UXPin Terms of Service
These Terms of Service (these “Terms”) is entered into by and between UXPin Sp. z o.o. a Polish company with business address at Abrahama Street No 37/8, 81 - 366 Gdynia, Poland, entered into commercial register of the Polish Court Register held by the District Court Gdańsk - North in Gdańsk No 0000400136, with share capital of 66,100.00 PLN, TAX ID NO: PL5862274376 (“UXPin”) and the person or entity registering to use the Service (such entity or individual, the “Subscriber”) on the UXPin website - www.uxpin.com (the “Site”) and is effective as of the date that it is accepted by such Subscriber (the “Effective Date”).
ANY SUBSCRIBER INTENDING TO ORDER SERVICES PROVIDED BY UXPIN IS REQUESTED TO READ THESE TERMS OF SERVICE CAREFULLY PRIOR TO PLACING HIS ORDER, AS THESE TERMS SHALL APPLY TO ANY AND ALL ORDERS, CONTRACTS AND AGREEMENTS CONCLUDED BETWEEN THE SUBSCRIBER AND UXPIN ON THE SITE. PLEASE ONLY CLICK ON “AGREE” IF YOU AGREE THAT SUBSCRIBER SHALL BE BOUND BY ALL OF ITS TERMS AND CONDITIONS. FOR THE AVOIDANCE OF DOUBT, ANY ORDER MADE ON THE SITE SHALL BE DEEMED AS FULL ACCEPTANCE OF THESE TERMS OF SERVICES. IF YOU SHALL NOT AGREE TO ANY PROVISIONS OF THESE TERMS OF SERVICES, PLEASE REFRAIN FROM USING THE SITE AND PLACING SUCH ORDER FOR SERVICES. FULL TEXT OF THESE TERMS OF SERVICES IS AVAILABLE AT THE SITE AND EACH SUBSCRIBER IS FULLY ENTITLED TO DOWNLOAD, STORE AND RECORD THESE TERMS.
IF THESE TERMS ARE BEING ENTERED INTO BY A SUBSCRIBER THAT IS AN ENTITY, THEN BY CLICKING ON “AGREE”, THE INDIVIDUAL DOING SO HEREBY REPRESENTS AND WARRANTS THAT HE/SHE IS AUTHORIZED BY SUBSCRIBER TO BIND SUBSCRIBER TO THESE TERMS.
THE SERVICE RENDERED BY UXPIN ON THE SITE IS DEVELOPED AND OFFERED SOLELY ON BUSINESS TO BUSINESS BASIS. UXPIN PROVIDES THE SERVICE ONLY FOR BUSINESS OR PROFESSIONAL PARTNERS AND REFRAINS FROM PROVIDING THE SERVICE TO THE CONSUMERS, UNDERSTOOD AS NATURAL PERSONS WHO ORDER THE SERVICE WITHOUT DIRECT RELATION TO THEIR COMMERCIAL OR PROFESSIONAL ACTIVITY. THEREFORE, EVEN IN THE ABSENCE OF PROVISION BY THE SUBSCRIBER OF FULL DATA INDICATING HIS OR HER CORPORATE OR BUSINESS AFFILIATION, WE SHALL DEEM THAT SUCH SUBSCRIBER ORDERS THE SERVICES FOR THE PURPOSES RELATED DIRECTLY TO HIS OR HERS PROFESSIONAL ACTIVITY.
- “Account” means the user accounts, user name and password specifically associated with Subscriber.
- “Confidential Information” has the meaning ascribed to it in Section 10.
- “Feedback” has the meaning ascribed to it in Section 5.
- “Free Trial” has the meaning ascribed to it in Section 3.2.
- “Intellectual Property Rights” means all forms of proprietary rights, titles, interests and ownership relating to patents, copyrights, trademarks, trade dresses, trade secrets, know-how, mask works, droit moral (moral rights) and all similar rights of every type that may exist now or in the future in any jurisdiction, including without limitation all applications and registrations therefore and rights to apply for any of the foregoing.
- “Login” has the meaning ascribed to it in Section 3.3.
- “Malicious Software” has the meaning ascribed to it in Section 2.3.
- “Payment” has the meaning ascribed to it in Section 4.1.
