These Ushur’s Terms of Services attached to the Master Subscription Agreement by and between Ushur and the Customer govern the Customer’s use of the Service.
1.1 “Account” means an account allowing access to the Service created in Customer’s name.
1.2 Agreement” means the Ushur, Inc. Master Subscription Agreement, which includes these Ushur’s Terms of Service, Ushur Support Services and Service Level Agreement and Ushur Subscription Form.
1.3 “Confidential Information" means (a) all nonpublic information disclosed or made available under this Agreement that relates to the provision or receipt of the Service or either party's financial condition, operations or business, and which is clearly identified as confidential at the time of disclosure, (b) the Technology, (c) the Customer Information; and (d) the User IDs.
1.4 “Customer Information” means all data, information or other content entered by or collected from Customer (including a User) while accessing and using the Service.
1.5 “Intellectual Property Rights” means any and all intellectual property rights throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contract rights and any and all other legal rights protecting intangible proprietary information.
1.6 “Message” means any textual information sent or received through the Service.
1.7 “SMS” means Short Message Service as defined by GSM standards 03.40 and 3GPP TS.040.
1.8 “Support Services” means the support services offered by Ushur, in relation to the Service, set forth in Exhibit B attached hereto.
1.9 “Technology” means proprietary software and other technology used by, or on behalf of, Ushur to provide the Service (including Ushur Tools), and all data, information and other content included on or accessible through the Service, except for any Customer Information.
1.10 “User ID” means unique User identification name and password issued or otherwise assigned by Customer to each User.
1.11 “User” means an individual who has been authorized by Customer to access and use the Service.
1.13 Capitalized terms used but not defined in these Terms and Conditions shall have the meaning ascribed to them in the Reseller Agreement.
- APPLICATION SERVICES.
2.1 Customer’s Right to Access the Service. Subject to the terms and conditions of this Agreement, Ushur will provide Customer with the right to access and use the Service during the term of this Agreement, solely for Customer’s own business purposes. Customer’s rights are non-exclusive, non-transferable and non-sublicensable. Customer may access and use the Service only as permitted by this Agreement. Customer acknowledges that Customer is not receiving any ownership interest with respect to, the Service or any Technology or Intellectual Property Rights related to the Service. Customer agrees to take commercially reasonable steps to ensure, through proper instructions, that all access to and use of the Service by Customer and Users, or otherwise through Customer’s facilities, equipment, identifiers or passwords, will be in accordance with the terms of this Agreement and will be made and used solely for proper and legal purposes, and will be conducted in a manner that does not violate any law or regulation, or the rights of any third party.
2.2 Ushur Tools. Ushur grants Customer a limited, royalty-free, non-exclusive, non-assignable, non-transferable and non-sublicensable license to use the Ushur Tools solely for the purposes of integrating the Customer service or website with the Service. Customer agrees not to (a) reproduce, rent, lease, sell, sublicense or otherwise transfer or distribute the Ushur Tools, or any portion thereof, in any form or medium without the prior written consent of Ushur, and in no event for any purpose not authorized under this Agreement; (b) use or authorize use of the Ushur Tools for any purpose not specified in this Agreement; (c) modify, prepare derivative works, translate, reverse engineer, reverse compile, or disassemble the Ushur Tools or attempt to do any of the preceding; or (d) retain any instantiations or derivatives of the Ushur Tools in any form after termination of the foregoing licenses. Customer agrees and acknowledges that it must adhere to any required configurations specified by Ushur from time to time and use supported platforms for acceptable use of the Service. Ushur reserves the right to change the interface for the Service with at least thirty (30) days prior written notice to Customer.
2.3 Use of Service by Users. Customer may only allow that number of Users to access and use the Service as are designated on the Subscription Form. Customer shall be responsible for Users’ compliance with this Agreement. Customer may add Users through mutual agreement with Ushur. Any additional Users are subject to the terms and conditions of this Agreement. Customer will pay the then-current subscription fees for each additional User. All Users added during a billing month will be charged in full for that billing month.
