COMMUNITY EDITION TERMS OF SERVICE
IMPORTANT – PLEASE READ CAREFULLY: These Community Edition Terms of Service (this “Agreement”) is a legal agreement between Ushur, Inc., a Delaware corporation (“Ushur”) and you (“User”, “you” or “your”) and sets forth the terms and conditions applicable to your use of the freemium version of Ushur’s proprietary software-as-a-service offering to enhance and automate internal and external customer engagements, and back-office processes and workflows (the “Service”) made available through Ushur’s website located at www.ushur.com (the “Site”).
BY CLICKING ON THE “I AGREE” BUTTON OR USING THE SERVICE, YOU (1) HAVE AGREED TO BE LEGALLY BOUND BY ALL THE TERMS OF THIS AGREEMENT WITH RESPECT TO YOUR USE OF THE SERVICE, AND (2) REPRESENT THAT YOU HAVE FULL POWER, CAPACITY AND AUTHORITY TO ACCEPT THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THE TERMS OF THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT THAT YOU HAVE FULL POWER, CAPACITY AND AUTHORITY TO BIND SUCH EMPLOYER OR ENTITY TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT OR CANNOT MAKE SUCH REPRESENTATIONS, YOU SHOULD NOT USE THE SERVICE.
USHUR RESERVES THE RIGHT, AT ITS SOLE DISCRETION, TO MODIFY OR REPLACE THIS AGREEMENT AT ANY TIME. IF THE ALTERATIONS CONSTITUTE A MATERIAL CHANGE TO THIS AGREEMENT, USHUR WILL NOTIFY YOU. WHAT CONSTITUTES A “MATERIAL CHANGE” WILL BE DETERMINED AT USHUR’S SOLE DISCRETION, IN GOOD FAITH AND USING COMMON SENSE AND REASONABLE JUDGMENT. YOU WILL BE RESPONSIBLE FOR REVIEWING AND BECOMING FAMILIAR WITH ANY SUCH MODIFICATIONS. USE OF THE SERVICE BY YOU FOLLOWING SUCH NOTIFICATION CONSTITUTES YOUR ACCEPTANCE OF THESE TERMS AS MODIFIED. IF ANY MODIFICATION IS NOT ACCEPTABLE TO YOU, YOUR SOLE REMEDY AND RECOURSE IS TO DISCONTINUE USE OF THE SERVICE.
- “Documentation” means all documentation (printed and electronic) related to the Service made available by Ushur to you under this Agreement including, without limitation, user manuals and supporting documentation of the Ushur IP.
- “Ushur IP” means collectively, the Service, Ushur Technology, Documentation, Confidential Information (as defined below) and all derivatives, improvements, enhancements or extensions thereof.
- “Ushur Technology” means collectively, the software, portal, algorithms, know-how, processes, methodologies, inventions, techniques and any other technology used by Ushur to provide the Service.
- Account. Before using the Service, you must create an account (the “Account”) at the Site. You agree to: (a) provide true, accurate, current, and complete information as prompted by the registration form; and (b) maintain and update such information to keep it true, accurate, current, and complete at all times. You authorize us to use any information you provide us to verify your antecedents. You are responsible for maintaining the confidentiality of your account user name and password. You agree to (a) immediately notify us of any unauthorized use of your password or account, or any other breach of security, and (b) ensure that you exit from your account at the end of each session. You will be solely responsible for safeguarding your password and also for any actions under your password and account, whether authorized by you or not.
- Grant. Subject to the terms and conditions of this Agreement, Ushur hereby grants you a limited, non-exclusive, non-sublicenseable, nontransferable, royalty-free right, during the Evaluation Period (as defined in Section 10) to use the Service for your non-commercial internal business purposes strictly in compliance with the use restrictions set forth in this Agreement, communicated to you by Ushur via the Site or otherwise and incorporated herein by this reference.
- Restrictions on Use. The right granted to you in this Agreement does not include any right to, and you will not, and will not permit others to, (a) copy, display, transfer, adapt, modify or distribute (electronically or otherwise) the Ushur IP or any other Confidential Information (as defined below), except as expressly set forth in Section 3 above, (b) reverse engineer, reverse assemble, reverse compile, or otherwise translate the Ushur IP, unless expressly permitted by applicable law without the possibility of contractual waiver, (c) sublicense, assign or transfer the right to use the Service, (d) publish, rent, lease the Service or any copy thereof ; (e) use Ushur IP or any other Confidential Information to create or develop any service, interface or software that competes with the Service, (f) delete, remove or obscure any proprietary notices of Ushur on the Ushur IP, or (iv) use Ushur IP for any commercial purpose.
