Terms of Service
Effective: May 22, 2017.
1. Acceptance of Terms.
- Notifuse, Inc. (“UTM6”) provides Services (defined below) to you subject to this Terms of Service (“TOS”) agreement. By accepting this TOS, or by accessing or using the Service, or our site https://utm6.com (“Site”), you acknowledge that you have read, understood, and agree to be bound by this TOS. If you are entering into this TOS on behalf of a business or other legal entity, you represent that you have the authority to bind the entity and its affiliates to this TOS, in which case the terms “you” or “your” shall refer to the entity and its affiliates. If you do not have such authority, or if you do not agree with this TOS, you must not accept this TOS and may not use the Service.
- UTM6 may modify this TOS at any time. While UTM6 will make efforts to notify you when we make changes, you shall assume all responsibility for reviewing the TOS periodically so you are apprised of any changes. If you continue to use any Service or Site after changes to the TOS are posted, you are signifying your acceptance of the terms, including those that may have changed. If any change to this TOS is not acceptable to you, your only remedy is to terminate services per Section 7.
- THIS TERMS OF SERVICE CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT, (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST UTM6 ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
2. Description of Service.
The “Service” includes (a) the Site, (b) UTM6’s application program interfaces and related materials (the “API” or “APIs”) and (c) all software (“the Software”) (including all software, integrations, and user interfaces made available by UTM6), data (including personally identifiable information – “Personal Data”), reports, text, images, sounds, video, and content made available through any of the foregoing (collectively referred to as the “Data”). Any new features added to or augmenting the Service are also subject to this TOS. All paid plans executed through Site (“Subscription”) and/or separately executed Order Forms (“Order Form”) fall under this TOS unless otherwise specified.
3. General Conditions/ Access and Use of the Service.
- Subject to the terms and conditions of this TOS, UTM6 grants you a non-exclusive, non-sublicensable, non-transferable license to access and use the Services only for lawful purposes.
- You shall not (a) sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Service available to any third party; (b) use the Service in any unlawful manner (including without limitation in violation of any CAN-SPAM, Telephone Consumer Protection Act, data privacy or export control federal, state, provincial and national laws or regulations) or in any manner that interferes with or disrupts the integrity or performance of the Service or its components, (c) use the Service with any products, services, or materials that constitute, promote or are used primarily for the purpose of dealing in: libelous, defamatory, obscene, pornographic, abusive or otherwise illegal or offensive content; spyware, adware, or other malicious code; counterfeit goods; items subject to US embargo; unsolicited mass distribution of email or multi-level marketing proposals; hate materials; hacking/surveillance/interception/descrambling equipment; or stolen products or items used for theft or (d) modify, adapt or hack the Service to, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks or (e) use the API or the Data in any manner that violates the rights of any person, including but not limited to intellectual property rights, rights of privacy or rights of publicity. You shall comply with any codes of conduct, policies or other notices UTM6 provides you or publishes in connection with the Service, and you shall promptly notify UTM6 if you learn of a security breach related to the Service. All rights, title and interest in and to the Service and its components will remain with and belong exclusively to UTM6. You are responsible for usage limits set forth in the Order Form and/or Subscription. UTM6 reserves the right to bill overages, cancel your subscription, or revoke access if limits are not maintained. For use of Site and the Software without limiting the foregoing, you will access the Data solely on a transactional basis. You shall not (and shall not allow any third party to): (a) present the Data so that it appears to be made available by any third party; (b) access the Data in bulk, redistribute, or resell the Data. You are responsible to purchase the sufficient number of seats and access for your usage and company. Only one seat may be used per person for all seat or license-based services. Any individual Software-specific terms are additive to this TOS. For use of API Service, you will access the Data solely on a transactional basis. You shall not (and shall not allow any third party to) present the Data so that it appears to be made available by any third party. Non-paid users of UTM6 are expressly forbidden from caching or otherwise storing the Data. UTM6 grants unique license to use the API solely to (i) develop, reproduce and distribute applications or implementations that interoperate with the API (each a “Your Application”), and (ii) display any Data made available by UTM6 through the API solely to end users via Your Application. Your end users are subject to the terms and conditions of this TOS. UTM6 reserves the right to adjust limit the number and/or frequency of API requests in its sole discretion.
