Last updated: May 1, 2017.
Welcome to http://onupkeep.com/ and the UpKeep Maintenance Management mobile App, all owned and operated by UpKeep Technologies, Inc., a Delaware Corporation (“UMM,” “us” or “we”), and our services made available to you (the "user" or "you") through our website (the "Website" or the “Site”) and any online applications or mobile application and tools (the “Apps”). The Website and the Apps together constitute our service (the "Service").
Unless otherwise specified, all references to the Services include the services available through the UMM Website or mobile App, as well as any software that UMM provides to you that allows you to access the Services. The following Terms of Service are a legally binding contract between you, including your employer, employees, consultants, agents and customers as permitted, and UMM regarding your use of the Service.
Please read the following Terms of Service ("Terms") carefully before accessing or using any of the Service. Each time you, your employer, employees, consultants, agents and customers access or use the Service, you agree to be bound by these Terms whether or not you register with us. If you do not agree to be bound by all of these Terms, you may not access or use the Service.
In addition, certain areas of the Service may be subject to additional Terms of Service that we make available for your review. By using such areas, or any part thereof, you are expressly indicating that you have read and agree to be bound by the additional Terms of Service applicable to such areas. In the event that any of the additional Terms of Service governing such area conflict with these Terms, the additional terms will control.
PLEASE READ THE BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER PROVISIONS IN THE DISPUTE RESOLUTION SECTION OF THESE TERMS. IT AFFECTS HOW DISPUTES ARE RESOLVED.
1. Description of Service
- UMM Services provides is a task management tool for facility maintenance teams to make their work more productive and change the way facility maintenance requests are made and received. The Service include (i) UMM systems, software, procedures, processes and technologies, and (ii) any applications, data, reports, and other content made available by or on behalf of UMM.
- The Service does not include your User Content or User Data as later defined in this Agreement or any software application or service that is provided by you or a third party, which you use in connection with the Service.
- Any modifications and new features added to the Service are also subject to this Agreement.
- UMM reserves the right to modify or discontinue the Service or any feature or functionality thereof at any time without notice to you. All rights, title and interest in and to the Service and its components (including all intellectual property rights) will remain with and belong exclusively to UMM.
2. Eligibility for Our Service
- By using our Services, you represent that you are at least 18 years old and are fully able and competent to enter into this electronic contract, including the terms, conditions, representations and warranties set forth in these Terms.
3. Your Access and Use of our Services; License
- UMM grants user a non-exclusive, non-transferable, limited, personal, non-sublicensable, worldwide right to use the Service, including the underlying software and technology, solely for user's own internal business purposes subject to the terms of this Agreement.
- Subject to the terms of this Agreement, user grants to UMM the non-exclusive, worldwide, a perpetual, irrevocable, royalty-free, license right to use, copy, store, transmit and display User Data solely to the extent necessary to provide the Service as requested by user.
- The rights granted to you in these Terms are subject to the following restrictions: (i) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site or Services; (ii) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site or Services; (iii) you shall not access the Site or Services in order to build a similar or competitive Service; and (iv) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means.
- Furthermore, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) copy, reproduce, modify, create derivative works from, distribute or publicly display any content (except for your personal use) from our Services without our prior written permission and the appropriate third party, as applicable; (iii) interfere or attempt to interfere with the proper working of our Services or any activities conducted on our Services; or (iv) interfere or disrupt the Service or servers or networks connected to the Service, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature.
- You understand that UMM may issue upgrade versions of any mobile App and you consent to receiving automatic upgrades on your mobile device. You also acknowledge and agree that standard carrier data charges may apply to your use of the App or the Website including, without limitation, text messages.
- Any future release, update, or other addition to functionality of the Site or Services shall be subject to these Terms.
4. Accounts and Registration
- To access the Service you will be required to register for an account. When you register for an account, you will be required to provide us with some information about yourself and or your company or employer. Some of this information may be of a confidential nature and may include personal identifying information and/or financial information (all "Your Information").
- If you provide Your Information to us then you agree to provide true, current, complete and accurate information, and not to misrepresent your identity or that of your company or employer. You also agree to keep Your Information current and to update Your Information if any of Your Information changes.
