Last updated: Jun 26, 2021
PLEASE READ THIS DOCUMENT WITH CARE – IT IS A BINDING CONTRACT
THIS AGREEMENT (‘CUSTOMER AGREEMENT’ OR ‘UMOLDIT CUSTOMER AGREEMENT’) IS A BINDING AGREEMENT BETWEEN ‘U MOLD IT SOLUTIONS PVT. LTD.’ (HEREAFTER REFERRED TO AS 'UMOLDIT' OR ‘US’ OR ‘WE') AND YOU AND, IF APPLICABLE, THE COMPANY OR OTHER LEGAL ENTITY YOU REPRESENT (COLLECTIVELY, ‘YOU’). THIS AGREEMENT ALSO INCORPORATES BY REFERENCE THE 'PRIVACY NOTICE' THAT IS POSTED ON
WWW.UMOLDIT.COM,
WWW.CSPOWERPACK.COM,
WWW.PHPPOWERPACK.COM,
WWW.EASYAPIS.COM,
WWW.DAIWASCREATIONS.COM,
WWW.SIMPLYLAKSHMI.IN,
WWW.GLADFELLOW.IN AND
WWW.ORGANIZEYOURLIFE.XYZ (COLLECTIVELY REFERED TO AS ‘UMOLDIT WEBSITES’), AS IT MAY BE MODIFIED BY UMOLDIT FROM TIME TO TIME.
BY CHOOSING TO ACCEPT THIS AGREEMENT AND/OR ACCEPTING MODIFICATION IF ANY TO THIS AGREEMENT IN ACCORDANCE WITH SECTION 2 BELOW, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE COMPANY/LEGAL ENTITY TO THIS AGREEMENT, AND ‘YOU’ SHALL MEAN SUCH ENTITY.
IF YOU DO NOT HAVE THE AUTHORITY OF THE COMPANY OR THE LEGAL ENTITY ON BEHALF OF WHICH YOU ARE ENTERING INTO THIS AGREEMENT, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR IF YOU ARE OUR DIRECT COMPETITOR, OR IF YOU INTEND USING THE SERVICES SET FORTH IN SECTION 1 FOR THE PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE, FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES, OR IF YOU ARE DISABLED BY ANY LAW FROM ENTERING INTO A CONTRACT, YOU MAY NOT USE THESE SERVICES.
This agreement includes the following sections:
1. Defining the services
2. Modifications to this agreement
3. Term, termination and suspension
4. Authorization and license to use the services
5. Authorized Use Policies (AUP)
6. Marks
7. Downtime, service suspensions and security
8. Fees
9. Confidentiality
10. Intellectual property
11. Representations & warranties, disclaimers & limitations of liability
12. Indemnification
13. Disputes
14. Notices
15. Miscellaneous provisions
1. Defining the services
The various services covered by this agreement include both the free services that UmoldIT makes available for no fee (the ‘Free services’), and services that we make available for a fee (the ‘Paid services’). The free services and the paid services are referred to collectively in this agreement as the ‘Services’. Each free service and paid service is referred to individually as a ‘Service’.
1.1. Free services
The free services include the limited trial version of our products and content marked as 'Free' that we make available to you free of charge on the UmoldIT websites.
1.2. Paid services
The paid services include our products and any related support and/or information products/services that we make available to you for a fee on the UmoldIT websites, except those services for which we specifically provide a separate customer agreement.
At our sole discretion, we may (i) begin charging fees for a free service, in which case such service will thereafter be deemed a paid service, or (ii) cease charging fees for a paid service, in which case such service will thereafter be deemed a free service. We shall make all services available to you pursuant to your acceptance of this agreement during the subscription process. By accepting this agreement, you agree that your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written or public comments made by us with regard to future functionality or features.
