1. General Terms
1.1 Your use of the Uffizzi Service is governed by this agreement (the “Terms”). “Uffizzi” means Idyl Technologies, LLC, a Delaware limited liability corporation with its principal place of business at 626 Main St, Nashville, TN 37206, and its subsidiaries and Affiliates (as defined below) involved in providing the Uffizzi Service. The “Uffizzi Services” means the Uffizzi cloud computing platform, the Uffizzi API and any other software or services offered by Uffizzi in connection to any of those, excluding Third Party Services. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2 In order to use the Uffizzi Services, you must first agree to the Terms. You can agree to the Terms by actually using the Uffizzi Services. You understand and agree that Uffizzi will treat your use of the Uffizzi Services as acceptance of the Terms from that point onwards.
1.3 You may not use the Uffizzi Services if you are a person barred from receiving the Uffizzi Services under the laws of the United States or other countries, including the country in which you are resident or from which you use the Uffizzi Services.
1.4 You agree that your purchases of Uffizzi Services are not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by Uffizzi or any of its Affiliates regarding future functionality or features.
2. Your Account and Use of the Uffizzi Services
2.1 You must provide accurate and complete registration information any time you register to use the Uffizzi Services. You are responsible for the security of your passwords and for any use of your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify Uffizzi immediately.
2.2 Your use of the Uffizzi Services must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software.
2.3 You agree not to (a) access (or attempt to access) the administrative interface of the Uffizzi Services by any means other than through the interface that is provided by Uffizzi in connection with the Uffizzi Services, unless you have been specifically allowed to do so in a separate agreement with Uffizzi, or (b) engage in any activity that interferes with or disrupts the Uffizzi Services (or the servers and networks which are connected to the Uffizzi Services).
2.4 Your account has “hard” and “soft” usage limits, see “Acceptable Use Policy” located on the uffizzi website. The Uffizzi Services do not permit you to exceed the hard usage limits. Uffizzi reserves the right to enforce soft usage limits in its sole discretion, which may result in Uffizzi serving a “quota exceeded” page to you or users to whom you serve web pages via the Uffizzi Services (“End Users”). Repeated exceeding of the hard or soft usage limits may lead to termination of your account.
2.5 You may use the Uffizzi Services only to develop and run applications on the Uffizzi Services infrastructure. You may not access the Uffizzi Services for the purpose of bringing an intellectual property infringement claim against Uffizzi or for the purpose of creating a product or service competitive with the Uffizzi Services.
3. Service Policies and Privacy
3.1 You agree to comply with the Uffizzi Acceptable Use Policy available at the uffizzi website which is incorporated herein by this reference and which may be updated from time to time.
3.3 Uffizzi shall use commercially reasonable efforts to make the Uffizzi Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which you are given notice via the Uffizzi Services, or (b) any unavailability caused by circumstances beyond Uffizzi's reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Uffizzi employees), Internet service provider failures or delays, or denial of service attacks.
3.4 You agree that you will protect the privacy and legal rights of the End Users of your application. You must provide legally adequate privacy notice and protection for End Users. If End Users provide you with user names, passwords, or other login information or personal information, you must make the users aware that the information will be available to your application and to Uffizzi.
4. Fees for Use of the Uffizzi Services
4.1 You will pay all fees for the Uffizzi Services based on actual usage. Fees are solely based on Uffizzi’s measurements of your use of the Uffizzi Services. You are required to maintain a valid credit card on your account at all times that you use the Uffizzi Services.
4.2 Fees will be invoiced monthly in arrears and concurrently charged to your credit card. Fees are due on the invoice date. You are responsible for providing complete, accurate and valid credit card, billing, payment and contact information to Uffizzi and notifying Uffizzi of any changes to such information. You acknowledge and agree that any credit card and related billing, payment and contact information that you provide to Uffizzi may be shared by Uffizzi with companies who work on Uffizzi's behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to Uffizzi and servicing your account.
4.3 If any amounts invoiced hereunder are not received by the due date (i.e., the charge to your credit card is denied for any reason), then (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and (b) Uffizzi may, without limiting its other rights and remedies, suspend and delete the Uffizzi Services until such amounts are paid in full and a valid credit card is provided to Uffizzi. Any outstanding balance becomes immediately due and payable upon suspension or termination of the Uffizzi Services for any reason.
4.4 You are responsible for paying all reasonable expenses and attorneys’ fees that Uffizzi incurs collecting late amounts. To the fullest extent permitted by law, you waive all claims relating to charges unless claimed within 60 days after the charge (this does not affect your credit card issuer rights).
