2. DESCRIPTION OF THE ONLINE COMMUNITIES WEBSITE AND THE SERVICES
The Online Communities Website and Services are designed to create and support an online community where, subject to all of their obligations under the applicable Enterprise Services Agreement, or other pertinent NetIQ-related agreements: (a) NetIQ customers or partners can share their experiences about NetIQ services and about business in general and (b) NetIQ customers, partners, developers, and end-users can more easily receive information from NetIQ about NetIQ services or any related business processes. Certain services or areas of the Online Communities Website may not be available to all NetIQ customers or partners. You agree not to use any services, or access any areas of the Online Communities Website, that NetIQ has not specifically authorized you to use or access.
Registered Users are responsible for maintaining the confidentiality of their passwords, and are not to share their User IDs or passwords with any other individuals. You agree to immediately notify NetIQ of any unauthorized use of any User ID or password. You will be solely responsible and liable for any and all access to and use of the Online Communities Website or Services (including all activities and transactions) by any person logging in under your account.
4. DISCUSSION FORUMS
NetIQ may offer you access to one or more discussion forums (“Discussion Forums”), where users may post questions and discuss issues related to NetIQ software with other customers, and, in certain appropriate forums, post scripts or sample code for discussion purposes (collectively, “Forum Content”). You acknowledge that all Forum Content may be viewed by other visitors to this Online Communities Website, and that you are responsible for understanding and complying with all of your legal obligations about protecting the proprietary and confidential nature of NetIQ products and services in choosing what to post or upload. In addition, you hereby grant to NetIQ a perpetual, irrevocable, world-wide, royalty free, non-exclusive, and fully sublicenseable license to use, reproduce, distribute, publicly perform, publicly display, and create derivative works of all non NetIQ-owned materials, including Forum Content, that you post or upload to, or send to NetIQ through, the Online Communities Website. By posting or uploading any Forum Content, you represent and warrant that you have all of the rights, including intellectual property rights, necessary to do so, and to grant to NetIQ the license set forth in the preceding sentence.
You agree that NetIQ is not responsible for and will have no liability in connection with any Forum Content posted or uploaded to the Discussion Forum by you or other users. Without limiting the foregoing, NetIQ has and shall have no liability regarding the accuracy of such Forum Content, and you use such Forum Content entirely at your own risk. You hereby release NetIQ, and our officers, directors, agents, subsidiaries, joint ventures, and employees, from claims, demands, and damages, including actual and consequential, of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any and all Forum Content. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
5. ACCEPTABLE USE AND CONDUCT
You are solely responsible for your interactions with others through the Online Communities Website and the Services. You acknowledge and agree that your conduct, and the form and content of Forum Content that you post or upload to the Online Communities Website, are your sole responsibility. NetIQ cannot and does not make any guarantee with respect to the accuracy, inoffensiveness, or suitability of any content that appears on the Online Communities Website.
NetIQ, however, reserves the right to improve the Online Communities Website and the Services by prohibiting certain conduct and Forum Content, and by administering and moderating the Online Communities Website. Consequently, you agree not to:
a. upload, post, email, transmit, or otherwise make available any Forum Content that is unlawful, harmful (including Forum Content that is harmful to NetIQ’s reputation), threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable;
b. impersonate any person or entity;
c. violate the legal rights of another party, such as by infringing another’s copyright through the posting or uploading of Forum Content which you lack the legal right to post or upload;
d. forge email headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Online Communities Website or the Services;
e. use the Online Communities Website or the Services to compile commercial, political, or charitable mailing lists or to otherwise in any way facilitate the transmission of spam, junk mail, or chain letters;
f. upload, post, email, transmit, or otherwise make available any unsolicited or unauthorized advertising or promotional materials (including sweepstakes materials); or
g. “stalk”, harass, threaten any other individual, or engage in other disruptive conduct in a Discussion Forum.
NetIQ reserves the right to investigate and take appropriate legal or other appropriate action without further notice against anyone who violates this provision, which may include without limitation the removal of any inappropriate Forum Content, the revocation of access to certain Discussion Forums, immediate termination of your account, and removal from the Online Communities Website and the Services.
6. NetIQ INTELLECTUAL PROPERTY
NetIQ, the NetIQ Logo, and other related graphics, logos, service marks, and trade names used on the Online Communities Website are the trademarks of NetIQ and may not be used without express written permission. Other identifiers that may appear on the Online Communities Website may be the property of their respective owners.
7. TERM AND TERMINATION
You understand that the Online Communities Website and the Services are provided by NetIQ as a convenience, but that NetIQ may modify, alter, suspend, or discontinue any or all of the Services or the Online Communities Website at any time in its sole discretion.
8. THIRD-PARTY SITES
The Online Communities Website and the Services may provide links to other World Wide Web sites or resources. Because NetIQ has no control over such sites and resources, you acknowledge and agree that NetIQ is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. Your correspondence or business dealings with third parties found through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third parties. You further acknowledge and agree that NetIQ shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any content, goods, or services available on or through any third-party site or resource.
10. DISCLAIMER OF WARRANTIES
YOUR USE OF THE ONLINE COMMUNITIES WEBSITE AND THE SERVICES ARE AT YOUR SOLE RISK. THE ONLINE COMMUNITIES WEBSITE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NetIQ EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SYSTEM INTEGRATION, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, NetIQ MAKES NO WARRANTY THAT (i) THE ONLINE COMMUNITIES WEBSITE OR THE SERVICES WILL MEET YOUR REQUIREMENTS; (ii) THE ONLINE COMMUNITIES WEBSITE OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (iii) THE RESULTS OBTAINED FROM THE USE OF THE ONLINE COMMUNITIES WEBSITE OR THE SERVICES WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE ONLINE COMMUNITIES WEBSITE OR THE SERVICES WILL MEET YOUR EXPECTATIONS; OR (v) ANY ERRORS IN THE ONLINE COMMUNITIES WEBSITE OR THE SERVICES WILL BE CORRECTED.
11. LIMITATION OF LIABILITY
YOU AGREE THAT NetIQ SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING FROM OR RELATING TO THE ONLINE COMMUNITIES WEBSITE OR THE SERVICES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, EVEN IF NetIQ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, NetIQ WILL NOT BE LIABLE TO YOU IN CONNECTION WITH: (i) THE USE OR THE INABILITY TO USE THE ONLINE COMMUNITIES WEBSITE OR THE SERVICES; (ii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (iii) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE ONLINE COMMUNITIES WEBSITE OR THROUGH THE SERVICES. IN NO EVENT SHALL NetIQ’S CUMULATIVE AGGREGATE LIABILITY TO YOU ARISING FROM OR RELATED TO THE ONLINE COMMUNITIES WEBSITE OR THE SERVICES EXCEED FIFTY U.S. DOLLARS (U.S. $50).
12. Digital Millennium Copyright Act
NetIQ respects the intellectual property of others. It is our policy to respond promptly to claims of intellectual property miNetIQ 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”), NetIQ 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 NetIQ customer or other third party on the Online Communities Website or through the Service, please fax a Notice of Infringement to NetIQ addressed to the following person at the following fax number: Chief Legal Officer at 801.722.0120. 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:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) 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.
(iii) 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.
(iv) 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.
(v) 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.
(vi) 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.
13. GENERAL INFORMATION