- “Planned Downtime” has the meaning ascribed to it in Section 2.2.
- “Prohibited Jurisdiction” has the meaning ascribed to it in Section 13.
- “Registration” has the meaning ascribed to it in Section 3.2.
- “Service” means the user interface design tool hosted and made available as a software-as-a-service called “UXPin.” References to “Service” herein shall be deemed to refer to the specific version of the Service referenced in the Subscription Plan.
- “Subscriber Data” means any and all data, information, content and materials created by Subscriber through use of the Service or uploaded or imported into the Service by or on behalf of Subscriber, including without limitation all design and wireframe content.
- “Subscription Plan” means the UXPin subscription plan Subscriber has elected to subscribe to, as described on UXPin’s website.
- “Subscription Term” has the meaning ascribed to it in Section 6.1.
- “Taxes” has the meaning ascribed to it in Section 4.3.
- “Usage Data” has the meaning ascribed to it in Section 2.9.
- Provision of Service. Subject to these Terms, UXPin shall provide Subscriber the right to access and use the Service during the Subscription Term consistent with the Subscription Plan Subscriber has subscribed to, solely: (i) for Subscriber’s own use for purposes of creating a user experience design or wireframe, saving and downloading the design or wireframe and sharing it with third parties via hyperlinks; (ii) in the manner enabled by UXPin; and (iii) in accordance with all applicable documentation and any usage limitations, rules or guidelines UXPin may provide. UXPin reserves the right to further develop the Service, and thus to modify and update the features and functionality of the Service occasionally in its sole discretion. Except for as expressly set forth herein, Subscriber is solely responsible for purchasing and configuring all hardware, software and services that may be necessary or desirable for Subscriber’s use of the Service (in particular, the technical requirements set forth at uxpin.desk.com shall be met by the Subscriber to use the Service). Subscriber agrees to use the Service in compliance with all applicable laws, rules and regulations, including without limitation laws relating to non-discrimination in employment, wage and hour laws and all other employment and labor laws.
- Service Availability. UXPin will use commercially reasonable efforts to ensure that the Service is available twenty-four hours a day, seven days a week. However, UXPin makes no representation, warranty or guarantee regarding the continuous availability or performance of the Service. Subscriber acknowledges that the Service may be unavailable for use occasionally without notice to Subscriber. UXPin will use commercially reasonable efforts to make the Service continuously available to Subscriber, subject to scheduled maintenance, upgrades and emergency repairs or due to failure of telecommunications links and equipment. Reasonable steps will be taken by UXPin to minimize such disruption where it is within UXPin’s reasonable control. UXPin reserves the right to temporarily suspend Subscriber’s access to and use of the Service: (i) during planned downtime for upgrades and maintenance to the Service, of which UXPin will use commercially reasonable efforts to notify Subscriber in advance via e-mail or through the Service (“Planned Downtime”); (ii) if UXPin suspects or detects any Malicious Software connected to Subscriber’s Account or use of the Service by Subscriber. UXPin will use commercially reasonable efforts to schedule Planned Downtime for nights, weekends and other off-peak hours (Pacific Standard Time Zone).
- Restrictions. Subscriber acknowledges that use of the Service is provided for Subscriber’s own design purposes only, and agrees not to use the Service for the benefit of any third party (provided that this does not prevent Subscriber from using the Service to perform design work for a Subscriber customer within the framework of his or hers commercial or professional activity). Subscriber agrees not to, not to attempt to, nor allow any third party to: (i) copy, distribute, lend, license, sublicense, sell, resell, time share, lease or transfer the Service or otherwise commercially exploit or make the Service available to any third party, (ii) decipher, decompile, reverse engineer or disassemble the Service or otherwise attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Service, (iii) adapt, modify or hack the Service or otherwise attempt to gain unauthorized access to the Service or related systems or networks; (iv) create derivative works based on the Service; (v) modify, remove or obscure any copyright, trademark, patent or other notices or legends that appear in the Service or during the use and operation thereof; (vi) falsely imply any association or sponsorship with UXPin; (vii) publicly disseminate performance information or analysis (including benchmarks) relating to the Service; (viii) utilize any software or technology designed to circumvent any license keys or copy protection used in connection with the Service; (ix) use the Service in any unlawful manner, including, but not limited to, violation of any person’s privacy rights; (x) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (xi) use the Service to knowingly post, send, transmit, upload, link to or store any viruses, malware, Trojan horses, time bombs or any other similar harmful software (“Malicious Software”); (xii) use the Service to knowingly post, send, transmit, upload, link to or store any content that is unlawful, racist, hateful, abusive, libelous, obscene or discriminatory; or (xiii) use the Service to develop a competitive service or product offering. Subscriber may not use any automated means, including agents, robots, scripts or spiders, to access or manage the Service, except solely to the extent as may be specifically enabled and authorized by UXPin. Subscriber is responsible for compliance with the provisions of these Terms by any and all persons using the Service under Subscriber’s Account.
