Version 9 Terms of Service
Last updated: 7/1/2022
AGREEMENT TO TERMS
These Terms of Service
(these “Terms of Service” or “Terms”) constitute a legally binding agreement
made between you, whether personally or on behalf of an entity (“you”)
and Program Works, Inc., ( “we”, “us”, or “our”),
concerning your access to and use of the WorkSchedule.Net Version 9 web
site and application, including the application at https://workschedule.app, the web site at https://www.workschedule.net, the mobile website at https://m.workschedule.app, and the mobile applications
named “WorkSchedule.Net Mobile” when available from the Apple Store and from
Google Play (all such access points collectively, the “Application”).
the avoidance of doubt, reference to the Application in these Terms explicitly excludes
all portions of the WorkSchedule.Net Version 8 APPLICATION, which is operated
under the https://ws8.workschedule.net and https://m.workschedule.net subdomain
names (the “Version 8 subdomains”). THESE TERMS OF SERVICE APPLY TO VERSION 9 ONLY.
SUBDoMAINS OF WORKSCHEDULE.NET THAT FORWARD DIRECTLY TO THE VERSION 8
SUBDoMAINS, THE VERSION 8 MOBILE APPLICATION NAMED ”WORKSCHEDULE.NET”
AVAILABLE FROM GOOGLE PLAY, AND THE VERSION 8 MOBILE APPLICATION NAMED “WSDN”
AVAILABLE FROM THE APPLE STORE ARE ALSO PART OF THE EXCLUDED VERSION 8 APPLICATION.
We are registered in Florida, United
States and have our registered office at 1511 E State Road 434, Suite
2001, Winter Springs, FL 32708. You agree that by accessing
the Application, you have read, understood, and agree to be bound by all of
these Terms of Service.
IF YOU DO NOT AGREE WITH
ALL OF THESE TERMS OF SERVICE, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING OR
ACCESSING THE APPLICATION AND YOU MUST DISCONTINUE USE IMMEDIATELY.
Supplemental terms and
conditions or documents that may be posted in the Application from time to time
are hereby expressly incorporated herein by reference. We reserve the right, in
our sole discretion, to make changes or modifications to these Terms of Service from
time to time. We will alert you about any changes by updating the “Last updated”
date of these Terms of Service and will use commercially reasonable efforts to
inform you of such change through the Application. Notwithstanding the
foregoing, you expressly waive any right to receive specific notice of each
such change. As such, please ensure that you check the applicable Terms each time
you use our Application so that you understand which Terms apply. You will be
subject to, and will be deemed to have been made aware of and to have accepted
the changes in any revised Terms of Service by your continued use of the Application
after the date such revised Terms of Service are posted.
The information provided in
the Application is not intended for distribution to or use by any person or
entity in any jurisdiction or country where such distribution or use would be
contrary to law or regulation or which would subject us to any registration
requirement within such jurisdiction or country. Accordingly, those persons who
choose to access the Application from other locations do so on their own
initiative and are solely responsible for compliance with all applicable local
and other laws.
The Application is not
tailored to comply with industry-specific regulations (Health Insurance
Portability and Accountability Act (HIPAA), Federal Information Security
Management Act (FISMA), etc.), so if your interactions would be subjected to
such laws, you may not use this Application. You may not use the Application in
a way that would violate the Gramm-Leach-Bliley Act (GLBA) or any other
The Application is
intended for users who are at least 18 years old. Persons under the age of 18 cannot
be the Main Account Contact nor have permissions for Billing nor Subscriptions.
Persons under the age of 13 years old are not permitted to use or register for
Company Account: An account within the Application
representing an organization, containing one or more User Accounts, and
separated from other Company Accounts, identified by a Company ID. Users in a
Company Account cannot access the UGI of other Company Accounts in general.
User: An individual natural
person who has been assigned to or identified by a User Account, whether or not
given access to the Application.
User Account: An account that allows a
User access to the Application within a Company Account and/or allows a User to
be assigned to a shift or time block within the Application.
User License: The license required to
have a single Active User Account within a Company Account for the Subscription
Active User Account: A User Account that has
been added and is not deactivated in the Application.
