- Use of Services. During the term, subject to the terms and conditions of this Agreement, and solely for your personal or internal business purposes, Company grants you and any company or individual who uses the Services on your behalf or through your account or passwords, whether authorized or not (hereafter, a “User”), a right to access and use the Services, in accordance with the Plan you selected. As referred to herein, a “Plan” means any Services package offered by Company, whether paid or unpaid. You shall require that each User comply with this Agreement and shall be jointly and severally liable to Company for any User’s non-compliance. You shall make no representations or warranties regarding the Services or any other matter, to Users or any other third party, from or on behalf of Company, and You shall not create or purport to create any obligations or liabilities for Company.
- Revisions to Services. Company may revise the Services features, functions or Plans at any time, including without limitation by removing such features, functions or Plans. If any such revision to the Services has a material adverse impact on you, and you have contracted for a certain minimum term, you may notify Company in writing of such adverse impact and provide Company a thirty (30) day period to cure. In the event Company is unable to address the adverse impact within such cure period, you may terminate the applicable minimum term Plan.
- Third Party Services. You acknowledge that the Services interoperate with a variety of third party products, services, applications or websites (“Third Party Services”), and that the Services may be highly dependent on the availability of such Third Party Services. When you access Third Party Services, you do so at your own risk. Any use of Third Party Services is governed solely by the terms and conditions of such Third Party Services, and you shall comply with all such terms and conditions. Company makes no representations and shall have no liability or obligation whatsoever in relation to the content, use of, or correspondence with, any Third Party Services or any contracts entered into by you with any third party.
Your Responsibilities and Restrictions
- Acceptable Use. You shall not (a) rent, lease, sell, assign, sublicense or otherwise transfer rights in or to the Services; (b) allow more than one individual User to use an account; (c) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with or degrade the operation of the Services; (d) use the Services to store or transmit any content that may be infringing, defamatory, threatening, harmful, or otherwise tortious or unlawful, including without limitation any content that may violate intellectual property, privacy, rights of publicity, or other laws, or send spam or other unsolicited messages in violation of applicable law; (e) upload to, or transmit from, the Services any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, or other harmful component; (f) attempt to reverse engineer, de-compile, hack, disable, interfere with, disassemble, copy, or disrupt the integrity or the performance of the Services, any third-party use of the Services, or any third-party data contained therein (except to the extent such restrictions are prohibited by applicable law); (g) access the Services in order to build a competitive product or service or copy any ideas, features, functions, or graphics of the Services; (h) attempt to gain unauthorized access to the Services or its related systems or networks; or (i) authorize, permit, or encourage any third party to do any of the above. In the event that it suspects any breach of the requirements of this Section 2, including without limitation by Users, Company may suspend your access to the Services without advanced notice, in addition to such other remedies as Company may have. This Agreement does not require that Company take any action against you, any User or any third party for violating this Section or this Agreement, but Company is free to take any such action it sees fit.
- Unauthorized Access. You agree to: (a) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, including without limitation by protecting your passwords and other log-in information; (b) be solely responsible and liable for all activity conducted through your account in connection with the Services, whether authorized by you or not; and (c) promptly notify Company if you become aware of or reasonably suspect any security breach, including without limitation any loss, theft, or unauthorized disclosure or use of your (or any User’s) user name, password, or account.
- Compliance with Laws. In your use of the Services, you shall comply with all applicable laws and regulations, including without limitation those governing the protection of personally identifiable information and other laws applicable to the protection of data. The Services are controlled and offered from Company’s facilities in the U.S., but can be accessed from countries around the world. Company make no representations that the Services are appropriate for use in locations outside the U.S. Those who access or use the Services from other jurisdictions do so at their own volition and are responsible for compliance with local law.
Fees and Payment
- Fees. Fees for the Services shall be as set forth in the applicable Plan you select (which is either Company’s standard schedule of fees available on its website, as may be updated from time to time and any other order forms for the Services ordered by you and accepted in writing by Company). You agree to pay all fees as and when described per the applicable Plan. Unless otherwise stated in the Plan, all fees are due in advance. All fees are quoted and payable in U.S. Dollars. If you are paying by credit card or ACH, you hereby irrevocably authorize Company to charge the credit card or other payment method provided for any fees on a recurring basis when such amounts are due, and any amounts due will be automatically charged, in advance. Plans offered on a subscription basis may be subject to a minimum term, which will automatically renew unless you provide written notice of termination at least thirty (30) days prior to the renewal date.
