable policies.

IX. MISCELLANEOUS; APPLICABLE LAW AND VENUE

HarQen shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control. These Terms of Use represent the complete agreement between you and HarQen concerning its subject matter, and supersedes all prior agreements and representations between the parties; provided, however, that if you or your employer have entered into a separate written agreement with HarQen which govern your access to Symposia Services (whether made before or after the time we enter into this Agreement), these Terms of Use shall not supersede such separate written agreement, and in the event of a conflict between these Terms of Use and that separate written agreement, the terms of the separate written agreement shall govern.

If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.

There are no third party beneficiaries under this Agreement.

This Agreement shall be governed by and construed under the laws of the State of Wisconsin without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations, and Wisconsin law, rules, and regulations, Wisconsin law, rules and regulations shall prevail and govern. Each Party agrees to submit to the exclusive and personal jurisdiction of the courts located in Milwaukee, Wisconsin. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement. The Software may be controlled by U.S. export regulations, and it may be not be used by or in embargoed countries except in compliance with such regulations.

A waiver of any default is not a waiver of any subsequent default and shall not be deemed an amendment to this Agreement. You may not assign or otherwise transfer any of your rights hereunder without HarQen’s prior written consent, and any such attempt is void.

Except where the context requires otherwise, whenever used the singular includes the plural, the plural includes the singular, the use of any gender is applicable to all genders and the word "or" has the inclusive meaning represented by the phrase "or." Whenever this Agreement refers to a number of days, unless otherwise specified, such number refers to calendar days. The headings of this Agreement are for convenience of reference only and do not define, describe, extend or limit the scope or intent of this Agreement or the scope or intent of any provision contained in this Agreement. The term "including" or "includes" as used in this Agreement means including, without limiting the generality of any description preceding such term.

X. CONTACTING HARQEN

If you wish to contact HarQen regarding these Terms of Use, please e-mail support@harqen.com.

Schedule 1 - Use Policy

Except with prior written authorization from HarQen, you shall not:

  1. copy, disassemble, decompile, reverse engineer, reproduce, alter or derive the Symposia Service nor permit any third party to do so;
  2. modify or create derivative works based upon the Symposia Service;
  3. write or develop any software based upon or developed with reference to the Symposia Service;
  4. attempt to delete, disable, or otherwise circumvent any security measures implemented by HarQen with respect to the Symposia Service;
  5. attempt to gain unauthorized access to the Symposia Service, HarQen or their related systems or networks;
  6. remove, obscure or alter any legal notices, including notices of intellectual property rights appearing in or on any materials delivered to you by HarQen;
  7. use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Symposia Service or interfere with or disrupt the integrity or performance of the Symposia Service or third-party data contained therein;
  8. use the Symposia Service in any way or for any purpose that would violate, or would have the effect of violating, any Applicable Laws including: (a) any Applicable Laws pertaining to the recording of telephone conversations; or (b) any Applicable Laws regarding any copyright, patent, trademark, trade secret, music, image, or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or rights of publicity;
  9. use the Symposia Service in any manner that is inconsistent with user documentation, if any, supplied to you by HarQen or inconsistent with HarQen's standard security procedures, if any, accessible through your user interface;
  10. use the Symposia Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material or malicious code, or to store or transmit material in violation of third-party privacy rights;
  11. make the Symposia Service available to any third party other than authorized Users that have agreed to the User Terms or assist any third parties other than Users that have agreed to such User Terms in obtaining access to the Symposia Service;
  12. assist, permit, or authorize any third party entity to perform any of the activities prohibited by the Terms and Conditions or the User Terms;
  13. use the Symposia Service to provide services to any third party; or
  14. attempt to sell, resell, rent or lease the Symposia Service or any license or service granted to you pursuant to this Agreement.

The terms of this Use Policy may be amended by HarQen from time to time as posted on the Symposia Service website at http://Symposia.HarQen.com/policies/user-tos.