Terms of Use Agreement

Version 1

    User Agreement

    Thank you for taking the time to review this Terms of Use Agreement ("Agreement"). CallMiner, Inc. ("We," "Us," or "Our") is pleased to provide the CallMiner Community to all individuals age 13 and over, subject to these terms, at the following Internet site – www.engagementoptimization.com ("Community"). You do not need to be a Callminer customer to register for or participate in the Community.

     

    This Agreement is a legal contract between you and CallMiner. By registering for or using the Community or any of its related services, you agree that you have read and understand these terms and/or Rules, set forth herein, and you agree to be bound by them. If you do not agree to these terms, do not use or otherwise access the Community.

     

    We reserve the right, in our sole discretion, to modify this Agreement at any time. Modified terms are effective as soon as they are posted. We also reserve the right to waive or modify any of these terms as they apply to a specific posting or member without affecting the application of these terms to all other postings and members. Your continued use of the Community, or any materials or services accessible through it, after modified terms are posted means you accept the modifications.

     

    To the extent there is a conflict between CallMiner's Privacy Policy and this Agreement, this Agreement's terms will govern.

     

    Registration

    To register as a Community user, you will need to create a screen name to identify yourself to others. You must be legally competent to enter into contracts. You may not have a screen name that is vulgar, attempts to impersonate another person or violates the rights of others, including the intellectual property rights of any person or entity. We also may reject any screen name that we determine in our discretion is unacceptable for use on the Community.

     

    The information you provide during registration must be accurate and complete, and you agree not to register under the name of another person or otherwise impersonate any other person, including any Community user, moderator, public figure, or CallMiner employee. If, after investigation, CallMiner has reasonable grounds to suspect that your information is untrue, inaccurate, not current, or incomplete, we may suspend or terminate your account and prohibit future use of the Community.

     

    We explicitly disclaim liability for any and all losses and damages arising from your failure to comply with this section.

     

    Personal Responsibility

    You are solely responsible for your use of the Community. You are responsible for all activities under your screen name, including the use of your screen name by others. You are responsible for keeping your password confidential. You may use the Community for lawful purposes only.

     

    We take no responsibility and have no liability for any content you or any other user may post. User-posted content does not represent the advice, views, opinions, or beliefs of CallMiner, and we make no claim of accuracy of any user-posted material.

     

    The Community may contain or reference links to non-CallMiner websites ("third party websites"). By accessing the Community or following links to third-party websites, you may be exposed to content that you consider offensive or inappropriate. CallMiner is not responsible for the content of any third-party website or any link contained in a third-party website. The inclusion of a link within the Community does not imply any endorsement by or any affiliation with Us. Access to any third-party website is at your own risk, and you should be aware that third-party websites may contain terms and privacy policies that are different from the Community. We are not responsible for such provisions and expressly disclaim any liability for them.

     

    In connection with your use of the Community, you may be made aware of services, products, articles, offers, and promotions provided by third parties, and not by Us. If you decide to use these third-party services, you are responsible for reviewing and understanding the terms and conditions governing those services. You agree that the third party, and not CallMiner, is responsible for performance of the services.

     

    You are bound by our Rules, please review them carefully and periodically. The Community relies upon its users to identify and report content or conduct that is in contravention of the Rules. Therefore, it is each member's responsibility to report objectionable content by utilizing the "Report as inappropriate" functionality available throughout the Community.

     

    Monitoring and Moderation

    CallMiner may designate Community Moderators. Community Moderators do not pre-screen postings or monitor on a "real time" basis. Community Moderators have the right, but not the obligation, to edit or remove content and postings at their discretion, either because there has been a violation of this Agreement or the Rules, or for any other purpose. Community Moderators are the only authorized representatives of CallMiner in the Community.

     

    The Community Moderators may or may not investigate any complaint that is brought to their attention, and may or may not take appropriate action, including, but not limited to issuing warnings, removing the content, or suspending or terminating the user name. Because situations and interpretations vary, it is possible that no action will be taken whatsoever. The failure to act with respect to a violation by you or others does not waive the ability to act differently with respect to subsequent or similar violations.

