Terms of Service
Effective: November 1st, 2021
Ubyon Inc. (“Ubyon”) provides an enterprise Software-as-a-Service platform (the “Platform”) that enables companies to more securely manage their distributed workforce, and includes the certain executable software (the “Executable Code”), hardware devices on which the Executable Code is installed, if applicable (the “Hardware”), and related services provided and/or made available by Ubyon in connection with the Platform, Hardware and/or Executable Code (all of the foregoing, collectively, the “the Ubyon Services”). This terms of service agreement (the “Agreement”) set forth the legally binding term and conditions governing the access and use of the Ubyon Services.
IMPORTANT -- PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS GOVERNING ACCESS AND USE OF THE UBYON SERVICES. BY CREATING AN ACCOUNT FOR UBYON SERVICES, AND/OR USING OR ACCESSING THE UBYON SERVICES IN ANY MANNER, INCLUDING, BUT NOT LIMITED TO, ACCESSING OR USING THE PLATFORM, INSTALLING AND/OR USING THE EXECUTABLE CODE: (I) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW); (II) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW), ON BEHALF OF THE ENTITY OR PERSON IN RESPECT OF WHOM ACCESS AND USE OF THE UBYON SERVICES WAS OBTAINED (SUCH ENTITY OR PERSON, THE “COMPANY”); AND (III) YOU AGREE THAT COMPANY IS ENTERING INTO THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW) WITH UBYON USA, INC.
IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR DO NOT HAVE SUCH AUTHORITY, DO NOT CREATE AN ACCOUNT OR INSTALL THE EXECUTABLE CODE OR OTHERWISE ACCESS OR USE THE UBYON SERVICES (OR ANY PART THEREOF). THE EFFECTIVE DATE OF THIS AGREEMENT SHALL BE THE DATE THAT COMPANY ACCEPTS THIS AGREEMENT AS SET FORTH ABOVE OR IN ACCORDANCE WITH SECTION 17 (THE “EFFECTIVE DATE”).
ACCESS AND USE OF UBYON SERVICES
Access to the Ubyon Services.Subject to the terms of this Agreement, Ubyon hereby grants Company a personal, non-exclusive, non-transferable, non-sublicensable, revocable limited right during the Subscription Term (defined in Section 3.a below) to: (i) access and use, and permit its Authorized Users to access and use, the Platform, over the internet; and (ii) install, execute and use, and permit Authorized Users to install, execute and use, the Executable Code, in object code only, on computers owned and/or controlled by Company or the applicable Authorized User (each, an “Authorized Device”). The licenses and rights granted in this Section 1.a are limited to Company’s use of the Platform, Executable Code and Hardware solely for Company’s internal business purposes and in accordance with the applicable user documentation. “Authorized Users” means Company’s employees, contractors, and/or agents, whom Company has authorized to access and use the Ubyon Services in accordance with this Agreement.
Restrictions. Company agrees that Company will not, and it will not permit any third party (including, without limitation, any Authorized User) to: (i) modify, adapt, translate or create derivative works based on the Ubyon Services (or any part thereof), or any related documentation; (ii) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Executable Code and/or the Platform, except as expressly permitted by applicable law; (iii) distribute, license, sublicense, assign, transfer or otherwise make available to any third party the Ubyon Services (or any part thereof), or any related documentation; (iv) remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of Ubyon or its suppliers on or within the Executable Code, Platform and/or related documentation; (v) disassemble the Hardware; (vi) interfere with or disrupt the integrity or performance of the Ubyon Services (or any part therefor), or any system, network or data or cause or aid in the cause of the destruction, manipulation, removal, disabling, or impairment of any portion of the Ubyon Services; (vii) attempt to gain unauthorized access to the Ubyon Services (or any part thereof), or its related systems or networks; (viii) frame or utilize framing techniques to enclose Platform and/or Executable Code or any portion thereof; (ix) use any meta tags, “hidden text”, robots, spiders, crawlers, or other tools, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license or download the Platform, Executable Code, content, or the personal information of others without Ubyon’s prior written permission or authorization; (x) use the Ubyon Services (or any part thereof) to hack, spam, or phish Ubyon or Ubyon’s other users; or (xi) impersonate any person or entity, use a fictitious name, or falsely state or otherwise misrepresent Company’s affiliation with any person or entity.
