We are delighted that You have decided to try our software application services. Please read these Terms of Service carefully before using Our Service. These Terms of Service are between Umso Software Inc., a company formed under the laws of British Columbia, Canada (“Umso”, “Our”, “Us”, and “We”) with a delivery address of #900-2025 Willingdon Avenue, Burnaby, B.C., Canada V5C 0J3 and each Person using Our Umso™ online software application services (the “Subscriber”, “You”, and “Your”).
THESE TERMS OF SERVICE, TOGETHER WITH THE SUBSCRIPTION ORDER BETWEEN YOU AND UMSO CONSTITUTE A BINDING AGREEMENT (SOMETIMES REFERRED TO AS THE “AGREEMENT” IN THESE TERMS OF SERVICE) BETWEEN THE SUBSCRIBER (BEING THE COMPANY OR PERSON IDENTIFIED AS “SUBSCRIBER” IN THE SUBSCRIPTION ORDER) AND UMSO.
By creating an account with Us or by clicking the box, “I Agree to the Umso Terms of Service” when setting up an account with Us, an Agreement is formed with Umso as at such date (the “Effective Date”) whereby You agree to comply with these Terms of Service. If the individual accepting these Terms of Service is acting on behalf of an employer or another Person, you represent and warrant that: (a) You have full legal authority to bind your employer, or the applicable Person, to these Terms of Service; (b) You have read and understand this Agreement; (c) You are over the age of 18 years as at the Effective Date; and (d) You agree, on behalf of the Person that you represent, to all of the Terms of Service in this Agreement. This Agreement governs Your access to and use of the Application and Services.
If You don't have the legal authority to bind your employer or the applicable Person, please do not click the box indicating You agree with Our Terms of Service and do not open an account with Us.
We reserve the right to modify these Terms of Service at any time, effective upon posting of an updated version of these Terms of Service on Our Web Site where the Services are offered. Your continued use of the Services after any such changes will constitute consent to such changes. Any revised Terms of Service will supersede all previous versions.
If You do not agree with any version of these Terms of Service in effect at the time, You will have the right to terminate this Agreement and receive a proportional refund of the paid subscription fee for the unused monthly or annual portion of the remaining period of time left, if any, under the terms of Your Subscription Order.
In these Terms of Service, the capitalized terms listed below will have the following meanings:
"Account" refers to an account provided under the Services for the purpose of creating a User Platform and using, accessing or otherwise benefitting from the functionality of the Services that We may provide from time to time during the period You maintain Your subscription in good standing.
“Agreement” means the Subscription Order form completed by You and submitted to Us electronically via the Web Site, and any materials available on the Web Site specifically incorporated by reference herein, as such materials, including the these Terms of Service, may be updated by Us from time to time in Our sole discretion.
“Application” means Our proprietary Web-based software application called Umso™ and all associated documentation and other materials utilized by You or made available to You by Us for use in accessing the Web Site and using the Services to create a User Platform.
“Content” means any data, packets, information, communication, or other material that is submitted, transmitted, copied, uploaded, transferred, controlled, delivered, recorded, or otherwise made available by You to the Services or User Platform or by users of Your User Platform, whether or not using Log-In Information, including without limitation any and all documents, articles, transcripts, computer programs, designs, icons, illustrations, images, logos, multimedia, photographs, video clips, sounds, text, trademarks, Personal Information, identities and likeness of Persons, recordings, and any other spoken, written, or electronic expressions or works.
“Log-In Information” has the meaning ascribed to it set forth in Subparagraph 5(a)(ii).
“Person” means any individual, partnership, corporation, trust, or legal entity.
“Services” means the Application, the subscription to which provides You with an Account or access to the functionality and feature set for Umso™, to create a User Platform, whether the trial version, startup version, growth version, or business version or any other version available from time to time from Us, Our hosting services, or any other functions utilized by You or made available to You in conjunction with accessing the Web Site and the Application.
“Subscription Order” means the form evidencing the initial subscription for the Services and any subsequent order form(s) submitted online or in written form, specifying, among other things, the Term, the applicable subscription fee, the billing period (monthly or annual), and other charges as agreed to with Us, each such Subscription Order to be incorporated into and to become a part of this Agreement (and in the event of any conflict between the terms of this Agreement and the terms of any such Subscription Order, the terms of this Agreement shall prevail).