5. Account Management
- Keep Your Password Secure. If you have been issued an account by UMM in connection with your use of the Services, you are responsible for safeguarding your password and any other credentials used to access that account. You, and not UMM, are responsible for any activity occurring in your account, and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with use of the Service, whether or not you authorized that activity. If you become aware of any unauthorized access to your account, you should notify UMM immediately.
- Keep Your Details Accurate. You must keep your email address, phone number and, where applicable, your contact details and payment details associated with your account current and accurate. Accounts are controlled by the entity whose email address is registered with the account.
6. Subscriptions; Payments
- UMM Services are provided by paid subscription (the "Subscription"). Subscriptions are billed at either a monthly or annual rate and terms, as disclosed on the Website. Please refer to our Website for the most current rates and terms, which are incorporated into this Agreement by reference.
- Upon completing registration for a Subscription, your credit card or other selected payment method will be billed for the Subscription on a recurring basis at the then-current rate and terms for the interval you selected. Your Subscription will renew and be billed automatically unless canceled before such renewal.
- You grant the Company and its third party payment processors the permission to charge your credit card for the then-current rate of the Subscription on an ongoing basis until cancelled by you. You agree not to dispute any charge or institute any chargeback for a Subscription you have purchased.
- UMM's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and user shall be responsible for payment of all such taxes, levies, or duties.
- Pricing is subject to change without notice.
- You may cancel your Account or Subscription at any time. No refunds will be available
- To cancel your Subscription or Account, you must email firstname.lastname@example.org to cancel your subscription. Users who cancel an annually billed Subscription will have access terminated at the end of the current billing period.
- UMM offers a free trial plan (the "Trial Subscription"), the terms of which are disclosed on the Website. Please refer to our Website for the most current Trial Subscription terms, which are incorporated into this Agreement by reference.
- UMM reserves the right to suspend or terminate user's access to the Service if user's account becomes thirty (30) days or more delinquent. Delinquent accounts are subject to interest of 1.0% per month, or the maximum permitted by law, whichever is less, plus all expenses of collection, on any unpaid balance.
- Users may not share their Subscriptions or Trial subscriptions with any other user.
8. Proprietary Rights
- As between UMM and you, UMM or its licensors own and reserve all right, title and interest in and to the Service and all hardware, software and other items used to provide the Service, other than the rights explicitly granted to you to use the Service in accordance with this Terms. No title to or ownership of any proprietary rights related to the Service is transferred to you pursuant to these Terms. All rights not explicitly granted to you are reserved by UMM.
9. Intellectual Property Rights
- This Agreement is not a sale and does not convey any rights of ownership in or related to the UMM Service, software, technology or Intellectual Property owned by UMM to the user of our Services.
- Our names, graphics, videos, logos, page headers, button icons, scripts, and service names are our trademarks or trade dress in the United States and/or other countries (collectively, the "Proprietary Marks"), are owned by UMM. You may not use the Proprietary Marks without our prior written permission.
- We make no proprietary claim to any third-party names, trademarks or service marks appearing on our Services. Any third-party names, trademarks, and service marks are property of their respective owners.
- The information, advice, data, software and content viewable on, contained in, or downloadable from our Services (collectively, "Our Content"), including, without limitation, all text, graphics, charts, pictures, photographs, images, videos, line art, icons and renditions, are copyrighted by, or otherwise licensed to us or Our Content suppliers.
- We also own a copyright of a collective work in the selection, coordination, arrangement, presentation, display and enhancement of Our Content (the "Collective Work").
- All software and technology used on, or within our Services, is our property or the property of our software vendors and is protected by United States and international copyright laws. Viewing, reading, printing, downloading or otherwise using Our Content and/or the Collective Work does not entitle you to any ownership or intellectual property rights to Our Content, the Collective Work, or the Software.
- You are solely responsible for any damages resulting from your infringement of our, or any third-parties, intellectual property rights regarding the Trademarks, Our Content, the Collective Work, the Software and/or any other harm incurred by us or our affiliates as a, direct or indirect, result of your copying, distributing, redistributing, transmitting, publishing or using the same for purposes that are contrary to the terms and conditions of this Agreement.
10. User Data and User Content Rights and Related Responsibilities; License
- "User Data" means, without limitation, any data, information or material provided or submitted by user to UMM in the course of utilizing the Service.
