BeVocal Café: Developer Agreement

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Developer Agreement
Home > Developer Agreement

BeVocal Developer Agreement

1. ACKNOWLEDGEMENT AND ACCEPTANCE

Welcome to BeVocal Cafe, the online site owned and operated by BeVocal, Inc. ("BeVocal"), providing access to and use of BeVocal development tools, software and services (collectively, the "Program") for the design, creation and limited testing and demonstration of voice applications (the "Voice Applications", as such term is further described below). The Program is provided by BeVocal to you (individually or the entity on whose behalf you are intending to use the Program, each being referred to herein as "You") subject to the terms and conditions set forth below, for access and use of the Program.

BY CLICKING ON THE "I AGREE" BUTTON BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ AND AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT OR IF YOU ARE INTENDING TO USE THE PROGRAM ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT SUCH ENTITY HAS READ AND AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS AND THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS HEREOF. IF YOU DO NOT AGREE TO BE BOUND BY, OR LACK AUTHORITY TO BIND SUCH ENTITY TO, THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE "I DISAGREE" BUTTON BELOW.

2. DESCRIPTION OF PROGRAM

The BeVocal Program includes a comprehensive library of voice recognition tools, based on the VoiceXML standard, designed to enable You to create personalized Voice Applications. Such tools and features include, but are not limited to, the following:

• BeVocal's Developer Tool Suite for use with VoiceXML
• BeVocal's Grammars, Prompts, Sounds, and Phonetic Dictionaries
• BeVocal's development environment including telephony infrastructure
• Development methodologies
• Technical documentation
• Engineering support
• Hosting on BeVocal's carrier-grade infrastructure.

You must provide and pay for Your own telephone service and Internet service, including any toll or long distance charges that may be incurred, for access to and use of the Program.

3. REGISTRATION DATA AND PRIVACY

In consideration for access and use of the Program, You agree to (i) provide certain current, complete, and accurate information about You through the Program's registration process and (ii) maintain and update this information as required to keep it current, complete and accurate. Your privacy is very important to BeVocal. As part of the Program registration process You should read and be familiar with the principles in BeVocal's Privacy Policy.

4. PERSONAL ACCOUNT AND SECURITY

To access and use the Program, You must create a unique personal PIN and account number ("PIN" and "Account Number") via the Program's signup procedure. You are exclusively responsible for all activities that occur under Your Account Number, whether or not it occurs with Your knowledge. You are also exclusively responsible for maintaining the confidentiality of Your PIN and Account Number, and are exclusively responsible for any failure to do so, and any results thereof. In this regard, You agree to immediately notify BeVocal by e-mail at support@bevocal.com of any suspected or actual unauthorized access to or use of Your account or any other breach of security known to You. You may change Your PIN or Account Number at any time by following the instructions on the BeVocal web site ("Web Site"). You may only choose a telephone number as Your Account Number if You are currently assigned that telephone number through your telephone company. BeVocal reserves the right to terminate Your account immediately if You choose a telephone number as your Account Number which is not currently assigned to you through your telephone company.

5. AGE

You must be at least 13 years old to access and use the Program. If You are between the ages of 13 and 18 years old and wish to subscribe, You must (i) read the terms and conditions of this Agreement together with Your parent(s) or legal guardian and (ii) obtain his/her/their consent to subscribe to the Program. It is the parent's(s') or guardian's responsibility to monitor a minor's access and use of the Program.

6. DEFINITIONS

Unless otherwise defined herein, capitalized terms used herein shall have the respective meanings assigned to such terms below.

(a) "Users" means any individual or business entity to which You have granted any license, or right to access or use, Your Voice Application(s).
(b) "Voice Applications" means, collectively, the stand-alone voice applications developed by You through access to or use of the Program hereunder.

7. GRANT OF RIGHTS

(a) Program Access and Use. Subject to the terms and conditions of this Agreement, You may access and use the Program only as hosted on http://bevocal.com and solely to design, develop and perform limited tests and demonstrations of your Voice Applications. The foregoing rights are nontransferable and nonassignable.
(b) Software. To the extent the Program provides a feature which permits You to download, incorporate or include in Your Voice Application any software tools, code, code fragments or any other machine executable or readable character string (collectively, the "Software"), your use of such Software shall be subject to Your acceptance of terms and conditions governing such Software as the same are provided to You by BeVocal.