     

    Warnings, Suspensions, and Terminations

    CallMiner or a Community Moderator may communicate with you personally concerning your participation in the Community or related matters. Those communications are not intended to be made public, and you agree not to post or otherwise disseminate those communications within the Community or elsewhere, on the Internet or otherwise.

     

    You agree that your membership in and access to the Community may be immediately suspended or terminated without explanation or prior notice. Without limiting the foregoing, the following will lead to a termination of a user's membership in and access to the Community: 1) breaches or violations of this Agreement, the Rules, or other incorporated agreements or guidelines, 2) requests by law enforcement or other government agencies, 3) a request by you (self-initiated account deletions), 4) unexpected technical issues or problems, and 5) extended periods of inactivity. Termination of your Community membership includes removal of access to all offerings within the Community and may also bar you from further use of the Community. Furthermore, you agree that neither CallMiner nor the Community Moderators shall be liable to you or any third-party for any termination of your membership in or access to the Community.

     

    Rights to Content

    For any content that you submit, including, but not limited to, data, text, messages, files, documents, images, photographs, videos, audiovisual works, musical compositions, sound recordings, postings, your and/or other persons' names, likenesses, voices, screen names, profiles, actions, appearances, performances and/or other biographical information or material, and any other materials, you grant CallMiner a perpetual, irrevocable, royalty-free, transferable right and license to use, copy, modify, delete in its entirety, adapt, publish, translate, create derivative works from and/or sell and/or distribute such content and/or incorporate such content into any form, medium or technology throughout the world, on an unrestricted basis for any purpose, without the requirement of any permission from or compensation to you.

     

    None of the content that you submit shall be subject to any obligation of confidence on the part of CallMiner, its agents, subsidiaries, affiliates, partners, or third party service providers and their respective directors, officers, and employees. All content that you submit may be used at CallMiner's sole discretion. We shall not be liable for any use or disclosure of any content. Without limiting the foregoing, you hereby grant Us, without the requirement of any permission from or payment to you or to any other person or entity, a perpetual, irrevocable, transferable, fully-paid, royalty-free, non-exclusive, and sub-licensable worldwide license to use, re-use, reproduce, print, transmit, publish, exhibit, display, distribute, re-distribute, copy, host, cache, archive, store, index, categorize, stream, comment on, edit, alter, modify, adapt, translate, create derivative works based upon such content, in whole or in part all without further notice to you and with or without attribution.

     

    Privacy and Security

    Any content that you place on the Community is posted at your own risk, and can be obtained and used by others. Do not reveal information that you do not want to make public. CallMiner disclaims any responsibility or liability arising from your disclosure of such personal information, or any other information, in any profile or posting.

     

    CallMiner reserves the right to remove any postings in the Community containing phone numbers, street addresses, or otherwise personally identifying information as it cannot verify such information or confirm the desire of said information to be posted by the individual to which this information pertains.

     

    By submitting your email address to register, you agree that CallMiner, its third party service providers, and the Community Moderators may use your email address to contact you about your profile or any content you post on the Community, and for other administrative purposes related to the Community.

     

    Indemnification

    You hereby agree to indemnify, defend, and hold CallMiner, the Community Moderators, and all respective officers, directors, owners, employees, agents, representatives and assigns (collectively, the "Indemnified Parties") harmless from and against any and all losses, damages, liabilities and costs (including, without limitation, settlement costs and any legal or other fees and expenses for investigating or defending any actions or threatened actions) incurred by the Indemnified Parties in connection with any claim arising out of or related to any breach by you of this Agreement or the Rules or claims arising from your content or conduct, upon notice of the claim. You shall use your best efforts to cooperate with us in the defense of any claim. We reserve the right, at our own expense, to employ separate counsel and assume the exclusive defense and control of any matter otherwise subject to indemnification by you.  You will not consent to the entry of any judgment or enter into any settlement or compromise affecting CallMiner, to the extent that the judgment, settlement or compromise requires the admission of liability, fault, or wrongful act or conduct on the part of CallMiner and/or otherwise involves more than the payment of money by You, without the prior written consent of CallMiner.