“Term” has the meaning ascribed to it set forth in Paragraph 12(a).
“User Platform” means the web site You create using the Application and Services.
“Web Site” means https://www.umso.com, any subdomains thereof, and any successor websites.
Except as otherwise expressly provided in these Terms of Service or as the context otherwise requires,
(a) the words “include” or “including” when following any general term or statement are not to be interpreted as limiting the general term or statement to the specific items or matters set forth or to similar terms or matters but rather as permitting it to refer to all other items or matters that could reasonably fall within its broadest possible scope;
(b) the words “herein”, “hereof”, “hereby” and “hereunder” and other words of similar import refer to these Terms of Service as a whole and not to any particular Section, Subsection, Paragraph, Subparagraph or other subdivision;
(c) a capitalized cognate of a defined term has a meaning corresponding to that of the defined term;
(d) the conjunction “or” shall be understood in its inclusive sense (and/or);
(e) a reference to a time or date is to the local time or date in Vancouver, British Columbia, Canada, unless specifically indicated otherwise;
(f) the word “any” means “any and all”.
Subject to the terms and conditions contained in these Terms of Service, We hereby grant You, during the Term, a non-exclusive, non-transferable, non-assignable, non-sublicensable, fully revocable, limited license to access electronically via the Internet in the manner authorized by Us and to use, solely for Your business purposes, the Application together with any other Services You may select for purposes of creating a User Platform. You will not relicense or sublicense the Application with or for any other Person.
The subscription, license, and corresponding fees for Our Services will commence upon the earliest of (a) the expiry of Your Trial Period, or (b) the date of Your first payment for Your use of the Application.
You hereby represent, warrant, covenant, or agree as follows:
(a) Use of Services and Application.
(ii) You are responsible for the user name and password for accessing Our Services (the “Log-In Information”). You must keep all Log-In Information strictly confidential. Log-In Information may not be shared or transferred. You are entirely responsible for maintaining the confidentiality of Your user name and password. You will be entirely responsible for any and all activities that occur under Your Account. You agree to notify Us immediately of any unauthorized use of Your Account or any other breach of security if You become aware of the same. We will not be liable for any loss that You may incur as a result of someone else using Your Account, either with or without Your knowledge;
(iii) Umso will consider the owner of an Account, User Platform or Content created or uploaded, as the Person who has access to the e-mail address then listed in Umso’s records for such Account under which such User Platform was created. When establishing an Account, You promise to provide Umso with accurate and complete information including Your full legal name, delivery address, state or province, area code or zip code, country, telephone number, and valid payment method particulars;
(iv) Umso has no obligation or responsibility with regard to Your use or management of Log-In Information. You agree that Umso may act in reliance, without investigation, upon any Log-In Information provided by You;
(v) neither You nor Umso guarantees the security of any information transmitted to or from or over the Internet, including through the use of e-mail. Access to the Internet is Your sole responsibility and the responsibility of the Internet provider You select. We do not accept any responsibility for failure of service due to Internet facilities, including related telecommunications or equipment;
(i) You are and will be the owner, authorized licensee, or authorized user of all Content generated or submitted in using the Services and Your User Platform;
(ii) You will not publish, post, upload, record, publicly display, link to, or otherwise distribute or transmit any Content that:
(A) infringes, or may reasonably be expected to infringe, any copyright, patent, trademark, service mark, trade name, trade secret, domain name or other intellectual property or proprietary right of any Person, or any rights of publicity or privacy of any Person;
(B) violates any applicable law, statute, ordinance, or regulation;
(C) promotes, solicits, comprises or contains inappropriate, objectionable or unlawful material, including material which is hateful, threatening, pornographic, incites violence, contains graphic or gratuitous violence, is defamatory, discriminatory, or contains offensive content relating to sexual orientation, gender, a national or ethnic origin, or any other targeted group;
(D) is harmful to minors;
(E) contains cancelbots, corrupted files, time bombs, Trojan horses, viruses, worms or any other similar data, programs or software that may damage, expropriate, intercept or interfere with any data, information, property or system of another Person or that may damage or interfere with the normal functioning of the Services;
(F) advocates, assists, incites, instructs, promotes or otherwise encourages violence or any illegal activity;
(G) contains information for which You do not have the right to permit Umso to collect, store, or process; or
(H) generates unsolicited emails or spam, chain letters, or any other form of unsolicited communications including the promotion of gambling or the purchase of lottery tickets;
(c) Legal Compliance.
