Website Terms and Conditions
Terms and Conditions
These Terms and Conditions (the "Terms") govern your access to and use of Openwave Messaging’s website, www.owmessaging.com, that link to or reference these Terms ("Site"). The terms “our”, “we”, “us”, and “Openwave Messaging” refer to Openwave Messaging, Inc., a Delaware corporation. Openwave Messaging makes the materials on our Site, including all information, documents, communications, files, text, graphics, software, and products included on this Site (collectively, "Materials"), available for your use subject to the Terms and any changes to the Terms made by us from time to time. By downloading, installing, or using any Materials, you agree to our Terms. If you do not agree to the Terms, you may not use, access, download, or install the Materials.
For those Materials made available for download from this Site which are accompanied by or include an end user license agreement ("License Agreement") the License Agreement will prevail over these Terms. Certain third party Materials made available for download from this Site will be accompanied and governed by License Agreements between you and a third party ("Third Party Agreements"). Openwave Messaging is not a party to such Third Party Agreements and Openwave Messaging's liability to you and to third parties is limited pursuant to the warranty disclaimers and limitation of liability in these Terms. You agree not to install, access, use, or download the Materials unless you have read and agree with the terms of the applicable license agreement. Some documents will refer to our standard terms and conditions and that means these Terms.
Openwave Messaging authorizes you to use a single copy of the Materials solely for non-commercial personal use, provided that you retain all copyright and other proprietary notices contained in the original Materials or any copies of the Materials. Certain code found in the Materials are specifically referenced as sample software code ("Sample Code"). If such Sample Code is accompanied by a License Agreement then the terms of the License Agreement shall govern. If a License Agreement does not accompany or is not included with the Sample Code then such Sample Code shall be governed by these Terms and you may copy, perform, display, distribute, create derivative works, modify, and sublicense through multiple channels such Sample Code (in whole or in part). Under no circumstances will content, including but not limited to, images, or graphics be considered Sample Code.
The copyright and ownership interests in all Materials are held by Openwave Messaging and its subsiary companies and its suppliers and are protected by U.S. laws and international treaty provisions. You agree not to use, copy, republish, frame, post, transfer, display, perform, download, transmit, modify, rent, lease, loan, sell, assign, distribute, license, sublicense, reverse engineer, or create derivative works based on the Materials, except as expressly allowed herein. Unauthorized use of any Materials may violate copyright laws, trademark laws, the laws of privacy and publicity, communications regulations and statutes or other applicable laws, rules or regulations, and may subject you to civil liability and/or criminal penalties.
These Terms are effective until terminated by Openwave Messaging. Openwave Messaging may terminate these Terms with respect to you or any other third party without notice at any time for any reason. Upon termination, all rights granted in these Terms shall immediately cease to exist and you must promptly discontinue all use of the Materials and this Site. Additionally, you must destroy all copies of the Materials downloaded by you. In the event that we determine, in our sole discretion, that you have breached any of our Terms, we reserve the right to terminate access to this Site and take any other action which we, in our sole discretion, deem to be appropriate. All provisions that by their nature should survive termination of these Terms shall, accordingly, survive.
You acknowledge and agree that the Materials are provided to you on an "AS IS" basis, without any warranty of any kind. All warranties, express or implied, including but not limited to, implied warranties of merchantability, accuracy of informational content, fitness for a particular purpose, system integration, title, and non-infringement of any third party right with respect to the Materials or any services related to the Materials are expressly disclaimed to the fullest extent permitted by law.
No warranty or representation is given that the functions contained in the Materials will meet your requirements, that the operation of the Materials will be uninterrupted or error-free, or that any defects in the Materials will be corrected. Furthermore, no warranty or representation is given regarding the use or the results of the use of the Material or the adequacy of the Materials. No oral or written information or advice given by any person or entity shall create a warranty or representation or in any way increase the scope of this warranty. Some states or jurisdictions do not allow the exclusion of implied warranties or limitations on how long an implied warranty may last, so the above limitations may not apply to you.
The trademarks, service marks, and logos used and displayed in the Materials are registered and unregistered trademarks and service marks of Openwave Messaging and others. All other registered and unregistered trademarks used in the Materials are the property of their respective owners. You are not granted, expressly or by implication, estoppel or otherwise, any license or right to use any Openwave Messaging trademark, service mark, or logo used or displayed in the Materials without the prior express written permission of Openwave Messaging. When used with Openwave Messaging’s permission, all trademarks must be identified as trademarks of Openwave Messaging using the appropriate symbol (e.g., ™ or ®) at the first occurrence in the text of any published printed or electronic communications, including advertising, promotions, packaging, technical documentation, sales and marketing collateral and product labels. In addition, such marks must be listed, identified and attributed as the property of Openwave Messaging in a footnote at the end of the communication.