4.5 Unless otherwise stated, our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases hereunder. If Uffizzi has the legal obligation to pay or collect Taxes for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Uffizzi is solely responsible for taxes assessable against it based on its income, property and employees.
5. Content on the Uffizzi Services and Take Down Obligations
5.1 You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) to which you may have access as part of, or through your use of, the Uffizzi Services are the sole responsibility of the person from which such content originated. All such information is referred to below as the “Content.” The term Content shall specifically exclude the web application(s) that you create using the Uffizzi Services and any source code written by you to be used with the Uffizzi Services (collectively, “Applications”).
5.2 Uffizzi reserves the right (but shall have no obligation) to remove any or all Content from the Uffizzi Services. You agree to immediately take down any Content that violates the Acceptable Use Policy, including pursuant to a take-down request from Uffizzi. In the event that you elect not to comply with a request from Uffizzi to take down certain Content, Uffizzi reserves the right to directly take down such Content or to disable Applications.
5.3 In the event that you become aware of any violation of the Acceptable Use Policy by an End User of Applications, you shall immediately terminate such end user's account on your Application. Uffizzi reserves the right to disable Applications in response to a violation or suspected violation of the Acceptable Use Policy.
5.4 You agree that you are solely responsible for (and that Uffizzi has no responsibility to you or to any third party for) the Application or any Content that you create, transmit or display while using the Uffizzi Services and for the consequences of your actions (including any loss or damage which Uffizzi may suffer) by doing so.
5.5 You agree that Uffizzi has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted through use of the Uffizzi Service. You further acknowledge that you are solely responsible for securing and backing up your Applications and any Content.
6. Proprietary Rights
6.1 You acknowledge and agree that Uffizzi (or Uffizzi ‘s licensors) own all legal right, title and interest in and to the Uffizzi Services, including any intellectual property rights which subsist in the Uffizzi Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
6.2 Except as provided in Section 8, Uffizzi acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content or Applications that you create, submit, post, transmit or display on, or through, the Uffizzi Services, including any intellectual property rights which subsist in that Content and the Application (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with Uffizzi, you agree that you are responsible for protecting and enforcing those rights and that Uffizzi has no obligation to do so on your behalf.
7. License from Uffizzi and Restrictions
7.1 Uffizzi gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by Uffizzi as part of the Uffizzi Services as provided to you by Uffizzi. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Uffizzi Services as provided by Uffizzi, in the manner permitted by the Terms.
7.2 You may not (and you may not permit anyone else to): (a) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Uffizzi Services or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by Uffizzi, in writing (e.g., through an open source software license); or (b) attempt to disable or circumvent any security mechanisms used by the Uffizzi Services or any applications running on the Uffizzi Services.
7.3 Open source software licenses for components of the Uffizzi Services released under an open source license constitute separate written agreements. To the limited extent that the open source software licenses expressly supersede these Terms, the open source licenses govern your agreement with Uffizzi for the use of the components of the Uffizzi Services released under an open source license.
7.4 Uffizzi hereby grants you a limited, non-exclusive, royalty-free, non-transferable license, with no right to sub-license, to display the Uffizzi trademarks and/or logos as provided through a request to firstname.lastname@example.org. You will use the trademarks for the sole purpose of promoting or advertising that you use or promote the Uffizzi Services and solely in accordance with the then current Trademark Usage Guidelines for Uffizzi. You agree that all goodwill generated through your use of the Uffizzi Marks shall inure to the benefit of Uffizzi.
8. License from You
8.1 Uffizzi claims no ownership or control over any Content or Application. You retain copyright and any other rights you already hold in the Content and/or Application, and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying the Content on or through the Uffizzi Services you give Uffizzi a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Content for the sole purpose of enabling Uffizzi to provide you with the Uffizzi Services. Furthermore, by creating an Application through use of the Uffizzi Services, you give Uffizzi a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Application for the sole purpose of enabling Uffizzi to provide you with the Uffizzi Services.
8.2 By adding a contributor to your Application, you hereby grant to that user a non-exclusive, royalty-free, non-transferable license, with no right to sub-license, to use, display, perform, reproduce, modify, publish, distribute, list information regarding, edit, translate and analyze such Application(s) and Content as permitted by the relevant Uffizzi Services functionality or features for the sole purpose of collaborating on development of the Application(s).
8.3 You may choose to or we may invite you to submit comments or ideas about the Uffizzi Services, including without limitation about how to improve the Uffizzi Services or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Uffizzi 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.
8.4 You agree that Uffizzi, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) for the purpose of advertising or publicizing your use of the Uffizzi Services.