- Suspension/Termination. Without limiting the generality of Section 6.3, UXPin may limit, suspend or terminate Subscriber’s access to or use of the Service and/or terminate these Terms at any time if: (i) Subscriber’s bandwidth usage significantly exceeds the average bandwidth usage (as determined solely by UXPin) of other UXPin subscribers; (ii) more than one individual attempts to access a Subscriber’s Account; (iii) in the sole discretion of UXPin, such action is necessary to prevent material errors or harm to any system or network, or to limit UXPin’s liability; or (iv) Subscriber attempts to access or use the Service in an unauthorized manner, including without limitation any attempt to gain access to data or information relating to any other users of the Service or any use that infringes third party Intellectual Property Rights or violates any applicable law, rule or regulation.
- Third Party Services. The Service may include features or functionality that interoperate with online services operated by third parties (such services, “Third Party Services”), pursuant to agreements between UXPin and the operators of such Third Party Services (such agreements, “Third Party Agreements” and such operators, “Operators”) or through application programming interfaces or other means of interoperability made generally available by the Operators (“Third Party APIs”) which UXPin does not control. Third Party Agreements and Third Party APIs (and the policies, terms and rules applicable to Third Party APIs) may be modified, suspended or terminated at any time. UXPin shall have no liability with respect to any of the foregoing. Without limiting the foregoing, Subscriber is responsible for ensuring that Subscriber’s use of the Service in connection with Third Party Services complies with all policies, terms and rules applicable thereto.
- Support. Provided that Subscriber timely pays all Payment due hereunder, UXPin shall provide during the Term reasonable technical support to Subscriber regarding the use of the Service during UXPin’s normal business hours (which currently are 8am - 17pm Central European Time, but may be changed from time to time) via e-mail sent to email@example.com. Responses from UXPin may be delayed if the inquiry is submitted on the weekend or during a weekday after business hours.
- Complaints. In the event the Subscriber finds any malfunctions or errors of the Service which constitutes infringement of these Terms of Service attributable to UXPin, he shall file a complaint via e-mail sent to firstname.lastname@example.org. Such complaints shall be dealt with by UXPin during normal business hours (which currently are 8am - 17pm Central European Time, but may be changed from time to time) via e-mail sent to the Subscriber, no later than within 5 days from delivery of such complaint. Responses from UXPin may be delayed if the complaint is incomplete, that is, fails to provide the details required to identify such malfunction or infringement.
- Control. Subscriber acknowledges and agrees that UXPin has no obligation to monitor or edit the Subscriber Data, and that as between the parties Subscriber is solely responsible therefor. UXPin reserves the right remove any Subscriber Data which UXPin becomes aware may violate these Terms or infringe, misappropriate or violate any third party Intellectual Property Right or privacy right.
- Subscriber-Owned Data. As between the parties, Subscriber shall own all right, title and interest in and to Subscriber Data. Subscriber hereby grants UXPin a non-exclusive, worldwide license to use, reproduce, modify, create derivative works of, display, perform and transmit the Subscriber Data in connection with UXPin’s operation of the Service and as otherwise authorized herein. UXPin may use and disclose Subscriber Data as follows: (i) UXPin may use Subscriber Data for UXPin’s internal business purposes (such as analyzing usage of and developing and improving UXPin’s products and services); (ii) UXPin may disclose Subscriber Data to its third-party service providers that assist it in making the Service available as is reasonably necessary for such assistance, subject to appropriate confidentiality obligations; and (iii) UXPin may disclose Subscriber Data as may be required by law or legal process.
