UBME, INC.
TERMS AND CONDITIONS OF USE
Effective Date: January 25, 2017
Welcome to UBME!
These terms and conditions of use (this
“Agreement” or “Terms”) contain the complete terms and conditions applicable to
your (“you” or “your”) access to and use of the services and features available
on UBME, Inc’s (“Company”, “we”, “us” or “our”) website and domains, including at
www.UBMe.com and all of its webpages, subdomains, country level domain variants
and subparts of those websites (collectively, our “Site”), services available
through our mobile application (the “App”) as well as any software that we
provide to you that allows you to access either our Site or App (collectively,
the “Services”),
and
any information, text, graphics, photos or other materials posted or submitted
on or through our Services (“Content”)
.
YOUR USE OF OUR SERVICES CONSTITUTES ACCEPTANCE AND ACKNOWLEDGMENT OF
THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IMPORTANT NOTE
: This Agreement contains a dispute
resolution and arbitration provision, including class action waiver, which
affects your rights under these Terms and with respect to any dispute you may
have with the Company. You may opt out of the binding individual arbitration
and class action waiver as provided below.
Changes. Company may change, update, or
add or remove provisions of these Terms at any time by posting the updated
Terms on the App or the Site, by posting a notice on the Site, via email, text
message, or through in-App notifications. By using the Services after we have
updated the Terms, you are agreeing to all the updated Terms; if you do not
agree with any of the updated Terms, you must stop using the Services.
Users. Through our Services, we provide
simple and quick means for registered users to connect with their community,
other users, or events that they or someone else has created.We refer to event organizers, attendees, and
any other visitors or browsers of the Services collectively as “Users” or “you.”
Incorporation by Reference. These Terms and
the rights and obligations contained herein are in addition to and incorporate
the Privacy Policy by reference,
1.General
. You are
responsible for your use of the Services, for any Content you post to the Services,
and for any consequences arising out of your use of the Services.Much, if not all, of the Content that you post
on the Services will be viewable by Users or through third party services and
websites, and you should only provide Content that you are comfortable sharing
with others under this Agreement.
You acknowledge that the Services may not be
available in all locations, and we may block access to the Services from
certain locations based on your device’s geolocation information. We may add to
or remove the areas in which the Services are not available at any time,
without notice to you.
You acknowledge that the Services are evolving and
that their form and nature may change from time to time without notice to you.
In addition, we may stop (permanently or temporarily)
providing either the Website or App, or any features within the Services) to you
or to Users generally at our sole discretion and may not be able to provide you
with prior notice.
2.
Access
and Use Terms
.
(a)General Access and Use Rights.Company hereby grants you a personal,
non-exclusive, non-transferable, non-sublicensable, revocable, limited right to
access or use the Services solely for the purposes of (a) browsing the Services
and searching for, viewing, registering for or purchasing tickets or making
donations to an event that is registered on the Services; (b) communicate with
other Users via our Services pursuant to this Agreement; or (c) if you are an event
organizer, creating event registration, featured guest profile, organizer
profile, fundraising and other webpages with respect to, and promoting,
managing, tracking, and collecting sales proceeds for an event, in each case
(i) in compliance with this Agreement; and (ii) to the extent permitted under
all applicable local, state, provincial, national and other laws, rules and
regulations.
Notwithstanding
the foregoing, you shall not, and shall not permit anyone else to, directly or
indirectly (a) copy, modify, reproduce, translate, localize, port or otherwise
create derivatives of any part of the Services; (b) reverse engineer,
disassemble, decompile or otherwise attempt to discover the source code or
structure, sequence and organization of all or any part of the Services (except
that this restriction shall not apply to the limited extent restrictions on
reverse engineering are prohibited by applicable local, state, provincial,
national or other law, rule or regulation); (c) rent, lease, resell,
distribute, use the Services for timesharing, service bureau or other commercial
purposes not contemplated by this paragraph or otherwise exploit the Services
in any unauthorized or unintended manner; (d) remove or alter any proprietary
notices or labels on or in the Services; or (e) engage in any activity that
interferes with or disrupts the Services. Any rights not expressly granted in
this paragraph are reserved.