2. Modifications to this agreement
By accepting this agreement, you also agree that we may modify parts or whole of this agreement or any policy or other terms referenced in this agreement (collectively, ‘additional policies’) at any time by posting on the UmoldIT websites a revised version of the agreement or such additional policy which will be effective as follows:
• If the revised terms are (a) for any paid services which we are adding at the time of the revision, or (b) for the privacy notice, or (c) for any AUP (as defined in Section 5), or (d) for any other general terms and conditions applicable to our services, websites or other properties, or (e) for any free service, the revised terms shall be effective upon posting (unless we expressly state otherwise at the time of posting); and
• If the revised terms are for any of the then-existing paid services, then the revised terms shall be effective upon: either (a) fifteen (15) days after posting or (b) if we provide a mechanism for your immediate acceptance of the revised terms, such as a click-through confirmation or an ‘Accept’ button for your acceptance, upon your clicking that button; whichever occurs earlier.
After the effective date (as defined above) of any revisions to this agreement or any additional policies, you agree to be bound by the revised agreement or any revised additional policies if you continue to use or receive the services. It is incumbent on you and is solely your responsibility to check the UmoldIT websites regularly for changes to this agreement or the additional policies, as applicable. The date set forth at the start of this agreement marks the date of the last modification to this agreement. For example, this agreement that you now read was last modified on the date set forth at the top of this agreement.
3. Term, termination and suspension
3.1. Term
When you complete the registration process for your account on UmoldIT websites and agree to the terms and conditions of this agreement by clicking the acceptance check box, the term of validity of this agreement ('term') will commence. This agreement will remain in effect until terminated by you or us in accordance with this section 3.
3.2. Survival
In the event this agreement is terminated for any reason, sections 3.6, 3.7, 3.8, and 4 through 15 will survive any such termination.
3.3. Termination by you
You may terminate this agreement for any reason or no reason at all, at your convenience, by (i) providing us written notice of termination in accordance with Section 14 and/or (ii) closing your account in cases where such a facility is available.
3.4. Termination or suspension by us other than for cause
3.4.1. Free services
We reserve the right to terminate or suspend your right and license to use any or all free services, or, if you are using only free services, terminate this agreement in its entirety, for any reason or for no reason, at our discretion at any time, immediately upon notice to you in accordance with the notice provisions set forth in section 14 below.
3.4.2. Paid services
We reserve the right to terminate or suspend your right and license to use any or all paid services, or terminate this agreement in its entirety, for any reason or for no reason, at our discretion at any time by providing you sixty (60) days’ advance notice in accordance with the notice provisions set forth in section 14 below.
3.5. Termination or suspension by us for cause
We reserve the right to terminate or suspend your right and license to use any individual service or any set of services, or terminate this agreement in its entirety, for cause effective as set forth below:
3.5.1.
In accordance with the notice provisions set forth in section 14 below, immediately upon our notice to you, if: (i) you should attempt a denial of service attack on any of the services; (ii) you should seek to hack or break any security mechanism on any of the services or we otherwise determine that your use of the services poses a security or service risk to us, to any user of services offered by us or may subject us or any third party to liability, damages or danger; (iii) you should otherwise use the services in a way that disrupts or threatens the services; (iv) you are in default of your payment obligations hereunder and/or there is an unusual spike or increase in your use of the services; (v) we shall determine, in our sole discretion, that there is evidence of fraud with respect to your account; (vi) we receive notice or we otherwise determine, in our sole discretion, that you may be using UmoldIT websites for any illegal purpose or in a way that violates applicable law or violates, infringes, or misappropriates the rights of any third party; (vii) we shall determine, in our sole discretion, that our provision of any of the services to you is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or (viii) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets, failure to continue your business, assignment for the benefit of creditors, or if you become the subject of a voluntary or involuntary bankruptcy or similar proceeding.
3.5.2.
Following our provision of notice to you in accordance with the notice provisions set forth in section 14 below, if you are in default of any payment obligation with respect to any of the services or if any payment mechanism you have provided to us is invalid or charges are refused for such payment mechanism, and you fail to correct such payment obligation default or correct such payment mechanism problem within fifteen (15) days.
3.5.3.
Following our provision of notice to you in accordance with the notice provisions set forth in section 14 below, if you breach any other provision of this agreement and fail, as determined by us, in our sole discretion, to correct such breach within five (5) days.
