Welcome, and thank you for your interest in Ubiquity6, Inc. (“Ubiquity6,”“we,” “our,” or “us”). This page explains the terms by which you may use our website, ubiquity6.com (the “Website”), our Mobile Applications (as defined below) and our related software and online and/or mobile services provided on or in connection with the Website and Mobile Applications (collectively with the Website and Mobile Applications, the “Service”). This Terms of Service and End User License Agreement (this “Agreement”) applies to all visitors, users, and others who access the Service (“Users”).
IF YOU ARE NOT ELIGIBLE TO USE THE SERVICE, OR DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE.
You acknowledge and agree that, as provided in greater detail in this Agreement:
- The Service is licensed and not sold to you;
- Your use of the Service may be subject to separate third party terms of service and fees, including without limitation the terms of service and data, SMS, MMS, and other fees of your mobile network operator, which are your sole responsibility;
- The Service is provided “As Is,” “As Available,” and “Where Available” and without warranties of any kind and Ubiquity6’s liability to you is limited;
- Ubiquity6 reserves the right to modify this Agreement in its sole discretion and will provide notice of these changes as described below; and
- AS PROVIDED IN SECTION 14, THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
1. Our Service
The categories of information we collect can include:
- 1.1 Eligibility
You may use the Service only if you can form a binding contract with Ubiquity6, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access of the Service by anyone under thirteen (13) years of age is strictly prohibited and in violation of this Agreement. The Service is not available to any Users previously removed from the Service by Ubiquity6.
- 1.2 Use by Minors
If you are over thirteen (13) years of age, but under eighteen (18) years of age (“Minor”), you may only use or access the Service with the consent of and under the supervision of an individual who has parental responsibility over you, whether as a parent, guardian or otherwise (“Parents”). If you are a Minor, by downloading, accessing, or otherwise using the Service, you represent and warrant that your Parent: (i) has read and agreed to the terms and conditions of this Agreement on your and their behalf; and (ii) that your Parent has given their consent to your use of the Service. Any access of use of the Service by a Minor without the consent and supervision of their Parent is strictly prohibited and in violation of this Agreement.
- 1.3 Limited License
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service for your personal, noncommercial use only and as permitted by this Agreement and the features of the Service. Ubiquity6 reserves all rights not expressly granted herein in the Service and the Ubiquity6 Content (as defined below). Ubiquity6 may terminate this license at any time for any reason or no reason.
- 1.4 User Accounts
Your account on the Service (“User Account”) gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of User Accounts for different types of Users. If you open a User Account on behalf of a company, organization, or other entity, then (i) “you” includes you and that entity, and (ii) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf. If you are a Minor opening a User Account, then “you” includes both you and your Parent. By connecting to Ubiquity6 with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
You may never use another User’s User Account without permission. When creating your User Account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your User Account, and you must keep your User Account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your User Account. You must notify Ubiquity6 immediately of any breach of security or unauthorized use of your User Account. Ubiquity6 will not be liable for any losses caused by any unauthorized use of your User Account.
You may control your User profile and how you interact with the Service by changing the settings in your settings page. By providing Ubiquity6 your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences by emailing [email protected]. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
- 1.5 Changes to the Service
We may, without prior notice: (i) change the Service; (ii) stop providing the Service or features of the Service, to you or to Users generally; or (iii) create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
- 1.6 Disputes with Other Users
You are solely responsible for your interactions with other Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Ubiquity6 shall have no liability for your interactions with other Users, or for any User’s action or inaction.
- 1.7 Service Location
The Service is controlled and operated from facilities in the United States. Ubiquity6 makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
2. User Content
Some areas of the Service allow Users to submit, post, display, provide, or otherwise make available content such as profile information, videos, images, music, comments, questions, and other content or information (any such materials a User submits, posts, displays, provides, or otherwise makes available on the Service is referred to as “User Content”).
WE CLAIM NO OWNERSHIP RIGHTS OVER USER CONTENT CREATED BY YOU. THE USER CONTENT YOU CREATE REMAINS YOURS. However, you understand that certain portions of the Service may allow other Users to view, edit, share, and/or otherwise interact with your User Content. By providing or sharing User Content through the Service, you agree to allow others to view, edit, share, and/or interact with your User Content in accordance with your settings and this Agreement. Ubiquity6 has the right (but not the obligation) in its sole discretion to remove any User Content that is shared via the Service.