(i) You are authorized, and have all of the rights, to grant all licenses and other rights granted by You to Umso pursuant to this Agreement;
(ii) You are solely responsible for your familiarity and compliance with any and all laws that may prohibit You from accessing or using any part or all of the Services, or that may limit or regulate such participation or use, or that affect your User Platform;
(iii) You agree not to use the Services, User Platform, or any part thereof for any illegal purpose;
(iv) You agree to comply with all applicable local, provincial, state, national, federal, and international laws and regulations, including without limitation laws relating to intercepting, monitoring, or recording communications, privacy, or data protection, and public displays or performances. You further agree that neither this Agreement nor any other right or remedy of Umso requires Us to exercise any right or remedy in order to benefit or protect anyone, although We reserve the right to do so in Our sole discretion; You are responsible for obtaining any permission or consent, and for establishing and enforcing necessary controls and restrictions, relating to the collection, storage, and use of confidential or personally identifiable information that You may be obligated to protect under applicable privacy or data protection laws, or similar requirements or policies in compliance with any jurisdiction to which You or Your User Platform may be subject.
You acknowledge and agree that any use, copying, or distribution of the Application other than as specifically permitted under this Agreement is expressly prohibited without Our prior written consent. Without limitation, You agree not to do any of the following, each of which constitutes an unauthorized use of the Services: (a) attempt to gain unauthorized access to the Services, or to other accounts, computer systems, or networks connected to the Web Site hosting the Services, whether through hacking, password mining, or any other means; (b) falsify or, without proper authorization by the legal owner thereof, delete any copyright management information, such as author attributions, legal, or other proper notices or proprietary designations, or labels of the origin or source of material contained in a file that is uploaded by You to the User Platform; (c) obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services; (d) deliberately disrupt, interfere with, or inhibit any other Person’s use and enjoyment of the Services; (e) use the Umso name to market or sell any goods or services (including advertising or making offers to buy or sell goods or services or implying that We in any manner endorse or are associated with such goods and services), unless We have specifically, knowingly, and intentionally given our prior written and signed consent for such activity; (f) intentionally use the Services in any manner that could damage, disable, overburden, impair, or otherwise interfere with or disrupt the Web Site hosting the Services or any networks connected to such Web Site; (g) reverse-compile, decompile, analyze, reverse-assemble or disassemble, reverse engineer, translate, unlock or otherwise attempt to learn the source code or underlying algorithms of the Application or other Services; (h) unless expressly set forth otherwise in this Agreement, assign, copy, adapt, translate, create derivative works of, deliver, distribute (including by any frame protocol), transmit, lease, loan, modify, pledge, rent, sell, sublicense, timeshare, or otherwise transfer, directly or indirectly, the Services, any portion thereof or any rights thereto; (i) resell, or act as a service bureau for, the Services or any component thereof; (j) engage in any systematic extraction of data or data fields, including without limitation e-mail addresses from the Web Site or via the Services; or (k) take any actions, whether intentional or unintentional, that may circumvent, disable, damage, or impair the Services' control or security systems, or allow or assist a third party to do so.
Access to the Web Site, the Application, and the Services are licensed by subscription, not sold, to You pursuant to, and solely for Your use under, these Terms of Service. Umso retains all right, title, and interest relating to or embodied in the Web Site, the Application and the Services, including without limitation all intellectual property rights relating thereto. All graphics, logos, service names, domain names, trademarks and trade names relating to the Web Site, the Application, and the Services (collectively, the “Marks”) are the property of Umso. Umso retains all right, title and interest, including all intellectual property rights, in and to the Marks. You are prohibited from using any of the Marks. You acknowledge that (a) Umso owns or controls all rights, title, and interest in the Application and all copyrights, trade secrets, trademarks, and other intellectual property rights relating thereto; (b) the Application constitutes valuable intellectual property rights of Umso; (c) Umso does not grant to You any right or license, either express or implied, in the Application or Services except as specified in these Terms of Service, and Umso reserves all other rights; and (d) Your use of the Application will be subject to the restrictions set forth in these Terms of Service. We will be entitled to use and exploit, without restriction or charge, any ideas, improvements, suggestions, or enhancements to the Application or Services made or provided by You (“Feedback”). By submitting any Feedback to Us, You concurrently (i) grant Umso a perpetual, unconditional, irrevocable, worldwide, royalty-free, fully-paid, right and license to execute, use, reproduce, distribute, modify, publicly display, publicly perform, exploit, and commercialize the Feedback without any limitations or restrictions whatsoever; and (ii) irrevocably waive any claims or moral rights relating to or embodied in any Feedback.