3.6. Effect of suspension or termination
3.6.1. Suspension
Upon our suspension of your use of any services in whole or in part, for any reason, (i) fees will continue to accrue for any services that are still being used by you, notwithstanding the suspension (including and not limited to your continued storage of content on the UmoldIT websites during the period of suspension); (ii) all fees, charges and any other obligations you have incurred through the date of suspension with respect to the services will remain your liability; and (iii) all of your rights with respect to the applicable services shall remain terminated during the period of the suspension.
3.6.2. Termination
Upon termination of this agreement for any reason whatsoever: (i) all fees, charges and any other obligations you have incurred through the date of termination with respect to the services will remain your liability ; (ii) all of your rights under this agreement shall terminate immediately; and (iii) you shall immediately return, or if so instructed by us, destroy all ‘UmoldIT confidential information’ (as defined in section 9 below) then in your possession.
3.7. Data preservation in the event of suspension or termination
3.7.1. In the event of suspension other than for cause
During the period of suspension, in the event of a suspension by us of your access to any service for any reason other than a for cause suspension under section 3.5.1, (i) we will not undertake any action to intentionally erase any of your data stored on the UmoldIT websites and/or services and (ii) applicable service data storage charges will, however, continue to accrue.
3.7.2. In the event of termination other than for cause
In the event of any termination by us of any service or any set of services, or termination of this agreement in its entirety, other than a for cause termination under section 3.5.1, (i) we will not undertake any action to intentionally erase any of your data stored on the services for a period of thirty (30) days after the effective termination date ; and (ii) your retrieval of data post termination, stored on the services will be conditional to your payment of applicable charges for the period following termination, payment in full of any other amounts due to us, and compliance by you with terms and conditions we may establish with respect to such data retrieval.
3.7.3. In the event of other suspension or termination
Except as provided in sections 3.7.1 and 3.7.2 above, we shall be under no obligation to continue to store your data during any period of suspension or termination or to permit you to retrieve the same.
3.8. Post-termination assistance
Following the suspension or termination of your right to use the services for reasons other than a for cause termination (i.e. a termination under section 3.3 or under section 3.4), you shall be entitled to take advantage of any post-termination assistance we may make available with respect to the services, such as data retrieval arrangements which we may elect to make available to you. While we may also endeavor to provide you unique post-suspension or post-termination assistance, we shall be under no obligation to do so. Your right to take advantage of any such assistance, whether generally made available with respect to the services or made available uniquely to you, shall be conditional to your acceptance of and compliance with any fees and terms we shall specify for such assistance.
4. Authorization and license to use the services
Subject to your acceptance of and compliance with this agreement and with the payment terms for the services that are set forth on the applicable pages on the UmoldIT websites (since such payment terms may be updated from time to time), we hereby grant you a limited, non-exclusive, non-transferable, non-sub-licenseable right and license, in and under our intellectual property rights, to access and use the services, solely in accordance with the terms and conditions set forth in this agreement.
4.1. Permitted uses generally
You may access the UmoldIT services through the UmoldIT websites and/or through any specifically assigned microsites or subdomains. We in our sole discretion may reject any subdomain or microsite proposed by you before we publish it as part of a URL for your access of the services. You acknowledge that we may change, deprecate or republish contents for any service or feature of a service from time to time, and that it is your responsibility to ensure that appropriate use of the changes to the service is made at your end. You further acknowledge that we may alter or delete features or functionality of the services at any time without notice to you.
4.2. Restricted uses generally
4.2.1.
You shall not interfere or attempt to interfere in any manner with the functionality or proper working of the services.
4.2.2.
Subject to the terms and conditions of this agreement, you may generally publicize your use of the services; however, you shall not issue any press release with respect to the services or this agreement without prior written consent from us.
