Welcome, and thank you for your interest in UJET, Inc. (“UJET,” “we,” or “us”) and our website at www.ujet.cx, along with our related websites, networks, application programming interface (“API”), software development kits (each an “SDK”), and other services provided by us (collectively, our “Service”). These Terms of Service are a legally binding contract between you and UJET regarding your use of the Service.
These Terms provide that all disputes between you and UJET will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review Section 21 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate any disputes with UJET.
1. UJET Service Overview
UJET provides the next generation of user support ecosystems, including solutions for integrating customer communications and support capabilities into mobile and other applications.
You must be at least 18 years of age to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years of age; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
3. Accounts and Registration
To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your email address or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at [email protected].
4. End Users; Call Recording
Certain features of the Service allow you to interface and collect data from your end users. You are responsible for your end users, including: (a) any behavior by your end users that affects the Service, or otherwise violates these Terms; (b) informing your end users you are using a third-party Service to collect their data; and (c) any inability by end users to use the Service. Please note that while we offer the option for you to record calls, if you choose to use this service, then you must comply with all state and federal laws, regulations and rules prior to recording any telephone calls and you expressly warrant and represent to UJET that you shall comply at all times. You understand that the Service is not intended to support or carry emergency calls to any emergency services such as public safety answering points. You acknowledge that it is your responsibility to ensure that you have an alternate means to send and receive emergency calls. We make no representations or warranties with respect to call recording and recommend that you always secure consent before recording.
We will use reasonable efforts to make the Service available according to the terms of our API and SDK Service Level Agreement, included in Exhibit A. Please read the SLA to understand our standards of availability.
6. SDK License
Subject to your complete and ongoing compliance with these Terms and any additional terms included with a SDK, UJET grants you a limited, personal, worldwide, royalty-free, non-exclusive, non-sublicenseable, and nontransferable license to: (a) use a reasonable number of copies of any documentation provided as part of the SDK (“Documentation”) solely in connection with integrating the Service in your mobile applications or service (“Integrated Application”); (b) reproduce, modify, and use any sample software provided to you in source code format as part of the SDK (“Sample Code”) in either object code or source code formats solely in connection with your development and use of an Integrated Application with the Service; and (c) reproduce and distribute any sample software provided to you in object code format as part of the SDK, including any plugins (“SDK Object Code”) in object code format solely in connection with your development and use of an Integrated Application with the Service. You will not: (i) transfer, disclose, or distribute any portion of the SDK or Documentation or access to either to any third party, except as permitted by the license grant above; (ii) subject any portion of the SDK or Documentation to the terms of any “open source” or “creative commons” license; (iii) modify any of the SDK Object Code included with the SDK; (iv) modify or extend any of the interfaces including any UJET APIs; or (v) use the SDK or Documentation to develop code, software, or other materials for anything other than for use with the Service.
Access to the Service, or to certain features of the Service, may require you to pay fees, including, without limitation, license fees and usage fees. All license fees are inclusive of a USD$5.00 CRM (or other applicable case management software) adapter fee. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. dollars and are non-refundable. If UJET changes the fees for the Service, including by adding additional fees or charges, UJET will provide you advance notice of those changes. If you do not accept the changes, UJET may discontinue providing the Service to you. UJET will provide you an invoice based on the services used, and will charge the payment method you provide. You authorize UJET to charge all sums as described in these Terms, for the Service you select, to that payment method. If you pay any fees with a credit card, UJET may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. You have thirty (30) days from receipt of an invoice or bill in which to initiate a dispute by emailing us at [email protected], otherwise you agree that you have waived all rights with respect to the time period for such billing/invoice. We will respond to any inquiry or dispute in a reasonable time, but until resolved, you agree to pay all invoices in a timely fashion, even those subject to dispute. You agree that you will initiate a dispute with us and seek resolution with us directly prior to filing a dispute with your credit card company. You have thirty (30) days from receipt of an invoice or bill in which to initiate a dispute by emailing us at [email protected], otherwise you agree that you have waived all rights with respect to the time period for such billing/invoice. We will respond to any inquiry or dispute in a reasonable time, but until resolved, you agree to pay all invoices in a timely fashion, even those subject to dispute. You agree that you will initiate a dispute with us and seek resolution with us directly prior to filing a dispute with your credit card company.
8. User Content
8-1 User Content Generally.
Certain features of the Service may permit users, including end users, to upload content to the Service, including messages, photos, video, images, folders, data, text, and other types of works (“User Content”). You, or your end user, as applicable, retain copyright and any other proprietary rights that you may hold in the User Content that you upload to the Service.