8. RESTRICTIONS

Notwithstanding the rights granted to You pursuant to Section 7 above, You agree, and You shall ensure that any of Your Users, will not do any of the following in connection with use of or access to the Program, or any part thereof, including any Voice Application:

(a) violate any law, statute, ordinance or regulation, or make available or provide any content or information that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, racially, ethnically or otherwise objectionable;
(b) violate any patent, trademark, trade secret, copyright, right to privacy, publicity, or other proprietary right of any party;
(c) target content or information toward, or gather personally identifiable information from, children under the age of thirteen (13), or harm minors in any way;
(d) damage, impair, disable, or overburden the Program or in any way interfere with BeVocal's rights or any other user's use and enjoyment of the BeVocal Program;
(e) reverse engineer, decompile, disassemble or translate or otherwise attempt to derive the source code of any part of the Program or to disclose results of any benchmark tests of the Program to any third party without BeVocal's prior written consent, except to the extent such restrictions are prohibited by applicable law;
(f) rent or lease the Program or use the Program in a time-sharing or service bureau arrangement;
(g) (i) attempt to commercially exploit any of Your Voice Applications through the Program's "Demo Deployment" or "Showcase" feature, (ii) test or demonstrate any of Your Voice Applications through the Program's "Demo Deployment" or "Showcase" feature for more than five (5) consecutive minutes or for more than a total of one hundred and twenty (120) minutes for any consecutive seven (7) day period; or (iii) enable any call through, automatic dialing, call transfer or similar feature of any of Your Voice Applications using the Program's "Demo Deployment" or "Showcase" feature to permit connections lasting more than sixty (60) seconds. IN ADDITION TO ANY OTHER RIGHTS OR REMEDIES AVAILABLE TO BEVOCAL, ANY VIOLATION OF SUBSECTIONS (i), (ii) or (iii) OF THIS SECTION 8(g) SHALL ENTITLE BEVOCAL TO INVOICE YOU DIRECTLY FOR ALL APPLICABLE TELEPHONIC AND/OR OTHER REASONABLY RELATED COSTS OR EXPENSES ARISING OUT OF OR RELATED TO SUCH VIOLATION.

9. OWNERSHIP/INTELLECTUAL PROPERTY

Subject to BeVocal's rights in and to (i) the Program and all portions thereof, including without limitation all Software, grammars and other information provided to You in connection with the Program, (ii) any modifications or derivative works of any of the items in (i), and (iii) all patent rights, copyrights, trade secrets and other intellectual property rights relating to any of the items in (i) or (ii) above (the rights under (i) through (iii) above collectively referred to as "BeVocal IP"), You retain Your entire right, title and interest in and to those portions of any of Your Voice Applications directly and originally authored by You. You agree that, as between You and BeVocal, BeVocal is and shall be the sole owner of the BeVocal IP and that You will execute such documents and perform such acts as may be requested by BeVocal in perfecting its right, title, and interest in and to the BeVocal IP.

10. FEATURES

BeVocal currently provides the Program free of charge. BeVocal reserves the right to begin charging You for this set of features, and/or for additional features or tools made available in the Program and the other parts of the BeVocal Program.