- Late Payment. If any amounts due hereunder are not received by Company by the due date such charges will accrue late fees at the rate of 1.5% per month or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. In addition Company may suspend your access to the Services if Company does not receive the amounts invoiced hereunder at the expiration of such period. You shall be responsible for any collection expenses (including attorneys’ fees) incurred by Company in collecting any outstanding amounts hereunder.Taxes. You are responsible for paying all taxes associated with your purchase of the Services. If Company has the legal obligation to pay or collect taxes for which you are responsible under this section, the appropriate amount shall be invoiced to and paid by you, unless you provide Company with a valid tax exemption certificate authorized by the appropriate taxing authority. Any and all payments by or on account of the fees payable under this Agreement shall be made free and clear of and without deduction or withholding for any taxes. If you are required to deduct or withhold any taxes from such payments, then the sum payable shall be increased as necessary so that, after making all required deductions or withholdings, Company receives an amount equal to the sum it would have received had no such deduction or withholding been made. “Taxes” means all taxes, assessments, charges, fees, and levies that may be levied or based upon the sale or license of goods and/or services, as the case may be, including without limitation all sales, use, goods and services, value added, and excise taxes, custom duties, and assessments together with any installments with respect thereto, and any interest, fines, and penalties with respect thereto, imposed by any governmental authority (including federal, state, provincial, municipal, and foreign governmental authorities).
- Fee Disputes. You must notify Company in writing if you dispute any portion of any fees paid or payable by you under this Agreement. You must provide such written notice within thirty (30) days of the applicable charge, and Company will work together with you to resolve the applicable dispute promptly. If you do not provide written notice of your fee dispute within this 30-day period, you will not be entitled to dispute any fees paid or payable by you.
- Definition. “Confidential Information” includes any proprietary data and any other information disclosed by one party to the other (a) in writing and marked “confidential”; (b) orally and, within five business days, reduced to writing and marked “confidential”; (c) that the receiving party should reasonably consider a trade secret or otherwise confidential. However, Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving party’s possession prior to disclosure by a party or which is independently developed by the receiving party without the use of Confidential Information.
- Use. Neither party will use or disclose the other party’s Confidential Information without the other’s prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order; in which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing the Confidential Information.
Your Data and Privacy
- Risk of Exposure. You recognize and agree that transmitting Data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Services, you assume such risks. Company offers no representation, warranty, or guarantee that your Data will not be exposed or disclosed through errors or the actions of third parties. Company may permanently erase your Data if your account is delinquent, suspended, or terminated for 30 days or more.
IndemnificationTo the extent permitted by applicable law, you shall defend, indemnify, and hold harmless Company and its affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives (collectively, the “Indemnified Parties”), at your expense, from any and all third-party claims, actions, proceedings, and suits brought against the Indemnified Parties, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, reasonable attorneys’ fees and other litigation expenses) incurred by the Indemnified Parties, arising out of or relating to (a) your breach of any term or condition of this Agreement, (b) your use of the Services, (c) your violations of applicable laws, rules or regulations in connection with the Services, (d) any representations and warranties made by you concerning any aspect of the Services; (e) violations of your obligations of privacy to any third parties; and (f) any claims with respect to acts or omissions of any third party in connection with the Services. Company will provide you with written notice of any claim, suit or action from which you must indemnify Company. You will cooperate as fully as reasonably required in the defense of any such claim. Company will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
DISCLAIMER OF WARRANTIESTO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT THE SERVICES ARE PROVIDED “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
LIMITATION OF LIABILITYTO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, DATA OR OTHER LOSS, EVEN IF COMPANY OR ITS SUBSIDIARIES AND AFFILIATES HAVE BEEN ADVISED OF, KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY’S TOTAL AGGREGRATE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, EXCEED THE GREATER OF (A) THE FEES PAID BY YOU FOR THE SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY AND (B) $500. THE LIMITATIONS OF LIABILITY SET FOR THE IN THIS SECTION APPLY LIKEWISE TO COMPANY’S AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, AGENTS, SPONSORS, DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AND OTHER REPRESENTATIVES.THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF COMPANY WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
Proprietary Rights Notice
- Company Property. The Services, including any and all intellectual property rights therein are, and will remain, the property of Company. All right, title and interest in and to the Services not expressly granted to You in this Agreement are reserved and retained by Company and its licensors without restriction. Without limiting the generality of the foregoing, You agree not to (and not to allow any third party to): (a) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Services for any purpose without the express written consent of Company; (b) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with Company other than in the name of Company (c) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Service; or (d) seek, in a proceeding filed during the term of this Agreement or for one year after such term, an injunction of any portion of the Services based on infringement.
