Last Updated: May 2014
- Description Of Site
- Acceptance Of Terms; Changes To Tou
- Your License To Use The Site
- Software Use Restrictions
- Modifications To The Site
- Dealings With Advertisers Or Third Party Vendors
- Links; Co-Branding
- Limitation Of Liability
- Intellectual Property Information
- Digital Millennium Copyright Act Notice
- Governing Law/Jurisdiction and Arbitration
- Severability; English Language
- Location Outside The U.S.
- Entire Agreement
1. Description Of The Site
All materials provided on this Site, including but not limited to information, documents, products, logos, graphics, sounds, images, software, and services are provided either by Ericom or by third party manufacturers, authors, developers and vendors (“Third Party Providers“) and are the copyrighted work of Ericom and/or its Third Party Providers. Unless explicitly stated otherwise, any modifications, updates, new features, or enhancements to the current Site are also subject to the TOU.
2. Acceptance Of Terms; Changes To Tou
Ericom provides the Site to you subject to the following TOU, which may be updated by us from time to time in our sole discretion. Each time changes are made to the TOU, a revised TOU will be posted on the Site. Your continued use of the Site, or any part thereof, following the posting of changes constitutes your acceptance of such changes. If you do not wish to be bound by the TOU, you should discontinue your use of the Site.
3. Your License To Use The Site
Ericom grants you a personal, non-exclusive, non-transferable, revocable license to use the Site. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit any of the content included in the Site, in whole or in part. Except as otherwise expressly permitted under copyright law, no copying, redistribution, retransmission, publication, or commercial exploitation of downloaded material will be permitted without the express permission of Ericom and the copyright owner. In the event of any permitted copying, redistribution, or publication of copyrighted material, no changes in or deletion of author attribution, trademark legend, or copyright notice shall be made. You acknowledge that you do not acquire any ownership rights by downloading copyrighted material.
Except as otherwise expressly permitted in this TOU, you may not: (i) decompile, reverse engineer, reverse assemble or otherwise attempt to discover any source code, except as otherwise permitted by applicable law; or (ii) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels on the Site. You may not access the Site by any means other than through the interface that is provided by Ericom. Furthermore, you may not use the Site in any manner that could damage, disable, overburden, or impair the Site, nor may you use the Site in any manner that could interfere with any other party’s use and enjoyment of the Site. All commercial and/or unauthorized use of the Site is strictly prohibited.
The Site remains at all times the sole property of Ericom or Third Party Providers. All rights in the Site not expressly granted to you by Ericom under the TOU are retained by Ericom.
4. Software Use Restrictions
Any software that may be made available to download from this Site (“Software“) is Ericom’s copyrighted work. Use of the Software is governed by the terms of the end user license agreement that accompanies or is included with the Software (“License Agreement“). An end user agrees to the License Agreement terms by installing, copying, or using the Software. The Software is made available for downloading solely for use by end users according to the License Agreement. Any reproduction or redistribution of the Software not in accordance with the License Agreement is expressly prohibited by law and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible.
Any Software that is downloaded from the Site for or on behalf of the United States of America, its agencies and/or instrumentalities (“U.S. Government“), is provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph ©(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs ©(1) and (2) of the Commercial Computer Software � Restricted Rights at 48 CFR 52.227-19, as applicable.
Except where expressly provided otherwise by Ericom, all comments, feedback, information or materials submitted to Ericom through or in association with the Site (“Submissions“) shall be considered non-confidential and Ericom’s property. By providing such Submissions to Ericom, you agree to assign to Ericom, at no charge, all worldwide rights, title and interest in copyrights and other intellectual property rights to the Submissions. Ericom shall be free to use and/or disseminate such Submissions on an unrestricted basis for any purpose. You acknowledge that you are responsible for the Submissions that you provide, and that you, not Ericom, have full responsibility for the Submissions, including their legality, reliability, appropriateness, originality and copyright.
6. Modifications To The Site
Ericom reserves the right at any time, and from time to time, to modify, suspend, or discontinue, temporarily or permanently, the Site (or any part thereof) with or without notice. You agree that Ericom shall not be liable to you or to any third party for any such modification, suspension or discontinuance.
7. Dealings With Third Party Vendors
Your correspondence or business dealings with, or participation in promotions of, third party vendors found on or through the Site, including payment and delivery of related goods or products, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser or third party vendor. Any question, complaints, or claims should be directed to the appropriate third party vendor. You agree that Ericom shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third party vendors on the Site.
