Terms of ServiceLast updated September 16, 2019
I. Acceptance of these Terms of Service
Please read these Terms carefully upon accessing or using the Site. By using the Site[ or by clicking to accept or agree to these Terms when this option is made available to you], you accept and agree to be bound by these Terms, and these Terms form a binding contract entered into between you and Utmost Software, Inc. (“Utmost”, “we”, or “us”). If you, as an individual, are acting for or on behalf of a company, organization, or other entity, such as your employer, then by accessing or using the Site: (i) you represent that you are fully authorized to access or use the Site; (ii) you agree to be bound by these Terms on behalf of yourself and such entity; and (iii) “you” shall refer collectively to you and such entity.
These Terms contain an arbitration provision and a waiver of class action rights as set forth in Section 12 below. By agreeing to arbitration, each party waives its rights to have any claims heard in a court by a judge or jury. By agreeing to waive class action rights, each party agrees to assert claims against the other only in an individual capacity and not as a plaintiff or class member in any purported class or representative proceeding.
Separate contractual terms and conditions, licenses or rules may be entered into or otherwise provided to you, within or with respect to the Site or specified services within the Site (collectively “Additional Terms”), for example, a services agreement may be executed with Utmost clients or any other agreement entered into directly between you and us, for the provision of Utmost products or services. Such Additional Terms shall apply in addition to these Terms. To the extent there is any conflict between these Terms and any Additional Terms, the Additional Terms shall control unless the Additional Terms expressly provide otherwise.
If you do not accept or agree to these Terms, then you are not authorized to, and must not, access or use the Site.
II. Changes to these Terms
Utmost may modify these Terms from time to time, at its sole discretion, and any modifications will be noted by updating the date these Terms were last revised1. All such modifications are effective as of the time they are posted to the Site.
Your continued use of the Site following the posting of revised Terms shall constitute your acceptance of and agreement to such revised Terms, and you shall be bound by the revised Terms. You are expected to check this page regularly in order to be aware of any such revisions.
1 NTD: It is recommended that following any modification of these Terms, users are informed of the updated Terms via a popup notice upon their next visit to the Site, and/or by email in the case of registered users who have provided their email address. In either case, the notice should include a link to the updated Terms. The company should also retain copies of all past versions of these Terms, together with the dates that each was in effect.
III. Permitted Use of the Site; Accessing the Site; Modifications
You may use the Site, including download of materials expressly made available for download, solely for private use or use for internal business purposes, in either case subject to these Terms. Downloading, copying, or otherwise storing any contents or materials from the Site for any reason other than for private use or use for internal business purposes is expressly prohibited without the prior written permission of Utmost. You agree that you shall not download, copy, or use any contents or materials from the Site for any other purpose, including, but not limited to, publication, public display, or public distribution.You are responsible for making all arrangements necessary for you to have access to the Site.
We reserve the right to withdraw or modify the Site, and any content or services we may provide via the Site, in our sole discretion and without notice. We may also restrict access to some or all of the Site, at any time and to any user or users. We shall not be liable if for any reason any part of the Site is unavailable at any time or for any period.
IV. Intellectual Property
The Site and all of its contents and services (including, but not limited to, all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof), are owned by Utmost, its licensors, or other providers of such material and may be protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
No right, title, or interest in or to the Site or any contents or materials on the Site is granted or transferred to you except as expressly set forth herein, and all rights not expressly granted herein are reserved by Utmost. Any use of the Site not expressly permitted by these Terms constitutes a breach of these Terms and may violate copyright, trademark, and other laws.
These Terms permit you to use the Site for private use or use for internal business purposes only. Except as expressly provided herein, you shall not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit the Site or any of the contents of the Site, except as follows:
- Your computer may temporarily store copies of such contents of the Site in RAM incidental to your accessing and viewing those contents.
- You may store files that are automatically cached by your browser for display enhancement purposes.
- You may print or download a reasonable number of pages of the Site or a reasonable amount of materials from the Site, in either case solely for private use or use for internal business purposes and not for further reproduction, publication, or distribution.
You must not:
- Modify copies of any materials from the Site.
- Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from the Site.
If you print, copy, modify, download, publicly display or distribute, or otherwise use any contents or materials from the Site in breach of these Terms, we may immediately terminate your right to use the Site, and you must, at our option, return or destroy any and all copies of contents or materials from the Site in your possession.
Trademarks. The name Utmost, the Utmost logos, and all related names, logos, product and service names, designs, and slogans are trademarks of Utmost or its affiliates or licensors.
