End User License Agreement Windstream Accession Communicator™
Windstream (“WIN”) is willing to license the Accession Communicator for iOS and Android (“Software”), related documentation, and any other material or information relating to such software provided by WIN to you (personally and/or on behalf of your employer, as applicable) (“you” or “Licensee”) ONLY IF YOU ACCEPT ALL OF THE TERMS IN THIS END USER LICENSE AGREEMENT (“License” or “Agreement”). WIN is not willing to make the Software available under any other terms or subject to any other conditions. “WIN” means any Windstream affiliate billing Customer for Services.
BEFORE YOU CLICK THE “I accept the terms of this License Agreement” BUTTON AT THE BOTTOM OF THIS WINDOW, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS LICENSE. BY CLICKING THE “I accept the terms of this License Agreement” BUTTON YOU ARE (1) REPRESENTING THAT YOU ARE OVER THE AGE OF 18 AND HAVE THE CAPACITY AND AUTHORITY TO BIND YOURSELF AND YOUR EMPLOYER, AS APPLICABLE, TO THE TERMS OF THIS LICENSE AND (2) CONSENTING ON BEHALF OF YOURSELF AND/OR AS AN AUTHORIZED REPRESENTATIVE OF YOUR EMPLOYER, AS APPLICABLE, TO BE BOUND BY THIS LICENSE. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE, OR DO NOT REPRESENT THE FOREGOING, CHOOSE THE “CANCEL” BUTTON, IN WHICH CASE YOU WILL NOT AND MAY NOT RECEIVE, INSTALL OR USE THE SOFTWARE. The Accession Communicator is not intended for use by any persons under the age of thirteen (13). Any use of the Software other than pursuant to the terms of this License is a violation of U.S. and international copyright laws and conventions.
Should you have any questions regarding this License, or wish to contact WIN, you must write to: Windstream, Attention: Legal Department (Licensing), 4005 N. Rodney Parham Road, Little Rock, Arkansas 72212.
1. GRANT OF LICENSE AND FUNCTIONALITY
Subject to the terms and conditions of this License, and the payment by Licensee to WIN of any applicable license fees in accordance with WIN’s payment policies, WIN hereby grants to Licensee a limited, personal, non-exclusive, non-sublicensable, non-transferable license to install the Software on supported Apple/iOS device(s) and/or release(s). The license granted to Licensee is expressly made subject to the following limitations: Licensee may not itself (and shall not permit any third party to): (i) copy, other than as expressly permitted, all or any portion of the Software, except that Licensee may make one copy of the Software for archival purposes on optical, magnetic or solid-state media for use by Licensee in the event the Software shall become inoperative; (ii) modify or translate the Software; (iii) reverse engineer, decompile or disassemble the Software, in whole or in part, or otherwise reduce the Software to human perceivable form; (iv) use the Software to directly or indirectly provide a time-sharing or subscription service to any third party or to function as a service bureau or application service provider; (v) create derivative works based on the Software; (vi) publicly display the Software; (vii) rent, lease, sublicense, sell, market, distribute, assign, transfer, or otherwise permit access to the Software to any third party; (viii) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Accession Communicator; (ix) publish any results of benchmark tests run on the Accession Communicator to a third party; or (x) exercise any right to the Software not expressly granted in this License.
2. PROHIBITED USES.
You may not use, encourage, promote, facilitate or instruct others to use the product for any illegal, harmful or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful or offensive. You agree that your use of the product shall in no way and to no extent, whether directly or indirectly, adversely affect, impede or otherwise hinder or disrupt the functionality or performance of the platform on which the product runs. Prohibited activities or content include: (i) illegal activities; (ii) harmful or fraudulent activities; (iii) infringing content; (iv) offensive content; (v) harmful content; (vi) spam; (vii) security violations; (viii) unauthorized commercial use; and (ix) network abuse.
3. LICENSEE’S PRIVACY AND INFORMATION COLLECTED
Licensee’s privacy is very important to WIN. WIN maintains and follows a Privacy Policy, available at https://www.windstreamenterprise.com/legal/privacy-policy/. Pursuant to Section 5 below, WIN’s Privacy Policy is incorporated by reference. The Accession Communicator uses analytics provided by Metaswitch. You have the right to opt out of the analytics tracking provided by Metaswitch by opting out using a menu item in the Tools>Options>General menu (for Windows) and the Preferences>General menu (for Mac) within the Accession Communicator application. You may opt out of the analytics tracking provided by Metaswitch for your mobile device by using the option in the Settings menu within the Accession Communicator application. This opt-out is specific to the analytics activities of Metaswitch and does not affect the activities of other ad networks or other analytics providers that Metaswitch may use.
