License and Terms of Service
Effective Date: 10/15/2020
1. Welcome and Introduction
Welcome to Novosi! We’re committed to building technologies intended to improve people’s lives. TCD is a video conferencing platform designed to help individuals connect with each other, both formally and informally, and to allow businesses and professionals to connect with their customers, prospects, and clients.
Please carefully read through this License and Terms of Service (“Agreement”), since they are a binding agreement between the individual or company signing up for the Services (“you” or derivatives thereof) and Novosi, LLC (“Novosi,” “Company,” “we,” or derivatives thereof). The Agreement is effective when you sign up online (by clicking “I Accept” or similar language) or otherwise use any of the Services or access any content or material that is made available by Novosi through the Services (the “Content”). If you are signing up on behalf of a company or other entity, you individually warrant and represent that you are properly exercising your authority to bind such company or entity.
The term “Services” includes all the software, applications, widgets, tools, and functionality made available through the Services, including our website, platform, help desk system, connectivity API’s, and related support services. Any new features which augment or enhance the current Services, including the release of new features or products, including those that require additional fees, are also included in the term “Services.” The term “Services” does not include any services rendered by users, whether individuals or business entities, to you or any third party.
NOVOSI OFFERS A TECHNOLOGY SOLUTION INTENDED TO FACILITATE INTERACTIONS BETWEEN INDIVIDUALS, BETWEEN COMPANIES, AND BETWEEN ALL KINDS OF BUSINESSES AND PROFESSIONALS INTERACTING WITH THEIR CUSTOMERS, PROSPECTS, AND CLIENTS. HOWEVER, NOVOSI DOES NOT PARTICIPATE IN OR DIRECT THE DELIVERY OF ANY SERVICES BY ITS USERS. YOU AGREE TO HOLD NOVOSI HARMLESS FROM ANY RESPONSIBILITY OR LIABILITY ARISING OUT OF OR RELATED TO THE USE OF THE SERVICES BY ANY USER, INCLUDING THE ACTS OR OMISSIONS OF ANY USER, WHETHER THE SERVICES ARE PROVIDED IN A PERSONAL, BUSINESS, OR MEDICAL CONTEXT. YOU ACKNOWLEDGE THAT THE SERVICES ARE NOT GUARANTEED TO OPERATE IN ANY SPECIFIC MANNER AND THAT NOVOSI WILL NOT BE RESPONSIBLE FOR THE FINANCIAL, BUSINESS, MEDICAL, PERSONAL, OR OTHER CONSEQUENCES THAT MAY ARISE IF THE SERVICES FAIL OR ARE IMPAIRED FOR ANY REASON.
2. Exchange and Use of Information
Your use of the Services may involve the processing of information concerning you or your business that you input into the Services (“Your Data”). You exclusively own Your Data.
Certain portions of the Services allow you or you and the individuals with whom you interact using the Services to process, share, or upload information concerning you and your interactions with them (“User Content”). This information may include those parties names, street addresses, birth dates, e-mail addresses, and other information such as video, audio, images, ideas, links, notes, drawings, artwork, and graphics regarding you and other users that is transmitted or recorded using the Services. The User Content is subject to applicable law and belongs in general to that party generating the information, but as between Company and you, except for the license herein, Company disclaims ownership of the User Content.
Novosi may provide the Services in a “peer-to-peer” environment, meaning the communications made using the Services, including Your Data and User Content, do not pass through any servers and are not recorded. It may also provide the Services via servers configured for that purpose and managed by Novosi. Regardless of how the Services are configured, you will nevertheless continue to be the owner of Your Data and User Content.
You represent and warrant that, with respect to any User Content you post or process using the Services, (1) you have the necessary permissions and legal right to post or process such User Content, and (2) such User Content, or its use by Company as contemplated by the Agreement, does not violate the Agreement, applicable law, or the privacy rights of your prospects or other individuals or entities.
You grant us a non-exclusive, transferable, assignable, royalty-free, worldwide license to use User Content and Your Data in connection with the Services that we provide to you.