2.4 User Identification. Customer will issue a User ID to enable each User to access and use the Service. Customer is solely responsible for tracking the User IDs to specific Users and for ensuring the security and confidentiality of all User IDs. Customer acknowledges that it is fully responsible for all liabilities incurred through the use of any User ID and that any transaction under a User ID will be deemed to have been performed by Customer. Customer will immediately notify Ushur of any unauthorized use of a User ID or any other breach of security known to it.
2.5 Prohibited Use. As a condition of Customer’s use of the Service, Customer agrees not to: (a) access, tamper with, or use any non-public areas of Ushur’s systems or said system’s providers; (b) attempt to probe, scan, or test the vulnerability of Ushur’s systems or any related system or network or breach any privacy, security or authentication measures; (c) reverse engineer or attempt to discover the underlying source code or algorithms of the Technology; (d) provide access to or utilize the Service under a time-share or service bureau arrangement or in any other manner, which would permit any third party, other than Users, to, directly or indirectly, utilize or otherwise benefit from the Service, whether or not for monetary or other consideration; (e) interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing Ushur’s systems or providers; or (f) impersonate or misrepresent affiliation with any person or entity. Ushur will have the right to investigate and prosecute violations of any of the above, including intellectual property rights infringement and security-related issues, to the fullest extent of the law. Ushur may involve and cooperate with law enforcement authorities in prosecuting users who violate these terms. Customer acknowledges that Ushur has no obligation to monitor Users’ access to or use of the Service, but has the right to do so for the purpose of operating the Service, to ensure their compliance with these terms, or to comply with applicable law or the order or requirement of a court, administrative agency, or other governmental body.
2.6 Customer Responsibilities. Customer shall be responsible for (i) integrating and updating the Customer platform or website to be used in connection with the Service with the Service, and (ii) obtaining and maintaining throughout the term of this Agreement, all computer hardware, software, communication lines, ports, interface equipment, terminals, internet access, bandwidth, network routing equipment, application licenses and other materials necessary for each User to access and use the Service at Customer’s facilities.
2.7 Customer Information Restrictions. Customer shall (i) be responsible for the accuracy, quality and legality of Customer Information and for the means by which Customer acquired Customer Information, and (ii) warrant that Customer Information does not and will not violate third-party rights of any kind, including without limitation any intellectual property rights or rights of publicity and privacy. Ushur is not responsible for any public display or misuse of Customer Information.
2.8 License to Ushur. Subject to the Agreement, Customer hereby grants Ushur a worldwide, non-exclusive, royalty-free license during to use, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, archive, and index Customer Information to provide the Service to Customer.
2.9 Right to Monitor. Ushur will have the right to review and monitor all use of the Service to ensure compliance with all of the terms of the Agreement and evaluate performance of the Service. Ushur will also have the right to analyze user behavior to evaluate use of the Service and messages, both on an individual basis and in the aggregate, and otherwise to collect, create and analyze metadata on an anonymized basis about Customer’s and the Users’ use of the Service provided that such metadata is never disclosed to any third party other than in an anonymized and aggregate format.
- SUPPORT, SERVICE LEVELS AND SECURITY.
3.1 Support Service. Ushur will use commercially reasonable efforts to provide the support services to Customer, as described in Exhibit B.
3.2 Service Level Agreement. Ushur will use commercially reasonable efforts to provide the Service in accordance with the Service Level Agreement set forth in Exhibit B.
3.3 Security SLA. Ushur will use commercially reasonable efforts to meet the security requirements described in Exhibit C.
4.1 Service. Ushur retains all right, title and interest in and to, and all Intellectual Property Rights embodied in or related to the Service, Technology, and any other information or technology used or made available in connection with the Service, including, without limitation, any and all improvements, updates, and modifications thereto, whether or not made in conjunction with this Agreement. Except as set forth in Section 2, this Agreement does not grant Customer a license to any software or technology forming part of the Technology, by implication, by estoppel, or otherwise. Without limiting the generality of the foregoing, Customer will not reproduce, reverse engineer, decompile, or disassemble the Technology or the Service. Ushur name, logo, and the product and service names associated with the Service are trademarks of Ushur or third parties, and no right or license is granted to Customer to use them separate from Customer’s right to access the Service.