4. OWNERSHIP OF SOFTWARE
This License does not convey to Licensee an interest in or to the Software, but only a limited right of use revocable in accordance with the terms of this License. The Software is NOT sold to Licensee. WIN and its licensors own all rights, title and interest in and to the Software. No license or other right in or to the Software is granted to Licensee except for the rights specifically set forth in this License. Licensee hereby agrees to abide by United States copyright law, all other applicable laws of the United States and other nations and any applicable international treaties.
5. ENTIRE AGREEMENT
The installation and use of the Software is governed by this License, the WIN Complete™ Hosted Voice Terms and Conditions, WIN’s Acceptable Use Policy posted at https://www.windstreamenterprise.com/legal/use-policy/ and WIN’s Privacy Policy. All current versions of WIN’s agreements and policies are available at www.earthlinkbusiness.com.
WIN, in its sole discretion, may provide additional third party software to Licensee at any time. The installation and use of any third party software provided to Licensee by WIN that is not specifically included in the Software, whether provided on the same media as the Software or separately, is governed by its own license agreement between the respective third party and Licensee.
WIN may amend this Agreement from time to time, and such amendment will become effective thirty (30) days after you receive notice thereof, download a new version of the product, or otherwise make or accept any modification to the product. You understand and agree that any use of the product after such amendment effective date constitutes your acceptance of the Agreement as amended.
This License and the other WIN agreements, policies, terms and conditions incorporated by reference represent the entire agreement between WIN and Licensee.
6. UPDATES AND SUPPORT
WIN may modify or update the Software at any time, for any reason, and without providing notice of such modification or update to Licensee. WIN may, from time to time, require Licensee to update the Software. This License will apply to any such modifications or updates which are rightfully obtained by Licensee unless expressly stated otherwise. This License does not grant Licensee any right to any maintenance or services, including without limitation, any support, enhancement, modification, bug fix or update to the Software and WIN is under no obligation to provide or inform Licensee of any such updates, modifications, maintenance or services.
7. CONFIDENTIALITY
Licensee acknowledges that the Software and certain other materials are confidential as provided herein. “Confidential Information” means any and all information, whether provided in writing, orally, visually, electronically or by other means, related to WIN’s and its licensors’ services and/or business that, whether it constitutes a Trade Secret or not, is treated as confidential or secret by WIN (that is, it is the subject of efforts by WIN or its licensors, as applicable, that are reasonable under the circumstances to maintain its secrecy), including, but not limited to, (i) Trade Secrets as defined below; (ii) any and all other information which is disclosed by WIN to Licensee orally, electronically, visually, or in a document or other tangible form which is either identified as or should be reasonably understood to be confidential and/or proprietary; and (iii) any notes, extracts, analysis, or materials prepared by Licensee which are copies of or derivative works of WIN’s or its licensors’ proprietary or confidential information from which the substance of Confidential Information can be inferred or otherwise understood. Confidential Information shall not include information which Licensee can clearly establish by written evidence: (a) already is lawfully known to or independently developed by Licensee without access to the Confidential Information, including (a) Trade Secrets, (b) is disclosed in non-confidential published materials, (c) is generally known to the public, or (d) is rightfully obtained from any third party without any obligation of confidentiality.
“Trade Secrets” means all non-public information whether tangible or intangible related to WIN’s and its licensors’ services or business that (i) derives economic value, actual or potential, from not being generally known to or readily ascertainable by other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy, including, without limitation, (a) marking any information reduced to tangible form clearly and conspicuously with a legend identifying its confidential or trade secret nature; (b) identifying any oral communication as confidential or secret immediately before, during, or after such oral communication; or (c) otherwise treating such information as confidential or secret.
Licensee agrees not to disclose Confidential Information, including Trade Secrets, to any third party and will protect and treat all Confidential Information and Trade Secrets with the highest degree of care. Except as otherwise expressly provided in this License, Licensee will not use or make any copies of Confidential Information, in whole or in part, without the prior written authorization of WIN. Licensee may disclose Confidential Information if required by statute, regulation, or order of a court of competent jurisdiction, provided that Licensee provides WIN with prior notice, discloses only the minimum Confidential Information required to be disclosed, and cooperates with WIN in taking appropriate protective measures. These obligations shall continue for two (2) years following termination or expiration of this License with respect to Confidential Information that does not rise to the level of a Trade Secret and shall continue for Trade Secrets for the longer of such two (2) year period or so long as they remain Trade Secrets.