- "User Content" means, without limitation, any messages, texts, digital files, images, photos, artwork, videos, audio, comments, feedback, suggestions, reviews and documents, or other content you upload, transmit or otherwise make available to UMM and its users via the Services.
- All User Data and User Content submitted by user to the Service shall remain the sole property of user.
- By submitting User Data or User Content on or through the Service, you represent that you possess all necessary intellectual property rights to, and hereby grant us a perpetual, worldwide, non-exclusive, royalty-free, sub-licensable and transferable license to use, reproduce, distribute, prepare derivative works of, modify, and display all or any portion of the User Data or User Content in connection with UMM providing our Services.
- The user shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, copyright or license of all User Data or User Content.
- In order for us to provide the Service to you, we require that you grant us certain rights with respect to User Data and User Content, including the ability to transmit, manipulate, process, store and copy User Data and User Content in order to provide our Services. Your acceptance of this Agreement gives us the permission to do so and grants us any such rights necessary to provide the Service to you.
- UMM expressly disclaims any liability for the loss or damage to any User Data or User Content or any losses or damages you incur as a result of the loss or damage of any User Data or User Content. It is your responsibility to back-up any User Data and User Content to prevent it's loss.
- UMM may remove or return any User Data or User Content at any time for any reason or for no reason at all. We are not responsible for the authenticity, accuracy, appropriateness, or legality of User Data or User Content.
11. Data Storage
- UMM reserves the right to establish or modify its general practices and limits concerning storage of User Data and User Content.
- UMM reserves the right to provide and require an additional charge for data storage that exceeds the current maximum capacity available for an individual user.
- In the event that user terminates the Services, UMM will make a reasonable effort within 30 days of termination notice to provide user with a digital file of the User Data and User Content if user requests.
- UMM reserves the right to withhold, remove and/or discard User Data or User Content without notice, as a result of any breach or these Terms, including, without limitation, user's nonpayment for Services.
- Upon termination of the Services, user's right to access, or use, User Data or User Content immediately ceases, and UMM shall have no obligation to maintain or forward any User Data or User Content and may delete same 30 days after termination.
12. Suspension and Termination of Services
- We reserve the right to modify, suspend or terminate the Service or your access to the Service for any reason, without notice, at any time.
- Upon Suspension or Termination by UMM the Services shall terminate or be suspended and we will not be liable in respect of any damage caused by the termination or suspension of this Agreement.
- You can cancel your account at anytime. Upon termination or cancellation, all licenses and other rights granted to you in these Terms will immediately cease.
- Upon user termination or suspension, you will not be entitled to any refund of unused fees.
- Upon UMM termination, we may, at our sole discretion, issue a refund for the unused portion of your Subscription, although we have no obligation to do so.
- We reserve the right to refuse access to the service to anyone for any reason at any time.
13. Breach of Terms; Termination
- Any user breach or failure to comply with the terms of this Agreement, unauthorized use of UMM Services, or failure to pay for the Services as required by your Service plan shall be a material breach ("Material Breach") of this Agreement.
- Upon a Material Breach, UMM, in its sole discretion, may terminate user's password, account or use of the Service without any liability to the user.
- User agrees and acknowledges that UMM has no obligation to retain the user Data, and will delete such user Data, if user has materially breached this Agreement, including but not limited to failure to pay outstanding fees.
14. Interruption of Service
- Your access and use of our Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of our Services or other actions that we, in our sole discretion, may elect to take.
- You agree that we will not be liable to you or to any third party for any interruption of the Services or any part thereof.
15. Third Party Links, Services and Content
- You acknowledge that we are not responsible for such third party content or services and that we are not an agent of any third party, nor are we a direct party in any such transaction with a third party. Any such activities, and any terms associated with such activities, are solely between you and the applicable third party. Should you have any problems resulting from your use of any third party services, or should you suffer data loss or other losses as a result of problems with any of your other service providers or any third-party services, we will not be responsible unless the problem was the direct result of our actions.
16. Electronic Communications; Notice
- When you use our Services, you consent to communicating with us electronically. You also consent to receive communications from us electronically by email, text, SMS or otherwise.