In
order to use certain features of the Services, you must register as a User with
us. For registered Users, you access of
the Services must be via login credentials
provided by us (“Login Credentials”). You
agree that you are responsible for protecting your Login Credentials from
unauthorized use, and you are responsible for all activity that occurs under
those Login Credentials. You agree to notify us immediately at support@ubme.com
if you believe that any of your Login Credentials has been or may be used
without your permission so that appropriate action can be taken. You may not
create more than one account to access the Services, share your Login
Credentials with any third party or transfer your account with us to any third
party. Company is not responsible for
any loss or damage caused by, or expense incurred by you as a result of your
failure to safeguard your Login Credentials.
You agree that you shall not rent, resell, or remarket the Services or
provide access to the Services to any third party.
You
may use the Services to post an event that you think will be interesting to other
Users of the Services. You agree to post
truthful information about any event that you post.If there is a website link for the event that
you post, we ask that you include the website link so that other Users may find
out more information about that event. If
you post an event on our Services, and the event is cancelled, you agree to cancel
your event on the Services at least 24 hours prior to the time that your event
is scheduled to occur. If you
consistently post events that are cancelled on the Services less than 24 hours
before such event was scheduled to occur or do not cancel your event on the Services,
then Company may terminate your Login Credentials and this Agreement in its
sole discretion or restrict your ability to post events on the Services, and you
will not be entitled to create a new account to access the Services if your
prior Login Credentials have been terminated or restricted by the Company.
(b)Communications and Content.In connection with obtaining your Login
Credentials, you may opt to receive emails from third party service providers
and websites. If you prefer not to
receive such emails, you may opt out by following the instructions in any such
email or on our Services and you will be unsubscribed from receiving such
emails in the future.
You
may submit comments, suggestions, questions, or other information for
publication and distribution to other Users or the general public, as the case
may be, so long as such content is not unlawful, harmful, threatening, abusive,
harassing, defamatory, vulgar, offensive, obscene, pornographic, hateful or
threatening to any group defined by race, religion, gender, national origin or
sexual orientation, or otherwise objectionable, including without limitation
blatant expressions of bigotry, prejudice, racism, hatred or excessive
profanity or post any obscene, lewd, lascivious, excessively violent, harassing
or otherwise objectionable content. If you
decide to submit Content on the Services, you grant us an irrevocable,
transferable, sublicensable, non-exclusive and royalty-free right to use,
modify, reproduce, publish, disclose, display or adapt such Content throughout
the world at our sole discretion.
Content
on the Services may also be generated through web scraping and/or third-party
websites (e.g., “Content Curation”). Content
Curation is an automated process, where computers search or import Content that
we believe may be of interest to our Users.
We will arrange for information regarding those events to be posted on
our Services but cannot guarantee the appropriateness or accuracy such Content.
Company
does not assume any liability or responsibility for Content submitted by you,
other Users, Content Curation, or third party content or materials posted or
submitted on the Services. Company
reserves the right to remove or edit Content, but is not obligated to review Content.Any use or reliance on any content or
materials displayed on the Services is at your own risk.You agree and acknowledge that by using the Services,
attending any event, or interacting with any other Users, including and
especially offline, in-person interactions, you may be exposed to Content,
materials, or experiences that might be offensive, harmful, inaccurate,
misleading, deceptive, or otherwise inappropriate.Company does not endorse, support, represent
or guarantee the completeness, truthfulness, accuracy, safety, or reliability
of any Content or communications, or endorse any opinions, posted on the Services,
and under no circumstances will Company be liable in any way for any Content or
the acts of any of our Users. For example,
but without limitation, the group running an event may cancel it, change the
time or change the location, and our Services may not reflect the latest
information on that event. We encourage
you to validate the location and time of each event and verify any information
you receive from other Users, through online and offline means, before acting
upon it – especially as it relates to meeting Users offline, whether in public
or private. COMPANY ENCOURAGES YOU TO
USE CAUTION BEFORE YOU GO TO ANY EVENT OR MEET OR COMMUNICATE WITH USERS ONLINE
OR OFFLINE; WE DO NOT VERIFY THAT ANY EVENT OR USER IS SAFE, REASONABLE, OR
SUITABLE FOR YOU TO MEET OR ATTEND. WE
DO NOT CONDUCT CRIMINAL BACKGROUND CHECKS OF USERS.We reserve the right to conduct a criminal
background check on you, and you hereby authorize such criminal background
check. WE DO NOT MAKE ANY
REPRESENTATIONS OR WARRANTIES ABOUT ANY USERS OR EVENTS, INCLUDING WITHOUT
LIMITATION REGARDING THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY
INFORMATION REGARDING SUCH USER PROFILES OR EVENTS, WHETHER POSTED BY USERS OR
OTHERWISE.