8. NO WARRANTY AND DISCLAIMER OF LIABILITY
THE SOFTWARE IS PROVIDED TO LICENSEE “AS IS.” WIN AND ITS LICENSORS DO NOT MAKE ANY, AND HEREBY SPECIFICALLY DISCLAIM ANY, REPRESENTATIONS, ENDORSEMENTS, GUARANTIES, OR WARRANTIES, EXPRESS OR IMPLIED, RELATED TO THE SOFTWARE INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. WIN and its licensors do not warrant that use of the Software will be uninterrupted, virus free or error free. Licensee acknowledges that WIN and its licensors do not guarantee compatibility between the Software and any future versions thereof. Licensee acknowledges that WIN and its licensors do not and cannot guarantee that Licensee’s e-mails or computer environment will be free from unauthorized intrusion or otherwise guarantee the privacy of Licensee’s information. Licensee will have sole responsibility for the adequate protection and backup of Licensee’s data and/or equipment used with the Software. The entire risk as to the quality and performance of the Software and any obligation with respect to service and support is borne by Licensee.
THE SOFTWARE IS PROVIDED GRATUITOUSLY AND, ACCORDINGLY, LICENSEE’S SOLE EXCLUSIVE REMEDY FOR ANY CLAIM ARISING UNDER THIS LICENSE OR FROM USE OF THE SOFTWARE IS TO DISCONTINUE USE OF THE SOFTWARE. WIN AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, LICENSORS AND AGENTS (THE “WIN PARTIES”) SHALL NOT BE LIABLE UNDER ANY LEGAL THEORY FOR ANY DAMAGES SUFFERED IN CONNECTION WITH THE USE OF THE SOFTWARE, INCLUDING WITHOUT LIMITATION, INDIRECT, SPECIAL, INCIDENTAL, MULTIPLE, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, DATA OR USE (“EXCLUDED DAMAGES”), EVEN IF ANY PARTY WAS ADVISED OF THE POSSIBILITY OF ANY EXCLUDED DAMAGES OR ANY EXCLUDED DAMAGES WERE FORESEEABLE. IN THE EVENT OF A FAILURE OF ESSENTIAL PURPOSE OF THE EXCLUSIVE REMEDY, WIN WILL USE COMMERCIALLY REASONABLE EFFORTS TO ISSUE LICENSEE REPLACEMENT SOFTWARE AS LICENSEE’S SOLE AND EXCLUSIVE ALTERNATIVE REMEDY. LICENSEE HEREBY EXPRESSLY RELEASES THE WIN PARTIES FROM ANY AND ALL LIABILITY OR RESPONSIBILITY FOR ANY DAMAGE CAUSED, DIRECTLY OR INDIRECTLY, TO LICENSEE OR ANY THIRD PARTY AS A RESULT OF THE USE OF THE SOFTWARE OR THE INTRODUCTION THEREOF INTO LICENSEE’S APPLE iOS DEVICES OR COMPUTER ENVIRONMENT.
Title and related rights in the web sites, materials, data, content, and programs (“Content”) accessible through the Software is the property of the applicable Content owners and is protected by applicable law. This License gives Licensee no rights to such Content. Licensee may be exposed to Content that Licensee finds offensive, indecent, or objectionable or that is inaccurate, and Licensee bears all risks associated with the Content. Licensee agrees not to use the Software to upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party.
The above disclaimer of warranty and liability constitutes an essential part of this License and Licensee acknowledges that Licensee’s installation and use of the Software reflect Licensee’s acceptance of this disclaimer of warranty and liability. Certain jurisdictions may limit WIN’s and its licensors’ ability to disclaim their liability to you, in which case, the foregoing disclaimer shall be construed to limit WIN’s and its licensors’ liability to the maximum extent permitted by applicable law.
9. INDEMNITY
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS WIN, ITS PARENT, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND CONTRACTORS, SUBSIDIARIES AND AFFILIATES, FROM AND AGAINST ALL THIRD PARTY CLAIMS, LIABILITY, AND DAMAGES AND/OR COSTS (INCLUDING, BUT NOT LIMITED TO ATTORNEY’S FEES) ARISING FROM YOUR USE OF THE SOFTWARE, YOUR VIOLATION OF THIS AGREEMENT OR YOUR INFRINGEMENT, OF ANY INTELLECTUAL PROPERTY OR OTHER RIGHT OF ANY PERSON OR ENTITY. YOU AGREE TO NOTIFY WIN IMMEDIATELY OF ANY SUCH BREACH, VIOLATION OR INFRINGEMENT KNOWN TO YOU.