You shall not use such marks without our prior written permission. All other names, logos, product and service names, designs, and slogans on this Site are the trademarks of their respective owners
V. Privacy and Information Practices
We value individual privacy, and we are committed to protecting individuals’ information. All information collected through the Site is subject to our Privacy Notice, available at https://utmost-cms.approvemyviews.com/privacy-policy. By accessing or using the Site, or otherwise agreeing to these Terms, you acknowledge that you have read and understand the terms of the Privacy Notice and consent to the treatment of your information in accordance with the Privacy Notice.
VI. Prohibited Uses
You may use the Site only for lawful purposes and in accordance with these Terms. You agree not to use the Site:
- In any way that violates any applicable federal, state, local, or international law or regulation.
- To send, knowingly receive, upload, download, use, or re-use any material with unlawful, defamatory, threatening, harassing, abusive, fraudulent, infringing, obscene, or otherwise objectionable content.
- To impersonate or attempt to impersonate Utmost, a Utmost employee or representative, another user, or any other person or entity.
- To build any competitive products or services.
- To engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Site, or which, as determined by us, may harm Utmost or users of the Site or expose them to liability.
Additionally, you agree not to:
- Use the Site in any manner that could disable, overburden, damage, or impair the Site or interfere with any other party’s use of the Site.
- Use any robot, spider, or other automatic device, process, or means to access the Site for any purpose, including monitoring or copying any of the material on the Site.
- Use any manual process to monitor or copy any of the material on the Site or for any other unauthorized purpose.
- Use any device, software, or routine that interferes with the proper working of the Site.
- Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
- Create internet “links” to the Site or “frame” or “mirror” any portions of the Site in any other website or mobile site, or on any other server or wireless or internet-based device.
- Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Site, the server on which the Site is stored, or any server, computer, or database connected to the Site.
- Otherwise attempt to interfere with the proper working of the Site.
If we learn or reasonably suspect that you, or others under your control or direction, have used the Site in a manner prohibited herein, we may block, suspend, terminate, or withhold your access to the Site as we deem appropriate in our sole discretion.
VII. Monitoring and Enforcement
We have the right to:
- Take any action with respect to any user conduct that we deem necessary or appropriate in our sole discretion, including if we believe that such user conduct violates these Terms, including those prohibited uses described herein, or that such user conduct infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Site or the public, or could create liability for Utmost.
- Disclose your identity or other information about you to any third party who claims that your use of the Site violates their rights, including their intellectual property rights or their right to privacy.
- Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Site.
- Terminate or suspend your access to all or part of the Site for any or no reason, including, without limitation, any violation of these Terms.
Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of any users of the Site or other information of anyone posting any materials on or through the Site. YOU WAIVE AND HOLD HARMLESS Utmost AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY Utmost DURING, OR AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER Utmost OR LAW ENFORCEMENT AUTHORITIES.
However, we do not undertake to review all material before it is posted on the Site, and cannot ensure prompt removal of objectionable material from the Site. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We shall have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
VIII. No Warranties
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SITE AND ALL INFORMATION PRESENTED VIA THE SITE ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND Utmost HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY NATURE, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SITE AND ALL INFORMATION PRESENTED VIA THE SITE, AND Utmost SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, Utmost MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION PRESENTED VIA THE SITE; AVAILABILITY, SECURITY OR PERFORMANCE OF THE SITE; EXISTENCE OR ABSENCE OF ANY DEFECTS IN THE SITE; OR COMPATIBILITY OF THE SITE WITH ANY EQUIPMENT OR SOFTWARE
IX. Limitations of Liability
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL Utmost OR ANY OF ITS REPRESENTATIVES BE LIABLE TO YOU OR TO ANY THIRD PARTY UNDER OR IN CONNECTION WITH THESE TERMS OR THEIR SUBJECT MATTER, UNDER ANY LEGAL THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR ANY (A) CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES; (B) YOUR USE OF THE SITE OR ANY IMPAIRMENT, DELAY OR OTHER INTERRUPTION IN THE SITE OR YOUR ABILITY TO USE THE SITE; (C) LOSS OF BUSINESS, REVENUE OR PROFIT, DIMINUTION IN VALUE OR OTHER ECONOMIC LOSS; (D) HARM TO REPUTATION OR BUSINESS GOODWILL; OR (E) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (F) CONTENT, ACCURACY OR COMPLETENESS, AND ANY ERRORS IN, OR OMISSIONS FROM, THE MATERIALS INCLUDED IN OR AVAILABLE THROUGH THE SITE; OR (G) CONTENT RETRIEVED FROM THE INTERNET EVEN IF RETRIEVED OR LINKED TO, FROM, OR WITHIN THE SITE, IN EACH CASE REGARDLESS OF WHETHER Utmost OR ANY ITS REPRESENTATIVES WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL THE TOTAL AND AGGREGATE LIABILITY OF Utmost TO YOU UNDER OR IN CONNECTION WITH THESE TERMS OR THEIR SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED [FIFTY U.S. DOLLARS ($50)]. ALL CLAIMS AGAINST Utmost WITH RESPECT TO ANY LIABILITY RELATED TO THESE TERMS SHALL BE AGGREGATED TO DETERMINE SATISFACTION OF SUCH LIMIT, AND THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE OR EXTEND THE FOREGOING LIMITATION. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
You shall indemnify, defend and hold harmless Utmost and its affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, an “Indemnitee”) from and against any and all losses incurred by such Indemnitee in connection with any claim or action by a third party arising out of or relating to any: (i) content that you upload, post, email, transmit or otherwise make available via the Site; (ii) your breach of any of your representations, warranties, covenants or obligations under these Terms; or (iii) negligence or any more culpable act or omission (including recklessness or willful misconduct) by you in connection with these Terms or their subject matter.