11. NO WARRANTY

THE PROGRAM, AND ANY INFORMATION, FUNCTIONALITY, SOFTWARE TOOLS, CODE OR CODE FRAGMENTS AVAILABLE THEREIN ARE PROVIDED "AS IS," WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. BEVOCAL AND ITS LICENSORS HEREBY EXPRESSLY DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND NON-INFRINGEMENT. THE ENTIRE RISK ARISING OUT OF ACCESS, USE OR PERFORMANCE OF THE PROGRAM, INCLUDING BUT NOT LIMITED TO ANY SOFTWARE OR VOICE APPLICATION, REMAINS WITH YOU AND YOU ARE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE YOU MAY INCUR, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE TO COMPUTER SYSTEMS, OR LOSS OF INFORMATION, DATA OR OTHER FUNCTIONALITY ARISING OUT OF OR RELATED TO ACCESS, USE OR PERFORMANCE OF THE PROGRAM, VOICE APPLICATIONS OR ANY PART THEREOF. THE PROGRAM IS NOT INTENDED, DESIGNED, OR DEVELOPED FOR CREATING ANY APPLICATIONS FOR, OR FOR USE IN, ANY NUCLEAR, AVIATION , MASS TRANSIT OR MEDICAL, OR ANY OTHER INHERENTLY DANGEROUS APPLICATIONS AND NEITHER BEVOCAL NOR ITS LICENSORS SHALL BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM SUCH USE THEREOF. BEVOCAL AND ITS LICENSORS MAKE NO WARRANTY THAT ACCESS TO OR USE OF THE PROGRAM WILL MEET YOUR REQUIREMENTS, OR THAT SUCH ACCESS AND USE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. BEVOCAL IS NOT LIABLE TO YOU OR ANY THIRD PARTY WHATSOEVER FOR ANY MODIFICATION TO, SUSPENSION OR TERMINATION OF YOUR ACCESS TO OR USE OF THE PROGRAM HEREUNDER.

12. LIMITATION OF LIABILITY

BEVOCAL'S ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED ONE HUNDRED DOLLARS (USD 100).

13. NO LIABILITY FOR CONSEQUENTIAL DAMAGES

IN NO EVENT WILL BEVOCAL OR ITS LICENSORS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION DAMAGES FOR COSTS OF OBTAINING SUBSTITUTE GOODS, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA OR EQUIPMENT, OR ANY OTHER SUCH DAMAGE OR LOSS) ARISING OUT OF OR RELATED TO THIS AGREEMENT, OR YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE PROGRAM OR ANY PART THEREOF, HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY EVEN IF BEVOCAL OR ANY OF ITS LICENSORS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. YOU ACKNOWLEDGE AND AGREE THAT THE FOREGOING IS A REASONABLE ALLOCATION OF RISK AND THAT BEVOCAL WOULD NOT OFFER ACCESS TO AND USE OF THE PROGRAM BUT FOR THE EXCLUSION OF WARRANTIES, AND THE LIMITATIONS AND EXCLUSIONS OF LIABILITY SET FORTH IN SECTIONS 11, 12 AND THIS SECTION 13.

14. TERMINATION/SURVIVAL

(a) You: You may terminate this Agreement at any time, with or without cause, effective immediately upon ceasing to use the Program, it being specified that such discontinued use is Your sole means of terminating this Agreement.
(b) BeVocal: You agree that BeVocal may, in its sole discretion, terminate this Agreement or deactivate or delete Your PIN, Account Number or Voice Applications, and all related information and files, used, contained or stored in the Program, and/or bar Your further access to such information, Voice Application or the Program, (i) effective immediately upon notice based on Your breach of any of the terms and conditions hereof; or (ii) upon ten (10) days notice for any or no reason. Further, You agree that BeVocal shall not be liable to You or any third-party for any termination of Your access to or use of the Program and/or this Agreement.
(c) Survival: Upon termination of this Agreement, the following provisions shall survive: Sections 4 (2nd, 3rd, and 4th sentences only), 6, 8, 9, 11, 12, 13, 14, 15, 16, 19, 20 (solely with respect to those Sections surviving termination) and 21.

15. CONFIDENTIAL INFORMATION

You agree not to disclose any information including, without limitation, the Program and any and all information and resources therein, which You receive from BeVocal that is identified as being confidential or proprietary information to any third parties except to employees of Yours who have a need to know such information in connection with developing Your Voice Application(s) using the Program and who are bound by written agreement to maintain the confidentiality of the same on terms no less restrictive than those contained herein. You agree that a violation of this provision may result in irreparable harm to BeVocal and will entitle BeVocal to obtain injunctive relief without the necessity of proving actual damages, in addition to any other remedy which BeVocal may have.