- Feedback. You acknowledge and agree that any questions, comments, suggestions, ideas, wiki, feedback or other information about the Services provided by you or other Users (“Feedback”), including through online forums or similar pages, to Company are non-confidential and shall become the sole property of Company. Company shall own exclusive rights in, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you or your Users.
- Your Content. You grant Company a limited, worldwide, non-exclusive license, without a right of sublicense, to access, use, reproduce, electronically distribute, transmit, perform, format, display, store, archive, and index your content provided through the Services for the purpose of supporting your use of the Services and providing Services to you. Company may also use such content for the purpose of supporting and developing the Services, provided that when doing so, Company shall only use your content in an anonymized and aggregated way. Subject only to the limited license expressly granted herein, you and your Users shall retain all right, title and interest in and to the your content and all intellectual property rights therein.
Term and TerminationThe term of this Agreement shall commence on the day you access the Services for the first time and shall continue until your Plan ends or until you cease using the Services. Early termination of a Plan with a minimum term shall result in a termination charge in the amount of the Plan fees due for the remainder of the minimum term. Either party may terminate this Agreement at any time with notice. Upon any termination of this Agreement, Company will stop providing, and you will stop accessing the Services; you will not be entitled to any refunds of any usage fees or any other fees, and any outstanding balance through the date of termination will be immediately due and payable in full.
ModificationsCompany may modify or update this Agreement or any additional terms that apply to the Services from time to time by posting an amended version on its website at https://web.utm.io/terms. In the event of a change that, in Company’s sole discretion, materially impacts this Agreement, Company will provide you written notice, which may include notice by email or notice on an invoice. Changes will become effective no sooner than fifteen (15) days after they are posted or notified to you. If a change has a material adverse impact on you, and you have contracted and prepaid for a certain term, you may notify Company of your rejection of the modified Agreement in writing within such 15-day period. In the event of your rejection, this Agreement will continue under its original provisions until the prepaid term ends, or, will terminate at the Company’s sole discretion. Your continued use of the Services following the effective date of a modified Agreement confirms your consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party.
Miscellaneous, Applicable Law and Venue
Company will be excused from performance in this Agreement to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control. This Agreement (including any properly amended version of this Agreement and any terms incorporated by reference into this Agreement) represents the entire agreement between You and Company concerning its subject matter, and supersedes all prior agreements and representations between the parties. In the event of any conflict between this Agreement and the terms of any Plan, the provisions of this Agreement shall prevail. If any provision of this Agreement is held to be unenforceable for any reason, such provision will be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. This Agreement will be governed by and construed under the laws of the state of Florida without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations, and Florida law, rules, and regulations, Florida law, rules and regulations will prevail and govern. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in Orange County, Florida. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover reasonable costs and attorneys’ fees. The Services are controlled by U.S. Export Regulations, and may be not be exported to or used by embargoed countries or individuals.
Any notices to Company concerning this Agreement shall be sent via email, return receipt requested, to email@example.com; with a duplicate copy sent via a trackable method of physical delivery to UTM.io 1016 W churs Street Suite B, Orlando Florida 32805, Attention: Legal Department.
Notices to you may be sent to the email address associated with your account and will be deemed received 24 hours after they are sent. You agree that it is your responsibility to maintain accurate contact information within your account, and Company shall not be liable for any damage resulting from your failure to do so. No failure to exercise, and no delay in exercising, any right or remedy under this Agreement will be deemed to be a waiver of that right or remedy. A waiver of any default of this Agreement shall not be construed as a waiver of any subsequent default. You may not assign or otherwise transfer any of Your rights in this Agreement without Company’s prior written consent, and any such attempt is void. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. This Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. Any provision of this Agreement which, either by its terms or to give effect to its meaning, must survive, and such other provisions which expressly, or by their nature, are intended to survive termination or expiration of this Agreement shall so survive.
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