PLEASE READ THESE TERMS OF SERVICE (THE “AGREEMENT”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY UBICALL, INC. (“UBICALL”). YOUR USE OF THE SERVICES IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. BY CLICKING THE “SUBMIT” (OR SIMILAR) BUTTON, OR BY USING THE SERVICES IN ANY MANNER (AS APPLICABLE) (I) YOU OR THE ENTITY YOU REPRESENT (“CUSTOMER”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS, AND (II) YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND CUSTOMER.
1. Access to Service. Subject to Customer’s compliance with the terms and conditions of this Agreement: (i) Ubicall grants Customer the right to access and use the Ubicall services ordered by Customer (collectively, the “Service,” or “Services” ) during the Term (as defined below) for the internal business purposes of Customer, only as provided herein and only in accordance with Ubicall’s applicable user documentation; and (ii) Ubicall grants Customer, during the Term, a non-exclusive, non-sublicensable, non-transferable license to (a) incorporate the SDK(s) provided to Customer by Ubicall (the “SDK”), in object code form only, into one or more Customer software applications that communicate with the Services (each a “Customer Application”), and (b) distribute the SDK in object code form only as part of a Customer Application. Without limiting the foregoing, Customer’s use of the Services and SDK shall be subject to any additional limitations (e.g., maximum number of Customer Applications, platform restrictions, API calls, etc.) which are set forth on the Services, and shall be subject to the payment of all applicable fees.
2. Modifications. Ubicall shall have the right (but not the obligation), at its sole discretion, to modify or replace this Agreement, or to modify, update, change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content) at any time, and will endeavor to notify you by posting a notice on the website or by sending you an email. Ubicall may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. It is your responsibility to check this Agreement periodically for changes. Your continued use of the Services following the posting of any changes to this Agreement constitutes acceptance of those changes.
3. Support; Service Levels. Ubicall will: (i) provide Customer with 99% availability to the Service (the “Service Availability”) ; (ii) use reasonable commercial efforts to maintain the security and integrity of the Service; and (iii) provide basic support to Customer. The Service Availability will be measured on a monthly basis, with all hours weighted equally, but the Service Availability measurement will exclude reasonable scheduled downtime for system maintenance as well as any downtime resulting from outages of third party connections or utilities or other reason beyond Ubicall’s control (including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Ubicall employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Ubicall’s possession or reasonable control, and denial of service attacks). If the Service is unavailable to Customer due to defects with the Service beyond the 99% monthly availability metric, then, as Customer’s sole and exclusive remedy (and Ubicall’s sole liability), Ubicall will provide Customer a credit for the subsequent Service billing cycle as follows:
In order to receive downtime credit, Customer must notify Ubicall within seventy-two (72) hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. All credits provided hereunder are nonrefundable. If Customer elects not to renew the Agreement, such that the above credit cannot be applied, Customer will have the option to receive up to one free month of Service as its sole remedy in lieu of such credit.
4. Confidentiality; Ownership. Customer acknowledges that, in the course of using the Services and performing its duties under this Agreement, it may obtain, learn or develop information relating to the Services and/or to Ubicall or its suppliers or licensors (“Proprietary Information”), including, but not limited to, the existence of the Services, SDKs, code, technology, know-how, ideas, algorithms, testing procedures, structure, interfaces, specifications, documentation, bugs, problem reports, analysis and performance information, and other technical, business, product, marketing and financial information, plans and data. During and after the term of this Agreement, Customer shall hold in confidence and protect, and shall not use (except as expressly authorized by this Agreement) or disclose, Proprietary Information, unless such Proprietary Information becomes part of the public domain without breach of this Agreement by Customer, its officers, directors, employees or agents. Except for the rights expressly granted under this Agreement, as between the parties, Ubicall retains all right, title, and interest in and to the Services and the SDK, and all other products, works, and other intellectual property created, used, or provided by Ubicall for the purposes of this Agreement. Ubicall shall be permitted to freely exploit all data generated by or on behalf of it in connection with the Services and to provide such data to third parties (including, without limitation, App Data (as defined below)), so long as such data is provided in the aggregate and can in no way be linked specifically to Customer. Customer shall, and hereby does, grant Ubicall a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its users relating to the operation of the Service. Nothing in this Agreement will impair Ubicall’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.
5. Fees. Customer shall pay Ubicall all fees applicable to the Services ordered by Customer (“Fees”) in accordance with the payment terms set forth on the Service. All Fees paid to Ubicall hereunder are nonrefundable. Any amounts payable hereunder are exclusive of all sales taxes, value added taxes, duties, use taxes, withholdings and other governmental assessments. Customer shall pay all such taxes and governmental assessments associated with the Services (excluding taxes based on Ubicall’s net income), unless Customer provides to Ubicall a valid tax-exempt certificate. Ubicall may change the Fees from time to time hereunder; provided that any change in Ubicall shall not go into effect until the commencement of the next Renewal Term (as defined below) that follows such notice.