- Usage Data. As between the parties, UXPin shall own all right, title and interest in and to all data collected by UXPin in connection with the operation of the Service and Subscriber’s use thereof (“Usage Data”). Usage Data may include, by way of example and not limitation, when and how often Subscriber uses the Service and which Service features are used the most often. UXPin will not disclose Usage Data or Subscriber Data to any third party in a manner that identifies Subscriber without Subscriber’s consent other than (i) disclosure to the UXPin’s third-party service providers who use it for the benefit of UXPin and the Subscriber and subject to reasonable confidentiality terms; or (ii) as may be required by law or legal process.
- Security. Subscriber acknowledges that: (i) the Service uses the Internet for data transfer and Internet-connected servers to store Subscriber Data and Usage Data; (ii) while UXPin uses commercially reasonable security measures with respect to such servers, no security measures are 100% effective, and (iii) that Internet communications have inherent insecurities. As such, UXPin does not represent or warrant the security of the Subscriber Data.
- Service Account. When Subscriber signs up and pays for a Subscription Plan, UXPin will provide Subscriber with an Account within the Service.
- Free Trial. UXPin allows potential Subscribers to apply to try the Service free of charge for seven (7) days, subject to any extension Subscriber may quality for through the “Friends with Benefits” program as further described on UXPin’s website (“Free Trial”). To do so, potential Subscriber must submit to UXPin a completed trial registration through UXPin’s website (“Registration”). If the registration is approved (which approval may be withheld in the sole discretion of UXPin), the Subscriber will receive an e-mail containing all necessary information in order for Subscriber to log into the Service. If the Subscriber chooses to subscribe to the Service after the Free Trial, all Account settings and customizations will be saved and immediately accessible to Subscriber. There is no obligation to create an Account after the Free Trial ends. Use of the Service during a Free Trial is provided solely for evaluation of the features of the Service. The Service may not be used commercially during a Free Trial. UXPin may immediately terminate any Free Trial Account which is used for commercial purposes, without notice or liability therefor.
- Login. Subscriber is responsible for the activities of any and all persons accessing and using the Service using Subscriber’s Account. Subscriber’s Account will be provided with a unique user name and password (“Login”). Subscriber agrees that it will not share its Login among multiple individuals. Access to and use of the Service is restricted to only the Subscriber under the Subscription Plan. Subscriber shall use all reasonable means to secure the user name and password associated with the Account, and shall promptly notify UXPin if it suspects that the user name and password have been compromised. Subscriber acknowledges that use of Subscriber’s Account by any person or entity other than Subscriber shall constitute a material breach of these Terms.
- Communications. UXPin may communicate with Subscriber using the e-mail provided by Subscriber during Registration. Subscriber agrees that all agreements, notices, disclosures and other communications provided by UXPin electronically satisfy any legal requirement that such communication be in writing.
4. SUBSCRIPTION PLAN; PAYMENT
- Refunds on Termination. No refunds or credits for Payment or other fees or payments will be provided to Subscriber if Subscriber elects to terminate Subscriber’s subscription to the Service or cancel Subscriber’s Account prior to the end of Subscriber’s then effective Subscription Term. Following the termination or cancellation of Subscriber’s subscription to the Service and/or Account, UXPin will provide links to the Subscriber with all Subscriber Data and then reserves the right to delete all Subscriber Data in the normal course of operation. Subscriber Data cannot be recovered once Subscriber’s Account is cancelled.
- Taxes. Unless otherwise stated, UXPin’s charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). Subscriber is responsible for paying Taxes except those assessable against UXPin based on its net income. UXPin will invoice Subscriber for such Taxes if UXPin believes it has a legal obligation to do so and Subscriber agrees to pay such Taxes if so invoiced.
- UXPin Intellectual Property Rights. As between the parties, UXPin owns all right, title and interest (including all Intellectual Property Rights) in and to the Service (including without limitation all underlying source code, algorithms and models) and any software, technology, materials and information owned by UXPin prior to the Effective Date or created, authored, developed, made, conceived or reduced to practice by UXPin after the Effective Date. Nothing herein shall be construed to transfer any rights, title or ownership of the Service or any UXPin software, technology, materials, information or Intellectual Property Rights to Subscriber.