4.3. Accounts
Each account registered with UmoldIT websites is identified using unique identifiers (‘Client Id’ or ‘Login Id’ for example). UmoldIT services are accessed using these identifiers and an account specific password. You shall be fully responsible for all activities that occur under your account identifiers, regardless of whether such activities are undertaken by you or a third party. Therefore, it is incumbent on you to contact us immediately if you believe a third party may be using your account identifiers, or if your password is otherwise lost or stolen. You are responsible for maintaining up-to-date and accurate information (including contact information) for your UmoldIT account(s). We undertake no responsibility for any unauthorized access to, alteration of, or the deletion, destruction, damage, loss of your content (as defined in section 10.2), or other data which you submit or use in connection with your account or the services.
4.4. Monitoring your use of the UmoldIT services
You agree to provide information and/or other materials related to your content and/or data as reasonably requested by us, from time to time, to verify your compliance with this agreement.
5. Authorized Use Policy (AUP)
5.1.
Provided that you comply with the terms of this agreement and our policies and procedures for the use of UmoldIT websites, you may use UmoldIT websites to store and retrieve software models or information (as the case may be), owned, licensed or lawfully obtained by you (all of the foregoing, to the extent actually stored on UmoldIT websites, ‘Your UmoldIT content’). You shall not use UmoldIT websites for any unlawful or deceptive purpose. You acknowledge that we are not responsible in any manner, and that you are solely responsible, for your UmoldIT content.
5.2.
You shall not use UmoldIT websites to create and hold software models or information that help in generating applications primarily to compete with UmoldIT.
5.3.
Provided that you comply with the terms of this agreement and the policies and procedures for the use of applicable UmoldIT websites you may:
• copy, and use the source code generated by UmoldIT websites including the related technical documentation (collectively, the ‘UmoldIT deliverables’), in each case as necessary to develop your application(s).
• incorporate, compile, copy, and create derivative works of the source code generated and provided by us for development and testing of your application(s) and for distribution in machine readable binary form or object code form to end user(s) as necessary for them to use your application. Use of deliverables generated by UmoldIT websites is also subject to any additional license terms included with the deliverables. Such additional terms will control in the event of any inconsistency or conflict with this agreement.
5.4.
The ‘UmoldIT deliverables’ shall be considered your property and you are free to sublicense, loan, sell, assign, lease, rent, transfer, distribute or grant rights to any person or entity that you may deem fit. Prior to making your application(s) available for commercial use, you agree that you will take on the responsibility of thoroughly testing your application(s) to ensure that it (they) operate(s) properly.
5.5.
We reserve the right to update or modify the layout of deliverables generated by UmoldIT websites at any time. We may make modifications, updates or upgrades to UmoldIT websites. In such event, you will regenerate, if necessary, and test your application(s) to ensure that it(they) continue(s) to operate properly.
5.6.
You shall not extend on our behalf any written or oral warranty or guarantee, or make any representation or claim, with respect to the UmoldIT services without prior written consent from us.
5.7.
While we may track information regarding your use of UmoldIT websites, we will not sell or license or modify your UmoldIT content, or disclose your UmoldIT content except as we may deem necessary or desirable to comply with the agreement, the request of a governmental or regulatory body, subpoenas or court orders, or for other legal purposes or with express written permission from you, or to provide the services, prevent or address service or technical problems or on your request with regard to customer support matters.
6. Marks
6.1. Restrictions with respect to marks
We shall retain all rights, titles, and interests in and to the marks present on all UmoldIT properties including websites and product documentation. You will not at any time now or in the future challenge or assist others to challenge the validity of the marks, or attempt to register confusingly similar trademarks, trade names, service marks or logos. You may not use any trademark, service mark, trade name or other business identifier of UmoldIT or its affiliates unless with UmoldIT’s prior written consent. The foregoing prohibition includes the use of ‘UmoldIT’, ‘cspowerpack’, ‘phppowerpack’, ‘easyapis’, 'easyrepairs', 'easyqueries' etc. and any other trademark of UmoldIT or variations or misspellings of any of them, in the name of an application or in a URL to the left of the top-level domain name (e.g., ‘.com’, ‘.net’, ‘co.uk’, etc.)—for example, a URL such as ‘umoldit.mydomain.com’, ‘Umolidt.com’ or ‘umoldittools.net’ are expressly prohibited. Any use you make of the marks shall inure to our benefit and you hereby irrevocably assign to us all rights, titles and interests in the same. In addition, you, hereby, agree not to misrepresent or embellish the relationship between us and you, for example by implying that we support, sponsor, endorse, or contribute money to you or your business endeavors.