9. Third Party Services
9.1 Uffizzi may make available through the Uffizzi Services additional features, functionality, and services offered by its third-party partners). Your use of these services is subject to these Terms and to the applicable fees of those services. You acknowledge for each 3rd party service you subscribe to or purchase through the Uffizzi Services, these Terms constitute a separate binding agreement between you and the third party licensor of that third party only and Uffizzi is not a party to such agreement. The Third Party Service Provider of each Third Party Service is solely responsible for that Third Party Service, the content therein and the privacy and security of any of your data processed by the Third Party Service, and any claims that you or any other party may have relating to that Third Party Service or your use of that Third Party Service. You acknowledge that you are purchasing the license to each Third Party Service from the Third Party Service Provider of that Third Party Service; Uffizzi is acting as agent for the Third Party Service Provider in providing each such Third Party Service to you; Uffizzi is not a party to the license between you and the Third Party Service Provider with respect to that Third Party Service; and Uffizzi is not responsible for that Third Party Service, the content therein, the privacy and security of any of your data processed by the Third Party Service, or any claims that you or any other party may have relating to that Third Party Service or your use of that Third Party Service. You acknowledge and agree that Uffizzi is a third party beneficiary of the agreement between you and the Third Party Service Provider for each Third Party Service, and that Uffizzi will have the right (and will be deemed to have accepted the right) to enforce such license against you as a third party beneficiary thereof.
9.2 By subscribing to or purchasing a Third Party Service, you grant Uffizzi permission to share your Application, Content, and user information and data with the Third Party Service Provider as necessary in order to provide you the Third Party Service.
9.3 The license granted to you to use any Third Party Service is personal to you, and is not sublicensable to your End Users. You may not provide or resell Third Party Services to others.
10.1 Uffizzi may, and you grant us permission to, make recommendations via the Uffizzi Services for products or services we think may be of interest to you based on your Application(s), Content, and/or use of the Uffizzi Services.
11. Modification and Termination of the Uffizzi Services
11.1 Uffizzi is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Uffizzi Services which Uffizzi provides may change from time to time without prior notice to you. Changes to the form and nature of the Uffizzi Services will be effective with respect to all versions of the Uffizzi Services; examples of changes to the form and nature of the Uffizzi Services include without limitation security patches, added functionality and other enhancements.
11.2 The Terms continue in full force and effect until the Uffizzi Services ordered by You pursuant to Order Forms have expired or been terminated.
11.4 You are solely responsible for exporting your Content and Application(s) from the Uffizzi Services prior to termination of your account for any reason, provided that if we terminate your account, we will provide you a reasonable opportunity to retrieve your Content and Application(s).
11.5 Upon any termination of the Uffizzi Services or your account the Terms will also terminate, but Sections 6.1, 11, 12, 13, 14, and 18 shall continue to be effective after the Terms are terminated.
12. Warranties, Exclusive Remedies and Disclaimers
12.1 Uffizzi warrants that (i) it has validly entered into these Terms and has the legal power to do so, and (ii) the functionality of the Uffizzi Services will not be materially decreased during a subscription term. For any breach of a warranty above, your exclusive remedy shall be to terminate your subscription to the Uffizzi Services.
12.2 You warrant that You have validly entered into this Agreement and have the legal power to do so.
12.3 NOTHING IN THESE TERMS, INCLUDING SECTIONS 12 AND 13, SHALL EXCLUDE OR LIMIT EITHER PARTY'S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
12.4 UFFIZZI, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE UFFIZZI SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, UFFIZZI, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE UFFIZZI SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE UFFIZZI SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE UFFIZZI SERVICES WILL BE ACCURATE.
13. Limitation of Liability
13.1 SUBJECT TO SECTION 12.3, NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE LESSER OF $50,000 OR THE AMOUNT ATTRIBUTABLE TO THE UFFIZZI SERVICES PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT ATTRIBUTABLE TO THE UFFIZZI SERVICES PAID BY YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER THE “FEES FOR USE OF THE UFFIZZI SERVICES” SECTION ABOVE.
13.2 SUBJECT TO SECTION 12.3 ABOVE, NEITHER PARTY (NOR A PARTY'S SUBSIDIARIES AND AFFILIATES) SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY THE OTHER PARTY, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS.