By submitting, posting, displaying, providing, or otherwise making available any User Content on or through the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Ubiquity6 a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service and Ubiquity6’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each User of the Service a non-exclusive license to access your User Content through the Service, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Service and under this Agreement.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Content, you affirm, represent and warrant the following:
- You have the written consent of each and every identifiable natural person in the User Content, if any, to use such person’s name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use.
- You have obtained and are solely responsible for obtaining all consents as may be required by law to post any User Content relating to third parties.
- Your User Content and Ubiquity6’s use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
- Ubiquity6 may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
- To the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.
Ubiquity6 takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts, sends, or otherwise makes available over the Service. You shall be solely responsible for your User Content and the consequences of posting, publishing it, sharing it, or otherwise making it available on the Service, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Ubiquity6 shall not be liable for any damages you allege to incur as a result of or relating to any User Content.
3. Our Proprietary Rights
Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “Ubiquity6 Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Ubiquity6 and its licensors (including other Users who post User Content to the Service). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Ubiquity6 Content. Use of the Ubiquity6 Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Ubiquity6 under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Ubiquity6 does not waive any rights to use similar or related ideas previously known to Ubiquity6, or developed by its employees, or obtained from sources other than you.
The Service contains data, information, and other content not owned by you, such as reputational or status indicators in-world currency, and/or fictional property representing virtual achievements (for instance, trophies or powers) (“Ubiquity6 Property”). You understand and agree that regardless of terminology used, Ubiquity6 Property represents a limited license right governed solely by the terms of this Agreement and available for distribution at Ubiquity6’s sole discretion. Ubiquity6 Property is not redeemable for any sum of money or monetary value from Ubiquity6 at any time. You acknowledge that you do not own the User Account you use to access the Service, nor do you possess any rights of access or rights to data stored by or on behalf of Ubiquity6 on Ubiquity6 servers, including without limitation any data representing or embodying any or all of your Ubiquity6 Property. You agree that Ubiquity6 has the absolute right to manage, regulate, control, modify and/or eliminate Ubiquity6 Property as it sees fit in its sole discretion, in any general or specific case, and that Ubiquity6 will have no liability to you based on its exercise of such right. All data on Ubiquity6’s servers are subject to deletion, alteration or transfer. NOTWITHSTANDING ANY VALUE ATTRIBUTED TO SUCH DATA BY YOU OR ANY THIRD PARTY, YOU UNDERSTAND AND AGREE THAT ANY DATA, USER ACCOUNT HISTORY AND USER ACCOUNT CONTENT RESIDING ON UBIQUITY6’S SERVERS, MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN UBIQUITY6’S SOLE DISCRETION, WITH OR WITHOUT NOTICE AND WITH NO LIABILITY OF ANY KIND. UBIQUITY6 DOES NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS, ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON UBIQUITY6’S SERVERS.
4. Paid Services
- 4.1 Billing Policies
Certain aspects of the Service may be provided for a fee or other charge. If you elect to use paid aspects of the Service, you agree to our Pricing and Payment Terms, as we may update them from time to time. Ubiquity6 may add new services for additional fees and charges, add or amend fees and charges for existing services, at any time in its sole discretion. Any change to our Pricing or Payment Terms shall become effective in the billing cycle following notice of such change to you as provided in this Agreement.
- 4.2 No Refunds
You may cancel your User Account at any time; however, there are no refunds for cancellation. In the event that Ubiquity6 suspends or terminates your User Account or this Agreement, you understand and agree that you shall receive no refund or exchange for any Ubiquity6 Property, any unused time on a subscription, any license or subscription fees for any portion of the Service, any content or data associated with your User Account, or for anything else.
- 4.3 Payment Information & Taxes
All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Service must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Service at the prices in effect when such charges are incurred. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.