16. INDEMNIFICATION

You agree to indemnify, defend and hold BeVocal, its parent company, subsidiaries, affiliates, directors, officers, employees and other agents, harmless from and against any third party claims, suits or other proceedings and any and all liabilities, losses and damages, including reasonable attorneys' fees, arising out of or related to Your (i) breach of the terms and conditions of this Agreement, including, but not limited to, the terms and conditions imposed on any Software as set forth in Sections 7 (GRANT OF RIGHTS) and 8 (RESTRICTIONS); (ii) alleged infringement of any patent, copyright or other intellectual property right of any third party; (iii) alleged violation of any other claimed right of any third party; or (iv) use or distribution of Your Voice Applications. BeVocal may, at its sole discretion, assume the exclusive defense and control of any matter subject to indemnification. The assumption of such defense or control by BeVocal, however, shall not excuse You from any of Your indemnity obligations.

17. EXPORT LAW

You acknowledge and agree that the Program, including any Voice Applications and Software, may be subject to controls imposed by the United States Export Administration Act and/or the regulations or laws of the country in which you access and use the same, if other than the United States. In acknowledgement of the foregoing, You agree, represent and warrant that (i) Your access and use the Program, including any Software or Voice Applications, is not probited (a) by regulation by agencies of the U.S. Government, including without limitation the U.S. Department of Commerce, which prohibit export or diversion of certain products and technology to certain countries, or (b) by regulation or laws of the country in which you access or use the same, if other than the United States; and (ii) none of the materials available from the Program, including any Voice Applications or Software, are being or will be used in, or acquired, shipped, transferred or reexported, directly or indirectly, into, any country, in violation of the United States Export Administration Act, and the regulations thereunder, or the regulations or laws of the country in which you access or use the Program, including any Voice Applications or Software.

18. U.S. GOVERNMENT RESTRICTED RIGHTS

If You, or any of Your Users, or such User's customers, of any Voice Application, are an agency, department, or other entity of the United States Government ("Governmental Entity") the following provisions apply. The Program and any accompanying documentation are deemed to be "commercial software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR 12.212(b), as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Program and/or the accompanying documentation by You or any Governmental Entity shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement. Any technical data included in the Program that is not covered by the above provisions is deemed to be "technical data-commercial items" pursuant to DFAR Section 227.7015(a). Any use, modification, reproduction, release, performance, display or disclosure of such technical data shall be governed by the terms of DFAR Section 227.7015(b).

19. USE OF YOUR NAME

BeVocal may reference Your name and business relationship with BeVocal in marketing materials used by BeVocal.

20. MODIFICATIONS

BeVocal may modify this Agreement by posting the new terms and conditions at http://cafe.bevocal.com or any successor site thereto at least ten (10) days before the new terms and conditions are to become effective (the "Notice Period"). If You continue to access or use the Program following the expiration of the Notice Period, then You will be deemed to have accepted the modifications. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR SOLE RECOURSE IS TO TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 14(a) ABOVE. No modification to the terms and conditions of this Agreement by You shall be valid unless in writing and signed by an authorized representative of BeVocal.

21. MISCELLANEOUS

This Agreement will be governed by the laws of the State of California, without regard to or application of conflicts of law rules or principles, and You hereby consent to the exclusive jurisdiction of the federal and state courts located in the County of Santa Clara, California with regard to any dispute arising out of or related to this Agreement. Notification hereunder may be made by e-mail to the e-mail address You provided in accordance with Section 3 above, in writing, by posting on BeVocal's web site or by any other reasonable means. If any provision of this Agreement or part thereof is held to be unenforceable, that provision or part thereof will be removed and the remaining provisions will remain in full force. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. You may not assign, transfer or encumber this Agreement, by contract or by law, in any way without BeVocal's prior written consent; any attempted assignment, transfer or encumbrance in violation of the foregoing shall be null and void and of no effect. No person that is not a party to this Agreement shall have or acquire any rights by reason of this Agreement, nor shall BeVocal have any obligation or liability whatsoever to any such person except as otherwise expressly set forth herein. Both BeVocal and You agree that any cause of action or claim arising out of or related to this Agreement must be brought within one (1) year from the date of the occurrence of the event which is the basis of such cause of action or claim and both BeVocal and You agree that failure to do so shall permanently bar the relevant party from bringing such cause of action or claim. Any new features or changes to the Program shall be subject to this Agreement unless explicitly stated otherwise. This Agreement constitutes the complete and exclusive understanding and agreement of BeVocal and You relating to the subject matter hereof, and supercedes all prior or contemporaneous understandings, agreements and communications, and or advertising with respect thereto.