- Subscriber's Feedback. Subscriber is not required to provide any ideas, feedback or suggestions regarding any of UXPin’s products or services (“Feedback”) to UXPin. To the extent Subscriber does provide any Feedback to UXPin, Subscriber agrees to assign and hereby does assign all right, title and interest in and to such Feedback to UXPin and acknowledges that UXPin may freely use, reproduce, modify, distribute, make, have made, sell, offer for sale, import and otherwise exploit in any manner such Feedback without payment of any royalties or other consideration to Subscriber.
6. TERM; TERMINATION
- Term. These Terms shall be effective as of the Effective Date and will terminate at the sooner of (i) the end of the Free Trial, if Subscriber does not subscribe to the Service or (ii) the end of the Subscription Plan period (the “Subscription Term”).
- Renewal. Either Subscriber or UXPin may elect to terminate Subscriber’s Account and subscription to the Service as of the end of Subscriber’s then current Subscription Term by providing notice, in accordance with these Terms, on or prior to the date two (2) days preceding the end of such Term. Unless Subscriber’s Account and subscription to the Service is so terminated, Subscriber’s subscription to the Service will renew for a Term equivalent in length to the then expiring Term. The Subscription Charges applicable to Subscriber’s subscription to the Service for any such subsequent Term shall be UXPin’s standard Subscription Charges for the Subscription Plan to which Subscriber has subscribed as of the time such subsequent Term commences.
- Termination by the Subscriber. If Subscriber terminates Subscriber’s subscription to the Service or cancels Subscriber’s Account prior to the end of Subscriber’s then effective Subscription Term or UXPin effects such termination or cancellation pursuant to Section 2.4, in addition to other amounts Subscriber may owe UXPin, Subscriber must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term. This amount will not be payable by Subscriber in the event Subscriber terminates Subscriber’s subscription to the Service or cancel Subscriber’s Account as a result of a material breach of these Terms by UXPin, provided that Subscriber provides advance notice of such breach to UXPin and afford UXPin not less than thirty (30) days to reasonably cure such breach.
- Termination by the UXPin. UXPin reserves the right to modify, suspend or terminate the Service (or any part thereof), Subscriber’s Account or Subscriber’s right to access and use the Service, and remove, disable and discard any of the Subscriber Data if UXPin believes that Subscriber has violated these Terms. Unless legally prohibited from doing so, UXPin will use commercially reasonable efforts to contact Subscriber directly via email to notify Subscriber when taking any of the foregoing actions. UXPin shall not be liable to Subscriber or any other third party for any such modification, suspension or discontinuation of Subscriber’s right to access and use the Service. Any suspected fraudulent, abusive, or illegal activity by Subscriber may be referred to law enforcement authorities at UXPin’s sole discretion.
- Effect of Termination. All rights and obligations of the parties hereunder shall terminate upon expiration or termination of these Terms, provided that Sections 1, 2.3 through 2.5, 2.8 through 2.11, 4 (with respect to any accrued but unpaid amounts), 5, 6.3, 6.4, 6.5 and 7 through 12 shall survive expiration or termination of these Terms.
7. REPRESENTATIONS AND WARRANTIES
- Mutual. Each party represents and warrants to the other party that: (i) it has the full power and authority to enter into these Terms; and (ii) these Terms constitute a legal, valid and binding obligation when executed and delivered.
- Subscriber. Subscriber represents and warrants to UXPin that: (i) it has all right, title, and interest in and to the Subscriber Data necessary for its use in connection with the Service; (ii) it shall not use the Service in a manner or in connection with any activity that would violate any law, rule or regulation, including those relating to privacy or data protection, employment and labor laws or the CAN-SPAM Act; and (iii) the Subscriber Data (including the storage, reproduction, and use thereof as contemplated hereunder) does not and will not (x) infringe upon, violate or misappropriate the Intellectual Property Rights of any third party or (y) slander, defame or libel any person.