Delivery of Hardware. If applicable, Ubyon will use commercially reasonable efforts to ship the Hardware on or before the quoted shipment date to Company, at which time risk of loss will pass to Company. In the absence of specific shipping instructions from Company, Ubyon will choose the method of shipment in its discretion. Company will pay all freight, insurance, and other shipping expenses. Ubyon will use reasonable efforts to notify Company of any anticipated or actual delay in delivery. Notwithstanding the foregoing, Ubyon shall not be liable for any liability, loss, damage, cost or expense incurred by Company or any other person or entity arising from or related to any failure by Ubyon to complete delivery of the Hardware hereunder. The Hardware will be deemed accepted upon delivery to Company or its Authorized User.
Open Source Software. The Executable Code and/or Platform may contain third party open source software components (“Open Source Components”). Such Open Source Components are not licensed under this Agreement, but are instead licensed under the terms of the applicable open source license. Company’s use of each Open Source Component is subject to the terms of each applicable license which are available to Company on request from Ubyon. Notwithstanding any provision herein to the contrary, Company is solely responsible for its compliance with such licenses. As used in this Agreement, “Executable Code,” and “Platform” does not include Open Source Components.
Changes and Modifications. Ubyon reserves the rights to either temporarily or permanently modify, suspend or discontinue the Ubyon Services (or any part thereof) with or without notice. Company agrees that Ubyon will not be liable to Company or to any third party for any modification, suspension or discontinuance of the Ubyon Services (or any part thereof).
User Data. Company understands and agrees that Ubyon may collect data and information, which may include Personal Data (as defined in Section 2.b), in connection with Company’s and/or its Authorized User’s use of the Ubyon Services (collectively, “User Data”). Company grants to Ubyon a non-exclusive, royalty-free, fully-paid, worldwide license to use and process User Data as reasonably necessary for Ubyon to provide Company the Ubyon Services hereunder. Company represents and warrants that it has all the rights necessary to grant Ubyon the licenses granted herein in and to User Data. Notwithstanding the foregoing, Company acknowledges and agrees that Ubyon may use any aggregated non-personally identifiable data or information collected or obtained from Company’s and/or its Authorized Users’ use of the Ubyon Services for any purpose.
Personal Data. Company acknowledges and agrees that, as between the parties, with respect to the collection, transmission, disclosure, processing and/or use of any personally identifiable data and/or information through or in connection with the use of the Ubyon Services (“Personal Data”), that is subject to any applicable laws, rules, or regulations pertaining to data privacy or data security (“Data Protection Laws”), Company is the data controller and Ubyon is merely a data processor and/or service provider as such terms are defined pursuant to Data Protection Laws. Personal Data provided to, or collected by, Ubyon in connection with Ubyon Services shall only be used in accordance with this Agreement and the Ubyon Privacy Notice located in https://www.ubyon.com/privacy. In addition, Company agrees to, at Ubyon’s request, execute and/or enter into any documents, agreements, statements, or policies reasonably deemed necessary or appropriate by Ubyon to comply with any Data Protection Laws with respect to any Personal Data.