6. Restrictions. Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service or SDK (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, extend, or create derivative works based on the Service or SDK; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service or SDK; (iv) use the Service or SDK for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Service, SDK, or any portion thereof; (vi) block, disable, hide or limit in any way the ability of any device (whether or not such device includes a Customer Application) to access the Service or any portion or functionality of or enabled by the Service; (vii) contaminate, incorporate, integrate, link or bundle any portion of the SDK with any software code governed by open source, community source, freeware, shareware, or other public license or distribution model software; (viii) use the Service or SDK to build an application or product that is competitive with any Ubicall product or service; or (ix) remove or export the Services, SDK or any Proprietary Information or any direct product thereof from the United States. Customer is responsible for all of Customer’s activity in connection with the Service, and Customer shall use the Service in compliance with all applicable laws and regulations. Customer shall not (and shall not permit any third party to), directly or indirectly, (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any material on or through the Service, that: (1) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity; (2) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, offensive, or profane; (3) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”); (4) contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of Ubicall or any third party; or (5) impersonates any person or entity, including any employee or representative of Ubicall.
8. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE AND THE SDKS ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
9. Term; Termination. This Agreement shall commence upon Customer’s first use of the Services. If Customer has selected a free evaluation license to the Services, this Agreement shall terminate after the applicable trial period for the Services (as set forth on the Services) has expired (the “Trial Period”), unless Customer orders and pays for a paid subscription to the Services. The ordering of paid Services shall terminate the Trial Period, and thereafter this Agreement shall continue for the applicable subscription period set forth on the Services during the ordering process (the “Initial Term”) unless earlier terminated in accordance herewith. For any Services which are subject to renewal, following the Initial Term, subject to Customer’s payment of all applicable fees, this Agreement may be renewed for successive renewal periods as set forth on the Services (each, a “Renewal Term”, and together with the Trial Period (if any) and the Initial Term, the “Term”). Notwithstanding anything to the contrary, Ubicall’s obligations under Section 2 (“Support; Service Levels”) of this Agreement shall not apply during the Trial Period. If Customer is in material breach of any provision of this Agreement, Ubicall reserves the right to immediately suspend access to the Services until such breach is materially cured. Without limiting the foregoing, either party may terminate this Agreement by written notice to the other party in the event that such other party materially breaches this Agreement and does not materially cure such breach within thirty (30) days of such notice. In addition, (i) Ubicall may terminate this Agreement during the Trial Period upon thirty (30) days’ written notice to Customer, and (ii) Ubicall may suspend Customer’s access to the Service or terminate this Agreement if Customer’s use of the Services places an unreasonable load on the Services or otherwise interferes with Ubicall’s ability to provide the Services to other customers (as determined by Ubicall in its reasonable discretion). Upon termination, the rights and licenses granted to Customer hereunder shall terminate and Customer shall immediately return anything Customer has obtained in connection with the Services, together with any and all documents, notes and other materials respecting the Services to Ubicall, including, without limitation, all Proprietary Information and all copies and extracts of the foregoing, but the terms of this Agreement will otherwise remain in effect. The Services may incorporate functions that render the Services inoperable after the termination or expiration of this Agreement.
10. This Agreement applies to your use of all the Services, including those Services available via the Apple, Inc. (“Apple”) App Store (the “Application”), but the following additional terms also apply to the Application: (i) both you and Ubicall acknowledge that this Agreement is concluded between you and Ubicall only, and not with Apple, and that Apple is not responsible for the Application or the Services; (ii) the Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of this Agreement as it is applicable to the Services; (iii) you will only use the Application in connection with an Apple device that you own or control; (iv) you acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application; (v) in the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application; (vi) you acknowledge and agree that Ubicall, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application; (vii) you acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Ubicall, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim; (viii) you represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties; (ix) both you and Ubicall acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and (x) both you and Ubicall acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and that upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as the third party beneficiary hereof.
11. Limitation of Liability. IN NO EVENT SHALL UBICALL, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, INACCURACY, OR CORRUPTION, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID BY CUSTOMER TO UBICALL HEREUNDER IN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO CUSTOMER.
12. Miscellaneous. This Agreement represents the entire agreement between Customer and Ubicall with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Ubicall with respect thereto. The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys’ fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Ubicall's prior written consent, and any action or conduct in violation of the foregoing shall be void and without effect. Ubicall may freely assign, transfer or delegate any of its rights and obligations hereunder. Except with respect to Apple, the parties agree that the provisions of this Agreement are intended for the benefit of, and are enforceable solely by, the other party, and nothing in this Agreement shall be construed as giving any other person any right, remedy or claim under or in respect of this Agreement or any provision hereof. Customer shall indemnify and hold harmless Ubicall from any and all claims, liabilities, damages and/or costs (including but not limited to, reasonable attorneys’ fees) arising in connection with (i) any breach of this Agreement by Customer, (ii) Customer Applications, or (iii) Customer’s use of the Services. Customer acknowledges and agrees that due to the unique nature of Ubicall’s Proprietary Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow Customer or third parties to unfairly compete with Ubicall resulting in irreparable harm to Ubicall, and therefore, that upon any such breach or threat thereof, Ubicall shall be entitled to injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law (without the requirement of posting a bond). No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. The failure of Ubicall to act with respect to a breach of this Agreement by Customer or others shall not constitute a waiver and shall not limit Ubicall’s rights with respect to such breach or any subsequent breaches. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.