Ubersmith Terms of Service
Ubersmith, Inc. ("Ubersmith") provides its service to you subject to the following Terms of Service ("TOS"). In addition, when using specific Ubersmith services, you and Ubersmith will be subject to any guidelines or rules applicable to these services which Ubersmith may communicate to you or post from time to time. These guidelines or rules are considered included in the TOS.
1. DESCRIPTION OF SERVICE
Ubersmith currently provides users with business applications ("Ubersmith"). Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including any new Ubersmith services, will be subject to the TOS.
2. WHAT YOU MUST DO TO USE Ubersmith
In order to use Ubersmith, you must obtain access to the Internet, either directly or through devices that access Web-based content, and pay any service fees associated with such access. You must provide all equipment necessary to make such connection to the Internet, including a computer and modem or other access device.
3. YOUR REGISTRATION INFORMATION MUST BE ACCURATE, CURRENT AND COMPLETE
In consideration of your use of Ubersmith, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the initial contract signing and (b) maintain and promptly inform Ubersmith of any updates to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or if Ubersmith has reasonable grounds to believe that such information is untrue, inaccurate, not current or incomplete, Ubersmith has the right to suspend or terminate your account and refuse any and all current or future use of Ubersmith (or any portion thereof).
4. YOUR OBLIGATION TO PAY FEES
You agree to pay all subscription, service and use fees, if any, Ubersmith charges you for Ubersmith, due on the monthly renewal date. You agree to pay all costs (including attorney's fees), if any, incurred by Ubersmith in collecting overdue fees from you, and to pay a late charge on any overdue fees at a rate equal to the lesser of 1.5% per month or the maximum rate allowed under applicable law. You also agree to pay all foreign, federal, state and local taxes applicable to your access, use or receipt of Ubersmith.
5. ACCESS, PASSWORDS AND SECURITY
You may designate the number of users under your account, and you may provide and assign access and passwords to such users. You will be responsible for the confidentiality and use of your access number(s), password(s), and account number(s). You will be responsible for all electronic communications, including account registration and other account holder information, e-mail and financial, and other data ("Electronic Communications") entered through or under your access number(s), password(s) or account number(s). Ubersmith will act as though any Electronic Communications it receives under your access number(s), password(s) or account numbers(s) will have been sent by you. You agree immediately to notify Ubersmith if you become aware of any loss or theft or unauthorized use of any of your access number(s), password(s) and/or account number(s). You may use Ubersmith to create and manage as many packages as defined in your service contract.
6. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF Ubersmith IS AT YOUR SOLE RISK. Ubersmith IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. Ubersmith EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Ubersmith MAKES NO WARRANTY THAT (i) Ubersmith WILL MEET YOUR REQUIREMENTS, (ii) Ubersmith WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF Ubersmith WILL BE ACCURATE OR RELIABLE, OR (iv) ANY ERRORS IN THE SOFTWARE OR SERVICE WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Ubersmith OR THROUGH OR FROM Ubersmith SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS. NO FINANCIAL, LEGAL OR TAX ADVICE OR COUNSEL IS GIVEN, OR SHALL BE DEEMED TO HAVE BEEN GIVEN, BY Ubersmith.
7. LIMITATION OF LIABILITY
IN NO EVENT WILL Ubersmith BE LIABLE TO YOU OR ANYONE ELSE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE ITEMS) EVEN IF Ubersmith HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. YOU AGREE THAT THE LIABILITY OF Ubersmith ARISING OUT OF ANY KIND OF LEGAL CLAIM (WHETHER IN CONTRACT, TORT OR OTHERWISE) IN ANY WAY CONNECTED WITH Ubersmith WILL NOT EXCEED THE AMOUNT YOU PAID FOR Ubersmith. Ubersmith shall not be liable for any loss resulting from a cause over which Ubersmith does not have direct control, including but not limited to failure of electronic or mechanical equipment or communication lines; telephone or other interconnect problems; bugs, errors, configuration problems or incompatibility of computer hardware or software; failure or unavailability of Internet access; problems with Internet service providers or other equipment or services relating to your computer; problems with intermediate computer or communications networks or facilities; problems with data transmission facilities or your telephone or telephone service; or unauthorized access, theft, operator errors, severe weather, earthquakes or labor disputes. Ubersmith is not responsible for any damage to your computer, software, modem, telephone or other property resulting from your use of Ubersmith. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
8. AUTOMATED UPDATES
Ubersmith may deliver to your computer or other device upon which the Products are installed automated updates, modifications, and/or patches to address issues such as security, interoperability, and performance (collectively "Updates") at any time without providing you with notice. Certain Updates may be subject to additional terms and conditions. By using the Products you consent to such automated updating. Your use of the Updates shall be governed by this agreement (as modified from time to time) unless you are asked to agree to a new agreement at the time of download or installation.
