3. MODIFICATIONS TO THE IBASIS SITE. iBasis reserves the right to modify or discontinue all or part of the iBasis Site, temporarily or permanently, with or without notice to User, and is not obligated to support or update the iBasis Site. The amended Terms shall be effective immediately after they are initially posted on this Site. User's continued use of the iBasis Site after the posting of the amended Terms on the iBasis Site constitutes User's affirmative: (a) acknowledgement of the Terms and its modifications; and (b) agreement to abide and be bound by the Terms, as amended. User acknowledges and agrees that iBasis shall not be liable to User or any third party in the event that iBasis exercises its right to modify or discontinue all or part of the iBasis Site.
4. LINKS. The iBasis Site may provide links to other websites or resources. User acknowledges and agrees that iBasis is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. User agrees that iBasis shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, products or services available on such external sites or resources.
5. INTELLECTUAL PROPERTY RIGHTS. User acknowledges that content, including but not limited to policy information, text, software, music, sound, photographs, video, graphics, the arrangement of text and images, commercially produced information, and other material contained on the iBasis Site ("Content"), is protected by copyright, trademarks, service marks, patents or other proprietary agreements and laws and User is only permitted to use the Content as expressly authorized by iBasis. These Terms do not transfer any right, title, or interest in the iBasis Site or the Content to User, and User may not copy, reproduce, distribute, or create derivative works from this Content without express authorization by iBasis. User agrees not to use or divulge to others any information designated by iBasis as proprietary or confidential. Any unauthorized use of any Content contained on this Website may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes. EXCEPT AS SPECIFICALLY PERMITTED HEREIN, NO PORTION OF THE INFORMATION ON THIS WEB SITE MAY BE REPRODUCED IN ANY FORM, OR BY ANY MEANS, WITHOUT PRIOR WRITTEN PERMISSION FROM IBASIS. USERS ARE NOT PERMITTED TO MODIFY, DISTRIBUTE, PUBLISH, TRANSMIT OR CREATE DERIVATIVE WORKS OF ANY MATERIAL FOUND ON THIS SITE FOR ANY PUBLIC, PERSONAL OR COMMERCIAL PURPOSES.
6. TRADEMARKS. "iBasis Trademarks" means all names, marks, brands, logos, designs, trade dress and other designations iBasis uses in connection with Products or Services. User may refer to Products and Services by the associated iBasis Trademarks, provided that such reference is truthful and not misleading. User may not remove or alter any iBasis Trademarks, nor may it co-logo Products or material associated with User's services without prior written permission of iBasis. User acknowledges iBasis' rights in iBasis Trademarks and agrees that any and all use of iBasis Trademarks by User shall inure to the sole benefit of iBasis. User agrees not to incorporate any iBasis Trademarks into User's trademarks, service marks, company names, Internet addresses, domain names, or any other similar designations.
7. DISCLAIMER OF WARRANTIES. USER EXPRESSLY AGREES THAT USE OF THE IBASIS SITE AND THE IBASIS SERVICES IS AT USER'S SOLE RISK. THE IBASIS SITE IS PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS. IBASIS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABLITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS WELL AS ALL WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. IBASIS MAKES NO WARRANTY THAT THE IBASIS SITE OR PRODUCTS OR SERVICES OBTAINED THROUGH OR ON THE IBASIS SITE WILL MEET USER'S REQUIREMENTS, OR THAT THE IBASIS SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE OR VIRUS-FREE NOR DOES IBASIS MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE IBASIS SITE OR IBASIS SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY CONTENT OR ANY INFORMATION OR PRODUCTS OBTAINED THROUGH THE IBASIS SITE OR THAT DEFECTS IN THE IBASIS SERVICES WILL BE CORRECTED.
USER UNDERSTANDS AND AGREES THAT ANY MATERIAL OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE IBASIS SITE IS DONE AT USER'S OWN DISCRETION AND RISK AND THAT USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO USER'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES UNDER CERTAIN CIRCUMSTANCES; CONSEQUENTLY, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO USER, IN WHOLE OR IN PART.