Disclosures and Consents. Company acknowledges and agrees that it, and not Ubyon, is responsible for making all appropriate disclosures and for obtaining all necessary consents from its Authorized Users under Data Protections Laws and any other applicable laws and regulations that relate to the collection of date and/or information by the Ubyon Services. Company represents and warrants Personal Data that, with respect to any Personal Data collected, transmitted, hosted, stored or processed by Company and/or its Authorized Users, or otherwise disclosed, transferred, or provided to Ubyon, in connection with Company’s and its Authorized Users’ use of the Ubyon Services: (i) Company is in compliance, and will comply, with all Data Protection Laws and any other applicable laws and regulations, and (ii) Company has taken all steps necessary or required under Data Protection Laws, and any other applicable laws and regulations, to legally collect, transmit, host, store or process such Personal Data through the Ubyon Services or otherwise disclose, transfer or provide such Personal Data to Ubyon under this Agreement, including, without limitation, making all disclosures and/or providing notice to, and obtaining all permissions, consents and/or approvals from, each applicable data source (including, without limitation, Authorized Users).
Accounts. By registering for an account to access, or otherwise accessing and using the Ubyon Services under a Company’s account (an “Account”), Company agrees to provide and maintain up to date information that is true, accurate, current, and complete. Company agrees that Company will not create an Account or use the Ubyon Services if Company has been previously removed or banned by Ubyon from use of the Ubyon Services, or any part thereof. Company understands and agrees that Company is solely responsible for maintaining the confidentiality of and protecting Company’s and its Authorized User’s passwords for the Account. Company is solely responsible for any activity originating from its Account, regardless of whether such activity is authorized by Company. Company agrees to notify Ubyon immediately of any unauthorized use of its Account. Ubyon reserves the right to limit the number of Accounts that can be created from a computer or mobile device and the number of computer or mobile devices that can access an individual Account.
Authorized Users. Company shall not permit any person other than Authorized Users to access and use the Ubyon Services, and shall ensure that Authorized Users use the Ubyon Services solely in accordance with this Agreement. Company acknowledges and agrees that Company is solely responsible for the use of the Ubyon Services by Authorized Users, and any breach of this Agreement by any Authorized User will be deemed a breach by Company.
Authorized Devices. Company acknowledges and agrees that in order to use the Executable Code, Company and its Authorized Users must have a compatible Authorized Device. Company is solely responsible for determining whether or not it’s and/or its Authorized Users’ Authorized Device is or is not compatible with the Executable Code and/or the Hardware and Ubyon makes no representations or warranties whatsoever regarding the Executable Code and compatibility with any computer or mobile device.
SUBSCRIPTIONS; PAYMENT TERMS
Subscriptions. Ubyon will provide access to the Ubyon Services in accordance with the subscription plan purchased by Company from Ubyon (the “Subscription Plan”). Each Subscription Plan shall begin on the date Company purchased the Subscription Plan, or on the start date specified in the applicable order form entered into by Company and Ubyon for the purchase of a Subscription Plan, and continue for the applicable subscription period selected by Company for such Subscription Plan (the “Subscription Term”). The Subscription Term shall automatically renew for successive periods equal to the initial Subscription Term, unless Company provides us with written notice of non-renewal or termination prior to the expiration of Company’s then-current Subscription Term. Notwithstanding the forgoing, Company may terminate the Subscription Term for any licenses to alpha or beta versions or features of the Ubyon Services at any time.
Fees. Company shall pay the applicable fees, if any, for the Subscription Plan purchased by Company. Except as otherwise set forth in this Agreement, the fees payable by Company for the Subscription Plan will remain fixed during the Subscription Term unless Company (i) exceeds the permitted user seats or other applicable usage limits of the Subscription Plan, (ii) upgrades the Subscription Plan, and/or (iii) subscribes to additional features or products. In the event a price change applies, Company will be charged at the start of the next billing cycle for such additional fees. For the avoidance of doubt, Company acknowledges and agrees that any downgrade to the Subscription Plan shall not take effect until the next renewal date of the applicable Subscription Term, regardless of Company’s billing cycle for such Subscription Plan (i.e. for monthly Subscription Plans, prior to the start of the next month, and for annual Subscription Plans, prior to the start of the next year). Subscriptions Plans shall renew at Ubyon’s then-current pricing for such Subscription Plan unless otherwise agreed upon in writing by Ubyon or Company.