Openwave Messaging’s technology and products, including products that may be available as part of the Materials, may be protected by one or more United States and/or international patents or patents pending.
The Materials may contain projections or other forward-looking statements relating to future events, future products, or the future performance of Openwave Messaging. Such statements are only predictions and subject to certain risks and uncertainties. Consequently, actual events or results may differ materially.
Product and Performance Information
Product performance is measured using specific computer and communication systems and components and reflects approximate performance of the tested products. Any difference in hardware or software may affect actual performance, and buyers should consult other sources of information to evaluate the performance of Openwave Messaging products.
Links to Other Sites
Openwave Messaging makes no representations or warranties about any other site or material that you may access through links or other references on this Site. You do so at your own risk. The presence of links to non-Openwave Messaging sites or materials does not imply that Openwave Messaging endorses or accepts responsibility for the content or use of such sites or materials.
Access to Password-Protected or Secure Areas
Openwave Messaging may restrict some areas of the Site to authorized users only. Access to and use of areas of the Site that are password-protected and/or secure is restricted to such authorized users only. Unauthorized individuals attempting to access these areas may be subject to civil liability and criminal penalties.
Third Party Products and Services
This Site mentions third party products and services for informational purposes. Openwave Messaging makes no recommendations or endorsements about any third party products or services.
LIMITATION OF LIABILITY
UNDER NO EVENT AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL OPENWAVE MESSAGING OR ITS SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR ANY LOST PROFITS, LOST SAVINGS, LOSS OF DATA, COSTS, FEES OR EXPENSES OF ANY KIND OR NATURE ARISING OUT OF OR RELATING TO THESE TERMS, THIS SITE, THE USE OR INABILITY TO USE THE MATERIALS, OR ANY DATA SUPPLIED THEREWITH, EVEN IF OPENWAVE MESSAGING OR AN OPENWAVE MESSAGING REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, so the above limitation or exclusion may not apply to you.
Export Laws; Notice to U.S. government users
By using the Materials, you represent and warrant that you are not located in, under the control of, or a national or resident of any country to which the U.S. has embargoed goods. You agree that you will not export or "re-export" (transfer) the Materials or any product that contains the Materials unless you have complied with all applicable United States and foreign government export controls and approvals. For additional information with respect to the United States export controls, you may wish to visit the U.S. Bureau of Industry and Security's web site at: http://www.bxa.doc.gov.
All Openwave Messaging products and publications are commercial in nature. The software and documentation available by download on this Site are "Commercial Items," as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software and Documentation are licensed to U.S. Government end users (A) only as Commercial Items and (B) with only those rights as are granted to all other end users pursuant to these Terms.
Terms and conditions specific to Professional Services
For services provided by Openwave Messaging which are accompanied by or include a general consulting agreement ("GCSA”) the GCSA will prevail over these Terms. If there is no GCSA in place the following terms will apply
A. INTELLECTUAL PROPERTY RIGHTS:
1. Any intellectual property owned by either Party prior to the commencement of this Agreement will remain the property of that Party, and nothing in this Agreement will alter that ownership or create any transfer or assignment of that intellectual property (Pre-existing IP). To the extent that any of OWM’S Pre-existing IP or current Intellectual Property Rights are contained in any Deliverables, OWM grants Customer from delivery of such Deliverables, perpetual, worldwide, nonexclusive, nontransferable, royalty free license to use such Preexisting IP for Customer’s business purposes.
2. Unless otherwise specified herein, any ideas, concepts, know how, techniques and/or Intellectual Property Rights developed by OWM, or any third party acting on its behalf, in relation to the subject matter of this Agreement or the Deliverables will be owned by OWM and all data provided by OWM shall remain the sole and exclusive property of OWM.
3. Customer acknowledges and agrees that, except as is expressly provided in (1) and (2) above, no right, title or interest whatsoever (express or implied) in or to any documentation, ideas, concepts, know how, data processing or other techniques used or developed by OWM personnel (either alone or jointly with the Customer) in connection with the performance of the Services hereunder is transferred or granted by OWM to Customer.