- 4.4 California Residents
The provider of the Service is Ubiquity6. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
5. Text Messaging
By voluntarily providing your cell phone number to Ubiquity6, you agree that Ubiquity6 may contact you by telephone, text (SMS), or multimedia (MMS) messages at that phone number, and you hereby consent to receiving such communications for transactional, operational, or informational purposes. You understand that such messages may be sent using an automatic telephone dialing system. You may unsubscribe from receiving text messages from Ubiquity6 at any time. To revoke your consent to receiving SMS or MMS messages from Ubiquity6, please email us at [email protected].
If you unsubscribe from receiving text messages from Ubiquity6 through the process described above, you may continue to receive text messages for a short period while Ubiquity6 processes your request(s). If you change or deactivate the phone number you provided to Ubiquity6, you must update your account information and the phone number(s) attached to your User Account to prevent us from inadvertently communicating with anyone who acquires any phone number(s) previously attributed to you.
Standard data and message rates may apply for SMS and MMS alerts, whether you send or receive such messages. Please contact your mobile phone carrier for details. Your mobile phone carrier (e.g. T-Mobile, AT&T, Verizon, etc.) is not liable for delayed or undelivered messages.
Ubiquity6 uses commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of your personal information and implement your privacy settings. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
8. DMCA Notice
Since we respect artist and content owner rights, it is Ubiquity6’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Ubiquity6’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
- An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
- Identification of the copyrighted work that you claim has been infringed;
- Identification of the material that is claimed to be infringing and where it is located on the Service;
- Information reasonably sufficient to permit Ubiquity6 to contact you, such as your address, telephone number, and, e-mail address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
- A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice
Address: 201 Spear St.
San Francisco, CA 94105
Email: [email protected]
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying Ubiquity6 and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Ubiquity6’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, Ubiquity6 has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Ubiquity6 may also at its sole discretion limit access to the Service and/or terminate the User Accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
9. Third-Party Links and Information
You agree to defend, indemnify and hold harmless Ubiquity6 and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) User Content or any content that is submitted via your User Account including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
11. No Warranty
THE SERVICE IS PROVIDED ON AN “AS IS,” “AS AVAILABLE,” AND “WHERE AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM UBIQUITY6 OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, UBIQUITY6, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
FURTHER, UBIQUITY6 DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND UBIQUITY6 WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12. Play Safely
WHEN USING THE SERVICE, PLEASE BE AWARE OF YOUR SURROUNDINGS AND PLAY SAFELY. YOU AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR OWN RISK, AND IT IS YOUR RESPONSIBILITY TO MAINTAIN SUCH HEALTH, LIABILITY, HAZARD, PERSONAL INJURY, MEDICAL, LIFE, AND OTHER INSURANCE POLICIES AS YOU DEEM REASONABLY NECESSARY FOR ANY INJURIES THAT YOU MAY INCUR WHILE USING THE SERVICE. YOU ALSO AGREE NOT TO USE THE SERVICE TO VIOLATE ANY APPLICABLE LAW, RULE, OR REGULATION (INCLUDING BUT NOT LIMITED TO THE LAWS OF TRESPASS), AND YOU AGREE NOT TO ENCOURAGE OR ENABLE ANY OTHER INDIVIDUAL TO VIOLATE ANY APPLICABLE LAW, RULE, OR REGULATION. WITHOUT LIMITING THE FOREGOING, YOU AGREE THAT IN CONJUNCTION WITH YOUR USE OF THE SERVICE, YOU WILL NOT INFLICT EMOTIONAL DISTRESS ON OTHER PEOPLE, WILL NOT HUMILIATE OTHER PEOPLE (PUBLICLY OR OTHERWISE), WILL NOT ASSAULT OR THREATEN OTHER PEOPLE, WILL NOT ENTER ONTO PRIVATE PROPERTY WITHOUT PERMISSION, WILL NOT IMPERSONATE ANY OTHER PERSON OR MISREPRESENT YOUR AFFILIATION, TITLE, OR AUTHORITY, AND WILL NOT OTHERWISE ENGAGE IN ANY ACTIVITY THAT MAY RESULT IN INJURY, DEATH, PROPERTY DAMAGE, AND/OR LIABILITY OF ANY KIND.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, UBIQUITY6 DISCLAIMS ALL LIABILITY RELATED TO ANY PROPERTY DAMAGE, PERSONAL INJURY, OR DEATH THAT MAY OCCUR DURING YOUR USE OF OUR SERVICE, INCLUDING ANY CLAIMS BASED ON THE VIOLATION OF ANY APPLICABLE LAW, RULE, OR REGULATION OR YOUR ALLEGED NEGLIGENCE OR OTHER TORT LIABILITY. WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE OTHER USERS, YOU RELEASE UBIQUITY6 AND ITS SUBSIDIARIES, AGENTS, LICENSORS, MANAGERS, AND OTHER AFFILIATED COMPANIES, AND THEIR EMPLOYEES, CONTRACTORS, AGENTS, OFFICERS AND DIRECTORS FROM ALL CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
IF YOU ARE A CALIFORNIA RESIDENT, YOU EXPRESSLY WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