Your use of the Services may involve other technical information, such as when you access the Services, what types of devices you use, which pages you visit on our website, and similar information. This information is referred to herein as “Usage Data.” We own the Usage Data, free of any claim by you. Usage Data does not include any of Your Data or User Content, except to the extent Your Data and User Content is de-identified and aggregated, and to that extent, we own the Usage Data and may use it for any of our lawful business and research purposes.
3. Received Materials
If you send us any comments, materials, or letters including, without limitation, questions, comments, suggestions, criticisms or the like (“Received Materials”), those Received Materials may be deemed by us to be non-confidential and free of any claims of proprietary or personal rights. Company shall have no obligation of any kind with respect to such Received Materials, and Company will be free to reproduce, use, disclose, exhibit, display, transform, edit, abridge, create derivative works from and/or distribute the Received Materials without limitation or restriction. Furthermore, Company is free to use any ideas, concepts, know-how, or techniques contained in any communication you send to Company for any purpose whatsoever, including, but not limited to, developing, manufacturing, and marketing products using such information or ideas, without compensation or any other obligations to anyone, including you.
4. Changes to this Agreement
At certain times, we may in our discretion need to make revisions to this Agreement. If we do, we will post or provide appropriate notice, such as by posting notices on the website via banner ads or otherwise or by e-mailing you, as appropriate in the circumstances. If you continue using the Services after the effective date of the changes, you will be deemed to have accepted the revisions. If you do not agree to the revisions, you may no longer use the Services. Any other changes to this Agreement must be in writing signed by both parties.
5. Services and Payment
Certain of our Services are offered without charge for a period of time and then require payment of a fee. For others, you are required to pay a subscription fee (“Fee”) from the beginning. The description of which Services are free for a time and which Services require the payment of Fees are described when you sign up, and the Services and the Fees payable may change from time to time with or without notice.
When you sign up using a credit card or other payment method, you authorize us to make the charges disclosed to you at the time you sign up, including recurring payments, where applicable.
6. Trials and Beta Testing
From time to time, we or others on our behalf may offer access to beta models of the Services or trials of paid subscriptions for a specified period without payment or at a reduced rate (each, a “Trial”). We reserve the right, in our absolute discretion, to determine your eligibility for a Trial, and, subject to applicable laws, to withdraw or to modify a Trial at any time without prior notice and with no liability, to the greatest extent permitted under the law.
For some Trials, we’ll require you to provide your payment details to start the Trial. AT THE END OF SUCH TRIALS, WE MAY AUTOMATICALLY START TO CHARGE YOU THE APPLICABLE FEES ON THE FIRST DAY FOLLOWING THE END OF THE TRIAL, ON A RECURRING MONTHLY BASIS. BY PROVIDING YOUR PAYMENT DETAILS IN CONJUNCTION WITH THE TRIAL, YOU AGREE TO THIS CHARGE USING SUCH PAYMENT DETAILS. IF YOU DO NOT WANT THIS CHARGE, YOU MUST CANCEL THE APPLICABLE PAID SUBSCRIPTION THROUGH YOUR ACCOUNT’S SUBSCRIPTION PAGE OR TERMINATE YOUR ACCOUNT BEFORE THE END OF THE TRIAL. IF YOU DO NOT WANT TO CONTINUE TO BE CHARGED ON A RECURRING MONTHLY BASIS, YOU MUST CANCEL THE APPLICABLE PAID SUBSCRIPTION THROUGH YOUR ACCOUNT’S SUBSCRIPTION PAGE OR TERMINATE YOUR ACCOUNT BEFORE THE END OF THE RECURRING MONTHLY PERIOD. PAID SUBSCRIPTIONS CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH YOU HAVE ALREADY PAID, AND EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, WE WILL NOT REFUND ANY FEES THAT YOU HAVE ALREADY PAID.
IF THE TRIAL CONSISTS OF ACCESS TO A BETA MODEL, YOU ACKNOWLEDGE THAT THE BETA MODEL HAS NOT BEEN FULLY DEVELOPED AND MAY BE SUBJECT TO DEFECTS THAT WOULD BE UNACCEPTABLE IN A FULLY DEVELOPED VERSION. YOU AGREE THAT THE LICENSE GRANTED UNDER A BETA TRIAL IS WITHOUT WARRANTY OF ANY NATURE, INCLUDING THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY, AS WELL AS NON-INFRINGEMENT, AND ANY OTHER WARRANTY. BETA USERS HAVE NO CLAIM WHATSOEVER AGAINST US FOR ANY REASON WHATSOEVER.