Anyone linking to the Site must comply with the following guidelines and all applicable laws: A site that links to the Site (i) may link to but not replicate any of the Site’s content; (ii) should not imply that Ericom is endorsing it or its products; (iii) should not misrepresent its relationship with Ericom; (iv) should not present false information about Ericom; (v) should not use any Ericom trademarks, trade names, or logos without permission from Ericom; and (vi) should not contain content that is reasonably considered profanity, defamatory, vulgar, or otherwise unlawful.
WE DO NOT INDEPENDENTLY VERIFY THE ACCURACY OR RELIABILITY OF THE SITE. THE SOFTWARE IS WARRANTED, IF AT ALL, ONLY ACCORDING TO THE TERMS OF THE LICENSE AGREEMENT. EXCEPT AS MAY BE EXPRESSLY WARRANTED IN THE LICENSE AGREEMENT, THE SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND. ERICOM, AND ITS THIRD PARTY PROVIDERS, SPECIFICALLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
EXCEPT AS MAY BE EXPRESSLY WARRANTED IN THE LICENSE AGREEMENT, ERICOM AND THIRD PARTY PROVIDERS MAKE NO WARRANTY THAT: (i) THE SITE WILL MEET YOUR REQUIREMENTS, (ii) THE PROVISION OF THE SITE WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY SOFTWARE, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE USE OF THE SITE WILL MEET YOUR EXPECTATIONS, OR (v) ANY ERRORS IN THE SITE WILL BE CORRECTED. NEITHER WE, NOR OUR LICENSORS OR SUPPLIERS, GUARANTEE THE RELIABILITY, ACCURACY, COMPLETENESS, SAFETY, TIMELINESS, LEGALITY, USEFULNESS, ADEQUACY OR SUITABILITY OF ANY OF THE SITE. THE SITE MAY BE INCOMPLETE OR INACCURATE AND, ACCORDINGLY, YOU AGREE TO EXERCISE CAUTION, DISCRETION AND COMMON SENSE WHEN USING THE SITE.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO A PORTION OF THE FOREGOING MAY NOT APPLY TO YOU, IN WHICH CASE THE DURATION OF ANY SUCH IMPLIED WARRANTIES IS LIMITED TO THE MINIMUM PERIOD PERMISSIBLE UNDER APPLICABLE LAW.
10. Limitation Of Liability
NEITHER ERICOM NOR THE THIRD PARTY PROVIDERS NOR ANYONE ELSE CONNECTED WITH THE SITE IN ANY WAY WHATSOEVER CAN BE RESPONSIBLE FOR THE APPEARANCE OF ANY INACCURATE INFORMATION OR FOR YOUR USE OF THE INFORMATION CONTAINED IN OR LINKED FROM THE SITE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE, OR THE THIRD PARTY PROVIDERS, BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO ACCESS THE SITE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK DISRUPTIONS, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. ERICOM SHALL NOT BE RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF THE SITE AND/OR ANY MATERIAL LINKED THROUGH THE SITE.
EXCEPT AS MAY BE EXPRESSLY WARRANTED IN THE LICENSE AGREEMENT, UNDER NO CIRCUMSTANCES WILL ERICOM’S DIRECT LIABILITY ARISING OUT OF USE OF THE SITE OR THE SOFTWARE EXCEED THE GREATER OF (I) THE AMOUNT YOU HAVE PAID ERICOM FOR SUCH USE OR (II) $10.00. SOME JURISDICTIONS DO NOT PERMIT SOME OF THE ABOVE LIMITATIONS OF LIABILITY, AND THEREFORE THIS MAY NOT APPLY TO YOU.
You agree to indemnify and hold Ericom, its subsidiaries and affiliates, and their respective officers, directors, employees, and agents harmless from and against any and all liability, losses, claims, demands or costs of any kind, including reasonable attorneys’ fees and costs of litigation, arising from (i) your use of or reliance on the Site, (ii) your connection to the Site, (iii) your violation of the TOU, or (iv) your violation of any rights of another party.
12. Intellectual Property Information
The Ericom® and PowerTerm® trademarks registered trademarks of Ericom. Additionally, other Ericom names, trademarks and logos are trademarks of Ericom. Without our written prior permission you agree not to display, or use in any manner, the Ericom marks. The trademarks, logos, and service marks not owned on behalf of Ericom and that are displayed on the Site are the registered or unregistered marks of their respective owners. No rights are granted by Ericom to use such marks, whether by implication, estoppels, or otherwise.