14. Governing Law, Arbitration, and Class Action/Jury Trial Waiver
- 14.1 Governing Law
You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in San Francisco, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that San Francisco, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
- 14.2 Arbitration
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM UBIQUITY6. For any dispute with Ubiquity6, you agree to first contact us at [email protected] and attempt to resolve the dispute with us informally. In the unlikely event that Ubiquity6 has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in San Francisco, California, unless you and Ubiquity6 agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Ubiquity6 from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
- 14.3 Class Action/Jury Trial Waiver
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND UBIQUITY6 ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
15. Additional Terms for Mobile Applications
- 15.1 Mobile Applications
We may make available software to access the Service via a mobile device (“Mobile Applications”). To use any Mobile Applications you must have a mobile device that is compatible with the Mobile Applications. Ubiquity6 does not warrant that the Mobile Applications will be compatible with your mobile device. You may use mobile data in connection with the Mobile Applications and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. Ubiquity6 hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Applications for one Ubiquity6 User Account on one mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Applications, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Applications to any third party or use the Mobile Applications to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Applications; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Applications, features that prevent or restrict use or copying of any content accessible through the Mobile Applications, or features that enforce limitations on use of the Mobile Applications; or (v) delete the copyright and other proprietary rights notices on the Mobile Applications. You acknowledge that Ubiquity6 may from time to time issue upgraded versions of the Mobile Applications, and may automatically electronically upgrade the version of the Mobile Applications that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Applications is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Applications or any copy thereof, and Ubiquity6 or its third-party partners or suppliers retain all right, title, and interest in the Mobile Applications (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. Ubiquity6 reserves all rights not expressly granted under this Agreement. If the Mobile Applications is being acquired on behalf of the United States Government, then the following provision applies. The Mobile Applications will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the U.S. Government will be governed solely by this Agreement and is prohibited except to the extent expressly permitted by this Agreement. The Mobile Applications originates in the United States, and is subject to United States export laws and regulations. The Mobile Applications may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Applications may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Applications and the Service.
- 15.2 Mobile Applications from Apple App Store
The following applies to any Mobile Applications you acquire from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that this Agreement is solely between you and Ubiquity6, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to Ubiquity6 as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to Ubiquity6 as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, Ubiquity6, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and Ubiquity6 acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the Apple-Sourced Software against you as a third-party beneficiary thereof.
- 15.3 Mobile Applications from Other Distribution Platforms
- 16.1 Assignment
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Ubiquity6 without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
- 16.2 Notification Procedures and Changes to the Agreement
Ubiquity6 may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Ubiquity6 in our sole discretion. Ubiquity6 reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. Ubiquity6 is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Ubiquity6 may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to the Agreement. Your continued use of the Service after any such change constitutes your acceptance of the new terms. If you do not agree to any of these terms or any future terms, do not use or access (or continue to access) the Service.
- 16.3 No Waiver
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Ubiquity6’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
- 16.4 Entire Agreement/Severability
This Agreement, together with any amendments and any additional agreements you may enter into with Ubiquity6 in connection with the Service, shall constitute the entire agreement between you and Ubiquity6 concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
- 16.5 Contact
Please contact us at [email protected] with any questions regarding this Agreement.