10. DISCLAIMER OF EMERGENCY 9-1-1 SERVICES
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE PRODUCT IS NOT INTENDED, DESIGNED OR FIT FOR PLACING, CARRYING OR SUPPORTING EMERGENCY CALLS TO ANY TYPE OF HOSPITALS, LAW ENFORCEMENT AGENCIES, MEDICAL CARE UNIT OR ANY OTHER KIND OF EMERGENCY SERVICE NOR ANY CALL FOR THE PURPOSE OF OBTAINING ASSISTANCE, HELP OR AID IN THE EVENT OF AN EMERGENCY. THERE ARE IMPORTANT DIFFERENCES BETWEEN TRADITIONAL TELEPHONE SERVICES AND THE PRODUCT. YOU ACKNOWLEDGE AND AGREE THAT IT IS YOUR RESPONSIBILITY TO OBTAIN, SEPARATELY FROM THE PRODUCT, TRADITIONAL WIRELESS (MOBILE) OR FIXED LINE TELEPHONE SERVICES THAT OFFER ACCESS TO EMERGENCY SERVICES, AND THAT THE PRODUCT IS NOT A REPLACEMENT FOR YOUR PRIMARY TELEPHONE SERVICE. NEITHER WIN NOR ANY OF ITS PARENT, AFFILIATE AND SUBSIDIARY COMPANIES, NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AGENTS, LICENSORS AND SUPPLIERS, ARE OR WILL BE LIABLE TO YOU OR ANY THIRD PARTY, WHETHER BASED ON WARRANTY, CONTRACT, TORT (REGARDLESS OF THE DEGREEE OF FAULT), INFRINGEMENT, STRICT LIABILITY OR OTHERWISE, IN ANY RESPECT FOR ANY CLAIMS, LOSSES OR DAMAGES (AND YOU HEREBY WAIVE ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION) ARISING EITHER DIRECTLY OR INDIRECTLY FROM THE USE OF, OR THE INABILITY TO USE, THE PRODUCT FOR EMERGENCY CALLS TO EMERGENCY SERVICES AND FOR CALLS FOR THE PURPOSE OF OBTAINING ASSISTANCE, HELP OR AID IN THE EVENT OF ANY EMERGENCY, EVEN IF WIN OR ITS SUPPLIERS OR LICENSORS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS, LOSSES OR DAMAGES.
11. TERM AND TERMINATION OF LICENSE
This License is valid until terminated. Licensee may terminate this License at any time by de-installing and destroying Licensee’s copy of the Software and all Confidential Information as set forth below. WIN may terminate this License at any time for any reason. This License will terminate immediately if Licensee defaults or breaches any term of this License. Upon termination of this License for any reason, any right, license or permission granted to Licensee with respect to the Software shall immediately terminate and Licensee hereby undertakes to: (i) immediately cease to use any part of the Software; and (ii) promptly return all Confidential Information and related material to WIN and fully destroy, delete and/or de-install any copy of the Software installed or copied by Licensee. The provisions regarding confidentiality, ownership, disclaimers of warranty and liability, equitable relief and governing law and venue will survive termination of this License indefinitely in accordance with their terms.
12. ASSIGNMENT
The License is personal to Licensee and Licensee agrees not to transfer (by operation of law or otherwise), sublicense, lease, rent or assign its rights under this License, and any such attempt shall be null and void. WIN may assign, transfer, or sublicense this License or any rights or obligations thereunder at any time in its sole discretion.
13. GOVERNING LAW
This License shall be governed by and construed in accordance with Delaware law without regard to conflict of law provisions thereto and, as to matters affecting copyrights, trademarks and patents, in addition, by applicable United States federal law. Any controversy or claim arising out of or relating to this License, or the breach thereof, except as noted below, shall be settled by arbitration, and administered by JAMS under the current JAMS Comprehensive Arbitration Rules and Procedures (“JAMS Rules”). Customer agrees to resolve the dispute by arbitration, [Customer] agrees that the resolution will be final and binding on both [Customer] and WIN, subject to any exceptions required by applicable law. The interpretation and enforceability of arbitration provisions, and whether a particular dispute is subject to arbitration, is subject to the Federal Arbitration Act (“FAA”) only, and not state law. WIN and [Customer] agree that the arbitration will be conducted by JAMS. The rules governing the arbitration proceeding will be the current JAMS Comprehensive Arbitration Rules and Procedures (“JAMS Rules”) from JAMS, and the arbitration will be conducted at a mutually convenient location. The arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. Any award made by the arbitrator is subject to the limitation of liability provision contained in the resulting agreement between the parties.”