7. License and Acceptable Use
Company hereby grants you, subject to this Agreement, a limited non-exclusive, non-sublicensable, non-transferable, license to use the Services for your internal business and personal purposes. You have no rights in the Services other than as expressly provided in this Agreement. You may not download any portion of the website or use of any Services other than for your own personal business use. You may not use any data mining, robots, or similar data gathering tools or otherwise exploit your access to the Services for any commercial purpose. You may not use any of the trademarks, logos, or other proprietary graphics without express written permission, which may be denied in Company’s absolute discretion. Company’s logos and product and service names are trademarks of Company. All other trademarks appearing on the website or in connection with the Services are trademarks of their respective owners, and our reference to them does not imply or indicate any approval or endorsement by their owners unless such approval or endorsement is expressly made.
In addition to any other things that might constitute a misuse of the Services, you must not, and must not attempt to do the following things:
- modify, alter, tamper with, repair or otherwise create derivative works of any of the Services;
- reverse engineer, disassemble or decompile the software used to provide or access the Services, or attempt to discover or recreate the source code used to provide or access the Services;
- use the Services for research or benchmarking or any related endeavor with the intent of creating a competing or similar product;
- sell, lend, rent, resell, lease, sublicense or otherwise transfer any of the rights granted to you with respect to the Services to any third party;
- remove, obscure or alter any proprietary rights notice pertaining to the Services;
- access or use the Services in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas;
- use the Services to: (i) engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data; (ii) send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) advertise or promote a commercial product or service that is not available through Company; (iv) store or transmit inappropriate content, such as content: (1) containing unlawful, defamatory, threatening, pornographic, abusive, libelous or otherwise objectionable material of any kind or nature, (2) containing any material that encourages conduct that could constitute a criminal offense, or (3) that violates the intellectual property rights or rights to the publicity or privacy of others; (v) store or transmit any content that contains or is used to initiate a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware; or (vi) abuse, harass, stalk or otherwise violate the legal rights of a third party;
- interfere with or disrupt servers or networks used by Company to provide the Services or used by other users to access the Services, or violate any third party regulations, policies or procedures of such servers or networks or harass or interfere with another user’s full use and enjoyment of any of the Services;
- access or attempt to access Company’s other accounts, computer systems or networks not covered by this Agreement, through password mining or any other means;
- cause, in Company’s sole discretion, inordinate burden on the Services or Company’s system resources or capacity; or
- share passwords or other access information or devices or otherwise authorize any third party to access or use the Services.
8. Third-Party Integrations.
The Services may be integrated with third-party applications, websites, and services, such as Google Maps, electronic health records, and similar applications and tools (“Third Party Applications”) to make available content, products, and/or services to you. These Third-Party Applications may have their own terms and conditions of use and privacy policies and your use of these Third-Party Applications will be governed by and subject to such terms and conditions and privacy policies. You understand and agree that we do not endorse and are not responsible or liable for the behavior, features, or content of any Third-Party Application or for any transaction you may enter into with the provider of any such Third-Party Applications.
9. Your Account and Collaborators
You are responsible for maintaining the confidentiality of any account information, including your login and password, and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. Company reserves the right to refuse service, terminate accounts, remove or edit content in its sole discretion. You are also solely responsible for the accuracy and currency of the data entered into the Services under your user account. You agree to indemnify and hold Company harmless from and against any claim related to content, accuracy, or currency of the information you provide through the Services.
The Services may provide you with the opportunity to invite your employees and other service providers (“Collaborators”) to access Your Data and User Content associated with your account. If this functionality is made available to you and you use this functionality, you shall be solely responsible for the actions of your Collaborators. Company may limit the number of licensees with whom an individual Collaborator may collaborate and may require a Collaborator to obtain a paid license at any time, in Company’s sole and absolute discretion. Collaborators are not third-party beneficiaries of this Agreement and are not entitled to any remedies or rights under this Agreement.