13.3 THE LIMITATIONS ON LIABILITY IN PARAGRAPH 13.2 ABOVE SHALL APPLY WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
14.1 You shall defend Uffizzi against any claim, demand, suit or proceeding made or brought against Uffizzi by a third party arising from or in any way related to (a) your breach of the Terms, (b) your use of the Uffizzi Services, (c) your violation of applicable laws, rules or regulations in connection with the Uffizzi Services, or (d) your Content or your Application (“Claim Against Uffizzi”), and shall indemnify Uffizzi for any damages, attorney fees and costs finally awarded against Uffizzi as a result of, and for amounts paid by Uffizzi under a court-approved settlement of, a Claim Against Uffizzi; provided that Uffizzi (a) promptly gives you written notice of the Claim Against Uffizzi, (b) gives you sole control of the defense and settlement of the Claim Against Uffizzi (provided that you may not settle or defend any Claim Against Uffizzi unless it unconditionally releases Uffizzi of all liability), and (c) provides to you all reasonable assistance, at your expense.
14.2 Uffizzi shall defend you against any claim, demand, suit or proceeding made or brought against you by a third party alleging that the use of the Uffizzi Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a “Claim Against You”), and shall indemnify you for any damages, attorney fees and costs finally awarded against you as a result of, and for amounts paid by you under a court-approved settlement of, a Claim Against You; provided that you (a) promptly give Uffizzi written notice of the Claim Against You, (b) give Uffizzi sole control of the defense and settlement of the Claim Against You (provided that Uffizzi may not settle or defend any Claim Against You unless it unconditionally releases you of all liability), and (c) provide to Uffizzi all reasonable assistance, at Uffizzi's expense. In the event of a Claim Against You, or if Uffizzi reasonably believes the Uffizzi Services may infringe or misappropriate, Uffizzi may in its discretion and at no cost to you (i) modify the Uffizzi Services so that they no longer infringe or misappropriate, (ii) obtain a license for your continued use of the Uffizzi Services in accordance with this Agreement, or (iii) terminate your subscription for such Uffizzi Services upon 30 days’ written notice and refund you any prepaid fees covering the remainder of the term of such subscriptions after the effective date of termination.
15. Copyright Policy
You agree to set up a process to respond to notices of alleged infringement that comply with the United States’ Digital Millennium Copyright Act (“DMCA notices”). It is Uffizzi's policy to respond to DMCA notices or other applicable copyright laws and to terminate the accounts of repeat infringers. We reserve the right to take down content in your Application or, if necessary, the Application itself upon receipt of a valid DMCA notice.
16. Other Content
16.1 The Uffizzi Services may include hyperlinks to other web sites or content or resources or email content. Uffizzi may have no control over any web sites or resources which are provided by companies or persons other than Uffizzi.
16.2 You acknowledge and agree that Uffizzi is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
16.3 You acknowledge and agree that Uffizzi is not liable for any loss or damage which may be incurred by you or your End Users as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
17. Non-GA Services
From time to time Uffizzi may invite you to try, at no charge, Uffizzi products or services that are not generally available to Uffizzi customers (“Non-GA Services”). You may accept or decline any such trial in its sole discretion. Any Non-GA Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. Non-GA Services are not considered “Uffizzi Services” hereunder and are provided “AS IS” with no express or implied warranty. Uffizzi may discontinue Non-GA Services at any time in its sole discretion and may never make them generally available.
18. General Legal Terms
18.1 The Terms, including all Order Forms, constitute the whole legal agreement between you and Uffizzi and govern your use of the Uffizzi Services (but excluding any services which Uffizzi may provide to you under a separate written agreement), and completely replace any prior agreements between you and Uffizzi in relation to the Uffizzi Services. No modification, amendment, or waiver of any provision of these Terms shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of the Terms and any Order Form, the terms of such Order Form shall prevail.
18.2 There are no third party beneficiaries to these Terms. The parties are independent contractors, and nothing in these Terms creates an agency, partnership or joint venture.
18.3 If Uffizzi provides you with a translation of the English language version of these Terms, the English language version of these Terms will control if there is any conflict.
18.4 You agree that Uffizzi may provide you with notices by email, regular mail, or postings on the Uffizzi Services. By providing Uffizzi your email address, you consent to our using the email address to send you any notices required by law in lieu of communication by postal mail.
18.5 You agree that if Uffizzi does not exercise or enforce any legal right or remedy which is contained in the Terms (or which Uffizzi has the benefit of under any applicable law), this will not be taken to be a formal waiver of Uffizzi ‘s rights and that those rights or remedies will still be available to Uffizzi.
18.6 The Terms, and your relationship with Uffizzi under the Terms, shall be governed by the laws of the State of Tennessee without regard to its conflict of laws provisions. You and Uffizzi agree to submit to the exclusive jurisdiction of the courts located within Davidson County, Tennessee to resolve any legal matter arising from the Terms.
18.7 Neither party may assign any of its rights or obligations under these Terms, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the entirety of its rights and obligations under these Terms, without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party's sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party's election, termination of your use of the Uffizzi Services upon written notice to the assigning party.