8-2 Limited License Grant to UJET.
By uploading User Content, you grant UJET a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed, solely in connection with providing the Service.
8-3 User Content Representations and Warranties.
You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that:
a: you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize UJET and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by UJET, the Service, and these Terms; and
b: your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause UJET to violate any law or regulation.
8-4 User Content Disclaimer.
We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. UJET may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against UJET with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, UJET does not permit copyright-infringing activities on the Service.
9. Prohibited Content
BY USING THE SERVICE YOU AGREE NOT TO:
use the Service for any illegal purpose or in violation of any local, state, national, or international law;
violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service; (c) attempting to collect personal information about any end user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any such network, equipment, or server;
perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
use the service to support or carry emergency calls to any emergency services such as public safety answering points;
sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 14) or any right or ability to view, access, or use any Material; or
attempt to do any of the acts described in this Section 9, or assist or permit any person in engaging in any of the acts described in this Section 9.
10. Third-Party Services and Linked Websites
To provide certain components of the Service, we have integrated with certain third parties to provide background functionality upon which the Service relies to function properly, including but not limited to such service providers as Amazon Web Services, Twilio, Firebase, and others (“Service Providers”). High speed Internet and sufficient cellular connectivity are required for proper use and transmission of the Service. You, your users and your customers (as applicable) are responsible for procuring and maintaining the network connections that connect your systems and network to the Service, including the network connectivity of all mobile devices. We are not responsible for any compromise of data, including Materials transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by UJET. We assume no responsibility for the reliability or performance of any connections as described in this section. While the systems and services of the Service Providers are generally reliable and robust, we cannot guarantee that they will not fail in a manner that renders certain components or all of the Service unusable by you. UJET is not responsible for such failure and outages due to the failure of the systems or services of such Service Providers. UJETs sole liability and responsibility in the event of such failure is to work with the Service Providers to restore Service functionality in accordance with the SLA. UJET may provide tools through the Service that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on UJET with an account on the third party service, such as Zendesk or Salesforce, or through our implementation of third party buttons (such as Facebook “like” or “share” buttons). By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third party services are not under our control, and we are not responsible for any third party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.
11. Termination of Use; Discontinuation and Modification of the Service
You may terminate your account and subscription to the Service as of the end of your then current subscription term under the order form between you and UJET by emailing us at [email protected] on or prior to the date thirty (30) days preceding the end of such subscription term. Unless your account and subscription to the Service is so terminated, your subscription to the Service will renew for a subscription term equivalent in length to the then expiring subscription term. If you terminate your account, you remain obligated to pay all outstanding fees, if any, incurred prior to termination relating to your use of the Service. If you violate any provision of these Terms, your permission from us to use the Service will terminate automatically. In addition, UJET may in its sole discretion terminate your user account on the Service or suspend or terminate your access to the Service at any time for any reason or no reason, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service.
12-3 Additional Terms.
Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”), such as end-user license agreements for any downloadable software applications, or rules that are applicable to a particular feature or content on the Service, subject to Section 13. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
13. Modification of these Terms
We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you will be notified of the changes, and may be required to accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
14. Ownership; Proprietary Rights
The Service is owned and operated by UJET. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by UJET are protected by intellectual property and other laws. All Materials included in the Service are the property of UJET or our third-party licensors. Except as expressly authorized by UJET, you may not make use of the Materials. UJET reserves all rights to the Materials not granted expressly in these Terms.
If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant UJET an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
You are responsible for your use of the Service, and you will defend and indemnify UJET and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “UJET Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
17. Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE UJET ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE UJET ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE UJET ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
18. Limitation of Liability
IN NO EVENT WILL THE UJET ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY UJET ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 21.4(iii), THE AGGREGATE LIABILITY OF THE UJET ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO UJET FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT(S) OR CIRCUMSTANCES GIVING RISE TO CLAIM; OR (B) $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 18 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
19. Governing Law
These Terms are governed by the laws of the State of California without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, then you and UJET agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco County, California for the purpose of litigating any dispute. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
21. Dispute Resolution and Arbitration
In the interest of resolving disputes between you and UJET in the most expedient and cost effective manner, you and UJET agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND UJET ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Despite the provisions of Section 21.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
Any arbitration between you and UJET will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting UJET.
21-4 Notice; Process.
A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). UJET’s address for Notice is: UJET, Inc., 201 3rd Street, Suite 950 San Francisco, CA 94103. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or UJET may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or UJET must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, UJET will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by UJET in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
If you commence arbitration in accordance with these Terms, UJET will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Francisco County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse UJET for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
21-6 No Class Actions.