Ericom respects the intellectual property rights of others. Ericom may, in appropriate circumstances and at its sole discretion, terminate the access of users who infringe the copyrights or intellectual property rights of others.
13. Digital Millennium Copyright Act Notice
Procedure for Making Claims of Copyright Infringement under the Digital Millennium Copyright Act (DMCA):
Ericom responds to notices of alleged copyright infringement under the United States Digital Millennium Copyright Act and works to ensure that content on our site does not infringe upon the intellectual property rights of third parties. If you believe that your intellectual property rights have been infringed, please notify our DMCA designated agent as follows:
- A physical or electronic signature of the copyright owner or the person authorized to act on behalf of the copyright owner that is allegedly infringed;
- A description of the work that you claim has been infringed and a description of the infringing activity;
- A description of where the material that you claim is infringing is located, such as the URL where it is posted;
- Your name, address, telephone number, and email address;
- A statement by you that you have a good faith belief that the disputed use of the material is not authorized by the owner, its agent, or the law;
- A statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Ericom’s copyright agent for notice of claims of copyright infringement can be reached as follows. Note: This contact information is solely for reporting copyright infringement.
Stewart Edelman, DMCA Designated Agent
231 Herbert Avenue Bldg#4
Closter, New Jersey 07624
Fax: 201 767 2205
14. Governing Law/Jurisdiction and Arbitration
THE TOU AND THE INTERPRETATION OF THE TOU WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW JERSEY, WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES AND SPECIFICALLY WILL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. YOU AGREE THAT JURISDICTION OVER AND VENUE IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE SITE, THE USE OR ACCESS THEREOF, OR THE TOU MUST BE IN THE STATE OR FEDERAL COURTS LOCATED IN NEWARK, NEW JERSEY AND YOU HEREBY CONSENT AND SUBMIT TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE COURTS LOCATED IN NEWARK, NEW JERSEY FOR ANY SUCH LEGAL PROCEEDING. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE WITH RESPECT TO ANY SITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES.
Except with respect to the protection and enforcement of the intellectual property rights of Ericom and its rights to seek and/or obtain injunctive or equitable relief, any claim, cause of action or proceeding arising out of or relating to the TOU or the Site shall be resolved by mandatory, binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) as supplemented by AAA’s Supplementary Procedures for Consumer-Related Disputes. Any such claim, cause of action or proceeding shall be arbitrated on an individual basis and without resort to any form of class action. The arbitration shall be conducted in Newark, New Jersey, and the Federal Arbitration Act, and not any state law concerning arbitration, shall apply. The arbitration award shall be final and exclusive, and the prevailing party in the arbitration may file an action in court to confirm and to enforce the arbitration award. Any such action, or any claim, cause of action or proceeding not subject to arbitration as set forth in this section, shall be filed and adjudicated in a state or federal court in Newark, New Jersey, and all parties agree to submit to the personal jurisdiction of those courts. You irrevocably waive any rights to seek and/or obtain injunctive or other equitable relief and any defense of forum non conveniens. Should either party pursue any other judicial or administrative action with respect to any matter included within the scope of this binding arbitration provision, the responding party will be entitled to recover its costs, expenses and attorneys’ fees incurred as a result of such action.
15. Severability; English Language
If any provision in the TOU should be held illegal or unenforceable by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from the TOU if no such modification is possible, and the other provisions of the TOU shall remain in full force and effect. The controlling language of the TOU is English. If you have received a translation into another language, it has been provided for your convenience only.
The headings to the sections of the TOU are used for convenience only and shall have no substantive meaning or impact on the interpretation of the TOU.
17. Location outside the U.S.
If you are located outside the U.S., then you are responsible for complying with any local laws in your jurisdiction that might impact your right to use the Site, and you represent that you have complied with any regulations or registration procedures required by applicable law to make the TOU enforceable.
18. Entire Agreement
The TOU constitute the entire agreement between you and Ericom and govern your use of the Site, superseding any prior agreements between you and Ericom. Please note, however, that use of the Software is governed by the terms of the License Agreement. The License Agreement is in addition to the general terms and conditions in the TOU. If there is any conflict between the TOU and the License Agreement, the License Agreement will govern with respect to that particular software product.
If you have any questions about the TOU, or if you would like request permission to use any copyrighted or trademarked materials from the Site, please contact the Ericom Manager of Legal Affairs at +1 (201) 767-2210