     

    Disclaimer of Warranties

    THE CONTENT ON THE COMMUNITY (INCLUDING, WITHOUT LIMITATION, POSTINGS, THIRD PARTY CONTENT, AND ANY CALLMINER CONTENT) IS PROVIDED "AS IS" AND CARRIES NO WARRANTIES. CALLMINER DOES NOT WARRANT OR GUARANTEE THE ACCURACY, RELIABILITY, COMPLETENESS, USEFULNESS, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR QUALITY OF ANY CONTENT ON THE COMMUNITY, REGARDLESS OF WHO ORIGINATES THAT CONTENT. CALLMINER DOES NOT WARRANT THAT THE COMMUNITY IS SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, OR OTHER LIMITATIONS. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOU BEAR ALL RISKS ASSOCIATED WITH USING OR RELYING ON THAT CONTENT. CALLMINER IS NOT LIABLE OR RESPONSIBLE IN ANY WAY FOR ANY CONTENT POSTED ON OR LINKED FROM THE COMMUNITY, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN CONTENT, OR FOR ANY LOSSES OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF OR RELIANCE ON ANY CONTENT.

     

    Limitation of Liability

    YOU AGREE THAT CALLMINER DOES NOT CONTROL, AND IS NOT RESPONSIBLE IN ANY WAY FOR THIS THIRD-PARTY CONTENT. ADDITIONALLY, YOU AGREE THAT CALLMINER IS NOT LIABLE FOR, AND YOU SHALL INDEMNIFY AND HOLD CALLMINER, AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, MODERATORS, AND EMPLOYEES HARMLESS FROM ANY CLAIM, INCLUDING REASONABLE ATTORNEY'S FEES, MADE BY ANY THIRD PARTY RELATING TO OR ARISING OUT OF CONTENT YOU SUBMIT, POST, TRANSMIT, OR MAKE AVAILABLE THROUGH THE COMMUNITY, YOUR USE OF THE COMMUNITY, YOUR VIOLATION OF THIS AGREEMENT OR THE RULES OR YOUR VIOLATION OF ANY RIGHTS OF ANOTHER.

     

    TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CALLMINER AND ITS REPRESENTATIVES ARE NOT LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOSS OF BUSINESS, TELECOMMUNICATION FAILURES, LOSS, CORRUPTION, SECURITY, OR THEFT OF DATA, LOSS OF PROFITS OR INVESTMENT, ACCOUNTING POSITIONS TAKEN BY YOU, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE, EVEN IF CALLMINER OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CALLMINER AND YOU. THESE LIMITATIONS MAKE IT POSSIBLE FOR CALLMINER TO PROVIDE THE COMMUNITY TO YOU.

     

    Digital Millennium Copyright Act

    CallMiner respects the intellectual property of others. It is our policy to respond promptly to claims of intellectual property misuse and, where applicable, remove the potentially infringing material.

     

    Pursuant to 17 U.S.C. § 512 as amended by Title II of the Digital Millennium Copyright Act ("Act"), CallMiner, Inc. has implemented procedures for receiving written notification of claimed infringements and for processing such claims in accordance with the Act. If you believe your copyrights are being infringed by a CallMiner customer or other third party on the Community, please fax a Notice of Infringement to CallMiner addressed to the following person at the following fax number: CFO, 781.547.5889. The Notice of Infringement must substantively comply with the safe harbor provisions of the Digital Millennium Copyright Act and must contain the following information as set forth in 17 U.S.C. § 512(c)(3)(A), which provides:

     

    To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:

    • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed
    • Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site
    • Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
    • Information reasonably sufficient to permit the service provider to contact the complaining party such as an address, telephone number, and if available, an electronic mail address at which the complaining party may be contacted
    • A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law'
    • A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

    Notification from a copyright owner or from a person authorized to act on behalf of the copyright owner that fails to comply substantially with the provisions above shall not be considered as providing actual knowledge or an awareness of facts or circumstances from which infringing activity is apparent. Please provide a separate notice of infringement each time you wish to report alleged acts of infringement and fax it to the number provided.