Subscriber agrees to, at its own expense, defend, indemnify and hold harmless UXPin and its directors, officers and employees from and against any liabilities, damages, losses, judgments, costs, expenses (including reasonable attorney’s fees), claims, actions, demands and suits arising out of or relating to any actual or alleged breach by Subscriber of any covenant, representation or warranty of these Terms or any use or misuse by Subscriber of the Service, except to the extent any of the foregoing arises directly from the gross negligence or willful misconduct of UXPin.
THE SERVICE AND SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THESE TERMS, AND EACH PARTY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. UXPIN AND ITS SUPPLIERS, LICENSORS, PARTNERS AND SERVICE PROVIDERS DO NOT WARRANT THAT THE FUNCTIONALITY PROVIDED BY THE SERVICE WILL BE CORRECT, UNINTERRUPTED, TIMELY OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED. UXPIN DOES NOT WARRANT THE RESULTS OF USE OF THE SERVICE.
Each party shall keep confidential all information and materials provided or made available by the other party that is marked as confidential or proprietary or (for orally disclosed information) is identified as confidential or proprietary at the time of disclosure and confirmed in writing (including e-mail) as such within fifteen (15) days of the disclosure (“Confidential Information”). The features, functionality and content of the Service, any Service documentation, and any information regarding planned modifications or updates to the Service or other UXPin products and services constitutes Confidential Information of UXPin. Each party shall keep and instruct its employees and agents to keep Confidential Information confidential by using at least the same care and discretion as used with that party’s own confidential information, but in no case less than a prudent and reasonable standard of care. Neither party shall use Confidential Information other than for purposes of performing its obligations hereunder or as authorized by the disclosing party. Information or materials shall not constitute Confidential Information if it is: (i) in the public domain through no fault of the receiving party, (ii) known to the receiving party prior to the time of disclosure by the disclosing party, (iii) lawfully and rightfully disclosed to the receiving party by a third party on a non-confidential basis, (iv) developed by the receiving party without reference to Confidential Information or (v) required to be disclosed by law or legal process, provided that the receiving party promptly provide notice to the disclosing party of such request or requirement so the disclosing party may seek appropriate protective orders. If any party, its employees or agents breaches or threatens to breach the obligations of this Section 10, the affected party may seek injunctive relief from a court of competent jurisdiction, in addition to its other remedies, as the inadequacy of monetary damages and irreparable harm are acknowledged.
11. LIMITATION OF LIABILITY
UXPIN SHALL NOT BE LIABLE TO SUBSCRIBER IN CONNECTION WITH THESE TERMS FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE, OR PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT UXPIN WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT WILL UXPIN’S AGGREGATE LIABILITY AND DAMAGES IN CONNECTION WITH THESE TERMS EXCEED THE AGGREGATE PAYMENTS MADE BY SUBSCRIBER TO UXPIN HEREUNDER DURING THE TWELVE MONTHS PRECEDING THE DATE OF THE CLAIM. THE PARTIES AGREE THAT THE LIMITATIONS AND DISCLAIMERS OF LIABILITY SET FORTH IN THIS SECTION 11 WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS ARE FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE AND REGARDLESS OF THE THEORY OF LIABILITY. THE SUBSCRIBER AGREES THAT THE LIMITATIONS AND DISCLAIMERS OF LIABILITY UNDER THIS SECTION 11 CONSTITUTE A FUNDAMENTAL BASIS OF HIS BARGAIN. SUBSCRIBER ACKNOWLEDGES THAT THE ALLOCATIONS OF RISK AND DISCLAIMERS OF WARRANTIES AND LIABILITIES HEREUNDER ARE IN PART REFLECTED IN THE AMOUNT OF PAYMENT AND ALLOW UXPIN TO GRANT THE SUBSCRIBER ABILITY TO USE THE SERVICE FOR A REASONABLE CONSIDERATION.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO SUBSCRIBER. IN THESE JURISDICTIONS, UXPIN’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
- Relationship of the Parties. The parties are independent contractors with respect to each other. These Terms do not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship. No party shall have any right to obligate or bind any other party in any manner whatsoever.
- Third-Party Beneficiaries. Nothing herein shall give, or is intended to give, any rights of any kind to any third parties.