6.2. Nonexclusive rights
The rights granted by UmoldIT in this agreement with respect to the marks and the services are nonexclusive, and UmoldIT reserves to itself the right to: (i) itself act as a developer of products or services related to any of the products that you may develop via your use of the services; and (ii) appoint third parties as developers or systems integrators who may offer products or services which compete with your application.
7. Downtime, service suspensions and security
7.1. Downtime and service suspensions
In addition to our rights to terminate or suspend services to you as described in section 3 above, you further acknowledge that despite our commercially reasonable efforts to provide the services 24 hours a day, 7 days a week, (i) your access to and use of the services may be suspended for the duration of any unexpected or unscheduled downtime or unavailability of either any portion or all of the services for any reason, including as a result of power outages, system failures or any other interruptions; and (ii) we shall also be entitled, without any liability to you, to suspend access to either any portion or all of the services at any time, on a service-wide basis: (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any service; (b) in the event of a denial of service attack or other attack on the service or other event that we determine, in our sole discretion, may create a risk to the applicable service, to you or to any of our other customers if the service were not suspended; or (c) in the event that we determine that any service is prohibited by law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, ‘Service suspensions’). Without limitation to section 11.5, we absolve ourselves of any liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any service suspension. To the extent we are able, we will endeavor to provide you email notice of any service suspension in accordance with the notice provisions set forth in section 14 below and to post updates on the UmoldIT websites regarding resumption of services following any such suspension, but we shall have no liability for the manner in which we may do so or if we fail to do so.
7.2. Security and integrity
We shall maintain appropriate administrative and technical safeguards for protection of the security, confidentiality and integrity of your data. We cannot, however, guarantee that we will be successful at doing so, given the nature of the Internet. Accordingly, without limitation to section 4.3 above and section 11.5 below, you acknowledge that you will bear sole responsibility for adequate security and protection of your content. We will have no liability to you for any unauthorized access or use, corruption, deletion, destruction or loss of any of your content.
8. Fees
8.1. Service fees
In consideration of your use of any of the paid service(s), you agree to pay applicable fees for paid service(s) in the amounts set forth on the respective service detail pages on the UmoldIT websites (including any minimum subscription fees). You also agree that payment obligations are non-cancelable and that fees paid are non-refundable. Fees for any new service(s) or new service feature(s) will be effective upon posting by us on the UmoldIT websites for the applicable service(s). We may increase or add new fees for any existing service(s) or service feature(s) or implement a fee for any previously free service(s) or free service feature(s), by giving you 30 days’ advance notice. Such notice will be posted on the UmoldIT websites on the service detail page for the affected service(s). You agree that it is entirely your responsibility for checking the UmoldIT websites each month to confirm whether there are any new fees and their effective date(s). All fees payable by you are exclusive of applicable taxes and duties. You will also provide such information to us as is reasonably required to determine whether we are obligated to collect applicable taxes from you, including your tax identification details.
8.2. Payment
You are fully liable for all charges incurred for services under your account identifiers. All such services will be charged at the then current price applicable to such services under this agreement and payments will be processed by UmoldIT.
Payments to us will be only through instruments notified in the purchase order form displayed on the UmoldIT websites. If you provide credit card information to us as a mode of payment, you authorize us to charge such credit card for all services listed during purchase. All amounts payable by you under this agreement will be made without setoff or counterclaim and without deduction or withholding. If any deduction or withholding is required by applicable law, you will notify us and shall pay such additional amounts to us as necessary to ensure that the net amount that we receive, after such deduction and withholding, equals the amount we would have received if no such deduction or withholding had been required. Additionally, you shall provide us with documentation that the withholding and deducted amounts have been paid to the relevant taxing authority or are exempt under applicable rules.