     

    Entire Agreement

    This Agreement constitutes the entire agreement between you and CallMiner governing your use of the Community, superseding any prior agreements, whether written or oral, between you and CallMiner regarding the subject matter hereof. Of course, you also may be subject to additional and separate terms and conditions that apply when you use or purchase other CallMiner products or services.

     

    Governing Law and Jurisdiction

    This Agreement shall be governed by the laws of the Commonwealth of Massachuetts without giving effect to any conflict of law principles that may require the application of the law of another jurisdiction. In connection with any claims, dispute, controversies, or proceeding arising from or relating to the Community, you agree to submit to the personal and exclusive jurisdiction of the state or federal courts located within Middlesex County, Commonwealth of Massachusetts. You and CallMiner agree to submit to the jurisdiction of, and you hereby consent to the exercise of jurisdiction over you by such courts in any such legal action or proceeding. CallMiner makes no representation that information on this web site are appropriate or available for use in all countries, and prohibits accessing materials from territories where contents are illegal. Those who access this site do so on their own initiative and are responsible for compliance with all applicable laws.

     

    Waiver

    The failure of CallMiner to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, you nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.

     

    No Assignment or Transfer

    You agree that any registration with the Community is non-transferable and this Agreement is non-assignable by you.

     

    Severability

    If any clause or provision set forth above is determined to be illegal, invalid or unenforceable under present or future law, then, in that event the clause or provision so determined to be illegal, invalid or unenforceable shall be severable without affecting the enforceability of all remaining clauses or provisions.

     

    Section Headings

    The section headings in this Agreement are for convenience only and have no legal or contractual effect.

     

    Statute of Limitations

    You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Community or this Agreement must be filed within ONE (1) YEAR after such claim or cause of action arose or be forever barred.

     

    Rules

    The CallMiner Community is open to all points of view on the intended business-related topics, and we are committed to maintaining a comfortable environment for all visitors. Please interact with other users respectfully, as you would in any public or professional arena. If you disagree with the statements of another user, it is acceptable to engage in polite, mature debate. Name-calling, personal attacks, harassment, and other aggressive postings or behavior are not allowed.

     

    The following content and conduct are not allowed in the Community, and are cause for screen name suspension or termination without explanation or prior notice. Your posts or other communications that include the following content or reflect prohibited conduct, as described below, may be subject to removal. By participating in the Community, you understand and agree not to engage in, encourage, or otherwise support any of the following:

     

    Illegal or fraudulent activity or any harm to the Community or it users. You agree not to engage in, promote, or advocate any illegal activity or fraudulent schemes of any kind - including, but not limited to, money laundering, tax evasion, securities fraud, and pyramid or multi-level marketing schemes - through your postings or other use of the Community. You also agree not to post links to other websites that engage in such activities.