- Further, you shall not (and shall not allow any third party to): (a) transfer to or use the Data (in aggregate form or otherwise) except as expressly authorized under this TOS or by UTM6, copy, disclose, rent, lease, sell, transfer, distribute, assign, sublicense, disassemble, reverse engineer or decompile (except to the limited extent expressly authorized by applicable statutory law), modify or alter any part of the API or Data. You may not use any part of the Service or Data in any manner that competes with UTM6, as solely determined by UTM6.
- Privacy Shield Compliance. You shall use any Personal Data downloaded, accessed or otherwise received though the Service solely in connection with your use of the Service in accordance with this TOS. You represent, warrant, and covenant that you shall process any and all Personal Data for this limited and specified purpose, consistent with any consent provided by the individual to whom Personal Data relates, and that you shall process all Personal Data in compliance with the EU-U.S. Privacy Shield (the “Privacy Shield”) framework as set forth by the U.S. Department of Commerce regarding the transfer of personal information from the EU to the U.S. Such compliance shall include, but not be limited to: (i) compliance with the Privacy Shield Principles of Notice, Choice, Accountability for Onward Transfer, Security, Data Integrity and Purpose Limitation, Access, and Recourse, Enforcement and Liability (“Privacy Shield Principles”); (ii) providing the same level of protection for Personal Data required by the Privacy Shield Principles; (iii) timely notification to UTM6, but in any event no less than ten (10) business days’ notice, if you determine that you can no longer meet your data protection obligations pursuant to this section (Privacy Shield Compliance), in which case you will cease processing Personal Data (or you will take other reasonable and appropriate remedial steps). Upon receiving such notice, or upon any breach of this section (Privacy Shield Compliance), UTM6 may immediately terminate your account and this TOS upon written notice to you.
- Subject to the terms hereof, UTM6 hereby grants you a non-exclusive, non-sublicensable right to display the UTM6 logos, trademarks and other identifiers provided by UTM6 (collectively, the “UTM6 Marks”), solely for the purposes in connection with your use of the Service and Data. Further, you will abide by any requests by UTM6 regarding your use of the UTM6 Marks if UTM6 determines that your use thereof does not comply with UTM6’s quality control standards. All use of the UTM6 Marks in any jurisdiction will inure to the sole benefit of UTM6.
- Any commercial or non-internal use of free Services require link attribution as determined at sole discretion of UTM6. It is your responsibility to notify UTM6 at firstname.lastname@example.org if you are using any services for commercial or non-internal use.
- Any Software or data that may be made available by UTM6 in connection with the Service contains proprietary and confidential information that is protected by applicable intellectual property and other laws. You agree not to access the Service by any means other than through the interface that is provided by UTM6 for use in accessing the Service. Any rights not expressly granted herein are reserved and no license or right to use any trademark of UTM6 or any third party is granted to you in connection with the Service.
- You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you upload, post, deliver, provide or otherwise transmit or store (hereafter “post(ing)”) in connection with or relating to the Service (“Your Content”). You may not claim ownership of content that: (i) was known to a receiving party without restriction before receipt from the disclosing party; (ii) is publicly available through no fault of the receiving party; (iii) is rightfully received by the receiving party from a third party without a duty of confidentiality; or, (iv) is independently developed by the receiving party without reference to Your Content.
- You are responsible for maintaining the confidentiality of your login, password and account and for all activities that occur under your login or account. UTM6 reserves the right to access your account in order to respond to your requests for technical support. UTM6 shall also have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services (including, without limitation, information concerning Your Content and data derived therefrom), and UTM6 shall be free (during and after the term hereof) to (i) use such information and data to develop and improve (including for diagnostic and corrective purposes) the Services and other UTM6 offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. UTM6 has the right, but not the obligation, to monitor the Service or Your Content. You further agree that UTM6 may remove or disable any Your Content or any Data at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to the foregoing), or for no reason at all.
- UTM6 will make best efforts to operate using secure, stable processes. You understand that the operation of the Service, including Your Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to UTM6’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. UTM6 will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.
- You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). You shall be responsible for ensuring that such Equipment is compatible with the Services (and, to the extent applicable, the Software) and complies with all configurations and specifications set forth in UTM6’s published policies then in effect. You shall also be responsible for maintaining the security of the Equipment, your Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your Account or the Equipment with or without your knowledge or consent.