You hereby grant to Umso, solely for the purpose of providing the Services, a non-exclusive, worldwide, royalty-free, fully-paid, transferable license to modify, host, cache, reproduce, record, display, perform, transmit, upload, transfer, store, control, download, and distribute the User Platform and related Content generated or submitted by You or users of Your User Platform in connection with Your use of the Services as may be reasonably necessary or appropriate for Us to perform Our obligations to You under the Subscription Order and these Terms of Service. Upon the expiration or other termination of this Agreement or Your use of the Services, this license granted to Umso will immediately and automatically cease except to the extent that Content is stored or otherwise retained by Us pursuant to Our data storage policies.
We do not verify or endorse any of Your Content. You are solely responsible for all Content generated or submitted using Our Services or on Your User Platform. You are also responsible for making, retaining, or printing back-up copies of any or all Content generated or submitted using the Services and included on the User Platform. We have no responsibility or liability for the deletion, modification, or accuracy of Content, the failure to store, transmit, or receive transmission of Content (whether or not processed by Our Services), or the security, privacy, storage, or transmission of other communications originating from or otherwise involving use of the Services.
We do not generally monitor Subscriber activity occurring in connection with Our Services. Although We assume no responsibility for any of the Content You provide to or using the Services, We may at any time without notice:
(a) elect to electronically monitor Your use of the Services;
(b) modify, delete, remove, restrict access to, or render inaccessible, in whole or in part, any Content which We reasonably believe contravenes the scope of any of the provisions of Sections 5 or 6 above to the extent We become aware of the same and to the extent We are able to do so if You are using Our hosting services as part of the Services; or
(c) disclose any Content or records concerning Your Account as necessary to satisfy any law, regulation, or other governmental request.
You hereby acknowledge and expressly agree that We will have no liability whatsoever to You, whether under these Terms of Service or any other theory of law for any reasonable action or inaction We may take with respect to any of the matters contemplated by the provisions of Sections 5 or 6 above. If We have reasonable grounds to believe that You are utilizing the Services contrary to any of the provisions of Sections 5 or 6, We will deliver written notice with reasonable particulars to You. If You fail to remedy or cause the remedy of the matter giving rise to the notice within five calendar days after delivery of such notice, Umso will then have the right, in its sole and absolute discretion, to suspend access to the User Platform or suspend or terminate this Agreement immediately upon notice to You without any liability for breach of contract, tort, or under any other legal theory whatsoever.
As between Umso and You, You will own all Content provided to or derived from the use of the Services hereby contemplated. If You are using our hosting services as part of the Services, We will keep, store, and backup all such Content included on the User Platform in a safe and secure environment until the termination, expiry, or cessation of the Subscription Order or use of the Services by You.
12.(a) Term. The period of this Agreement (the “Term”) shall be as follows:
(i) Trial Version. If you have subscribed to the 14-day trial version of the Application (the “Trial Period”), the Term will commence on 12:00 a.m. on the day following the day that We accept your Subscription Order for such Trial Period.
(ii) Paid Use. If you have subscribed to any of the Services using any paid version made available from time to time by Us (“Paid Use”), the Term will commence on 12:00 a.m. on the day following the day that We accept Your Subscription Order and continue until the last day of the month or year, depending on the monthly or annual subscription period You have selected, in all cases subject to the terms of this Agreement. Umso may from time to time, in its sole and absolute discretion, modify the amount payable for any Paid Use subscription upon 30 days prior notice to You. Your continued use of the User Platform after any such notice of a modification in Paid Use becomes effective will constitute Your acceptance to pay the modified Paid Use amount.
(iii) Automatic Renewal. At the end of a Term of Paid Use, you will have the option to renew this Agreement on a paid basis. If you choose not to renew on this basis, this Agreement will terminate at 11:59 p.m. on the last day of the Term.