We
have the right, but not the obligation, to monitor Content submitted to our Services
through an online discussion forum or chat room to determine compliance with this
Agreement and any other applicable rules that we may establish.We have the right in our sole discretion to
edit or remove any material submitted to or posted in any online discussion
forum or chat room provided through the Services, or any other Content
submitted to the Website or App. Without
limiting the foregoing, we have the right to remove any material that we, in our
sole discretion, find to be in violation of this Agreement or otherwise
objectionable, and you are solely responsible for the Content that you post to
the Services.
(c)
User-Specific Representations; Rights in your
Content
. you acknowledge and agree
that if you contribute, provide or make available any Content to the Services
(“your Content”), you hereby grant Company a non-exclusive, worldwide,
perpetual, irrevocable, royalty-free, transferable, sublicensable (through
multiple tiers) right and license to access, use, reproduce, transmit, adapt,
modify, perform, display, distribute, translate, publish and create derivative
works based on your Content, in whole or in part, in any media, for the purpose
of operating the Services (including our promotional and marketing services),
and you hereby waive any and all moral right to use the name you submit with your
Content. You represent and warrant that
you have all the rights, power and authority necessary to grant the foregoing
license, and that all your Content (a) does not infringe, violate,
misappropriate or otherwise conflict with the rights of any third party; (b)
complies with all applicable local, state, provincial, national and other laws,
rules and regulations; and (c) does not violate these Terms, including without
limitation our Privacy Policy. In
addition, your Content must be accurate and truthful.
We reserve the right to
remove any of your Content from the Services at any time if we believe in our
sole discretion that it violates this Agreement, including without limitation,
these Terms or our Privacy Policy.
In addition, you agree that we may use your name and logo (whether or not you
have made it available through the Services) for the purpose of identifying you
as an existing or past customer of ours both on the Services and in marketing,
advertising and promotional materials.
Finally, you represent and
warrant that if you use the Services to post events or interact with Users, you
will only act in your personal capacity and not as Company’s or any other
party’s employee, agent, franchisee, or servant.You shall not hold yourself out as having
authority to make contracts or promises on behalf of the Company.
(d)Privacy.You acknowledge and agree that your Content
may be aggregated with the data of others that submit any data or information
to Company or our Services in a manner that does not identify you (the
“Aggregated Data”) and that Company may sell or use for any purpose such
Aggregated Data, without limitation hereunder.
If you object to your Content being used in a manner permitted by this
Agreement and the Privacy Policy, you
may not use the Services. Upon
termination of your Login Credentials for any reason, you may no longer have
access to any of the Content that you provided to the Services.
(e)Term.
This Agreement shall be in effect until terminated by either you or the Company
as follows. Except to the extent you
have agreed otherwise in a separate written agreement between you and an
authorized a Company officer, you may terminate your access to the Services and
these Terms by deleting your account. If you need help deleting your account,
please contact us at support@ubme.com. In the event there is a separate
agreement between you and the Company governing your use of the Services and
that agreement terminates or expires, these Terms (as unmodified by such
agreement) shall govern your use of the Services unless and until you delete
your account.
Except
to the extent we have agreed otherwise in a separate written agreement between
you and a Company officer, we may terminate your right to use the Services at
any time for (a) your violation or breach of these Terms; (b) your misuse or
abuse of the Services; or (c) if allowing you to access and use the Services
would violate any applicable local, state, provincial, national and other laws,
rules and regulations or would expose us to legal liability; (d) at any other
time in that we decide in our sole discretion. We will use reasonable efforts
to provide you notice of any such termination. Further, you agree that we shall
not be liable to you or any third-party for any such termination of your right
to use or otherwise access the Services.
All
provisions of this Agreement that by their nature should survive termination of
these Terms shall survive (including, without limitation, all limitations on
liability, releases, indemnification obligations, disclaimers of warranties,
agreements to arbitrate, choices of law and judicial forum and intellectual
property protections and licenses).