- Assignment. Subscriber may not, directly or indirectly, assign any of its rights or obligations under these Terms without the prior written consent of UXPin, which consent will not be unreasonably withheld. Any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of the assets of Subscriber or similar transaction shall be deemed to constitute an attempted assignment of these Terms. UXPin may, without Subscriber’s consent, assign these Terms with Subscriber to any affiliate or in connection with any merger or change of control of UXPin or the sale of all or substantially all of UXPin’s assets provided that any such successor agrees to fulfill its obligations pursuant to these Terms. Subject to the foregoing restrictions, these Terms inure to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successors.
- Force Majeure. Neither party will be responsible for any failure or delay in its performance under these Terms due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
- Notices. All notices under the terms of these Terms shall be given in writing and sent by registered or certified mail, with postage prepaid and return receipt requested, to (with respect to UXPin) the UXPin address noted in the preamble of these Terms and (with respect to Subscriber) to any Subscriber business address. Notices shall be sent to the attention of the “Legal Department” of each party. All notices shall be presumed to have been given three (3) business days following deposit in the mail as set forth in the foregoing.
- Amendments. An amendment of these Terms shall be binding upon the parties so long as it is in writing and executed by both parties or is presented by UXPin electronically through the Service and accepted in “click-to-agree” form by Subscriber. No regular practice or method of dealing between the parties shall modify, interpret, supplement or alter in any manner the express terms of these Terms.
- Construction. Section headings are for reference purposes only, and should not be used in the interpretation hereof.
- Severability; Waiver; Counterparts. If any provision, or portion thereof, of these Terms are determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of these Terms, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct. A waiver of any provision of these Terms will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. The failure by either party to insist upon the strict performance of these Terms, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect.
- Governing Law; These Terms shall be governed by, and construed in accordance with, the laws of the State of California, without reference to conflicts of laws principles. In the event that the choice of law provided in the preceding sentence should be deemed invalid or ineffective by the applicable jurisdiction, these Terms shall be governed by, and construed in accordance with the laws of the Republic of Poland, as the law of the state of incorporation of UXPin as the provider of the Service, without reference to conflicts of laws principles.
- Jurisdiction. The parties agree that the state and federal courts in Santa Clara County, California will have exclusive jurisdiction and venue under these Terms, and the parties hereby agree to submit to such jurisdiction exclusively. In the event that the choice of Jurisdiction provided in the preceding sentence should be deemed invalid or ineffective by the applicable jurisdiction, Polish state court materially and territorially competent for the business address of UXPin as of the Effective Date, shall have exclusive jurisdiction and venue under these Terms, and any conflicts or disputes that may arise in relation thereto, and the parties hereby agree to submit each such dispute to such jurisdiction exclusively.
- Consumers. Any provisions of these Terms of Service which may be found inconsistent with any absolutely binding provisions of applicable law which provide consumer protection or special rights or entitlements reserved for consumers (in particular, but not limited to provisions included in sections 5.2, 6.2, 6.4, 8, 9, 11, 12.3 and 12.10) shall not apply to contracts and agreements concluded between UXPin and a consumer, but only to the extent that would be found inconsistent with such provisions of law.
- Entire Terms. These Terms constitute the complete, final and exclusive Terms between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written representations, understandings, Terms or communications between them concerning the subject matter hereof. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.
13. EXPORT COMPLIANCE AND USE RESTRICTIONS.
The Service, and other components or software of the Service, which UXPin may provide or make available to Subscriber, may be subject to U.S. export control and economic sanctions laws. Subscriber agrees to comply with all such laws and regulations as they relate to access to and use of the Service, other components and software by Subscriber. Subscriber shall not access or use the Service if Subscriber is located in any jurisdiction in which the provision of the Service, other components or software is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and Subscriber shall not provide access to the Service to any government, entity or individual located in any Prohibited Jurisdiction. Subscriber represents, warrants and covenants that (i) Subscriber is not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (ii) Subscriber is not a national of, or a company registered in any Prohibited Jurisdiction; (iii) Subscriber shall not permit any of its users to access or use the Service in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (iv) Subscriber shall comply with all applicable laws concerning the transmission of technical data exported from the United States and the country in which Subscriber is located.