- Although we may choose to communicate with you by regular mail, we may also choose to communicate with you by email, telephone, text, SMS or by posting notices on our Services.
- You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
- Notice by UMM to the user, or by the user to UMM, as required by any terms of this Agreement, shall be deemed to have been given upon the expiration of 48 hours after mailing (if sent by first class) or 12 hours after sending by email.
17. Electronic Transactions
- Your use of the services includes the ability to enter into agreements and/or to make transactions electronically including, without limitation, in-application purchases and other financial transaction. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by such agreements and transactions.
- Your agreement and intent to be bound by electronic submissions applies to all records relating to all transactions you enter into on this site, including in-application purchases, financial transactions, notices of cancellation, policies, contracts, and applications.
Violating the security of our Site, App or Service is prohibited and may result in criminal and civil liability. UMM may investigate incidents involving such violations and may involve, and will cooperate with law, enforcement if a criminal violation is suspected. Security violations include, without limitation, unauthorized access to or use of data or systems including any attempt to probe, scan, or test the vulnerability of the Service or Site or to breach security or authentication measures, unauthorized monitoring of data or traffic and interference with service to any user, host, or network.
19. Copyright Policy
We respect the intellectual property rights of others. We reserve the right to remove any User Content on the Services which allegedly infringes another person's copyright and/or terminate, discontinue, suspend and/or restrict the account or ability to visit and/or use the Services or remove, edit, or disable any User Content on the Services which allegedly infringes another person's copyright. We provide this policy pursuant to Section 512 of the Copyright Revision Act, as enacted through the Digital Millennium Copyright Act ("DMCA").
A valid complaint under the DMCA must provide the following information in writing:
- An electronic or physical signature of a person authorized to act on behalf of the copyright owner.
- Identification of the copyrighted work that you claim has been infringed.
- Identification of the material that is claimed to be infringing and where it is located on the Service.
- Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and, email address.
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law.
- A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
FEDERAL LAW PROVIDES THAT IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS' FEES.
The above information must be submitted to the following DMCA Agent:
20. DISCLAIMERS; NO WARRANTIES
- OUR CONTENT AND ALL SERVICES ARE PROVIDED TO YOU ON AN "AS-IS" AND "AS AVAILABLE" BASIS. WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF OUR SERVICES OR THE INFORMATION, CONTENT, MATERIALS OR SERVICES INCLUDED ON OR ASSOCIATED WITH OUR SERVICES. YOU EXPRESSLY AGREE THAT YOUR USE OF OUR SERVICES AND ALL PRODUCTS AND SERVICES INCLUDED ON OR ASSOCIATED WITH OUR SERVICES IS AT YOUR SOLE RISK.
- YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF OUR SERVICES.
- WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THIRD-PARTY SERVICE PROVIDERS THAT WE MAY USE IN THE OPERATION, PROCESSING AND ADMINISTRATION OF THE SERVICES.
- WE DO NOT MAKE, AND EXPRESSLY DISCLAIM, ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE SECURITY, ACCURACY, CORRECTNESS, OR COMPLETENESS OF THE CONTENT OR THE SERVICES AND PRODUCTS ASSOCIATED WITH OUR SERVICES, OR THE SAFETY, RELIABILITY, TITLE, TIMELINESS, COMPLETENESS, MERCHANTABILITY, CONFORMITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE CONTENT OR THE SERVICES AND PRODUCTS ASSOCIATED WITH OUR SERVICES.
- WE MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE THAT THE CONTENT OR SOFTWARE THAT MAY BE AVAILABLE FOR DOWNLOADING FROM OUR SERVICES IS FREE OF INFECTION FROM ANY VIRUSES, MALICIOUS SOFTWARE OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, DETRIMENTALLY INTERFERE WITH, SURREPTITIOUSLY INTERCEPT OR EXPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION.
- WE DISCLAIM ANY RESPONSIBILITY FOR THE DELETION, FAILURE TO STORE, MISS DELIVERY, OR UNTIMELY DELIVERY OF ANY DATA OR CONTENT, INFORMATION OR MATERIAL.