3. Charges
. Using our Services
is currently free. We may choose to
change our policy regarding fees from time to time.You may have to pay fees to attend an event
that you find through our Services or to access additional portions of our Services.We cannot and do not verify whether an event
is paid or free; you are responsible for verifying whether an event is paid or
free and purchasing any necessary tickets.
4.
Standards
of Conduct and Applicable Law
.
(a)
Conduct. You may not use the
Services to:
(1)
post any Content or transmit via or
through the Services any information, data, text, images, files, links,
software, chat, communication or other content that is, or which Company
considers in its sole discretion to be, unlawful, harmful, threatening,
abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic,
hateful or threatening to any group defined by race, religion, gender, national
origin or sexual orientation, or otherwise objectionable, including without
limitation blatant expressions of bigotry, prejudice, racism, hatred or
excessive profanity or post any obscene, lewd, lascivious, excessively violent,
harassing or otherwise objectionable content;
(2)
introduce viruses, worms, Trojan
horses, or harmful code to the Services or on the Internet;
(3)
display material that exploits
children under 18 years of age;
(4)
post any content or otherwise
infringe in any way or violate any copyright, patent,
(5)
harass, embarrass, or cause distress
or discomfort upon another Diner;
(6)
impersonate any other person,
including but not limited to, another User or Company official;
(7)
post or disclose any personally
identifying information or
(8)
use the Services for the purpose of
spamming anyone or for soliciting personal information, including credit card
numbers;
(9)
intentionally or unintentionally
violate any applicable local, state, national or international law, including
but not limited to any regulations having the force of law while using or
accessing the Services or in connection with your use of the Services, in any
manner;
(10)
invade the privacy or violate any
personal or proprietary right (including intellectual property rights) of any
person or entity; or
(11)
collect, save or otherwise download Content
from our Services using automated means such as bots, robots, or scrapers.
Company reserves the right, without
prior notice and in its sole discretion, to decide whether your Content
violates these terms and conditions for any of the above reasons or for any
other reason, and if Company does so, to remove such Content and/or terminate your
access to certain areas of the Services.
(b)
Applicable Law. Your use
of the Services is subject to all applicable, local, state, national laws and
regulations. You may only use the Services
for lawful purposes. You shall not use
or allow others to use the Services in any manner that attempts to, or is
likely to, violate any applicable laws or regulations or violate or infringe
any intellectual property rights, rules of publicity or privacy.If you share Content using the Services, then
you are solely responsible for ensuring that such Content conforms to the
standards of conduct set forth herein.
5.
Intellectual
Property Rights; Restrictions
.
(a) Restrictions.You shall not, and shall not permit any
person or entity to: use the Services on a service bureau, time sharing or any
similar basis, or for the benefit of any other person or entity; alter,
enhance, or make derivative works of the Services; reverse engineer, reverse
assemble or decompile, or otherwise attempt to derive source code from, the Services
or any software component of the Services; use, or allow the use of, the Services
for any unfair or deceptive practices or in contravention of any federal,
state, local, foreign, or other applicable law, or rules and regulations of
regulatory or administrative organizations; and/or act in a fraudulent,
tortious, malicious, or negligent manner when using the Services.
(b) Ownership.You acknowledge that the structure,
organization, and code used in conjunction with the Services are proprietary to
Company and that Company and/or its licensors, if any, retain exclusive
ownership of the Services, documentation, and any other intellectual property
rights relating to the Services, including without limitation all modifications,
enhancements, derivatives, and other software and materials relating to the Services,
and all copies thereof. You shall not
sell, transfer, publish, disclose, display or otherwise make available the Services
including without limitation any modifications, enhancements, derivatives, and
other software and materials provided hereunder by Company or copies thereof to
others in violation of this Agreement.
(c)
No Other
Rights
. Except as expressly set
forth in this Agreement or other written agreement between you and Company, no
license or other right in or to the Services or any content provided thereon
are granted to you, by implication, estoppel, or otherwise, and all such
licenses and rights are hereby reserved.
(d)
Feedback
and Suggestions
. You hereby
acknowledge that (a) any and all suggestions for correction, change and
modification to the Services and other feedback (including but not limited to
quotations of written or oral feedback), information and reports provided to Company
by you (collectively “Feedback”); and (b) all improvements, updates,
modifications or enhancements, whether made, created or developed by Company or
otherwise relating to Feedback (collectively, “Revisions”), are and will remain
the Company’s property.