On the last day of each paid Term, this Agreement shall automatically renew for another Term of the same length to begin at 12:00 a.m. on the following day (the “Renewal Date”), and your credit card account will be charged for another Term, until and unless this Agreement is terminated prior to the Renewal Date pursuant to Paragraph 12(b) or as otherwise hereby contemplated. YOU WILL BE RESPONSIBLE FOR ALL SUBSCRIPTION FEES AND OTHER CHARGES INCURRED DURING EACH RENEWAL TERM. IT IS YOUR RESPONSIBILITY TO CANCEL THIS AGREEMENT IF YOU DO NOT WISH TO RENEW ANY TERM.
(b) Methods of Termination.
(i) If you fail to accept an update or amendment of this Agreement as described in Section 30, this Agreement shall automatically terminate.
(ii) We may at any time prior to the end of the Term, by sending you a notice of termination to the email address included with your Log-In Information (which notice will be effective upon being sent by Us), or by other means permitted in Paragraph 22(a), terminate this Agreement and your access to the Web Site, the Application, User Platform, and the Services, if:
(A) You breach one or more provisions of Section 3 (Grant of License), Section 5 (Using the Services and Content), or Section 6 (Prohibited Use); or
(B) You breach any other provision of this Agreement, and you do not cure such breach within seven calendar days of notice from Umso describing the breach in reasonable detail; or
(C) We determine, in Our sole and absolute judgment, that terminating your access to the Web Site, the Application, User Platform, or the Services is advisable for security reasons, to protect Umso from liability, or to maintain the continued normal and efficient operation, and a consistent quality, of the Web Site or the Services.
(iii) You may terminate this Agreement at any time, for any reason or no reason, by providing electronic notice to Us via the Web Site at least 24 hours prior to your Renewal Date or by sending a hard copy notice to Us that is received by Us at least two calendar days prior to your Renewal Date.
(c) Effect of Termination.
(i) Upon termination of this Agreement, you must immediately cease using the Web Site (except for browsing publicly-accessible areas), the Application, User Platform, and the Services. Your rights to access any and all Content submitted to Your User Platform and processed by the Services shall terminate immediately upon termination of this Agreement.
(ii) Umso reserves the right, exercisable at any time following 90 calendar days after the effective date of any termination of this Agreement, to delete any Content associated with Your User Platform or the Services, including without limitation any data files associated with your Content or your Personal Information.
(iii) No refund shall be due to you from Umso in the event of termination of this Agreement, for any reason, that occurs prior to the end of any Term except for any instance where You do not agree with any amended version of this Agreement then in effect, in which case, you will receive a proportional refund of the paid subscription fee for the unused monthly or annual portion of the remaining period of the Term.
Payment for subscription to the Services via the Web Site is via credit card. If this Agreement has not been validly terminated within 24 hours after any Renewal Date, Your credit card account will automatically be charged for another Term that is the same length as the Term just ended. Refunds, if any, will be credited to your credit card account. Throughout the Term and until all amounts due from you have been paid in full, You hereby authorize Umso to charge to Your credit card account all amounts due under this Agreement, including without limitation all payments, taxes and additional fees. If We do not receive payment from the credit card account You select for any reason, Your access to the User Platform, Web Site, the Application, or the Services may be deferred, suspended, or cancelled by Us without notice. Questions regarding charges must be brought to the attention of our billing department in a notice sent in accordance with Paragraph 22(b) within 90 days after the end of the questioned billing period. All fees and other charges must be paid in United States currency and exclude applicable taxes, duties and similar charges, which will be charged to and payable separately by You.
The Web Site, the Application, and the Services are conducted and provided by Us electronically. You agree that We may communicate electronically with You with respect to any and all matters relating to the Services and User Platform. The security of communications sent over the Internet (including by email) is subject to many factors outside of Our control. We do not guarantee the security or privacy of any such communications and will bear no liability for any damages to You or any third party as a result of any such communications.
While We strive to keep downtime to a minimum, from time to time the Web Site, the Application, the Services, or User Platform (if We are hosting the same) may be unavailable, whether due to periodic maintenance or otherwise.