Payment Terms. All fees are due and payable by Company in advance, unless otherwise expressly and mutually agreed to by Company and Ubyon in writing. Company expressly agrees that Ubyon is permitted to bill Company the applicable fees, any applicable tax and any other charges Company may incur with Ubyon in connection with such Subscription Plan, and Company hereby authorizes Ubyon to charge the fees to the credit card, or other payment method, Company provides at the time the Subscription Plan is purchased, in accordance with the billing terms in effect at the time a fee or charge is due and payable. If payment is not received or cannot be charged to Company for any reason in advance, Ubyon reserves the right to suspend or terminate Company’s and its Authorized User’s access to the Ubyon Services, downgrade the Subscription Plan and/or terminate this Agreement. All fees are non-refundable and non-cancellable.
Taxes. The fees are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”), and Company is and shall be responsible for payment of all such taxes (other than taxes based on Ubyon’s income), and any related penalties and interest, arising from the payment of the fees, the delivery of the Ubyon Services, or performance of any services by Ubyon hereunder.
Term. The term of this Agreement commences on the Effective Date and will remain in effect during the applicable Subscription Term (including any renewal thereof), or until terminated in accordance with this Agreement (whichever is sooner).
Termination. Company may terminate this Agreement and the applicable Subscription Plan by (i) providing Ubyon written notice of such termination to firstname.lastname@example.org; subject line: Notice of Termination, or by terminating the Account through the interface of the Platform and/or Executable Code; and (ii) permanently deleting and erasing the Executable Code from each Authorized Device. At any time, Ubyon may (i) suspend or terminate Company’s and/or any Authorized User’s right to access or use the Ubyon Services (or any part thereof), or (ii) terminate this Agreement with respect to Company if Ubyon, in good faith, believes that Company has used the Ubyon Services (or any part thereof) in violation of this Agreement, including any incorporated guidelines, terms or rules. No refunds are provided upon termination.
Effect of Termination. Upon termination of this Agreement for any reason, all outstanding fees immediately becoming due and payable, and Company’s and its Authorized Users’ right to access and use the Ubyon Services will automatically terminate. Company will immediately delete and permanently erase all copies of the Executable Code from Authorized Devices in Company’s or any Authorized User’s possession or control upon termination of this Agreement for any reason. The following Sections will survive any termination or expiration of this Agreement: 1.a, 1.d, 1.e, 2, 3, 4.c and 5 through 18.
Ownership. Ubyon and/or its licensors and suppliers, as applicable, retain all right, title, and interest in and to the Hardware, and the Platform and Executable Code (including, any and all copies thereof), and any other materials (including related documentation) or services provided by Ubyon, and all aspects thereof, including all patents, copyrights, trade secrets, and other intellectual property rights incorporated therein. Ubyon and its licensors and suppliers reserve all rights and licenses not expressly granted to Company under this Agreement, and no implied licenses or rights are granted by Ubyon. Title to the Executable Code, and the Platform shall not pass from Ubyon to Company.
Feedback. Company acknowledges that any ideas, inventions, suggestions for improvement or discussions submitted by Company regarding any aspect of the Ubyon Services, including, without limitation, the functioning, features, and other characteristics thereof (or any component thereof) (“Feedback”) that are not already subject to third party intellectual property rights may be used by Ubyon or any other user of the Ubyon Services without compensation or attribution, and Company hereby grants to Ubyon, its subsidiaries, affiliates and partners a worldwide, irrevocable, royalty free, non-exclusive, sublicensable and transferable license under all intellectual property rights in the Feedback for any purpose.