10.1 Confidential Information. During the term of this Agreement, each party or its employees, consultants, or agents may receive information of the other party that is proprietary or confidential (“Confidential Information”). Each party agrees to hold the Confidential Information of the other party in confidence and not to disclose such Confidential Information to any third parties except as expressly authorized by this Agreement or to use such Confidential Information for purposes outside the scope of this Agreement. Each party may disclose the Confidential Information of the other party only to its employees, consultants and agents who need to know such Confidential Information for the purposes of this agreement and who are subject to confidentiality obligations at least as protective of the Confidential Information as those set out herein. Each party will advise its employees, consultants and agents of their responsibilities under this Agreement and be responsible for any breach of this section by its employees, consultants or agents. Confidential Information shall not include information that is: (a) part of, or becomes part of, the public domain (other than by disclosure by the receiving party in violation of this Agreement); (b) previously known to the receiving party without an obligation of confidentiality; (c) independently developed by the receiving party outside this Agreement; (d) rightfully obtained by the receiving party from third parties without an obligation of confidentiality; or (e) otherwise addressed in this Agreement.
10.2 Exceptions. Notwithstanding the foregoing, either party may disclose the Confidential Information of the other party to the extent such disclosure is required to comply with applicable law or the valid order or requirement of a governmental or regulatory agency or court of competent jurisdiction, provided that the disclosing party (a) restricts such disclosure to the maximum extent legally permissible; (b) notifies the party to whom the Confidential Information belongs as soon as practicable of any such requirement; and (c) that subject to such disclosure, such disclosed materials shall in all respects remain subject to the restrictions set forth in this Agreement.
10.3 Remedies. The parties acknowledge that their respective Confidential Information is unique and valuable, and that breach by a party of the obligations of this section regarding the other party’s Confidential Information could result in irreparable injury to the other party for which monetary damages alone would not be an adequate remedy. Therefore, the parties agree that in the event of a breach or anticipated breach of this section, the affected party shall be entitled to seek injunctive or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of posting a bond. Any such relief shall be in addition to and not in lieu of any appropriate relief in the way of monetary damages.
12. Copyright and Title
The Services and all copyrights, trade secrets and other proprietary rights therein, including any derivative work, are, and will remain the sole property of Company, regardless of the use made by you; and are protected by certain United States and international copyright laws and trademark laws. The Services are licensed, not sold, to you. This Agreement confers no title of ownership in the Services and are not a sale of any rights in the Services, including any intellectual property rights related thereto.
14. Disclaimer of Warranty
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES AND EVERY ELEMENT THEREOF ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF NON-INFRINGEMENT, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT OR GUARANTEE THE AVAILABILITY, CURRENCY, COMPLETENESS, ACCURACY, OR TRUTHFULNESS OF ANY INFORMATION PROVIDED BY OR WITH RESPECT TO THE SERVICES. WITHOUT LIMITING THE FOREGOING, COMPANY DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE WEBSITE AND/OR DELIVERY OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE. Because some jurisdictions may not allow the exclusion of implied warranties, such limitation may not apply in its entirety to Licensee. Any warranties made in this Agreement are for your benefit only.
15. Limitation of Liability
IN NO EVENT WILL COMPANY, ITS SUPPLIERS, SHAREHOLDERS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY LOST PROFITS, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING OUT OF THIS AGREEMENT OR THE USE OF OR RELIANCE UPON THE SERVICES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL COMPANY’S TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT AND USE OF THE SERVICES (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AMOUNT PAID BY YOU DURING THE THREE-MONTH PERIOD PRIOR TO SUCH CLAIM ARISING. THE PARTIES AGREE THAT THIS SECTION SHALL SURVIVE AND CONTINUE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF CONSIDERATION OR OF AN EXCLUSIVE REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PRICES HAVE BEEN SET AND THE AGREEMENT ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. BECAUSE SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SUCH LIMITATIONS MAY NOT APPLY.
16. Service Limitations and Modifications
Company will make reasonable efforts to keep the Services operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. To the extent permissible under applicable law, we reserve the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of the Services, with or without notice, all without liability to you, except where prohibited by law, for any interruption, modification, or discontinuation of the Services or any function or feature thereof. You understand and agree that Company has no obligation to maintain, support, upgrade, or update the Services, or to provide all or any specific content through the Services, and it may cease providing the Services at any time. Company and/or the owners of any Content may, from time to time, remove any such Content without notice to the extent permitted by applicable law.