8. LIMITATION OF LIABILITY. As a condition of use of the iBasis Site, and in consideration of the Services provided by iBasis, User agrees that neither iBasis, nor any officer, affiliate, director, shareholder, agent, contractor or employee of iBasis will be liable to User or any third party for any direct, indirect, incidental, special, punitive, or consequential loss of profits, loss of earnings, loss of business opportunities, damages, expenses, or costs resulting directly or indirectly from, or otherwise arising in connection with the iBasis Site or Content; including but not limited to any of the following:
- Reliance. The use of the iBasis Site by the User, including but not limited to damages resulting from or arising from User's reliance on the iBasis Site or any Content on the iBasis Site, or the mistakes, omissions, interruptions, errors, defects, delays in operation, non-deliveries, mis-deliveries, transmissions, eavesdropping by third parties, or any failure of performance of the iBasis Site or any Content. Content is for informational purposes only.
- Termination. The termination of User's use of the iBasis Site by iBasis pursuant to these Terms.
- Infringement. Any allegation, claim, suit, or other proceeding based upon a contention that the use of the iBasis Site by a User or a third party infringes or misappropriates the copyright, patent, trademark, trade secret, confidentiality, privacy, or other intellectual property rights or contractual rights of any third party.
- Force Majeure. Any delay or failure of iBasis to perform due to government restriction, strikes, war, any natural disaster or any other condition beyond iBasis' control.
The limitations set forth in this section apply to the acts, omissions, negligence, and gross negligence of iBasis and its affiliates, contractors, subcontractors, officers, directors, shareholders, managers, employees, and agents, which, but for this provision, would give rise to a course of action in contract, or any other legal doctrine.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS, IBASIS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, MULTIPLE, OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE IBASIS SERVICES OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES OR RESULTING FROM ANY PRODUCTS OR SERVICES PURCHASED OR OBTAINED OR TRANSACTIONS ENTERED INTO THROUGH THE IBASIS SITE OR RESULTING FROM UNAUTHORIZED ACCESS TO, DELETION OR ALTERATION OF USER'S TRANSMISSIONS OR DATA OR FAILURE OF THE IBASIS SITE TO STORE USER'S TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE PROPERTY, EVEN IF IBASIS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES UNDER CERTAIN CIRCUMSTANCES; CONSEQUENTLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO USER, IN WHOLE OR IN PART.
9. NO RESALE OF THE IBASIS SITE. User agrees not to reproduce, duplicate, copy, sell resell, exploit or make any commercial use of or access to the iBasis Site, without the express written consent of iBasis.
10. LAWFUL USE. User agrees that use of the site is subject to all applicable national, state, and local laws and regulations, and that User is solely responsible for the contents of its communications through the site. By posting information in or otherwise using any communications service, message board, newsgroup, software library, or other interactive service that may be available to you on or through this site, User agrees that it shall not upload, share, post, or otherwise distribute or facilitate distribution of any content, including but not limited to text, communications, software, images, sounds, data, or other information that: (1) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortuous, contains explicit or graphic descriptions or accounts of sexual acts (including but not limited to sexual language of a violent or threatening nature directed at another individual or group of individuals), or otherwise violates iBasis's rules or policies; (2) victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability; (3) infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party; (4) constitutes unauthorized or unsolicited advertising, junk or bulk email (also known as "spamming"), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling; (5) contains software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party; or (6) impersonates any person or entity, including any of our employees or representatives.
11. INDEMNIFICATION. User will defend, indemnify and hold harmless iBasis and its affiliates, directors, officers, employees, proprietors, independent contractors, consultants, partners, shareholders, representatives, customers, agents, predecessors, successors, and permitted assigns from and against any claim, suit, demand, loss, damage, expense (including reasonable attorneys' fees and costs) or liability that may result from, arise out of or relate to: (a) acts or omissions by User arising out of or in connection with this Agreement; (b) intentional or negligent violations by User of any applicable laws or governmental regulation, (c) contractual relations between the User and a third party; or (d) infringement of intellectual property rights including, but not limited to, rights relating to patent and copyright.
User acknowledges that iBasis has no control over the content of information transmitted by User or User's customers and that iBasis does not examine the use to which User or User's customers put the Services or the nature of the information User or User's customers send or receive. User agrees not to transmit and to prohibit its users from transmitting content that is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortuous, or contains explicit or graphic descriptions or accounts of sexual acts. User hereby indemnifies and holds harmless iBasis, its stockholders, officers, directors, employees and agents from any and all loss, cost, damage, expense, or liability relating to or arising out of the transmission, reception, and/or content of information of whatever nature transmitted or received by User or User's users.