9. Confidentiality
9.1. Use and disclosure
You shall not disclose ‘UmoldIT confidential information’ during the term or at any time during the three (3) year period following the end of the term. As used in this agreement, ‘UmoldIT confidential information’ means all nonpublic information disclosed by us, our business partners or our or their respective agents or contractors that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. ‘UmoldIT confidential information’ includes, without limitation, (i) nonpublic information relating to our or our business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs (including, but not limited to, any information about or involving one of our so-called beta tests or a beta test product that you obtain as a result of your participation in such beta test), (ii) third-party information that we are obligated to keep confidential, and (iii) the nature, content and existence of any discussions or negotiations between you and us. Confidential information does not include any information described in Section 9.2 or any information that you may/are required to disclose by law.
9.2. Excluded information
Notwithstanding any other provision in this agreement, you shall not have any confidentiality obligation to us under section 9.1 above, with respect to any information provided or made available by us hereunder, and we shall not have any confidentiality or non-use obligation to you hereunder, with respect to any information, software application, data or content provided or made available by you hereunder that: (i) is or becomes publicly available without breach of this agreement; (ii) can be shown by documentation to have been known to the receiving party at the time of its receipt from the disclosing party (iii) is received from a third party who did not acquire or disclose the same by a wrongful or illegal act or (iv) can be shown by documentation to have been independently developed by the receiving party (v) is required to be disclosed as per law or any court order.
9.3. Conflict with separate non-disclosure agreement
If you and we are parties to a separate non-disclosure agreement (‘Stand-alone NDA’) and there is a conflict between the terms of the ‘Stand-alone NDA’ and the terms of this section 9, the terms of the ‘Stand-alone NDA’ shall control.
10. Intellectual property
10.1. Our services and the UmoldIT marks
Other than the limited use and access rights and licenses expressly set forth in this agreement, we reserve all right(s), title(s) and interest(s) (including all intellectual property and proprietary rights) in and to: (i) the services and (ii) the marks and (iii) any other technology and software that we provide or use to provide the services. You do not, by virtue of this agreement or otherwise, acquire any ownership interest or rights in the services, the marks, or other technology and software (including third party technology and software), except for the limited use and access rights described in this agreement.
10.2. Your applications, data and content
Other than the rights and interests expressly set forth in this agreement, you reserve all right, title and interest (including all intellectual property and proprietary rights) in and to: (i) content stored within your UmoldIT account (your content) (ii) deliverables generated from your UmoldIT content and (iii) your applications generated from such account specific deliverables.
10.3. Feedback
In the event you elect, in connection with any of the services, to communicate to us suggestions for improvements to the services or the marks (collectively, ‘Feedback’), we shall own all right(s), title(s), and interest(s) in and to the same, even if you have designated the feedback as confidential, and we shall be entitled to use the feedback without restriction. You hereby irrevocably assign all right(s), title(s) and interest(s) in and to the feedback to us and agree to provide us such assistance as we may require to document, perfect, and maintain our rights to the feedback.
10.4. Non-assertion
During and after the term of the agreement, with respect to any of the services that you elect to use, you will not assert, or authorize, assist, or encourage any third party to assert against us or any of our customers, end users, vendors, business partners, licensors, sublicensees or transferees, any patent infringement or other intellectual property infringement claim with respect to such said services.
11. Representations & warranties, disclaimers & limitations of liability
11.1. Use of the services
You represent and warrant that you will not use the services and/or your application and/or your content: (i) in a manner that infringes, violates or misappropriates any of our rights or of any third party (ii) in any manner that constitutes or facilitates the illegal export of any controlled or otherwise restricted items, including, and not limited to, software, algorithms or other data that is subject to export laws and/or (iii) in a way that is otherwise illegal or promotes illegal activities, including, and not limited to, actions that might be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, religion, nationality, disability, sex, sexual orientation, or age.