9. INDEMNITY
You agree to defend, indemnify and hold Ubersmith harmless from and against any and all claims, losses, liability costs and expenses (including but not limited to attorneys' fees) arising from your violation of the TOS, state or federal laws or regulations, or any third party's rights, including but not limited to infringement of any copyright, violation of any proprietary right and invasion of any privacy rights. This obligation will survive the termination of Service.
10. MODIFICATIONS TO OR DISCONTINUATION OF SERVICE
Ubersmith reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, Ubersmith (or any part thereof), and this agreement in any event with 60 days notice. You agree that Ubersmith shall not be liable to you or to any third party for any modification, suspension or discontinuance of Ubersmith. The modified agreement will be effective immediately upon the change and you agree to the new posted agreement by continuing your use of any product. If you do not agree with the modified agreement, your only remedy is to discontinue using the products. If you wish to modify or cancel your instance of Ubersmith, 30 days notice must be provided by emailing billing@ubersmith.com. Cancellation requests via telephone or to any other email addresses are not valid, and will not be recognized. We DO NOT refund monthly fees if a cancellation is received within an existing billing period. NO REFUNDS are available once the Ubersmith license has been issued to the client, for the both the Owned and Leased licenses.
11. OUR ABILITY TO TERMINATE SERVICE
You agree that Ubersmith, in its sole discretion, may terminate your password, account (or any part thereof) or use of Ubersmith, and remove and discard any Electronic Communications within Ubersmith, for any reason, including, without limitation, for lack of use or if Ubersmith believes that you have violated or acted inconsistently with the letter or spirit of the TOS. Ubersmith may also in its sole discretion and at any time discontinue providing Ubersmith, or any part thereof, in any event with 60 days notice. You agree that any termination of your access to Ubersmith under any provision of this TOS may be effected without prior notice, and acknowledge and agree that Ubersmith may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or Ubersmith; however, in the event that your Service with Ubersmith terminates, Ubersmith will use commercially reasonable efforts to return your Data to you electronically, in an appropriate format selected by Ubersmith, as promptly as is reasonably possible after such termination, provided you have complied with the TOS and have paid in full all amounts owed to Ubersmith. Further, you agree that Ubersmith shall not be liable to you or any third party for any termination of your access to Ubersmith; provided, however, that if the termination is unrelated to your acts or omissions Ubersmith will refund the pro rata portion of any fee that may have been paid by you for the portion of Ubersmith not furnished to you as of the date of such termination.
12. RESTRICTIONS
By using Ubersmith, you agree that, unless otherwise expressly permitted in the TOS, you will not: (1) reproduce, republish, display, frame, download (except as expressly authorized herein), distribute, or transmit any Ubersmith products; (2) redistribute, encumber, sell, rent, lease, loan, sublicense, assign, or otherwise transfer rights to any Ubersmith products; (3) modify or create any derivative works based on Ubersmith or any of the Ubersmith products, including customization, translation, or localization; (4) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code of any Ubersmith product, or the underlying ideas or algorithms of any Ubersmith products (e.g. in an effort to develop other applications or services that provide similar or substitute or complimentary functionality to such product); (5) use the product or any Ubersmith products in any way that violates this agreement or any law; (6) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Ubersmith products; (9) post, transmit, upload, or promote any public postings or messages about the Ubersmith products or its image.
13. NOTICES
Notices to you from Ubersmith may be made by either e-mail or regular mail. Ubersmith may also provide notices of changes to the TOS or other matters by displaying notices or links to notices to you on Ubersmith.
14. CONFIDENTIALITY
Ubersmith will not access, distribute or modify any customer data and information of Ubersmith except as required under law or as specifically instructed to by customer. Customer data and information is defined as any information stored in the customer’s instance of Ubersmith and the related database.
15. GENERAL PROVISIONS
The TOS constitute the entire agreement between you and Ubersmith and govern your use of Ubersmith, superseding any prior agreements between you and Ubersmith with respect to the subject matter contained in the TOS. The TOS may only be modified or amended as set forth above in Section 11 or otherwise in a writing signed by Ubersmith and you. The TOS and the relationship between you and Ubersmith shall be governed by the laws of the State of New York without regard to its conflict of law provisions. You and Ubersmith agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Rensselaer, New York. The failure of Ubersmith to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of Ubersmith or the TOS must be filed within one (3) months after such claim or cause of action arose or be forever barred. The Section titles in the TOS are for convenience only and have no legal or contractual effect.