17. Term and Termination; Survival
This Agreement may be terminated by either party upon the breach of any material provision of this Agreement that is not cured within thirty (30) days after notice of breach. However, in the event of termination for any reason, you acknowledge and agree that the perpetual license granted by you in relation to User Content is irrevocable and will therefore continue after expiry or termination of this Agreement. We may terminate this Agreement or suspend your access to the Services at any time, and with or without notice, in the event of your actual or suspected unauthorized use of the Services and/or Content or your failure to make payment as required. You may terminate this Agreement at any time, but in no event shall you receive a refund of Fees, whether paid in arrears or in advance.
Any provisions of this Agreement that, either explicitly or by their nature, must remain in effect even after termination of the Agreements to give effect to those provisions, shall survive termination.
18. Governing Law and Jurisdiction
The Services are operated by Company from its offices in Utah in the United States. The validity, construction, and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Utah, without reference to choice of law principles. You expressly agree that exclusive jurisdiction for any claim or dispute with Company, this Agreement, or relating in any way to your use of the Services resides in the federal and state courts located in Salt Lake City, State of Utah, and you do hereby submit to and consent to jurisdiction and venue in such courts. You agree to waive any defense pertaining to jurisdiction and venue. In the event any provision hereof shall be held by a tribunal of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect.
19. Attorney Fees
In case of an action to enforce any rights or conditions of this Agreement, or appeal from said proceeding, it is mutually agreed that the losing party in such suit, action, proceeding or appeal shall pay the prevailing party’s reasonable attorney fees and costs incurred.
20. Entire Agreement
This Agreement is a binding contract and constitute the entire agreement and understanding of the parties, whether oral or written, relating to the subject matter hereof. It is intended as the parties’ final expression and complete and exclusive statement of the terms hereof, superseding all prior or contemporaneous agreements, representations, communications, and understandings, whether written or oral; and may be amended or modified only as expressly provided in this Agreement.
No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. Failure to enforce any provision of this Agreement shall not operate as a waiver of such provision or any other provision or of the right to enforce such provision or any other provision.
22. Severability; Binding Effect
If any provision of this Agreement shall be invalid or unenforceable in any respect for any reason, the validity and enforceability of any such provision in any other respect and of the remaining provisions of this Agreement shall not be impaired. This Agreement shall be binding on and inure to the benefit of the parties and their heirs, personal representatives, successors, and assigns.
23. Force Majeure
Company will not be liable for or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond Company’s reasonable control. No event of force majeure will excuse timely payment of Fees.
24. Defense and Indemnification
In addition to the other provisions of this Agreement, you agree to defend Company from any actual or threatened third-party claim arising out of or based upon (1) your and your Collaborators’ use of the Services, including without limitation any claim by your client, prospect, or customer based on the inaccuracy, untimeliness, or incompleteness of any Third-Party data and the unavailability of the Services for any reason, as well as any claim that Your Data or User Content infringes upon the intellectual property rights of any third party, (2) your failure to comply with any of the provisions of applicable law, including without limitation COPPA and FERPA (defined below) and (3) your breach of any of the provisions of this Agreement. In addition, you agree to indemnify, defend, and hold harmless Company from and against: (a) all damages, costs, and attorneys’ fees finally awarded against Company in any proceeding under this section; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Company in connection with the defense of such proceeding (other than when you have accepted defense of such claim); and (c) if any proceeding arising under this section is settled, any amounts to any third party agreed to by you in settlement of any such claims.
25. Communications and Feedback
When you visit us at www.tcd.net (“Website”) or send e-mails to us, you are communicating with us electronically, and you consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on our website. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
26. Independent Contractors
The parties to this Agreement are independent contractors, and there is no actual or intended relationship of agency, partnership, joint venture, employment or franchise between the parties. Neither party is an agent of the other party, and neither party has the authority to bind the other party, or to incur any obligation on the other party’s behalf.
27. Children and Students