11.2. Content
You represent and warrant: (i) that you are solely responsible for the development and maintenance of your content, including and not limited to, the accuracy, security, appropriateness and completeness of your content (ii) that you have the necessary rights and licenses, consents, permissions, waivers and releases to use and display your content (iii) that your content (a) does not violate, misappropriate or infringe any of our rights or that of any third party, (b) does not constitute defamation, invasion of privacy or publicity, or otherwise violate any rights of any third party, or (c) is not designed for use in any illegal activity or promote illegal activities, including, and not limited to, in a manner that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age and (iv) that your content does not contain any harmful components.
11.3. Public software and feedback
You hereby represent and warrant that you will not use, nor authorize any third party to use, any public software in conjunction with the services in any manner that requires, in conformance to the license applicable to such public software, that any UmoldIT services (a) be disclosed or distributed in source code form, (b) be made available free of charge to recipients, or (c) be modifiable without restriction by recipients. With respect to any feedback, you hereby represent and warrant that such feedback, in whole or in part, contributed by or through you, (i) does not contain third party software or any software that may be considered public software and (ii) does not violate, misappropriate, infringe or breach any intellectual property rights of any third party. ‘Public software’ means any software, documentation or any other material that contains, or is derived (in whole or in part) from, any software, documentation or any other material that is distributed as free software, open source software (e.g., Linux) or similar licensing or distribution models, including, but not limited to software, documentation or other material licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (i) GNU’s General Public License (GPL), Lesser/Library GPL (LGPL), or Free Documentation License, (ii) The Artistic License (e.g., PERL), (iii) the Mozilla Public License, (iv) the Netscape Public License, (v) the Sun Community Source License (SCSL), (vi) the Sun Industry Standards License (SISL), (vii) the BSD License and (viii) the Apache License.
11.4. Authorization and account information
You represent and warrant that: (i) the information that is provided by you, in connection with your registration for the services is complete and accurate; (ii) if you are registering for the services in an individual capacity, that you have completed at least 18 years of age and have the legal authority to enter into this agreement; and (iii) if you register for the services as an entity or organization, then (a) that you are authorized to do business in the country or countries where you operate, (b) that the individual who accepts this agreement and completes the registration for the services meets the requirements of subsection (ii) above and is an authorized representative of your entity/organization, and (c) that your employees, officers, representatives and other agents accessing the services are authorized to access the services and to legally bind you to this agreement and all transactions conducted under your account.
11.5. Disclaimers
THE SERVICES AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, MATERIALS AND OTHER DATA OR INFORMATION PROVIDED BY US IN CONNECTION THEREWITH (COLLECTIVELY THE ‘SERVICE OFFERINGS’) ARE PROVIDED ‘AS IS’. WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, INCLUDING, AND NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. FURTHER WE AND/OR OUR LICENSORS DO NOT WARRANT THAT THE SERVICE OFFERINGS WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT THE DATA YOU STORE WITHIN THE SERVICE OFFERINGS WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. WE SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, AND NOT LIMITED TO, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY THIRD PARTY OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY THAT HAS NOT BEEN EXPRESSLY STATED IN THIS AGREEMENT.
11.6. Links
The UmoldIT websites and/or the services may contain links to websites that do not fall under our control (‘Third party sites’). We are, therefore, not responsible for the contents or functionality of any third-party sites or any website that can be accessed by links on any third party site. We provide these links to you merely as a convenience and the inclusion of any such links does not amount to our endorsement or validation of any third-party site, implicitly or explicitly.
11.7. Limitations of liability
WE SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, AND NOT LIMITED TO, ANY SUCH DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICES; (ii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT. IN ANY CASE, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO US HEREUNDER FOR THE SERVICES. HOWEVER, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY/MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE FEES PAID BY YOU FOR THE SERVICES FOR A PERIOD OF TWO MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE LIABILITY AROSE.