12. DISCLOSURE; FORWARD-LOOKING STATEMENTS. Except for historical information, all of the expectations, projections and assumptions contained in any press releases, including those set forth under the heading "Outlook" and relating to the company's current expectations regarding revenue growth, sources of revenue, margin improvement and future capital expenditures constitute forward-looking statements under the Private Securities Litigation Reform Act of 1995 and involve risks and uncertainties. Important factors that could cause actual results to differ materially from such forward-looking statements include, but are not limited to, (i) the extent of adoption of the company's new voice-based Internet services and the timing and amount of revenue generated by these services; (ii) fluctuations in the market for and pricing of VoIP services; and (iii) the other considerations described as "Risk Factors" in the current iBasis' prospectus and contained in other SEC filings.
13. ACCESS TO PASSWORD PROTECTED/SECURE AREAS. Access to and use of password protected and/or secure areas of the iBasis Site is restricted to authorized users only. Unauthorized individuals attempting to access these areas of the iBasis Site may be subject to prosecution.
14. TERMINATION & EFFECT. iBasis may terminate access to the iBasis Site with or without cause at any time and effective immediately. Termination shall be accompanied by a written or electronic notice to the User. iBasis shall not be liable to User or any third party for termination of the iBasis Site. Should User object to any provision of the Terms or any subsequent modifications thereto or become dissatisfied with the iBasis Site in any way, User's only recourse is to immediately: (a) terminate use of the iBasis Site; and (b) notify iBasis of termination. Upon termination of access to the iBasis Site, User's right to use the iBasis Site shall immediately cease.
15. SEVERABILITY. In the event that any provision of the Terms shall, in whole or in part, be determined to be invalid, unenforceable or void for any reason, such determination shall affect only the portion of such provision determined to be invalid, unenforceable or void, and shall not affect in any way the remainder of such provision or any other provision of the Terms. IBasis' failure to act with respect to a breach by User or others does not waive its right to act with respect to subsequent or similar breaches.
16. CONFIDENTIALITY. Through use of the iBasis Site, iBasis may disclose or make available to the User Confidential Information (as defined below) in connection with the activities contemplated hereunder. User agrees that during the Term of this Agreement and thereafter (a) it shall provide at a minimum the same care to avoid disclosure of unauthorized use of confidential information as is provided to provide its own similar information, but in no event less than a reasonable standard of care; (b) it will use Confidential Information belonging to the other solely for the purposes of this Agreement and (c) it will not disclose Confidential Information belonging to iBasis to any third party (other than its employees and/or consultants reasonably requiring such Confidential Information for purposes of this Agreement who are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein) without the express prior written consent of iBasis. User will promptly return to the disclosing Party upon request any Confidential Information of iBasis. iBasis will not monitor, edit, disclose, sell, rent, license, exchange, or release any of your personally identifiable information without your explicit consent unless iBasis has reason to believe that disclosing this information is necessary: (a) to conform to the edicts of law or comply with legal process served on iBasis; (b) to prevent injury to or interference with (either intentionally or unintentionally) iBasis rights or property, other iBasis users, or anyone else that could be harmed by such activities; or (c) to act under exigent circumstances to protect the personal safety of the users or the public. If iBasis transfers assets or has any change in control, user information may be transferred to the entity that acquires such assets or control of iBasis.
For purposes of this Agreement, "Confidential Information" means, with respect to iBasis, any and all information in written, representational, electronic, verbal or other form relating directly or indirectly to the present or potential business, operation or financial condition of iBasis (including, but not limited to, information identified as being proprietary and/or confidential, pricing, marketing plans, customer and supplier lists, service data, and any information which might reasonable be presumed to be proprietary or confidential in nature) excluding any such information which: (i) is known to the public (through no act or omission of iBasis in violation of this Agreement); (ii) is lawfully acquired by iBasis from an independent source having no obligation to maintain the confidentiality of such information; (iii) was known to iBasis prior to its disclosure under this Agreement; (iv) was independently developed by iBasis; or (v) is required to be disclosed by governmental or judicial order.
17. GOVERNING LAW. These Terms shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to its choice of law provisions. In the event of any conflict between foreign laws, rules and regulations and those of the United States, the laws, rules and regulations of the United States shall govern. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms. User hereby consents to personal jurisdiction by the state and federal courts located in Suffolk County, Massachusetts. These Terms and any modifications hereto constitute the entire agreement between the parties with regard to the subject matter hereof and supersede all prior understandings and agreements, whether written or oral, as to such subject matter. Nothing contained in these Terms shall be deemed to constitute either party as the agent or representative of the other party, or both parties as joint venturers or partners for any purpose.