B. INDUSTRY STANDARDS / DISCLAIMER OF WARRANTY
1. OWM will provide the Services to Customer in accordance with normal industry standards.
2. THE EXPRESS WARRANTIES OF OWM STATED AT SECTION 1 ABOVE OF THIS SECTION J ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. OWM EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, REGARDING PRODUCTS OR SERVICES PROVIDED BY ANY THIRD PARTY IN CONNECTION WITH THE SERVICES.
3. For any breach of the warranty at Section 1 above of this section J, Customer’s exclusive remedy and OWM’s entire liability shall be the re-performance of the defective Services. If OWM fails to re-perform the Services as warranted, then Customer shall be entitled to recover the fees paid to OWM for the deficient Services.
4. Customer shall report in writing any deficiencies in the Services to OWM within ninety (90) days of completion of such Services in order to receive the warranty remedy specified in Section 3 of this section J.
C. LIMITATION OF LIABILITY
1. OWM’S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE SERVICES PROVIDED HEREUNDER, REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE), AND INCLUDING ANY LIABILITY UNDER THIS SECTION L, SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO OWM UNDER THE APPLICABLE STATEMENT OF WORK GIVING RISE TO THE CLAIM OF LIABILITY.
2. OWM SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS, INTERRUPTION OF BUSINESS OR LOST DATA), EVEN IF OWM HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
3. THE FOREGOING STATES OWM’S ENTIRE LIABILITY WITH REGARD TO THIS AGREEMENT AND THE PROFESSIONAL SERVICES PROVIDED HEREUNDER. THESE LIMITATIONS OF OWM’S LIABILITY ARE A FUNDAMENTAL PART OF THE BASIS OF OWM’S BARGAIN, AND OWM WOULD NOT ENTER INTO THIS AGREEMENT ABSENT OF SUCH LIMITATIONS.
This Agreement will be binding upon and inure to the benefit of the parties, their successors and permitted assigns. Neither party may transfer, sublicense or otherwise assign this Agreement or any of its rights or obligations hereunder without the other party’s prior written consent, which consent will not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement (i) to any entity in which the party has a greater than 50% equity ownership interest or of which the party has voting control, (ii) to any entity that buys 50% or more of that party’s stock or all or substantially all of that party’s assets, or (iii) as part of a merger, reorganization or re-incorporation.
E. FORCE MAJEURE
OWM is not responsible for any delays, errors, failures to perform, interruptions or disruptions in the Services or otherwise under this Agreement caused by or resulting from any act, omission or condition beyond OWM’s reasonable control, whether or not foreseeable or identified, including without limitation acts of God, strikes, lockouts, riots, acts of war, governmental regulations, fire, power failure, earthquakes, severe weather, floods or other natural disaster or Customer’s, End User’s or any third party’s actions, hardware, software or communications equipment or facilities.
F. RELATIONSHIP BETWEEN THE PARTIES
Openwave Messaging and Customer shall at all times and for all purposes be deemed to be independent contractors and neither party, nor either party’s employees, subcontractors or agents, shall have the right or power to bind the other party. This Agreement shall not create or be deemed to create a joint venture, partnership or other similar association between OWM and Customer or any of the either party’s employees, subcontractors or agents.
G. GENERAL; GOVERNING LAW AND JURISDICTION
This Site is controlled by Openwave Messaging from its offices within the State of California, United States of America. Openwave Messaging makes no representation that the Materials are appropriate for use in other locations. Any claim relating to the Materials will be governed by the laws of the State of California, notwithstanding any conflicts of law principles, and the United States of America. You and Openwave Messaging agree that and hereby submit to the exclusive personal jurisdiction and venue of the Superior Court of Santa Clara County and the United States District Court for the Northern District of California with respect to any such claim.
Any part of these Terms that is unlawful, void, or unenforceable will be deemed severable and will not affect the validity or enforceability of the remaining provisions. All waivers must be in writing. Any waiver or failure to enforce these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. You may not assign your rights or obligations granted under these Terms without the prior written consent of Openwave Messaging. Any attempted assignment or transfer without such prior written consent from Openwave Messaging shall be null and void. The headings of sections of these Terms are for convenience only and are not to be used in interpreting these Terms. In the event Openwave Messaging is required to initiate legal proceedings to enforce any provision of these Terms or you initiate any legal proceedings relating to these Terms, the prevailing party shall be entitled to recover all reasonable attorneys' fees from the other party
All requests for further information or for permission to reproduce any portions of the Materials should be directed to: Openwave Messaging, Inc., 2655 Campus Drive, San Mateo, CA 94403.