All Feedback and Revisions become the sole and
exclusive property of Company, and we may use and disclose Feedback, Revisions,
or both in any manner and for any purpose whatsoever without further notice or
compensation to you and without retention by you of any proprietary or other
right or claim. you hereby assign to us any and all right, title and interest
(including, but not limited to, any patent, copyright, future copyright, trade
secret, trademark, show-how, know-how and any and all other intellectual property
right) that you may have in and to any and all Feedback and Revisions. You
hereby agree to waive any moral rights you may have in any and all Feedback and
Revisions, and consent to any act which amounts to an infringement of any such
moral right, in our favor. At Company’s request, you will execute any document,
registration, or filing required to give effect to these provisions.
6.Limited Warranty
.
(a)Warranties; Disclaimer.As a condition of your use of our Services, you
warrant that (i) you are at least 13 years of age and a legal resident of the
US or Canada; (ii) if you are older than 13 but not yet 18 years of age, you
will not use our Services without the close supervision of a parent or legal
guardian; (iii) you possess or will acquire the legal authority to create a
binding legal obligation; (iv) you will use this Services in accordance with this
Agreement; (v) all information supplied by you on or through our Services is
true, accurate, current and complete, and (vi) if you have an account with us, you
will safeguard your account information, including Login Credentials, and will
supervise and be completely responsible for any use of your account by you and
anyone other than you. We retain the right at our sole discretion to deny you,
any other User, or anyone else access to the Services, at any time and for any
reason, including without limitation for violation of this Agreement.
(b)Disclaimers.YOU USE OUR SERVICES AT YOUR OWN RISK AND
SUBJECT TO THE FOLLOWING DISCLAIMERS. WE ARE PROVIDING OUR SERVICES ON AN “AS
IS” BASIS WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED
TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,
NON-INFRINGEMENT, AND FREEDOM FROM COMPUTER VIRUS OR OTHER HARMFUL CODE. WE DO
NOT WARRANT THAT ANY INFORMATION PROVIDED BY US IS ACCURATE, COMPLETE, OR
USEFUL, THAT OUR SERVICES WILL BE OPERATIONAL, ERROR FREE, SECURE, OR SAFE, OR
THAT OUR SERVICES WILL FUNCTION WITHOUT DISRUPTIONS, DELAYS, OR IMPERFECTIONS.
WE DO NOT CONTROL, AND ARE NOT RESPONSIBLE FOR, CONTROLLING HOW OR WHEN OUR
USERS USE OUR SERVICES OR THE FEATURES, SERVICES, AND INTERFACES OUR SERVICES
PROVIDE. WE ARE NOT RESPONSIBLE FOR AND ARE NOT OBLIGATED TO CONTROL THE
ACTIONS OR INFORMATION (INCLUDING CONTENT) OF OUR USERS OR OTHER THIRD PARTIES.
YOU RELEASE US, OUR SUBSIDIARIES, AFFILIATES, AND OUR AND THEIR DIRECTORS,
OFFICERS, EMPLOYEES, PARTNERS, AND AGENTS (TOGETHER, THE “UBME PARTIES”) FROM
ANY CLAIM, COMPLAINT, CAUSE OF ACTION, CONTROVERSY, OR DISPUTE (TOGETHER,
“CLAIM”) AND DAMAGES, KNOWN AND UNKNOWN, RELATING TO, ARISING OUT OF, OR IN ANY
WAY CONNECTED WITH ANY SUCH CLAIM YOU HAVE AGAINST ANY THIRD PARTIES. YOU WAIVE
ANY RIGHTS YOU MAY HAVE UNDER CALIFORNIA CIVIL CODE §1542, OR ANY OTHER SIMILAR
APPLICABLE STATUTE OR LAW OF ANY OTHER JURISDICTION, WHICH SAYS THAT: A GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH
THE DEBTOR.
NOTHING
IN THESE TERMS OF SERVICE IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION,
WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR
CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE
CAUSED BY WILLFUL ACTS, NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED
TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THOSE
LIABILITY AND OTHER LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION (IF ANY)
WILL APPLY TO YOU AND OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED
BY LAW.