4.2 Customer Information. Subject only to the limited license expressly granted hereunder, as between Customer and Ushur, Ushur acquires no right, title or interest from Customer in or to Customer Information, including any intellectual property rights therein.
- SUBSCRIPTION AND PAYMENTS.
5.1 Paid Subscription. By subscribing to the Service, Customer expressly agrees to pay subscription fees set forth on the Subscription Form, plus any applicable tax. Ushur may increase subscription fees by delivering notice to Customer at least thirty (30) days prior to the end of the then-current subscription period.
5.2 Payment. Unless otherwise agreed by Customer and Ushur, payment for all fees, shall be via the payment method selected on the Subscription Form. Subscription fees are fully earned upon payment. Payments are nonrefundable and there are no refunds or credits for partial-month subscription periods. Payment is in US dollars.
5.3 Billing Disputes. All billing disputes or requests for billing adjustments must be submitted in writing to Ushur’s accounting department within ten (10) days of the fees being charged by Ushur, accompanied by a reasonably detailed explanation for the basis of such dispute. Ushur may request additional information or supporting documentation or reject Customer’s claim, if unverifiable based on Ushur’s records. If Ushur rejects such claim, Ushur will notify Customer, in which case no refund or credit shall be due. If Ushur determines that the disputed portion was erroneously charged, Ushur will notify Customer of such determination and will credit Customer’s account for such amount in the next appropriate billing cycle.
5.4 Late Payments. Ushur may suspend the Service immediately and without notice if Customer’s account with Ushur is or becomes past due. In addition to any rights and remedies available to Ushur hereunder, at law, or in equity, if Customer fails to pay any fees due hereunder within ten (10) days from the date due, Ushur may impose a finance charge of 1.5% monthly interest fee on the outstanding amount late charge equal to the maximum allowable under applicable law. Customer shall be liable for any costs and expenses, including any and all attorneys’ fees, incurred by Ushur in collecting any amounts due and payable hereunder.
- TERM AND TERMINATION.
6.1 Term. This Agreement will become effective on the Effective Date and shall remain in force for a period of twenty four (24) months. Thereafter, the Agreement shall automatically renew for successive twenty four month periods unless either party gives thirty (30) days’ prior written notice of non-renewal to the other party.
6.2 Termination. Customer acknowledges and agrees that Ushur may stop (permanently or temporarily) providing the Service (or any features within the Service) to Customer at Ushur’s sole discretion, without prior notice to Customer, if Customer breaches the terms of this Agreement. If Ushur terminates the Service or this Agreement for any reason other than Customer’s breach of this Agreement or of any other contractual obligation to Ushur, or if Customer terminates due to Ushur’s breach of the Agreement, Ushur will provide a refund of any amounts paid for the unused portion of the Service. Customer acknowledges and agrees that, if Ushur disables access to Customer’s account, Users will be prevented from using the Service. Termination of this Agreement by either party shall not prejudice Ushur's right to recover or prove damages for amounts incurred or accrued and unpaid prior to the date of termination. No remedy referred to in this Agreement is intended to be exclusive, but each remedy shall be cumulative and in addition to any other remedy referred to above or otherwise available to Ushur at law or in equity and may be exercised concurrently or consecutively.
- CONFIDENTIAL INFORMATION.