14. EXPORT CONTROLS
Licensee will not transfer, export, or re-export the Software, any related technology, or any direct product of either except in full compliance with the export controls and economic sanctions administered by the United States and other countries and any applicable import and use restrictions. Licensee agrees that it will not export or re-export such items to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Persons List or Entity List, as the same may be revised from time to time, or to Cuba, Iran, Libya, North Korea, Sudan, Syria, or for use with chemical or biological weapons, sensitive nuclear end-uses, or missiles. Licensee represents and warrants that it is not located in, under control of, or a national or resident of any such country or on any such list. “Export” includes among other things an actual shipment, transfer or transmission of the Software outside of the United States or Canada (including down-loading the Software to a location outside of the United States or Canada or making the Software available to persons outside of the United States or Canada via the Internet or other electronic means). Licensee understands that the foregoing obligations are U.S. legal requirements and agrees that they shall survive any term or termination of this License.
15. U.S. GOVERNMENT END USERS
The Software is a “commercial item,” as that term is defined in 48 C.F.R. 2.101 (Oct. 2005), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 2005). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 2005), all U.S. Government End Users acquire the Software with only those rights set forth herein.
16. EQUITABLE RELIEF
It is agreed that because of the proprietary nature of the Software, WIN’s and its licensors’ remedies at law for a breach by the Licensee of its obligations under this License will be inadequate and that WIN and its licensors shall, in the event of such breach, be entitled to, in addition to any other remedy available to it, equitable relief, including injunctive relief, without the posting of any bond and in addition to all other remedies provided under this License or available at law.
17. SEVERABILITY
If one or more provisions of this License will be held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected or impaired thereby. The foregoing does not apply to the prohibition against class or representative actions that is part of the arbitration clause; if that prohibition is found to be unenforceable, the arbitration clause (but only the arbitration clause) shall be null and void. WIN will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of WIN as reflected in the original provision.
18. ADDITIONAL TERMS
The License granted in this Agreement as set out above is solely for use on an Authorized Device (as defined below) in accordance with this Agreement and the Store Usage Rules (also as defined below): (i) Apple Store Terms. References in the Agreement to WIN may include WIN’s suppliers and licensors but, in any case do not include Apple, Inc. (“Apple”). In the event of any conflict between this section and previous sections of this Agreement, the previous sections will govern, except with respect to Apple’s rights and responsibilities. The section does not expand WIN’s liability or obligations to you beyond that required elsewhere in this Agreement or by applicable law; (ii) Acknowledgement. This Agreement is concluded between WIN and you only, and not with Apple. WIN, and not Apple, is solely responsible for the product and the content thereof; (iii) Scope of License, Definition of Terms. “Authorized Device” refers to any Apple iPhone, iPad or iPod Touch that you own or control. “Store Usage Rules” refers to the “Usage Rules” set forth in Apple’s App Store Terms of Service, currently posted at http://www.apple.com/legal/itunes/us/terms.html, including any successor version thereof promulgated by Apple; (iv) Maintenance and Support. This Agreement does not call for maintenance and support services, but in the event that applicable law requires such services related to this product, WIN is solely responsible for providing them. You and WIN acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the product; (v) Warranty. This Agreement disclaims all warranties to the maximum extent permitted under applicable law, but to the extent not effectively disclaimed, if any, WIN is solely responsible for any product warranties. In the event of any failure of the product to conform to any such applicable warranty, you may notify Apple, and Apple will refund the purchase price for the product (if any) to you. To the maximum effect permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the product, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be WIN’s sole responsibility; (vi) Product Claims. You and WIN acknowledge that WIN and its suppliers and licensors, not Apple, are responsible for addressing any claims of yours or of any third party relating to the product or your possession and/or use of the product, including, but not limited to: (a) product liability claims; (b) any claim that the product fails to conform to any legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; (vii) Intellectual Property Rights. WIN and you acknowledge that, in the event of any third party claim that the product or your possession and use of the product infringes that third party’s intellectual property rights, WIN and not Apple will be the sole bearer of any responsibility for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim; and (viii) Third Party Beneficiary. WIN and you acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary.
19. NOTICES
Windstream® is a registered trademark of Windstream Holdings, LLC and, along with other WIN trademarks, service marks and product names, may not be used without the prior permission of WIN.
Version: September 2019