7.Limitation of Liability.
THE UBME
PARTIES WILL NOT BE LIABLE TO YOU FOR ANY LOST PROFITS OR CONSEQUENTIAL,
SPECIAL, PUNITIVE, INDIRECT, OR INCIDENTAL DAMAGES RELATING TO, ARISING OUT OF,
OR IN ANY WAY IN CONNECTION WITH OUR TERMS, US, OR OUR SERVICES, EVEN IF THE UBME
PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR AGGREGATE
LIABILITY RELATING TO, ARISING OUT OF, OR IN ANY WAY IN CONNECTION WITH OUR
TERMS, US, OR OUR SERVICES WILL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS
($100) OR THE AMOUNT YOU HAVE PAID US IN THE PAST TWELVE MONTHS. THE FOREGOING
DISCLAIMER OF CERTAIN DAMAGES AND LIMITATION OF LIABILITY WILL APPLY TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE LAWS OF SOME STATES OR
JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO
SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO
YOU. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN OUR TERMS, IN SUCH CASES, THE
LIABILITY OF THE UBME PARTIES WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW.
8.Indemnification
. You agree to
defend, indemnify and hold UBME Parties harmless from any and all damage
(whether direct, indirect, incidental, consequential or otherwise), loss,
liability, cost and expense (including, without limitation, reasonable
attorneys’ and accounting fees) resulting from any claim, demand, suit,
proceeding (whether before an arbitrator, court, mediator or otherwise) or
investigation made by any third party (each a “Claim”) due to or arising out of:
(a) your breach of these Terms; (b) your improper use of the Services; (c) your
breach of any applicable local, state, provincial, national or other law, rule
or regulation or the rights of any third party; or (d) in the case of you
uploading Content, creating an event, or communicating or interacting with
Users or anyone else on or through our Services, whether offline or online,
provided that in the case of (d), this indemnification shall not apply to the
extent that the Claim arises out of our gross negligence or willful misconduct.
We shall provide notice to you of any such Claim, provided that the failure or
delay by Company in providing such notice shall not limit your obligations
hereunder except to the extent you are materially disadvantaged by such
failure.
A
party’s obligations to indemnify the other party with respect to any third
party claim, action or proceeding shall be conditioned upon the indemnified
party: providing the indemnifying party with prompt written notice of such
claim, action or proceeding, permitting the indemnifying party to assume and
solely control the defense of such claim, action or proceeding and all related
settlement negotiations, with counsel chosen by the indemnifying party, and
cooperating at the indemnifying party’s request and expense with the defense or
settlement of such claim, action or proceeding which cooperation shall include
providing reasonable assistance and information.No indemnified party shall enter into any
settlement agreement for which it will seek indemnification under this
Agreement from the indemnifying party without the prior written consent of the
indemnifying party. Nothing herein shall
restrict the right of a party to participate in a claim, action or proceeding
through its own counsel and at its own expense.
9.
Forum and Venue
. If you
are a User located in the United States or Canada, the “Special Arbitration
Provision for United States or Canada Users” section below applies to you.
Please also read that section carefully and completely. If you are not subject
to the “Special Arbitration Provision for United States or Canada Users”
section below, you agree that you will resolve any Claim you have with us
relating to, arising out of, or in any way in connection with our Terms, us, or
our Services (each, a “Dispute,” and together, “Disputes”) exclusively in the
United States District Court for the District of Massachusetts or a state court
located in Suffolk County, Massachusetts, and you agree to submit to the
personal jurisdiction of such courts for the purpose of litigating all such
Disputes.
10.
Governing Law
. The laws
of the State of Delaware govern our Terms, as well as any Disputes, whether in
court or arbitration, which might arise between the Company and you, without
regard to conflict of law provisions.
11.
Special Arbitration Provision for United States or Canada Users.