The Web Site may include links that will take You to other websites outside of the Web Site (collectively, the “Linked Sites”). The Linked Sites are provided by Us to You as a convenience and the inclusion of such links does not imply any endorsement by Umso of any Linked Site. We have no control over the Linked Sites. Under no circumstances will We be responsible for any content, product, or service of any Linked Site. You acknowledge and agree that Your visits to any of the Linked Sites shall be made solely at Your own risk. You acknowledge and agree that Umso is not responsible for the contents of any Linked Site, any link contained in a Linked Site, or any changes or updates to a Linked Site. You further acknowledge and agree that Umso is not responsible for any form of transmission (e.g. webcasting) received from any Linked Site.
WE PROVIDE THE SERVICES HEREUNDER ON AN “AS IS,” “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WITHOUT ANY WARRANTY, REPRESENTATION, CONDITION, OR DUTY (IF ANY) OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF AVAILABILITY OR COMPATIBILITY, OF WORKMANLIKE EFFORT, OR OF NON-NEGLIGENT PERFORMANCE, TITLE, NON-INFRINGEMENT, ANY WARRANTIES, CONDITIONS, OR OBLIGATIONS THAT MIGHT OTHERWISE BE CONSIDERED TO ARISE FROM TRADE USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, AND ANY WARRANTY, CONDITION, OR COMMITMENT OF BEST EXECUTION.
THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES AND OUR PERFORMANCE IS WITH THE SUBSCRIBER. THERE IS NO GUARANTEE THAT THE SERVICES, OR OUR PERFORMANCE WILL MEET YOUR REQUIREMENTS, BE ERROR-FREE, OR OPERATE WITHOUT INTERRUPTION. THE SERVICE IS A BUSINESS SERVICE, NOT PRODUCTS, THE APPLICATION OF WHICH IS COMMERCIAL RATHER THAN CONSUMER-ORIENTED IN NATURE. IN ACCEPTING THIS AGREEMENT, YOU RECOGNIZE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THAT CONSUMER PROTECTION LAWS DO NOT APPLY TO YOUR USE OF THE SERVICES NOR TO THESE TERMS OF SERVICE.
WE SPECIFICALLY DO NOT REPRESENT OR WARRANT THAT THE SERVICES (OR ANY PART, FEATURE OR CONTENT THEREOF) ARE COMPLETE, ACCURATE, OF ANY CERTAIN QUALITY, RELIABLE, OR SECURE IN ANY WAY, SUITABLE FOR OR COMPATIBLE WITH ANY OF YOUR (OR YOUR USERS’) CONTEMPLATED ACTIVITIES, DEVICES, OPERATING SYSTEMS, BROWSERS, SOFTWARE, OR TOOLS (OR THAT THEY WILL REMAIN AS SUCH AT ANY TIME), OR COMPLY WITH ANY LAWS APPLICABLE TO YOU OR YOUR USERS (INCLUDING IN ANY JURISDICTION IN WHICH YOU OPERATE), OR THAT THEIR OPERATION WILL BE FREE OF ANY VIRUSES, BUGS, OR OTHER HARMFUL COMPONENTS OR PROGRAM LIMITATIONS. MOREOVER, WE DO NOT ENDORSE ANY ENTITY, PRODUC,T OR SERVICE (INCLUDING ANY THIRD PARTY SERVICES) MENTIONED ON OR MADE AVAILABLE VIA OUR SERVICES – SO PLEASE BE SURE TO VERIFY THOSE BEFORE USING OR OTHERWISE ENGAGING THEM.