7.1 Obligations. Customer agrees to disclose to Ushur only that portion of Customer’s Confidential Information that is reasonably necessary to enable Ushur to provide the Service, and Ushur agrees to disclose to Customer only that Confidential Information of Ushur that is reasonably necessary to enable Customer to receive the Service. The party receiving Confidential Information (the “Receiving Party”) from the other party (the “Disclosing Party”) will not use any Confidential Information of the Disclosing Party for any purpose other than the provision and receipt of Service under this Agreement, respectively, the use in accordance with all terms and conditions of this Agreement. Further, the Receiving Party will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
7.2 Termination of Obligations. The Receiving Party’s obligations under this Section 7 with respect to any Confidential Information of the Disclosing Party will terminate if and when the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party; (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order or a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
7.3 Return of Confidential Information. The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the expiration or termination of this Agreement, whichever comes first. At the Disclosing Party’s request, the Receiving Party will certify in writing that it has fully complied with its obligations under this Section 7.3.
- NO WARRANTIES. THE SERVICE IS PROVIDED “AS IS” AND CUSTOMER'S USE OF THE SERVICE IS AT ITS OWN RISK. USHUR MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE RELATING TO THE SERVICE. USHUR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE, AS TO ANY MATTER. FURTHERMORE, USHUR DOES NOT WARRANT THAT THE SERVICE WILL MEET ALL OF CUSTOMER’S REQUIREMENTS, THAT THE USE OF THE SERVICE WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE.
9.1 Mutual Indemnification. Each party agrees, at its sole cost and expense, to defend, indemnify and hold the other party harmless against any third party claims, actions or proceedings, damage, losses, costs and expenses (including reasonable attorneys’ fees) arising in connection with such party’s gross negligence and/or willful misconduct.
9.2 Ushur Indemnification. Ushur shall, at its own expense, defend, indemnify and hold Customer harmless against any third party claims, actions or proceedings, damage, losses, costs and expenses (including reasonable attorneys’ fees) arising from or based on a claim that the Service, as provided by Ushur, infringe the intellectual property rights of any third party. Ushur shall have no liability for any claim of infringement based in whole or in part upon (i) the modification of the Technology by anyone other than Ushur or Ushur’s employees, agents, contractors, or subcontractors or (ii) the use of the Service, or any portion thereof: (a) outside the scope of this Agreement and such claim would not have arisen but for such use outside the scope of the Agreement, (b) bundled with other hardware, software or service and such claim would not have arisen but for such bundled use, (c) if the infringement would have been avoided by the use of a current or unaltered update or release of the Technology, or (d) in a manner other than for which it was specified by Ushur in the documentation.
9.3 Customer Indemnification. Except for claims covered under Ushur’s indemnification obligations under Section 9.2 above, Customer shall, at its own expense, defend, indemnify and hold Ushur harmless against any third party claims, actions or proceedings, damage, losses, costs and expenses (including reasonable attorneys’ fees) arising in connection with any use of the Services.
9.4 Indemnification Procedures. The indemnification obligations of each party are dependent on the party seeking indemnity (a) giving the indemnifying party prompt written notice of such claim, (b) permitting the indemnifying party to defend or settle the claim, (c) not making any admission of liability in respect of the whole or any part of the claim or entering into any agreement or negotiation to settle or dispose of the claim, (d) providing all reasonable assistance to the indemnifying party in defending or settling the claim, and (e) the claim shall not have arisen due to unauthorized acts or misconduct of the other party or a third party, acting on behalf of such other party.
- LIMITATION OF LIABILITY.
10.1 Limitation. EXCLUDING FOR CLAIMS THAT ARE THE SUBJECT OF EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, EITHER PARTY’S MAXIMUM LIABILITY TO THE OTHER UNDER THIS AGREEMENT IS LIMITED TO THE FEES PAID BY CUSTOMER TO USHUR IN THE TWELVE (12) CALENDAR MONTH PERIOD IMMEDIATELY PRECEDING THE DATE FOR WHICH ANY CLAIM OF LIABILITY IS MADE.
10.2 Disclaimer. NOTWITHSTANDING THE FOREGOING, AND EXCLUDING FOR EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING OUT OF LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF ENTERPRISE OR LOSS OF OPPORTUNITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CONSEQUENCES OF ERRORS, DOWNTIME, WHETHER SCHEDULED OR UNSCHEDULED, OR FAULTY TRANSMISSION.
