HEARME SOFTWARE LICENSE AGREEMENT
IMPORTANT - THIS IS A LEGALLY BINDING AGREEMENT BETWEEN AVM SOFTWARE, INC. D/B/A HEARME ("HEARME") AND YOU. IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE TERMS AND CONDITIONS REGARDING YOUR USE OF HEARME'S SOFTWARE, DOCUMENTATION AND ASSOCIATED MATERIALS ("SOFTWARE"). BY SELECTING "I AGREE" AND CONTINUING THE INSTALLATION, BY USING THE SOFTWARE OR BY SIGNIFYING YOUR ACCEPTANCE IN ANY OTHER WAY, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL THESE TERMS AND CONDITIONS, YOU ARE NOT AUTHORIZED TO USE THE SOFTWARE AND YOU SHOULD DISCONTINUE ANY FURTHER INSTALLATION OR USE THEREOF.
LICENSE GRANT. HearMe grants to you a non-exclusive, non-transferable license this copy of the Software solely for your personal use on any desktop or other fixed or portable computer. For purposes of this Agreement, the Software is considered to be "in use" when it is loaded into temporary memory (e.g., RAM) or installed into the permanent memory (e.g., hard disk, CD-ROM or other storage device) of such computer.
OWNERSHIP. The Software is proprietary to HearMe and protected by United States copyright and other laws, as well as international treaty provisions and you must treat the Software as any other copyrighted and legally protected material. You may not modify, adapt, translate, reverse engineer, decompile, disassemble the Software or create derivative works using or based on the Software, nor may you distribute, loan, rent, or lease, timeshare or use the Software to provide services for third parties, sublicense or transmit all or any portion of the Software, nor may you allow others to do so. HearMe reserves all rights not expressly granted herein. HearMe owns all right title and interest in and to the Software and nothing in this Agreement shall be construed to transfer, convey, impair or otherwise adversely affect HearMe's ownership or proprietary rights therein or any other HearMe information or materials, tangible or intangible, in any form and in any medium.
ACCOUNT INFORMATION. TO DOWNLOAD AND INSTALL HEARME YOU MUST BE AT LEAST EIGHTEEN (18) YEARS OF AGE. THERE ARE CERTAIN AREAS ON HEARME THAT CONTAIN ADULT OR MATURE CONTENT. ACCORDINGLY, YOU REPRESENT THAT YOU ARE AT LEAST EIGHTEEN (18) YEARS OF AGE TO USE THOSE AREAS. NO ONE UNDER THE AGE OF THIRTEEN (13) IS PERMITTED TO USE HEARME. NO ONE BETWEEN THE AGES OF THIRTEEN (13) AND EIGHTEEN (18) MAY USE HEARME WITHOUT ADULT SUPERVISION. PARENTS AND GUARDIANS ASSUME ALL LIABILITY AND RESPONSIBILITY FOR THE USE OF THEIR ACCOUNTS BY OTHER PERSONS, INLCLUDING BUT NOT LIMITED TO USE OF THEIR ACCOUNTS BY PERSONS UNDER EIGHTEEN (18) YEARS OF AGE. ANY USER FOUND TO BE UNDER THE AGE OF THIRTEEN (13) OR PERMITTING USE OF HEARME BY A PERSON UNDER THE AGE OF THIRTEEN (13), MAY HAVE HIS OR HER ACCOUNT SUSPENDED OR TERMINATED WITH OR WITHOUT NOTICE AND OTHER ACTIONS MAY ALSO BE TAKEN. IF A CHILD UNDER THIRTEEN (13) HAS ACCESS TO YOUR COMPUTER, DO NOT SAVE YOUR HEARME PASSWORD; THIS WILL RESTRICT THE CHILD AND ANY UNAUTHORIZED USER FROM USING YOUR ACCOUNT. IN ADDITION, WE STRONGLY RECOMMEND THAT YOU CHECK REGULARLY TO SEE IF ANY NEW, UNAUTHORIZED ACCOUNTS HAVE BEEN CREATED UNDER YOUR HEARME ACCOUNT. TO DELETE ANY UNAUTHORIZED ACCOUNTS, PLEASE CLICK ON When you register for HearMe, you will choose a username or display name and an account (HearMe User Identification ("UID")) will be created for you. You may not select a username, which violates any copyright, third party's trademark right or other proprietary right or a name, which HearMe deems in its sole discretion to be profane, offensive or in any other way unacceptable. HearMe reserves the right to delete any profane, offensive or unacceptable usernames and/or to require you to change your username. You are entirely liable for all activities conducted through your Account and the username registered to your Account. You may allow another person, including a minor (13 - 18 years of age), to use your Account and username subject to your supervision; provided however, you shall remain liable for any such use of your Account by another person. In consideration for your use of the HearMe software, you agree to (a) provide true, accurate and complete information about yourself as prompted by the registration forms (such information being the "Registration Data"), (b) maintain and promptly update the Registration Data to keep it true, accurate and complete and (c) notify HearMe of any unauthorized use of your account, password or other breach of security. NO REPRESENTATIONS OR WARRANTIES. THE SOFTWARE IS PROVIDED "AS IS" WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. YOU ASSUME THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE AND THIS AGREEMENT. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
NO SOLICITATION; NO DENIGRATION. As a condition to your use of HearMe, you agree that you will not either directly or indirectly (a) solicit, cause, or assist in soliciting or causing, any employee, officer, director, agent, administrator, consultant or any other person that is employed by, consults for, volunteers for, represents or assists HearMe (each a "Representative") to (i) terminate, suspend, discontinue or end such Representative's employment, consultancy and/or other relationship with HearMe, or (ii) become employed by, or work or consult for any other entity or person, (b) make any negative, denigrating or defamatory statement(s) or comment(s) about HearMe or any Representative, or otherwise engage in any conduct or action that might tarnish the image, reputation, ability or character of HearMe or any Representative, or otherwise tarnish or dilute any of HearMe's trade or service marks and/or its goodwill; or (c) solicit or cause any existing customer or client of HearMe to cease using, and/or any potential customer or client of HearMe not to use any HearMe products and/or services and/or to use any software and/or other product(s) and/or services that are competitive with HearMe's products and/or services; (d) aid, abet or authorize any person or entity to engage in any of the foregoing.