Company shall indemnify, defend, and hold Ubyon and its affiliates and subsidiaries, and their respective officers, directors, shareholders, employees, contractors, agents, successors and assigns (collectively, “Ubyon Indemnified Parties”), harmless from and against any and all liability, losses, claims, expenses (including reasonable attorneys’ fees), demands or damages of any kind, arising out of or related to (i) Company’s or any Authorized User’s breach of this Agreement; (ii) User Data, or a violation of Data Protection Laws, or any other applicable laws and regulations by Company; (iii) failure to give sufficient notice to, or obtain sufficient consent from, applicable data sources with respect to the collection, use, processing and disclosure of Personal Data, including, without limitation, Authorized Users; (iv) Company’s or its Authorized Users’ use of the Ubyon Services; and/or (v) Company’s gross negligence, fraudulent misrepresentation, or willful misconduct. Ubyon shall promptly notify Company in writing of such action, give Company sole control of the defense thereof and any related settlement negotiations, and, at Company’s reasonable request and expense, cooperate and assist in such defense. Under no circumstances shall Company enter into any settlement that involves an admission of liability, negligence or other culpability of any Ubyon Indemnified Party or requires any Ubyon Indemnified Party to contribute to the settlement without Ubyon’s prior written consent. Ubyon and any Ubyon Indemnified Party may participate and retain its own counsel at its own expense.
THE UBYON SERVICES (AND ANY PART THEREOF) AND ANY OTHER MATERIALS OR SERVICES PROVIDED BY UBYON, ARE PROVIDED “AS IS” AND “AS AVAILABLE”. UBYON AND ITS LICENSORS AND SUPPLIERS HEREBY EXPRESSLY DISCLAIM ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, SATISFACTORY PURPOSE, ACCURACY, OR NON-INFRINGEMENT. UBYON AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT OR MAKE ANY GUARANTEE THAT DEFECTS WILL BE CORRECTED OR THAT UBYON SERVICES (OR ANY PART THEREOF), THE REPORTS, OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY UBYON OR CONTENT MADE AVAILABLE THROUGH UBYON SERVICES: (I) WILL MEET COMPANY’S REQUIREMENTS; (II) WILL BE COMPATIBLE WITH COMPANY’S NETWORK, COMPUTER OR MOBILE DEVICE, OR ANY THIRD PARTY PRODUCTS OR SERVICES; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. COMPANY EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE USE OF THE UBYON SERVICES, THE REPORTS, AND ALL RESULTS OF SUCH USE, IS SOLELY AT COMPANY’S OWN RISK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY COMPANY FROM UBYON, ANY THIRD PARTY, OR THOUGH UBYON SERVICES, SHALL CREATE ANY WARRANTY.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (I) IN NO EVENT SHALL UBYON BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL OR INCIDENTAL OR OTHER DAMAGES RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE ACCESS, USE OF, OR INABILITY TO ACCESS OR USE THE UBYON SERVICES (OR ANY PART THEREOF), THE REPORTS, AND/OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY UBYON, EVEN IF UBYON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES EXCEPT TO THE EXTENT SUCH DAMAGES ARISE DIRECTLY AND SOLELY FROM WILLFUL MISCONDUCT OR GROSS NEGLIGENCE ON THE PART OF UBYON, AND (II) IN NO EVENT SHALL UBYON’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT OR THE ACCESS, USE OF, OR INABILITY TO ACCESS OR USE THE UBYON SERVICES (OR ANY PART THEREOF), THE REPORTS, AND/OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY UBYON EXCEED THE GREATER OF THE SUBSCRIPTION FEES PAID OR PAYABLE TO UBYON BY COMPANY HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE CAUSE OF ACTION, OR ONE HUNDRED DOLLARS ($100.00). UBYON DISCLAIMS ALL LIABILITY OF ANY KIND OF UBYON’S LICENSORS AND SUPPLIERS.