- Acceptable Use Policy. Ushur hereby grants you permission to access and use the Service, provided that you shall not (and not allow third party to): (i) use any robot, spider, site search/retrieval application, or other automated device, process or means to access, retrieve or index any portion of the Service; (ii) collect or harvest any information about other users or members (including usernames and/or email addresses) for any purpose; (iii) reformat or frame any portion of the web pages that are part of the Site; (iv) create user accounts by automated means or under false or fraudulent pretenses; (v) create or transmit unwanted electronic communications such as “spam” to other users or members of the Service or any third party or otherwise interfere with other users’ or members’ enjoyment of the Service; (vi) transmit any viruses, worms, defects, Trojan horses or other items of a destructive nature; (vii) use the Service to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material, including any material that may be deemed threatening or obscene; (viii) copy or store any content offered on the Site for other than your own personal use; (ix) use any device, software or routine that interferes with the proper working of the Service, or otherwise attempt to interfere with the proper working of the Service; (x) take any action that imposes, or may impose in our sole discretion, an unreasonable or disproportionately large load on Ushur’s IT infrastructure; (xii) use the Service intentionally or unintentionally, to violate any applicable local, state, national or international law; or (xiii) collect or store personal data about other users in connection with the prohibited activities described in this paragraph.
- Ownership. This Agreement is not an agreement for sale. No title to or ownership in the Ushur IP is transferred to you. Ushur or its licensors, as applicable, shall at all times remain the sole owners of all right, title, interest in and to Ushur IP and any other Confidential Information, including, but not limited to, all trademarks, copyrights, patent rights, and all other intellectual property rights embodied therein and any copies, derivative works, corrections, bug fixes, enhancements, updates or modifications made thereto. Ushur reserves all rights not expressly granted to you in this Agreement and no other rights or licenses are granted herein by implication, estoppel or otherwise.
- Feedback. To the extent you provide feedback to Ushur concerning the functionality, performance or use cases of the Service, including identifying potential errors and improvements (“Feedback”), you hereby assign to Ushur all right, title, and interest in and to the Feedback. You acknowledge Ushur’s need to be able to freely use any Feedback provided by its users and to own any improvements to Service made by using or incorporating such Feedback (“Improvements”). Accordingly, you hereby assign to Ushur any rights you may have, including all intellectual property rights, in Feedback and Improvements and Ushur may exercise its ownership rights to such Feedback and Improvements and intellectual property rights subsisting therein without compensation, attribution or accounting. Without additional consideration, you agree to perform, at Ushur’s expense, all acts reasonably necessary to perfect such rights in Ushur.
- Data. Ushur will have the right to review and monitor all use of the Software to ensure compliance with this Agreement and evaluate performance of the Service. Ushur will also have the right to analyze user behavior to evaluate use of the Service, both on an individual basis and in the aggregate, and otherwise to collect, create and analyze metadata on an anonymized basis related to use of the Service provided that such metadata is never disclosed to any third party other than in an anonymized and aggregate format.
- WARRANTY DISCLAIMER. THE SERVICE IS PROVIDED “AS IS” WITH ALL FAULTS AND YOU AGREE TO USE THE SERVICE AT YOUR OWN RISK. USHUR DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT ERROR OR INTERRUPTION. USHUR MAKES NO GUARANTEES REGARDING THE QUALITY, ACCURACY, COMPLETENESS, EFFECTIVENESS, RELIABILITY, OR USEFULNESS OF THE SERVICE OR RESULTS OBTAINED THEREFROM. WITHOUT IN ANY WAY LIMITING THE GENERALITY OF THE FOREGOING, USHUR EXPRESSLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICE OF ANY KIND WHATSOEVER, WHETHER STATUTORY, EXPRESS, IMPLIED OR ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
- LIMITATION OF REMEDIES AND DAMAGES. IN NO EVENT SHALL USHUR OR ANY OF ITS AFFILIATES, LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS (COLLECTIVELY, “AFFILIATES”) BE LIABLE FOR ANY LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE, LOSS OF INFORMATION, LOSS OF DATA, OR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE USHUR SERVICE OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT. THIS LIMITATION WILL APPLY REGARDLESS OF THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
- Evaluation Period.