INDEPENDENT OF, SEVERABLE FROM, AND TO BE ENFORCED INDEPENDENTLY OF ANY OTHER ENFORCEABLE OR UNENFORCEABLE PROVISION OF THIS AGREEMENT, IN NO EVENT WILL THE AGGREGATE LIABILITY OF UMSO, ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, REPRESENTATIVES, OR AGENTS TO THE SUBSCRIBER (INCLUDING LIABILITY TO PERSON OR PERSONS WHOSE CLAIM OR CLAIMS ARE BASED ON OR DERIVED FROM A RIGHT OR RIGHTS CLAIMED BY THE SUBSCRIBER), WITH RESPECT TO ANY CLAIMS AT ANY TIMES ARISING FROM OR RELATED TO (A) THE USE OF THE SERVICES OR ANY PART THEREOF, (B) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS OR ANY PERSONAL INFORMATION OR OTHER INFORMATION STORED THEREIN; (C) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (D) THE USE OR DISPLAY OF ANY CONTENT OR POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES; (E) EVENTS BEYOND THE REASONABLE CONTROL OF UMSO, INCLUDING ANY INTERNET FAILURES, EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOUR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOUR OR MATERIALS, FIRES, FLOODS, STORMS OR EXTREME WEATHER, EARTHQUAKES, EXPLOSIONS, ACTS OF GOD, WAR, TERRORISM, PANDEMIC, GOVERNMENTAL ACTIONS, ORDERS OF COURTS, AGENCIES, OR TRIBUNALS, OR NON-PERFORMANCE OF THIRD PARTIES; OR (F) LOSS OF USE, DATA, PROFITS, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM THE USE OR THE INABILITY TO USE ANY OF THE SERVICES, IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF ANY DUTY), STRICT LIABILITY, STATUTORY LIABILITY, OR OTHERWISE EXCEED THE CONSIDERATION PAID BY YOU TO UMSO UNDER THIS AGREEMENT DURING THE MONTH IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. IN NO EVENT WILL UMSO BE LIABLE TO YOU FOR ANY DIRECT, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR INCIDENTAL DAMAGES, LOSS OF GOODWILL, OR BUSINESS PROFITS, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE SOUGHT AND EVEN IF UMSO HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGES. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES WILL APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.
YOU ACKNOWLEDGE AND AGREE THAT THESE LIMITATIONS OF LIABILITY REFLECT AN AGREED ALLOCATION OF RISK AND REPRESENT IN PART, THE CONSIDERATION FOR THE SERVICES TO YOU, ABSENT WHICH, THE COST OF THE SERVICES WOULD BE MUCH GREATER, AND THAT SUCH LIMITATIONS WILL APPLY EVEN IF UMSO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR LIABILITIES.
You agree to indemnify, defend, and hold harmless Umso, and its directors, officers, shareholders, employees, representatives, agents, successors, and assigns, (collectively, the “Umso Indemnified Parties”), from and against any and all Claims or Costs, whether direct, incidental, indirect, consequential, or special in nature, including reasonable legal fees, expert witnesses, liabilities, obligations, damages, costs, and other expenses (collectively, “Costs”) incurred in the investigation and defense of any claim (as hereinafter defined) based on any claim, demand, proceeding, suit, or action (collectively, “Claims” and each a “Claim”) to which any Umso Indemnified Party may become subject resulting from or arising out of or in connection with any breach of the Agreement by You or the use by You or any of the users of Your User Platform or the Services or any part thereof.
Without limiting the foregoing, the indemnification provisions set forth above in this Section 20 include any and all Claims or Costs arising out of or related to: (a) use of or access to the Services by You or by any Person using Your Log-In Information (whether or not such use is authorized by You); (b) any actual or alleged violation by You or by any Person using your Log-In Information (whether or not such use is authorized by You) of these Terms of Service or applicable law; (c) any actual or alleged infringement or violation by You or by any Person using your Log-In Information (whether or not such use is authorized by You) of any copyright, trademark, patent, trade secret, confidential information, or other intellectual property, proprietary, privacy, or other right of any Person; (d) any Claims or allegations for product liability, unsuitability, or lack of fitness for a particular purpose; or (e) Your negligence or wilful misconduct.
You and Umso will provide any required communication under this Agreement to each other as follows:
(a) Notice to You. Notice shall be sent to You either (i) via electronic means to the email address associated with Your Account and shall be deemed delivered when sent by Us, or (ii) by hard copy regular mail to the delivery address contained in your Log-In Information, if any, and shall be deemed delivered ten calendar days after mailing.
(b) Notice to Umso. Notice shall be sent to Umso either (i) via regular mail, registered, signature required and return receipt requested, or (ii) via overnight courier with delivery signature required, in either case addressed to Umso’s delivery address at #900-2025 Willingdon Avenue, Burnaby, B.C., Canada V5C 0J3. Any notice sent by you shall be deemed delivered when actually received and, if applicable, signed for by an authorized representative of Umso.
Paragraphs 5(b), 5(c) and 12(c) and Sections 6, 7, 8, 9, 10, 11, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27, 28, 29, 32, 33, 34, and 35 will survive any cancellation, termination, expiration, or suspension of this Agreement.
Umso reserves all rights not expressly granted in this Agreement.