- WE MAKE NO REPRESENTATIONS THAT OUR SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN ANY JURISDICTIONS. WHEN YOU ACCESS OR USE OUR SERVICES FROM A JURISDICTION, THEN YOU DO SO BY YOUR OWN VOLITION AND ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
- SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
21. LIMITATIONS OF LIABILITY
- IN NO EVENT SHALL WE BE RESPONSIBLE TO, OR LIABLE TO, YOU, OR ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES THAT INCLUDE, BUT ARE NOT LIMITED TO, DAMAGES FOR ANY LOSS OF PROFIT, REVENUE OR BUSINESS, AS A DIRECT OR INDIRECT RESULT OF: (I) YOUR ACCESS AND USE OF OUR SERVICES; (II) YOUR BREACH OR VIOLATION OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; (III) YOUR DELAY IN ACCESSING OR INABILITY TO ACCESS OR USE OUR SERVICES FOR ANY REASON; (IV) YOUR DOWNLOADING OF ANY OF OUR SOFTWARE, CONTENT OR THE COLLECTIVE WORK FOR YOUR USE; OR (V) ANY DIGITAL DATA, IMAGES, PHOTOS, ARTWORK, VIDEOS, AUDIO, DOCUMENTS, INFORMATION, SOFTWARE, PRODUCTS OR SERVICES OBTAINED THROUGH OUR SERVICES, OR OTHERWISE ARISING OUT OF THE USE OF OUR SERVICES, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF WE AND/OR OUR SUPPLIERS HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
- THIS LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE WEBSITE, APP OR SERVICES, AND INCLUDE, WITHOUT LIMITATION, THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA.
- UMM MAY AT ANY TIME, IN ITS SOLE DISCRETION, DELETE ANY USER CONTENT WITHOUT INCURRING ANY LIABILITY FOR SUCH DELETION OR LOSS RESULTING FROM SUCH DELETION. UMM EXPRESSLY DISCLAIMS ANY LIABILITY FOR THE LOSS OR DAMAGE TO ANY USER CONTENT, USER DATA, OR ANY LOSSES OR DAMAGES YOU INCUR AS A RESULT OF THE LOSS OR DAMAGE OF ANY USER CONTENT OR USER DATA.
- WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL WE BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND THEIR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS OR NON-PERFORMANCE OF THIRD PARTIES.
- OUR LIABILITY AND THE LIABILITY OF OUR AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, INDEPENDENT CONTRACTORS, SHAREHOLDERS, REPRESENTATIVES, AND AGENTS ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY USER IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
- YOU SPECIFICALLY ACKNOWLEDGE THAT WE SHALL NOT BE LIABLE FOR ANY ILLEGAL ACTS OR CONDUCT OF ANY USER OR THIRD PARTY.
- YOU AND WE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO OUR SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
- CERTAIN STATE OR JURISDICTIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
- You agree that you will be personally responsible for your use of the Service and you agree to defend, indemnify and hold harmless UMM and its officers, directors, employees, consultants, affiliates, subsidiaries and agents from and against any and all claims, liabilities, damages, losses and expenses, including reasonable attorneys’ and accounting fees and costs, arising out of or in any way connected with (i) your access to, use of or alleged use of the Service; (ii) your violation of these Terms of Service or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party.
- We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim.
23. Our Remedies
- You acknowledge that we may be irreparably damaged if this Agreement is not specifically enforced, and damages at law would be an inadequate remedy. Therefore, in the event of a breach or threatened breach of any provision of this Agreement by you, we shall be entitled, in addition to all rights and remedies, to an injunction restraining such breach or threatened breach, without being required to show any actual damage or to post an injunction bond, and/or to a decree for specific performance of the provisions of this Agreement.
- For purposes of this Section, you agree that any action or proceeding with regard to such injunction restraining such breach or threatened breach shall be brought in the courts of record of the State of California, or a United States District Court for the State of California. You consent to the jurisdiction of such court and waive any objection to the venue of any such action or proceeding in such court.
24. Dispute Resolution
THIS AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. THIS AGREEMENT ALSO CONTAINS AN AGREEMENT THAT YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. PLEASE READ THE FOLLOWING TERMS CAREFULLY BEFORE ACCESSING OR USING ANY OF THE SERVICE. EACH TIME YOU ACCESS OR USE THE SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THE MANDATORY ARBITRATION PROVISION AND THE CLASS ACTION WAIVER YOU MAY NOT ACCESS OR USE THE SERVICE.