    • Do not submit content that you know is false, inaccurate, libelous, or otherwise misleading in any way, and do not mislead Us or others regarding the origin of posted content.
    • Do not submit content that contains any computer viruses, worms, or other potentially damaging computer programs or files.
    • You must not intentionally impersonate or misrepresent your business or qualifications.
    • Do not post or transmit material you do not have the right to post or transmit under law (such as copyright, trade secret or securities) or due to your personal contractual or fiduciary relationships.
    • Do not post material that violates any applicable law or regulation, including, without limitation, the rules and regulations of the U.S. Securities and Exchange Commission and the national or other securities exchanges, (especially and including the rule against making false or misleading statements to manipulate the price of any security).
    • You may not use the Community in any manner that could damage, disable, overburden, or impair our servers or networks, or interfere with any other user's use and enjoyment of the Community.
    • You may not attempt to gain unauthorized access to any services, screen names, computer systems or networks, through hacking, password mining or any other means. We may take any legal and technical remedies necessary to prevent the violation of this provision.
    • Do not upload or store information protected under the privacy or security regulations issued pursuant to the Health Insurance Portability and Accountability Act of 1996 or subject to the Health Information Technology for Economic and Clinical Health Act.
    • Do not uploading drivers license numbers, passport numbers, social security, tax ID or similar numbers, bank, checking, credit card, debit card, financial, or other personal account numbers, and financial or health information.
    • Do not attempt to gain unauthorized access to an account or computer not belonging to you, or purposely alter or forge your identity to gain such access. Do not send any message or transmit any electronic communication using a name or address other than your own for purposes of deception. Do not impersonate someone else by altering your source IP address or by using forged headers or other identity information Do not fraudulently conceal, forge or otherwise falsify your identity.
    • Do not load test, probe, scan, penetration or vulnerability test of the environment to test scalability.
    • Do not collect or use email addresses, screen names or other identifiers without the consent of the person identified (including, without limitation, phishing, Internet scamming, password robbery, spidering, and harvesting).

    Profane, obscene, inappropriate, disruptive, and unrelated content. Indecent, profane, sexually explicit, obscene, or pornographic material of any kind - including masked profanity where symbols, initials, intentional misspellings, or other characters are used to suggest profane language - is strictly prohibited.

    • Threats, personal attacks, abusive, defamatory, derogatory, or inflammatory language, or stalking or harassment of any individual, entity or organization is strictly prohibited.
    • Discriminatory or hateful speech of any kind regarding age, gender, race, religion, nationality, sexual orientation, or disability is strictly prohibited.
    • You agree not to engage in any spamming or excessive posting, or submit content that is disruptive, off-topic, deliberately intended to have a negative impact on the Community or its users, or otherwise interfere with the ability of others to enjoy or comfortably use the Community.

    Common Courtesy, Complaints and Etiquette

    • Do not post any personal or identifying information about another person, including addresses, email addresses, contact information, or phone numbers, and use care in posting your personal or identifying information.
    • Maintain courtesy and follow good posting etiquette. Posting with ALL CAPS, HTML tags, or excessive typographic symbols may result in your post being removed.
    • The Community should not be used to report a CallMiner customer service issue. To get help with an issue, please visit our support community. Any posts complaining about an individual CallMiner customer service issue are subject to removal.
    • Do not engage in disruptive, antisocial or destructive acts, including "flaming," "flooding," "spamming," "griefing" and "trolling," as those terms are commonly understood.

    Solicitations and promotions and other commercial use

    • You agree not to post, or otherwise make available in the Community, any content or third-party website, with the intent of harming the flow of information and/or participation in the CallMiner Community that is competitive with or which otherwise benefits competitors of CallMiner, including but not limited to promoting competing sites that provide message boards, forums, chats, blogs, etc.
    • Posting unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, or pyramid or multi-level marketing schemes, or using automated means, including spiders, robots, crawlers, data-mining tools, or other means to download data from the Community is strictly prohibited.
    • You agree to not obtain email address of community members with the intent to contact members of this community directly to promote your business or services without express consent and approval of the members you are contacting.

    Copyright and intellectual property violations

    • Infringement on any party's copyright, patent, trademark, trade secret, intellectual property or other proprietary rights, or right of publicity or privacy is strictly prohibited and is the sole responsibility of the user.
    • By submitting any content to the Community, you warrant and represent that you are the copyright owner of the content or that the copyright owner of the content has granted you permission to use such content consistent with the manner and purpose of your use.
    • Using the Community to distribute unauthorized copies of copyrighted material, including photos, artwork, text, recordings, designs, computer programs, or derivative works of such programs is strictly prohibited and subject to removal.

     

    Last Updated: November 6, 2015