XI. Termination, Suspension, and Limitations of Access
You agree that we may, with prior written notice, terminate, suspend, or otherwise limit your access to the Site for cause. Cause for such termination, suspension, or other limitation of access shall include but not be limited to: (a) any material breach of these Terms or other incorporated agreements or guidelines;
(b) any request by law enforcement or other government agency; (c) unexpected technical or security issues or problems; and (d) your engagement in fraudulent or illegal activities. Further, you agree that all terminations, suspensions, or other limitations of access for cause shall be made in our sole discretion, and we shall not be liable to you or any third party for any termination, suspension, or other limitation of your access to the Site. We are not responsible for any loss or damage arising out of your failure to comply with these Terms or the steps that may be required as a consequence of any actual or perceived breach or other violation of these Terms by you.
These Terms, together with any disclaimers that may appear on the Site, shall constitute the entire agreement between you and Utmost regarding the Site. The section headings in these Terms are for convenience only and have no legal or contractual effect.
Utmost may provide you with notices, by email, regular mail, or similar methods regarding the Site. For all requests and notices regarding the Site, your communication must be sent via email to [email address].
Choice of Law.
You and Utmost each agree that these Terms and any dispute arising out of or relating to these Terms shall be governed by the laws of the State of New York without regard to its conflict of law provisions.
Dispute Resolution by Arbitration.
Any and all claims, causes of action or disputes (regardless of theory) arising out of or relating to these Terms, and in which Utmost is a party, shall be settled by arbitration administered by [JAMS] or its successor in accordance with the most current version of its [Comprehensive Arbitration Rules and Procedures] or other applicable rules as determined by the arbitrator(s). Arbitration proceedings shall by conducted in the City of New York, in the State of New York in the English language, and, at the request of either party, result in a written statement of the facts and legal reasoning supporting the decision of the arbitrator(s). The costs of arbitration shall be borne equally by the parties. Judgement on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof 2.
Waiver of Class and Collective Actions.
To the fullest extent permitted by applicable law, YOU AND Utmost AGREE THAT (i) ANY CLAIM BROUGHT BY YOU OR Utmost AGAINST THE OTHER THAT ARISES FROM OR RELATES TO THESE TERMS OR USE OF THE SITE SHALL NOT BE ASSERTED AS A CLASS ACTION OR COLLECTIVE ACTION, WHETHER IN ARBITRATION, COURT OR ANY OTHER FORUM; AND (ii) THE ARBITRATOR(S) MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING AND MAY NOT AWARD CLASS-WIDE RELIEF. Disputes between the parties arising from or relating to these Terms or use of the Site shall be resolved only on an individual basis and will not be joined or consolidated with any other proceeding that involves any claim or controversy of any other party. Neither party shall have a right to resolve such disputes on a class action basis or on any basis involving such disputes brought in a purported representative capacity on behalf of other persons or entities similarly situated or the general public.
In the event that any action, suit, or other legal or administrative proceeding arising out of or relating to these Terms is instituted or commenced by either party against the other party, the prevailing party shall be entitled, in addition to any other rights or remedies it may have, to recover its expenses relating to such proceeding from the non-prevailing party, including reasonable attorneys’ fees, court costs, and arbitration fees and expenses.
Waiver and Severability of Terms.
The failure of Utmost or you to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms 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 these Terms remain in full force and effect.
Statute of Limitations.
Each party agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of Site or to these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
2 NTD: If preferred, choice of forum of state or federal court may be specified instead of arbitration. JAMS and New York were chosen as that is what we proposed in the MSA template.