- The term of this Agreement is for a period of three (3) months commencing on the date of first use of the Service by you (“Evaluation Period”). The Service may contain mechanisms that will terminate the ability to use the Service at the end of Evaluation Period.
- Upon expiration of the Evaluation Period, any future use of Service shall be subject to a separate agreement to be negotiated by the parties. Upon the earlier of the expiration of the Evaluation Period or the termination of this Agreement for any reason, if you elect not to subscribe for the Service, you will immediately discontinue any use of the Service.
- Sections 4, 5, 6, 7, 8, 9, 10(b), 10(c), 11 and 12 inclusive of all subsections therein, shall survive any termination.
- You agree to treat (i) Ushur IP, (ii) all other materials and information provided or disclosed by Ushur to you or inferred by you from your use of the Ushur IP under this Agreement, and (iii) all use results (collectively, “Confidential Information”) as valuable trade secrets and proprietary information of Ushur and its licensors. Confidential Information does not include information: (a) that was publicly available or readily discernible from items or information generally available to the public prior to disclosure under this Agreement; (b) that becomes publicly available other than through breach of this Agreement by you; (c) that you can document was rightfully in your possession prior to disclosure under this Agreement; (d) that you can document was independently developed by you without use of or reference to any Confidential Information; (e) that is obtained independently from a third party who, to your reasonable knowledge, is in lawful possession of the information and has the right to make disclosure without restriction of confidentiality; or (f) that is released from confidentiality in writing by Ushur.
- You shall not use any Confidential Information for any purpose other than as expressly authorized under this Agreement. Without limiting the foregoing, you shall use at least the same degree of care which you use to prevent the disclosure of your own confidential information of like importance, but in no event less than reasonable care, to prevent the disclosure of Ushur’s Confidential Information. You shall limit access to Confidential Information solely to your employees who are required to have the information for purposes authorized under this Agreement. You will ensure that each employee enters or has entered into a confidentiality agreement which contains terms that are substantially similar to and that are at least as protective of Ushur’s rights as are the terms set forth in this Agreement. You shall indemnify and hold Ushur harmless from and against any costs, losses, damages, liability or expenses arising out of or related to the failure of its employees who may in any way breach the terms and conditions of this Agreement. It is agreed upon by both parties that any breach of this Section 10 by you shall constitute a material breach of this Agreement.
- Neither party may use other party’s trade names or trademarks or the existence of this Agreement for any publicity or marketing activities without prior written consent of the other party.
- This Agreement is not assignable by you (including by operation of law) without the prior written consent of Ushur.
- This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, U.S.A, without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. You submit to the exclusive jurisdiction of the state and federal courts sitting in Santa Clara County, California for the purpose of resolving any dispute relating to this Agreement. In any action to enforce this Agreement, the prevailing party will be entitled to costs and attorneys’ fees.
- This Agreement along with any use restrictions communicated to you constitute the final and complete understanding between you and Ushur with respect to the subject matter of this Agreement. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed. Any modifications or waivers of this Agreement must be in writing and signed by both parties hereto.
- You acknowledge that any use by you of the Service in breach of this Agreement will result in irreparable harm to Ushur and that Ushur shall be entitled to seek preliminary and other injunctive relief against such a breach or default, without the requirement of posting a bond or other security. Any injunctive relief shall be in addition to and shall in no way limit any rights or remedies otherwise available to Ushur.
- This Agreement and the rights granted herein shall automatically terminate without notice if you fail to comply with any provision of this Agreement. In such event, you will immediately discontinue any use of the Service. This shall not limit or affect any remedy available to Ushur for your breach of this Agreement.
- All notices in connection with this Agreement will be deemed given as of the day they are received either by messenger, delivery service, or in the United States of America mail, postage prepaid, certified or registered, return receipt requested, and addressed either to you or to Ushur at the addresses specified in this Agreement, or to such other address as a party may designate pursuant to this notice provision.
- If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any limitation or restriction on the grant of any right to you under this Agreement is found to be illegal, unenforceable, or invalid, the right will immediately terminate. Failure by a party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.