- The failure of UTM6 to exercise or enforce any right or provision of this TOS shall not be a waiver of that right. You acknowledge that this TOS is a contract between you and UTM6, even though it is electronic and is not physically signed by you and UTM6, and it governs your use of the Service.
- UTM6 reserves the right to use your name and/or UTM6 name and logo/assets as a reference for marketing or promotional purposes on UTM6’s website and in other communication with existing or potential UTM6 customers.
- Subject to the terms hereof, UTM6 may (but has no obligation to) provide technical support services, through email in accordance with our standard practice.
To the extent the Service or any portion thereof is made available for any fee, you will be required to select a Subscription and/or execute an Order Form and provide UTM6 information regarding your credit card or other payment instrument. You represent and warrant to UTM6 that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay UTM6 the amount that is specified in the payment plan in accordance with the Subscription or Order Form and this TOS. You hereby authorize UTM6 to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred. If you dispute any charges you must let UTM6 know within thirty (30) days after the date that UTM6 invoices you. We reserve the right to change UTM6’s prices. If UTM6 does change prices, UTM6 will provide notice of the change on the Site or in email to you, at UTM6’s option, at least 14 days before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount. UTM6 may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by UTM6 thirty (30) days after the mailing date of the invoice, or the Services may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. You shall be responsible for all taxes associated with Services other than U.S. taxes based on UTM6’s net income.
5. Representations and Warranties.
You represent and warrant to UTM6 that (i) you have full power and authority to enter into this TOS; (ii) you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in your posting and other activities (and allow UTM6 to perform its obligations) in connection with the Services without obtaining any further releases or consents; (iii) Your Content and other activities in connection with the Service, and UTM6’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and (iv) you are eighteen (18) years of age or older.
You have the right to terminate your account at any time via self-service on UTM6.com OR by sending a cancellation request to email@example.com. Subject to earlier termination as provided below, UTM6 may terminate your Account and this TOS at any time by providing seven (7) days prior notice to the administrative email address associated with your Account. In addition to any other remedies we may have, UTM6 may also terminate this TOS upon fourteen (14) days’ notice (or seven (7) days in the case of nonpayment), if you breach any of the terms or conditions of this TOS. UTM6 reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof). All of Your Content on the Service (if any) may be permanently deleted by UTM6 upon any termination of your account in its sole discretion. However, all accrued rights to payment and the terms of Section 4-12 shall survive termination of this TOS. Subscriptions will automatically renew at the end of the billing period and/or follow the specifics set forth in Order Form.
7. DISCLAIMER OF WARRANTIES.
The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by UTM6 or by third-party providers, or because of other causes beyond our reasonable control. HOWEVER, THE SERVICE, INCLUDING THE SITE, SERVICE, API AND ANY DATA PROVIDED IN CONNECTION THEREWITH, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND UTM6 EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT UTM6 DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE DATA OR RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM UTM6 OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
8. LIMITATION OF LIABILITY.
- UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL UTM6 BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST CONTENT OR DATA, OR (B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE to YOUR CLAIM or, IF NO FEES APPLY, one hundred ($100) U.S. dollars. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS.
- Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, UTM6’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You shall defend, indemnify, and hold harmless UTM6 from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from, or in connection with, your breach of this TOS, any of Your Content, or your other access, contribution to, use or misuse of the Service. UTM6 shall provide notice to you of any such claim, suit or demand. UTM6 reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting UTM6’s defense of such matter.
10. U.S. Government Matters.
You may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the software and documentation installed by UTM6 on your Equipment (if applicable) are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this TOS and will be prohibited except to the extent expressly permitted by the terms of this TOS.
You may not assign this TOS without the prior written consent of UTM6, but UTM6 may assign or transfer this TOS, in whole or in part, without restriction.
If any provision of this TOS is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this TOS will otherwise remain in full force and effect and enforceable. Both parties agree that this TOS, together with any Order Form and/or subscription plan, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this TOS, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this TOS and you do not have any authority of any kind to bind UTM6 in any respect whatsoever. In any action or proceeding to enforce rights under this TOS, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this TOS will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
13. Governing Law.
This TOS shall be governed by the laws of the State of California without regard to the principles of conflicts of law. Unless otherwise elected by UTM6 in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of California for the purpose of resolving any dispute relating to your access to or use of the Service.