Each provision of this Agreement is declared to be a separate and distinct promise and to be separable from all other such separate and distinct promises. If any promise, provision or part thereof is determined by a court of competent jurisdiction or other constituted legal authority to be void, unenforceable or unreasonable in whole or in part, it will not be deemed to affect or impair the enforceability or validity of any other promise or provision in this Agreement or any part thereof and the said court or other constituted legal authority will have the authority to limit such promise or provision as it deems proper to most closely match the intent of the original provision and the remainder of the Agreement will continue in full force and effect.
Our failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision unless expressly agreed to by Umso in a non-electronic writing manually signed by a duly authorized officer of Umso.
We will not be liable for any non-performance or delay in performance caused by any event reasonably beyond Our control including without limitation, any accident, act of God, the activities of hackers, civil commotion, earthquake, embargo, epidemic, explosion, fire, flood, extreme weather condition, force of nature, hostilities, act of terrorism, health pandemic, malicious conduct, national emergency, revolution, riot or war, service outage resulting from equipment or software or telecommunications failure, power failure, network failure, or failure of third party service provider (including provider of internet services and telecommunications).
You may not assign this Agreement, or any rights or obligations hereunder, whether by contract, operation of law or otherwise, without the prior written consent of Umso. This Agreement may be assigned by Umso without notice to or consent from You and upon any such assignment Umso will be relieved of all obligations hereunder.
Nothing in this Agreement shall render or be interpreted to constitute either Umso or the Subscriber as the employee, partner, or agent acting for or on behalf of the other party. This Agreement is intended for the sole benefit of Umso and the Subscriber. No other Person will be entitled to claim the benefit of this Agreement, enforce the terms of this Agreement, or make any claim for damages as a result of the performance or non-performance of this Agreement.
A printed version of this Agreement and of any notice given to You in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Umso reserves the right to modify these Terms of Service or its policies relating to the Services at any time, effective upon posting of an updated version of these Terms of Service on the Web Site. You are responsible for regularly reviewing these Terms of Service and updates to the same. Your continued use of the Services after any such changes will constitute consent to such changes.
The headings to, and the division of these Terms of Service into Sections, Subsections, Paragraphs, and Subparagraphs are for ease of reference only and will not in any way affect or be used in interpreting any of the provisions of this Agreement. Unless the context otherwise requires, a reference to a Section, Subsection, Paragraph, Subparagraph or Schedule by number or letter is a reference to the appropriate Section, Subsection, Paragraph, Subparagraph or Schedule in this Agreement. The singular of any term includes the plural and vice versa and the use of any term is equally applicable to any gender and where applicable to a corporate entity.
The application of the United Nations Convention on Contracts for the International Sale of Goods will not apply to any part of the transactions contemplated by this Agreement and the same is hereby strictly excluded. For greater certainty, this Agreement will be interpreted as a contract for services.
This Agreement will be governed by and interpreted in accordance with the laws (procedural and substantive) of the Province of British Columbia and Canada as if made and performed by and between parties situate in such province and without regard to any conflict of laws doctrine.
Any and all disputes, controversy or claims arising out of or in connection with this Agreement or the breach thereof, including any question regarding its existence, validity, performance, or termination and any tort or other common law or statutory claim arising out of or relating to its negotiation, execution, or performance (collectively, the “Dispute”), will be first subject to non-binding mediation in an effort to resolve any such Dispute by participating in a structured negotiation conference with a mediator under the Commercial Mediation Rules of the British Columbia International Commercial Arbitration Centre. The mediation will be held in Victoria, British Columbia, Canada. The parties agree to use best efforts to conduct any dispute resolution procedures herein as efficiently and cost effectively as possible. All aspects of the mediation will be treated as confidential. The costs of the mediator will be paid by Umso and Umso will appoint the mediator. The mediation may, at the option of Umso or the Subscriber, occur by videoconference transmission. The party electing to participate in the mediation by videoconference will be responsible for paying the costs of one mediator who must attend and participate in the mediation at the videoconference facility selected by the party engaging such person.
If the Dispute cannot be settled within 30 calendar days after the mediator has been appointed, or such other period agreed to in writing by the parties, then the Dispute will be subject to the exclusive jurisdiction of and determined by the courts of the Province of British Columbia situate in Victoria, British Columbia, Canada. The Subscriber waives any right to object to venue or jurisdiction based on inconvenient forum or for any other reason.