APPLICATION OF LIMITATIONS AND DISCLAIMERS TO CONSUMERS
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages with respect to consumers (i.e., a person acquiring goods otherwise than in the course of a business), so the exclusions set forth in Sections 7 and 8 above may not apply to Company if Company is a consumer. The limitations or exclusions of warranties and liability contained in this Agreement do not affect or prejudice the statutory rights of a consumer. The limitations or exclusions of warranties and remedies contained in this Agreement shall apply to Company as a consumer only to the extent such limitations or exclusions and remedies are permitted under the laws of the jurisdiction where Company is located.
BASIS OF THE BARGAIN
The warranty disclaimer and limitation of liability set forth above in Section 7 and 8 are fundamental elements of the basis of the agreement between Ubyon and Company. Ubyon would not be able to provide the Ubyon Services on an economic basis without such limitations. The warranty disclaimer and limitation of liability inure to the benefit of Ubyon’s suppliers.
Notwithstanding anything in this Agreement to the contrary, Ubyon will have no responsibility or liability of any kind under this Agreement or otherwise, arising or resulting from: (i) problems caused by failed Internet connections or other hardware, software or equipment which is not owned, controlled or operated by Ubyon; (ii) nonconformities resulting from Company’s or any Authorized User’s, or any third party’s misuse, abuse, negligence, or improper or unauthorized use of all or any part of the Ubyon Services, or other services provided hereunder by Ubyon; (iii) modification, amendment, revision, or change to the Ubyon Services, or any part thereof, by any person other than Ubyon; or (iv) any other factor outside of Ubyon’s reasonable control.
AVAILABILITY OF THE SERVICES
Information describing the Ubyon Services is accessible worldwide but this does not mean the Ubyon Services, or certain portions thereof, are available in Company’s country. Ubyon may restrict access to the Ubyon Services, or portions thereof, in certain countries in its sole discretion. It is Company’s responsibility to make sure Company’s use of the Ubyon Services is legal in Company’s country of residence. The Ubyon Services may not be available or accessible in all languages. If at Ubyon’s reasonable determination, Company uses the Ubyon Services or any other material or services provided by Ubyon to Company in a manner that violates laws, creates an excessive burden or potential adverse impact on Ubyon’s systems, in addition to any of its other rights or remedies, Ubyon may, without liability to Ubyon, immediately suspend or terminate Company’s access to the Ubyon Services.
Company may not use or otherwise export or re-export the Executable Code, Hardware and/or Platform (or any aspect of the foregoing) except as authorized by United States law and the laws of the jurisdiction in which the Executable Code, Hardware and/or Platform was obtained. In particular, but without limitation, the Executable Code, Hardware and Platform may not be exported or re-exported (i) into any U.S. embargoed countries or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Ubyon Services, Company represents and warrants that Company is not located in any such country or on any such list.
By using the Ubyon Services, Company consents to receiving electronic communications from Ubyon. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to Company’s use of the Ubyon Services. These electronic communications are part of Company’s relationship with Ubyon and Company receive them as part of Company’s access and use of the Ubyon Services. Company agrees that any notices, agreements, disclosures or other communications that Ubyon sends Company electronically will satisfy any legal communication requirements, including that such communications be in writing.
GOVERNING LAW AND DISPUTE RESOLUTION
Governing Law. This Agreement will be governed by the laws of the State of California, United States of America without giving effect to any conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods in its entirety is expressly excluded from this Agreement, including, without limitation, application to the Executable Code, Platform, or any software and services provided hereunder. Furthermore, this Agreement (including without limitation, the Executable Code, Platform and any software and services provided hereunder) will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA.
Disputes. Except as otherwise set forth in this Agreement, Company agrees that any dispute between Company and Ubyon arising out of or relating to this Agreement, the Ubyon Services (or any part thereof) (collectively, “Disputes”) shall be governed by the provisions set forth in this Section.
Informal Resolution. Before resorting to formal dispute resolution in accordance with this Section, Company agrees to first contact Ubyon directly at email@example.com to seek an informal resolution to any Dispute. In the event a Dispute is not resolved within thirty (30) days after submission, Company or Ubyon may institute arbitration in accordance with the procedures set forth in this Section.