VIDEO VIEWING AND PUBLISHING. For those users on HearMe version 8 and above, video encoding and video viewing capability is licensed under the AVC patent portfolio license for the personal and non commercial use of a consumer to (i)encode video in compliance with the AVC standard ("AVC video") and/or (ii)decode AVC video that was encoded by a consumer engaged in a personal and non-commercial activity and/or was obtained from a video provider licensed to provide AVC video. No license is granted or shall be implied for any other use. Additonal information may be obtained from MPEG LA, LLC. See http://www.mpegla.com
HOSTING A VIRTUAL CONFERENCE ROOM. In accordance with the Terms of Service, you have the ability to create your own room on HearMe. If you are the host of a room and another user is not behaving in a manner that is consistent with the Terms of Service as applicable to your room, you (and certain people authorized by you), have various options to address such behavior. By "RIGHT CLICKING" on the name of the person that is not behaving appropriately, you will see a menu of choices, including: (a) removing that person's ability to speak ("Remove Mic"), (b) removing that person from your room ("Bounce"), and (c) alerting HearMe personnel. When creating your own room, more information will be available to you.
LAW ENFORCEMENT. HearMe will fully cooperate with law enforcement in investigating or requesting information with respect to suspected criminal or other activity and, notwithstanding any provision herein to the contrary, may release your name and other information to the appropriate authorities for that purpose, with or without a subpoena. In addition, HearMe has the right, but not the obligation, to initiate its own review of the conduct of any user, either independently or as a result of a complaint by a third party user. Any investigation undertaken by HearMe would include all steps that HearMe deems appropriate in its sole discretion and the results of any such investigation could be disclosed to one or more appropriate parties.
TERMINATION OF ACCOUNT. In the event that you engage in conduct prohibited by this Agreement, or otherwise commit any other breach of this Agreement, then ANY of the following may occur: you may be issued a warning; your access to online chat groups may be suspended or use of your account may be temporarily or permanently blocked; other action may also be taken against you. Please be advised that if you have paid to subscribe to any of the HearMe services, your subscription fee will not be refunded (either in whole or in part) if your account is terminated or suspended.
LIMITATION OF LIABILITY AND INDEMNIFICATION. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL HEARME OR ITS AFFILIATES OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR REPRESENTATIVES (COLLECTIVELY "HEARME PARTIES") OR ANY OF THEIR RESPECTIVE SUPPLIERS BE LIABLE OR RESPONSIBLE FOR ANY DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR DATA, OR ANY OTHER INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES) ARISING OUT OF THE USE OF OR INABILITY TO USE THIS SOFTWARE, THE LICENSE OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, EVEN IF HEARME HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU HEREBY AGREE TO INDEMNIFY AND HOLD HEARME PARTIES HARMLESS FROM AND AGAINST ANY AND ALL LOSS, COST, DAMAGE AND EXPENSE, INCLUDING BUT NOT LIMITED TO ATTORNEYS' FEES AND COURT COSTS, ARISING DIRECTLY OR INDIRECTLY FROM YOUR USE OF THE HEARME SOFTWARE AND/OR YOUR BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN THIS AGREEMENT.
U.S. GOVERNMENT RESTRICTED RIGHTS: The Software is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is A.V.M. Software, Inc., Church Street Station, PO Box 3454, New York, N.Y. 10008.
GOVERNING LAW; AMENDMENTS. In enforcing, interpreting and for all other purposes, this Agreement will be governed by the substantive laws of the State of New York and in the event of a dispute arising hereunder, you agree to be bound by the exclusive jurisdiction of the federal and state courts located in the State of New York, City of New York, Borough of Manhattan. If a court determines any remedy provided to you under this Agreement has failed of its essential purpose, the limitations of liability and exclusion of damages and warranties above shall not be affected and remain in full force and effect. This Agreement may not be modified except to the extent of a written agreement to do so by an authorized representative of HearMe. HearMe reserves the right to modify the terms of this Agreement from time to time without notice to you, by posting the most current version of the Agreement on its website. In addition to the terms of this Agreement, you shall also be bound by the terms of any posted rules or guidelines applicable to your use of the HearMe software.
CONSOLIDATION; CREDITORS RIGHTS. In the event of a merger, sale of assets or other corporate transaction involving HearMe or in the event of a bankruptcy, insolvency or other action involving creditors of HearMe or under other similar or related circumstances, HearMe reserves the right to disclose and/or sell information about you and your Account.