12. Indemnification
12.1. General
You agree to indemnify, defend and hold us, each of us and our business partners and each of our and their respective employees, officers, directors and representatives, at all times as harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorneys fees), arising out of or in connection with any claim(s) arising out of (i) use of the services by you in a manner not authorized by this agreement, and/or in violation of the applicable restrictions, AUPs, and/or applicable law, (ii) your content including and not limited to any claim(s) involving infringement or misappropriation of third-party rights and/or the use, development, design, manufacture, production, advertising, promotion and/or marketing of your content and resultant application(s) thereof (iii) your violation of any term or condition of this agreement or any applicable additional policies, including and not limited to, your representations and warranties, or (iv) act(s) of negligence or willful misconduct by you or your employees or personnel.
12.2. Notification
We agree to notify you promptly of any claim subject to indemnification, provided that our failure to notify you promptly shall not affect your obligations hereunder except to the extent that our failure to notify you promptly delays or prejudices your ability to defend the claim. You will have the right to defend against any such claim with counsel of your own choice (subject to our written consent) and to settle such claim as you may deem appropriate, provided that you do not enter into any settlement without our prior written consent and also provided that we may, at any time, elect to take over control of the defense and settlement of the claim.
13. Disputes
13.1.
Notwithstanding anything to the contrary, we may seek relief, injunctive or any others in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of UmoldIT’s or any third party’s intellectual property and/or proprietary rights. Any dispute relating in any way to your visit to the UmoldIT websites shall be adjudicated in any appropriate courts in Chennai, India only and that you consent to exclusive jurisdiction and venue in such courts. You further acknowledge that our rights in the services and marks are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated and may not be adequately compensated for in monetary damages.
13.2. Governing Law
By using the services, you agree that the laws of India will govern this agreement and any dispute of any sort that might arise between you and us without regard to principles of conflicts of laws. The parties expressly exclude application of the United Nations Convention for the International Sale of Goods to this Agreement.
14. Notices
14.1. To you
Except as otherwise set forth herein, notices made to you by us under this agreement that affect our customers generally (e.g., notices of amended agreements, AUPs, updated fees, etc.) will be posted on the UmoldIT websites. Notices made by us specifically under this agreement for you or your account (e.g., in relation to change of passwords, periodic maintenance, notices of breach and/or suspension) will be made available to you via the email address provided to us by you in your registration for the services or in any updated email address you provide us in accordance with standard account information update procedures we may carry out from time to time. It is your responsibility to keep the email address provided to us current as you will be deemed to have received any email sent to any such email address, upon our sending of the email, whether or not you actually receive the email.
14.2. To us
For notices made by you to us under this agreement and for questions regarding this agreement or the services, you may contact UmoldIT as follows:
and/or
U Mold IT Solutions Pvt. Ltd.,
P.O. Box 8595,
Thiruvanmiyur Post Office,
Chennai 600041, Tamilnadu, India
14.3. Language
All communications and notices to be made or given pursuant to this agreement shall be in the English language.
15. Miscellaneous provisions
15.1. Third party activities
If you should authorize, assist, encourage or facilitate another person or entity to take any action related to the subject matter of this agreement, you shall be deemed to have taken the action yourself.
15.2. Severability
Should any portion of this agreement be held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this agreement will remain in full force and effect, and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this agreement, and the rest of the agreement shall remain in full force and effect.
15.3. Waivers
The failure by us to enforce any provision of this agreement should in no way be construed to be a waiver, for the present or future of such provision nor should it in any way affect our right to enforce such provision thereafter. All waivers by us must be in writing to be effective.
15.4. Successors and assigns
This agreement will be binding upon and inure to the benefit of the parties and their respective successors and assigns.
15.5. Entire agreement
This agreement incorporates all policies and guidelines posted on the UmoldIT websites, including all additional policies, and constitutes the entire agreement between you and us regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, understanding, agreement, or communication between you and us, whether written or oral.
15.6. No endorsement
You understand and acknowledge that we do not certify or endorse any of your applications or your content and have no obligation to certify or endorse.
15.7. Relationship
Nothing in this agreement between you and us (or any of our affiliates) is intended to or does create any type of joint venture, creditor-debtor, escrow, partnership or any employer/employee or fiduciary or franchise relationship.