Dispute Resolution. Any and all Disputes that cannot be resolved through informal resolution in accordance with Section 15.c above shall be resolved exclusively through final, binding and confidential arbitration and shall take place in Santa Clara, California unless otherwise mutually agreed to by the parties. The arbitration shall be conducted under the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (AAA) as such rules are then prevailing, provided that the arbitrator and the parties shall comply with the following: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator shall be binding, final, and confidential, and may be entered in any court of competent jurisdiction.
Exception to Arbitration. Notwithstanding anything in this Agreement to the contrary to the extent Company and/or any Authorized User has in any manner violated or threatened to violate any of Ubyon’s intellectual property rights, Ubyon may seek injunctive or other appropriate relief in any state or federal court with competent jurisdiction in any country, including in the State of California, United States of America, without first engaging in arbitration or the informal dispute process set forth in this Section, and Company hereby consents to the personal jurisdiction and exclusive venue in such courts.
THIRD PARTY RIGHTS
Third Party Rights. This Agreement is not intended to grant rights to anyone except Company and Ubyon, and in no event shall this Agreement create any third party beneficiary rights. Furthermore, the rights to terminate, rescind, or agree to any variation, waiver, or settlement of this Agreement are not subject to the consent of any other person.
MODIFICATIONS TO THIS AGREEMENT
Ubyon reserves the right to update or modify this Agreement at any time. The revised Agreement will be posted on Ubyon’s website located at www.ubyon.com (the “Site”). All updates and modifications to this Agreement will be effective from the day they are posted on the Site (except as otherwise stated in this Section 17). If Ubyon makes any material changes to this Agreement, Ubyon will notify Company of these changes by posting a notice of the changes on the Site and through the user interface of the Platform and/or Executable Code. It is Company’s responsibility to regularly visit and review this Agreement. If Company does not agree to any updates or modifications to this Agreement, Company may terminate cease access and use of the Ubyon Services. Company’s continued use of the Ubyon Services after Ubyon has posted the updated Agreement, or, in the event of material changes, ten (10) days following the date Ubyon first notified Company of such material changes either through email or the date Ubyon posted the notice of such changes on the Site or through the user interface of the Platform and/or Executable Code, signifies Company’s acknowledgment and agreement to be bound by the revised Agreement.
Neither the rights nor the obligations arising under this Agreement are assignable by Company, and any such attempted assignment or transfer shall be void and without effect. Any waiver of any provision of this Agreement must be in writing and executed by both parties. The failure of either party to exercise any right provided for by this Agreement shall not be deemed a waiver of that right. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, that provision shall be stricken from this Agreement and shall not affect the legality, enforceability or validity of the remainder of the provisions set forth in this Agreement. The parties acknowledge and agree that they are dealing with each other as independent contractors and nothing in this Agreement and its performance shall be construed as creating a joint venture or agency between Ubyon and Company. Ubyon may delegate the performance of any services hereunder to its affiliates and contractors. This Agreement and any other policies or terms and condition referenced herein, constitute the entire agreement between the parties regarding the subject matter, and supersedes all prior oral or written agreements or communications with regard to the subject matter described. Any notice to Company may be provided by email. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.” Company agrees that this Agreement will not be construed against Ubyon by virtue of having drafted them. The official text of this Agreement (and any notice submitted hereunder) will be in English. The parties acknowledge that they require that this Agreement be drawn up in the English language only. In the event of any dispute concerning the construction or meaning of this Agreement, reference will be made only to this Agreement as written in English and not to any translation into another language. Any delay in performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, telecommunications or Internet failure, or any other event beyond the reasonable control of such party.
QUESTIONS AND ADDITIONAL INFORMATION
Please feel free to contact Ubyon at firstname.lastname@example.org if you have any questions about this Agreement.