Registered User Account: An Active User Account
for which a User has registered and therefore can login under the User Account.
Notifications: Any email or SMS messages
sent from the Application by or on behalf of a User.
Main Account Contact: A User of a Company
Account who has final administrative control of the Company Account. The Main
Account Contact authority can only be transferred to another User using the Application
portal by the current Main Account Contact.
Subscription Term: That certain number of
months for which a subscription to the Application is paid for by you in accordance
with these Terms and/or any Price Plan.
Subscription Fee: The price of the User
Licenses for the Subscription Term.
Renewal Date: The end date of a
Subscription Term, when the next Subscription Term will start if the Company
Account has not been cancelled in accordance with these Terms.
Price Plan: The formula for calculating the price of the User Licenses to
the Application (the Subscription Fee), based on (a) the number of User
Licenses and (b) the Subscription Term.
INTELLECTUAL PROPERTY RIGHTS
indicated, the Application (inclusive of all custom developments, enhancements,
improvements, or updates whether ordered by you or otherwise) is our
proprietary property and all source code, databases, functionality, software,
website designs, audio, video, text, photographs, graphics, and any or all
other intellectual property rights in and to the Application (collectively, the
“Content”) and the trademarks, service marks, and logos contained therein (the
“Marks”) are owned or controlled by us or licensed to us, and are protected by
copyright and trademark laws and various other intellectual property rights and
unfair competition laws of the United States, international copyright laws, and
international conventions. The Content and the Marks are provided in the Application
“AS IS” for your information and personal use only. Except as expressly
provided in these Terms of Service, no part of the Application and no Content
or Marks may be copied, reproduced, aggregated, republished, uploaded, posted,
publicly displayed, encoded, translated, transmitted, distributed, sold,
licensed, or otherwise exploited for any purpose whatsoever (commercial or
non-commercial), without our express prior written permission.
Provided that you are
eligible to use the Application, you are granted a limited license to access
and use the Application and to download or print a copy of any portion of the
Content to which you have properly gained access in accordance with your permissions,
our policies, and these Terms of Service solely for your internal business use
at your organization. We reserve all rights not expressly granted to you in and
to the Application, the Content and the Marks.
4. USER REPRESENTATIONS
the Application, you represent and warrant that: (1) all registration information you
submit will be true, accurate, current, and complete; (2) you
will maintain the accuracy of such information and promptly update such
registration information as necessary; (3) you
have the legal capacity and you agree to comply with these Terms of Service; (4) you
will use the Application for its intended purpose in accordance with all
documentation, policies, and procedures provided within the Application or
separately by us; (5) you will not access the Application through unauthorized automated
or non-human means (not inclusive of officially licensed APIs or other access
granted to you by us), whether through a bot, script or otherwise; (6) you
will not use the Application for any illegal or unauthorized purpose; and (7) your
use of the Application will not violate any applicable law or regulation.
provide any information that is untrue, inaccurate, not current, or incomplete,
we have the right to suspend or terminate your account and refuse any and all
current or future use of the Application (or any portion thereof) at our
General User Licensing
Every Active User Account
requires one (1) User License, regardless of whether a User is assigned to,
registered to, or identified by the User Account. User Accounts cannot be
shared by different Users. Multiple User Accounts can be assigned to the same
User either within the Company Account or among different Company Accounts, but
a separate User License is required for each such instance. A single User
Account cannot identify more than one User.
Allocating / Reallocating
Users can be deactivated
in the Application in the “Manage Users” area (or other successor).
Deactivating a User
Account automatically releases the User License associated with it.
Reactivating a previously deactivated User Account automatically assigns a new
User Accounts may not be
reassigned from one User to a different User (such as by renaming the User Account)
except to correct data entry errors. Instead, you are expected to deactivate
the User Account (which releases the User License) and then add a new User
Account (or reactivate a previously deactivated User Account already assigned
to the User) for the new/previous User. This will maintain proper history /
audit trail within the Application.