For any dispute you have with UMM, you agree to first contact us at email@example.com and attempt to resolve the dispute with us informally. If UMM has not been able to resolve the dispute with you informally, we each agree to resolve any claim, dispute, or controversy as follows:
- You and we agree that any claim or dispute at law or equity between us relating in any way to or arising out of this or previous versions of this Agreement, your use of or access to the Services will be resolved in accordance with the provisions set forth in this Legal Disputes section. Please read this section carefully. It affects your rights and will have a substantial impact on how claims you and we have against each other are resolved.
- Applicable Law. You agree that the laws of the State of California, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between you and us, except as otherwise stated in this Agreement.
- Agreement to Arbitrate. You and we each agree that any and all disputes or claims between you and us relating in any way to or arising out of this or previous versions of this Agreement, your use of or access to our Services, or any products or services delivered, sold, offered, or purchased through our Services shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify.
- Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OUR OTHER USERS.
- Arbitration Procedures. Arbitration is more informal than a lawsuit in court. There is no judge or jury in arbitration, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of this Agreement as a court would. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement to Arbitrate, any part of it, or of this Agreement including, but not limited to, any claim that all or any part of the Agreement to Arbitrate or this Agreement is void or voidable. The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules and procedures, including the AAA's Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this Agreement to Arbitrate. The arbitrator will decide the substance of all claims in accordance with the laws of the State of California, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving our other users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
- Judicial Forum for Legal Disputes. Unless you and we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in the State of California. You and we agree to submit to the personal jurisdiction of the courts located within California for the purpose of litigating all such claims or disputes. You also agree that: (i) our Services shall be deemed solely based in the State of California; and (ii) our Services shall be deemed passive Services that do not give rise to personal jurisdiction over us and our assigns, either specific or general, in jurisdictions other than the State of California.
25. Law Enforcement
- UMM is committed to cooperating with law enforcement while respecting each individual’s right to privacy. If UMM receives a request for user account information from a government agency investigating criminal activity, we will review the request to be certain that it satisfies all legal requirements before releasing information to the requesting agency.
- Furthermore, under 18 U.S.C. §§ 2702(b)(8) and 2702(c)(4) (Voluntary Disclosure Of Customer Communications or Records), UMM may disclose user account information to law enforcement, without a subpoena, court order, or search warrant, in response to a valid emergency when we believe that doing so is necessary to prevent death or serious physical harm to someone. UMM will not release more information than it prudently believes is necessary to prevent harm in an emergency situation.
26. Export Control
You acknowledge that the Service, or portion thereof including, without limitation, our software and technology, may be subject to the export control laws of the United States and administered by the U.S. Department of Commerce, the United States Department of Treasury, Office of Foreign Assets Control, and other U.S. agencies. You agree that you will not export, re-export, divert, transfer or disclose any portion of the Service or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.
27. Amendments to this Agreement
- We reserve the right to update, amend and/or change this Agreement at any time in our sole discretion.
- Updates to this Agreement will be posted here. Amendments will take effect immediately upon us posting the updated Agreement on our Services.
- Your continued use of the Services after any amendments to this Agreement are posted here shall constitute your acceptance to be bound by the terms and conditions of the revised Agreement.
- You are encouraged to revisit this Agreement from time to time in order to review any changes that have been made. The date on which this Agreement was last updated will be noted immediately below this Agreement.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and UMM as a result of this Agreement or your use of the Site or App.
If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable shall be stricken from this Agreement.
30. No Waiver
Our failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing.
UMM may assign this Agreement to (i) a parent or subsidiary, (ii) an acquirer of all of the assets of UMM, or (iii) a successor of UMM's interests by merger.
This Agreement may not be assigned by user without the prior written approval of UMM.
Any purported assignment in violation of this section shall be void.
All covenants, agreements, representations and warranties made in this Agreement, as may be amended by us, from time to time, shall survive your acceptance of this Agreement and the termination of this Agreement.
33. Entire Understanding
If you have questions, comments, concerns or feedback regarding this Agreement or our Services, please contact us firstname.lastname@example.org.
Last updated: May 1, 2017.