YOU AND UJET AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and UJET agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
21-7 Modifications to this Arbitration Provision.
If UJET makes any future change to this arbitration provision, other than a change to UJET’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to UJET’s address for Notice, in which case your account with UJET will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
If Section 21.6 is found to be unenforceable or if the entirety of this Section 21 is found to be unenforceable, then the entirety of this Section 21 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 19 will govern any action arising out of or related to these Terms.
22. Consent to Electronic Communications
23. Contact Information
The Service is offered by UJET, Inc., located at 201 3rd Street, Suite 950 San Francisco, CA 94103. You may contact us by sending correspondence to that address or by emailing us at [email protected]
24. Notice Regarding Apple
If you are using our mobile SDK on an iOS device, the terms of this Section 24 apply. You acknowledge that these Terms are between you and UJET only, not with Apple, and Apple is not responsible for the Service or its content. Apple has no obligation to furnish any maintenance or support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile SDK to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claim by you or any third party relating to the Service or your possession or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement or discharge of any third party claim that the Service or your possession and use of the mobile SDK infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of Section 11 of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce this Section 11 of these Terms against you. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
EXHIBIT A: API AND SDK SERVICE LEVEL AGREEMENT
This UJET API and SDK Service Level Agreement (“SLA”) governs the use of the UJET API and SDK (collectively the “Technical Services”) under the terms of the UJET Terms of Service (the “Terms”). This SLA applies separately to each account using the UJET Technical Services. Unless otherwise provided herein, this SLA is subject to the terms of the Terms and capitalized terms will have the meaning specified in the Terms. UJET reserves the right to change the terms of this SLA in accordance with the Terms.
1. Service Commitment
UJET will use commercially reasonable efforts to make the UJET Technical Services available 99.95% of the time. In the event UJET does not meet the goal of 99.95% Technical Services availability in a given calendar month (“Monthly Uptime Percentage”), you will be eligible to receive a Service Credit as described below.
The following capitalized terms shall be given the meaning set forth below:
“Unavailable Time” means the UJET Technical Services are not available for use according to third party performance and monitoring services contracted by UJET at its sole discretion (the “Monitoring Service”). The Monitoring Service reports of availability are currently available by contacting UJET via [email protected] Service issues or outages relating to any Exclusions (defined below) shall not be deemed as Unavailable Time.
“Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of continuous 5 minute periods during the Service Month in which the UJET Technical Services were in a state of Unavailable Time as identified by Monitoring Service
A “Service Credit” is a dollar credit, calculated as set forth below, that UJET may credit back to an eligible customer account:
For a calendar month where the Uptime Monthly Percentage is less than 99.95% as identified by the Monitoring Service, UJET, at its sole discretion after confirming the nature and accuracy of the Unavailable Time, will credit customer’s account a percentage of that month’s billings, as defined by this table:
MONTHLY UPTIME PERCENTAGE <99.95%
SERVICE CREDIT 10%
Service Credit shall be issued to customer’s UJET balance for future use only. No refunds or cash value will be provided. Service Credits may not be transferred or applied to any other account.
3. Credit Request and Payment Procedures
To apply for a Service Credit, the customer must submit a ticket via [email protected] within 30 days of the month in which the Unavailable Time occurred. The email must include (i) “SLA Claim” as the subject of the email; (ii) the dates and times of the Unavailable Time for which you are requesting credit; and (iii) any applicable information that documents the claimed outage.
Notwithstanding anything to the contrary, no Unavailable Time shall be deemed to have occurred with respect to any unavailability, suspension or termination of the UJET Technical Services, or any other UJET Technical Services performance issues, that (i) are caused by factors outside of UJET’s reasonable control, including, without limitation, any force majeure event, carrier related problems or issues, or Internet access or related problems beyond the demarcation point of UJET or its direct hosting subcontractors (i.e. beyond the point in the network where UJET maintains access and control over the UJET Service); (ii) result from any actions or inactions of Customer or any third party (other than UJET’s direct hosting subcontractor); (iii) result from applications, equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within UJET’s direct control); or (iv) arise from UJET’s suspension and termination of Customer’s right to use the UJET Service in accordance with the Terms, (v) scheduled maintenance; or (vi) problems or issues related to alpha, beta or not otherwise generally available UJET features or products (collectively, the “Exclusions”).
5. Sole Remedy
Service Credits shall be your sole and exclusive remedy for any unavailability or non-performance of the UJET Service or other failure by us to provide the UJET Service.