REGISTRATION / AUTHORITY
Users will be required to
register with the Application. You agree to keep your password confidential and
will be responsible for all use of your account and password. We reserve the
right to remove, reclaim, or change a username you select if we determine, in
our sole discretion, that such username is inappropriate, obscene, or otherwise
User Authority /
The original User who signs
up for a free trial has initial ultimate authority for decisions regarding the
company account as the Main Account Contact. Additional Users can then be
invited and also must register and agree to these Terms to use the Application.
Only one User can be designated as the Main Account Contact at a time. One Main
Account Contact can transfer the designation to another User in Company
Settings within the Application. Should there be a dispute concerning whether
the Main Account Contact has the authority to speak for you, the organization,
we will (i) take instruction from the Chief Executive Officer of the company affiliated
with the Company Account in assigning the Main Account Contact role using
reasonable means to validate that person via public records; and (ii) in the
absence of such instruction within a reasonable time grant Main Account Contact
privileges to the User that appears to have the next highest permission, at our
sole discretion, then affiliated with the Company Account which you acknowledge
will have authority in such role.
Users that are given the
“Billing” permission within the Application in their user role, will have the
authority to update billing information, add, edit, and remove payment methods,
view invoices and payments, and pay invoices. Users that are given the “Billing
and Subscription” permission within the Application in their user role, will
have the same authority, and in addition, the authority to change the
subscription or cancel it on your behalf.
7. SUBSCRIPTION FEES AND PAYMENT
Each Company Account is assigned
a Price Plan, usually established at the time of initial sign up for the
Application. Upon initial purchase of a subscription, you will be assigned to
the latest Price Plan described at https://workschedule.net/pricing (the “Pricing Page“) which
we reserve the right to modify at any time in respect of new subscribers. If
you have initially purchased earlier than July 1, 2022, you may be on a
grandfathered Price Plan different from that described on the Pricing Page. We
may change prices at any time, including for grandfathered Pricing Plans, which
are effective upon the next renewal of your subscription. All payments shall be
in U.S. dollars. We reserve the right to correct any errors or mistakes in
pricing, even if we have already requested or received payment.
Upon your initial purchase
of a subscription, you will be immediately invoiced. Unless you cancel your
subscription, you will be invoiced on a recurring basis on each Renewal Date within
7 to 10 business days on or after your Renewal Date. Invoices are due within 30
days after the date such invoices are created and sent to you. Invoices can be
seen in the “Billing” area, “Invoices” tab of the Application.
Upon renewal, your current
Subscription Term and number of User Licenses will be set equal to the next Subscription
Term and next subscription number of User Licenses, which you can modify (within
certain limits) in the “Billing” area, “Subscription” tab of the Application.
The invoice amount will be computed based on the Price Plan you are on. If, at
that time, you have more Active User Accounts in the Application than you have
User Licenses for, you agree to an automatic increase of the number of your User
Licenses to match the number of Active User Accounts you have in the Company
Account, and you will be invoiced accordingly.
We may suspend or
terminate your Company Account for non-payment if any invoice is not paid by
the due date.
We accept payment by
credit card or by U.S. check in immediately available U.S. funds. Accepted
credit cards are Visa, Mastercard, American Express, and Discover.
You agree to provide
current, complete, and accurate purchase and account information for all payments
made via the Application. You further agree to promptly update account and
payment information, including email address, payment method, and payment card
expiration date, so that we can complete your transactions and contact you as
You agree to pay all one-time
and recurring invoices at the prices then in effect for your Price Plan, initially
and upon each Renewal Date, and you authorize us to charge your chosen payment
provider for any such amounts upon making your purchase.
You can manually pay your
invoice in the “Billing” area, “Pay Bill” tab of the Application or choose the “auto-pay”
Payments received are
applied to the oldest invoices first.
By turning on the auto-pay
option in the “Billing” area, ”Payment Profiles” tab of the Application, you
consent to our charging your payment method on a recurring basis without
requiring your prior approval for each recurring charge, until you cancel.
Payments can be seen in
the “Billing” area, “Invoices” tab of the Application.
We accept purchase orders,
but you acknowledge and agree that purchase orders that are accompanied by
additional or replacement terms and conditions shall be deemed null and void in
respect of such additional or replacement terms and conditions and shall not in
any way modify, alter, or otherwise effect the validity of these Terms. In all
such cases, the terms presented in these Terms of Service shall control your
subscription for the Application, as may be modified by a written agreement
with you that must be explicitly signed by both parties.