PLEASE
READ THIS SECTION CAREFULLY BECAUSE IT CONTAINS ADDITIONAL PROVISIONS
APPLICABLE ONLY TO OUR UNITED STATES AND CANADA USERS. IF YOU ARE A USER
LOCATED IN THE UNITED STATES OR CANADA, IT REQUIRES YOU TO SUBMIT TO BINDING
INDIVIDUAL ARBITRATION OF ALL DISPUTES, EXCEPT FOR THOSE THAT INVOLVE
INTELLECTUAL PROPERTY DISPUTES AND EXCEPT THOSE THAT CAN BE BROUGHT IN SMALL
CLAIMS COURT. THIS MEANS YOU ARE WAIVING YOUR RIGHT TO HAVE SUCH DISPUTES
RESOLVED IN COURT BY A JUDGE OR JURY. THIS SECTION ALSO LIMITS THE TIME YOU
HAVE TO START AN ARBITRATION OR, IF PERMISSIBLE, A COURT ACTION. FINALLY, THIS
SECTION WAIVES YOUR RIGHT TO HAVE YOUR DISPUTE HEARD AND RESOLVED AS A CLASS
ACTION, CLASS ARBITRATION, OR A REPRESENTATIVE ACTION.
Note
that many customer concerns can be resolved quickly and to a customer’s
satisfaction by contacting us at support@ubme.com. We ask that you please
contact us if you have any concerns.
“Excluded
Dispute” means any Dispute relating to the enforcement or infringement of your
or our intellectual property rights (such as copyrights, trademarks, domains,
logos, trade dress, trade secrets, and patents). For clarity and
notwithstanding the foregoing, those Disputes relating to, arising out of, or
in any way in connection with your rights of privacy and publicity are not
Excluded Disputes.
Federal
Arbitration Act. The United States Federal Arbitration Act governs the
interpretation and enforcement of this “Special Arbitration Provision for
United States or Canada Users” section, including any question whether a
Dispute between us and you is subject to arbitration.
Agreement
to Arbitrate for Users Located in the United States or Canada. For Users
located in the United States or Canada, Company and you each agree to waive the
right to a trial by judge or jury for all Disputes, except for the Excluded
Disputes. Company and you agree that all Disputes (except for the Excluded
Disputes), including those relating to, arising out of, or in any way in
connection with your rights of privacy and publicity, will be resolved through
final and binding arbitration. Company and you agree not to combine a Dispute
that is subject to arbitration under our Terms with a Dispute that is not
eligible for arbitration under our Terms.
The
arbitration will be administered by the American Arbitration Association (“AAA”)
under its Commercial Arbitration Rules in effect at the time the arbitration is
started, including the Optional Rules for Emergency Measures of Protection and
the Supplementary Procedures for Consumer-Related Disputes (together, the “AAA
Rules”). The arbitration will be presided over by a single arbitrator selected
in accordance with the AAA Rules. The AAA Rules, information regarding
initiating a Dispute, and a description of the arbitration process are
available at www.adr.org. The arbitrator will decide whether a Dispute can be
arbitrated. The location of the arbitration and the allocation of fees and
costs for such arbitration shall be determined in accordance with the AAA
Rules. Notwithstanding the AAA Rules, we will reimburse you for all the AAA
administrative fees in Disputes that are subject to the Supplementary
Procedures for Consumer-Related Disputes, unless the arbitrator determines that
a Dispute was filed for purposes of harassment or is patently frivolous.
Opt-Out
Procedure. You may opt out of this agreement to arbitrate. If you do so,
neither we nor you can require the other to participate in an arbitration
proceeding. To opt out, you must notify us in writing postmarked within 30 days
of the later of: (i) the date that you first accepted our Terms; and (ii) the
date you became subject to this arbitration provision. You must use this
address to opt-out:
UBME,
Inc.
Arbitration
Opt-Out
543
West 3rd 1a
Bethlehem,
PA 18015
United
States of America
You
must include: (1) your name and residence address; (2) the email address
associated with your account; and (3) a clear statement that you want to opt
out of our Terms’ agreement to arbitrate.
Small
Claims Court. As an alternative to arbitration, if permitted by your local
“small claims” court’s rules, you may bring your Dispute in your local “small
claims” court, as long as the matter advances on an individual (non-class)
basis.
Time
Limit to Start Arbitration. We and you agree that for any Dispute (except for
the Excluded Disputes) we and you must commence an arbitration proceeding
within one year after the Dispute first arose; otherwise, such Dispute is
permanently barred. This means that if we or you do not commence arbitration
within one year after the Dispute first arose, then the arbitration will be
dismissed because it was started too late.