10.3 Basis of Bargain. THE PARTIES ACKNOWLEDGE THAT (A) USHUR HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES, and (B) THE LIMITATION AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED THEIR ESSENTIAL PURPOSE.
- ASSIGNMENT. Customer may not assign, resell or otherwise transfer any goods or services received under this Agreement to a third party without the prior written consent of Ushur. Notwithstanding the foregoing, Customer may assign all of its rights and duties under this Agreement to a third party that: (a) directly or indirectly controls Customer; (b) is controlled by or under common control with Customer; or (c) purchases all or substantially all of Customer’s assets; provided, that: (i) Customer gives prior written notice to Ushur of the assignment, (ii) the assignee agrees to be bound by all the terms of this Agreement; and (iii) number of Users authorized by assignee to use the Service does not exceed the number of Users authorized by Customer prior to such assignment without the payment of additional fees. Assignment of this Agreement will not release Customer from any prior outstanding obligation under this Agreement. Subject to the foregoing, this Agreement will inure to the benefit of each party’s successors and assigns. Any assignment in violation of this Section 11 is null and void.
- RELATIONSHIP. No agency, partnership, or joint venture is created by this Agreement. The parties are and remain at all times independent contractors and not agents or employees of the other party. Neither party has the authority to act for, bind, or incur any debts or liabilities on behalf of, the other party in any respect whatsoever. Each party will act in good faith and refrain from activities that attempt to induce the other party’s employee(s) to leave their employer, or to interfere with the other party’s relationship with its employees. The parties agree that during the term of the Agreement, and for a period of twelve (12) months thereafter, neither party will, in any way, directly or indirectly (a) induce or attempt to persuade any employee of the other to quit employment, (b) otherwise interfere with or disrupt the other party’s relationship with its employees, or (c) knowingly solicit, entice or hire away any employees of the other party. Nothing in this Section 12 prohibits either party from hiring in response to a general solicitation for employment or if approached by the prospective employee without solicitation by the party hiring.
- FORCE MAJEURE. Ushur will be excused from performance under this Agreement for any period and to the extent that it is prevented from performing pursuant hereto, in whole or in part, as a result of delays caused by Customer or third parties or an act of God, war, civil disturbance, court order, labor dispute or other cause beyond Ushur’s reasonable control, including without limitation failures or fluctuations in electrical equipment. In addition, the Service may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Ushur is not responsible for any delays, failures, or other damage resulting from such problems. Customer acknowledges that the Service may be affected by numerous factors outside of Ushur’s control.
- GENERAL TERMS. If any provision of this Agreement is held invalid, illegal, or unenforceable, including without limitation as a result of unconscionability or inconsistency with public policy, such provision will be construed so as to come as close as possible to its intended meaning, and the validity, legality, or enforceability of the remaining provisions will in no way be impaired. Under no circumstances will the preprinted terms of any purchase order or any other terms apply to this Agreement. Capitalized terms have the meanings given in this Agreement. No waiver of any of the terms or conditions of this Agreement will be binding for any purpose unless made in writing and signed by authorized representatives of both parties and any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of either of the parties in exercising any right will operate as a waiver, nor will any single or partial exercise by either of the parties of any right preclude any other or further exercise thereof or the exercise of any other right. All notices, consents and approvals under this Agreement must be delivered in writing by overnight delivery with a tracking system, personal delivery, or certified mail, postage pre-paid, to the other party at its address set forth in above or at such other address as may be later designated by such party. Notices will be deemed to have been received upon the date of receipt or, in the case of certified mailing, two (2) days after deposit in the mail. This Agreement will be governed by the laws of the State of Delaware without regard to conflicts of law principles. All disputes arising under this Agreement must be brought in the state and federal courts located in Santa Clara County, California. Each party irrevocably hereby consents to the jurisdiction and venue of any such court in any such action or proceeding.