No
Class Actions, Class Arbitrations, or Representative Actions for Users Located
in the United States or Canada. We and you each agree that if you are a User of
our Services located in the United States or Canada, each party (we and you)
may bring Disputes against the other only on our or your own behalf, and not on
behalf of any other person or entity, or any class of people. We and you each
agree not to participate in a class action, a class-wide arbitration, Disputes
brought in a private attorney general or representative capacity, or
consolidated Disputes involving any other person or entity in connection with
any Dispute.
Severability.
If the prohibition against class actions and other Disputes brought on behalf
of third parties is found to be unenforceable for a Dispute, then all of the
provisions above under the caption “Special Arbitration Provision for United
States or Canada Users” will be null and void as to that Dispute.
Place
to File Permitted Court Actions. If you opt out of the agreement to arbitrate,
if your Dispute is an Excluded Dispute, or if the arbitration agreement is
found to be unenforceable, you agree to be subject to the “Forum and Venue”
provisions in the “Dispute Resolution” section set forth above.
12.
Notice and Takedown Procedures; Copyright
Agent
. Company respects the
intellectual property of others and asks that Users of our Services do the
same. In connection with our Services,
we have adopted and implemented a policy respecting copyright law that provides
for the removal of any infringing materials and for the termination, in
appropriate circumstances, of Users of our Services who are repeat infringers
of intellectual property rights, including copyrights.If you believe that one of our Users is,
through the use of our Services, unlawfully infringing the copyright(s) in a
work, and wish to have the allegedly infringing material removed, the following
information in the form of a written notification (pursuant to 17 U.S.C. §
512(c)) must be provided to our designated Copyright Agent:
Please
note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material
fact (falsities) in a written notification automatically subjects the
complaining party to liability for any damages, costs and attorney’s fees
incurred by us in connection with the written notification and allegation of
copyright infringement.
UBMe
Inc.
Attn:
Copyright Agent
543
West 3rd Street 1A
Bethlehem,
PA 18015
Phone:
973-943-6815
Email:
copyrite@ubme.com
13.Miscellaneous.
(a)Links to Third-Party Web Sites. The Services
may contain links to non-Company web sites. These links are provided to you as
a convenience, and Company is not responsible for the content of any linked web
site. Any non-Company web site accessed from the Services is independent from Company,
and Company has no control over the content of that web site. In addition, a
link to any non-Company web site does not imply that Company endorses or
accepts any responsibility for the content or use of such web site.
(b)No Implied Endorsements.In no event shall any reference to any third
party or third party product or service be construed as an approval or
endorsement by Company of that third party or of any product or service
provided by a third party.
(c)Assignment.You may not assign or transfer this Agreement
in whole or in part to any third party.
This Agreement shall bind and inure to the benefit of the parties to
this Agreement and their respective successors, permitted transferees, and
permitted assigns.
(d)Independent Contractors.Company and you are not partners, joint
venturers, agents, employees or representatives of the other party.This Agreement, together with the Privacy Policy, any written agreement
between you and Company, and any other terms and conditions set forth on the Services,
contains the entire understanding of the parties with respect to the
transactions and matters contemplated hereby, supersedes all previous
communications, understandings and agreements (whether oral or written).
(e)Export Restrictions.The laws of the
(f)Headings; Severability.The headings and captions used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement. If any part of this Agreement is
held to be unlawful, void, or unenforceable, that part will be deemed severable
and shall not affect the validity and enforceability of the remaining
provisions.
(h)iOS App; Parties Relationship.Although your use of our iOS App must comply
with Apple’s then-current App Store Terms of Service, you acknowledge that
these Terms are between Company and you, not Apple, Inc. (“Apple”).You further agree that Company, and not
Apple, is solely responsible for our iOS App and the Services and Content
available thereon. You recognize that
Apple has no obligation to provide maintenance and support services with respect
to our iOS App. To the maximum extent
permitted by applicable law, Apple will have no warranty obligation whatsoever
with respect to our iOS App; and Company is responsible, to the extent required
by these Terms, for the investigation, defense, settlement and discharge of any
third-party intellectual property infringement claim related to our iOS App or
your possession and use of our iOS App.
For
Additional Information
If
you have any questions about the rights and restrictions above, please contact
us by email at support@ubme.com
Copyright
© 2017 UBME, Inc. All Rights Reserved.