Our use of a purchase
order number or reference to it on an invoice is intended solely for your
convenience, and does not constitute an agreement, and shall in no way modify
or otherwise alter these Terms of Service.
We reserve the right to
refuse any order for any reason or no reason, whether extended through the
Application or otherwise.
The operator of a Company
Account is ultimately responsible for invoices related to all Users associated
with such Company Account. We shall be entitled to rely upon our communications
with the Main Account Contact or any User assigned “Billing” or “Billing and
Subscription” permission in the Application in connection with such invoices.
8. FREE TRIAL
From time to time, we may offer
a 30-day free trial to new users who register with the Application. The
account will not be charged and the subscription will be suspended until
upgraded to a paid version at the end of the free trial.
TO YOUR SUBSCRIPTION
to Current Subscription Term
increase the number of User Licenses within your current Subscription Term, by visiting
the “Billing” area, “Subscription” tab of the Application. Upon taking this
action an invoice will be immediately generated for the pro-rata share of the
difference between the price of your subscription originally, and the new price
of the subscription with the additional User Licenses, based on how many days are
left in the Subscription Term. You may not reduce the number of User Licenses
within the current Subscription Term, nor can you alter the length of the current
to Next Subscription Term
change your number of User Licenses and/or your Subscription Term to be
effective upon renewal in the “Billing” area, “Subscription” tab of the Application.
These changes will not take effect until your next Renewal Date.
purchases are non-refundable. You can cancel your subscription at any time by
logging into your
account, entering the “Billing” area, and clicking on the “Cancel Subscription”
tab. Your cancellation will take effect at the end of the current Subscription
are unsatisfied with our services, please email us at email@example.com or
call us at (+1)866-846-3123.
AND SMS MESSAGES LIMITATIONS
generates emails and SMS messages both automatically based on various triggers
(e.g., shift reminders) or manually between Users. These email and SMS messages
are limited to a certain number per month and will be suspended when that limit
is reached. The number of email messages in a Company Account is limited
to 100 times the number of User Licenses per month. The number of
SMS messages in a Company Account is limited to 30 times the number of User
Licenses per month. A message to multiple recipients counts as one for
each recipient. SMS Notifications are only supported for phone numbers in the
U.S. and Canada.
You may not access or use
the Application for any purpose other than that for which we make the Application
In illustration (and not limitation) of the foregoing, as a user
of the Application, you agree not to (in each case as determined by us in our
retrieve data or other content from the Application to create or compile,
directly or indirectly, a collection, compilation, database, or directory
without written permission from us.
- Trick, defraud, or
mislead us and other users, through any means, especially in respect of,
but not limited to, any attempt to learn sensitive account information
such as user passwords.
disable, or otherwise interfere with security-related features of the Application,
including features that (i) prevent or restrict the use or copying of any
Content or (ii) enforce limitations on the use of the Application and/or
the Content contained therein.
tarnish, or otherwise harm our reputation or that of the Application.
- Use any
information obtained from the Application in order to harass, abuse, or
harm another person.
- Make improper use
of our support services or submit false reports of abuse or misconduct.
- Use the Application
in a manner inconsistent with any applicable laws or regulations.
- Engage in
unauthorized framing of or linking to the Application.
- Upload or transmit
(or attempt to upload or to transmit) viruses, Trojan horses, or other
material, including excessive use of capital letters and spamming
(continuous posting of repetitive text), that interferes with any party’s
uninterrupted use of the Application or which modifies, impairs, disrupts,
alters, or interferes with the use, features, functions, operation, or
maintenance of the Application.
- Engage in any
automated use of the system, such as using scripts to send comments or
messages, or using any data mining, robots, or similar data gathering and
extraction tools (not
inclusive of officially licensed APIs or other access expressly granted to
you by us).
- Delete the
copyright or other proprietary rights notice from any Content.
- Attempt to
impersonate another user or person or use the username of another user.
- Upload or transmit
(or attempt to upload or to transmit) any material that acts as a passive
or active information collection or transmission mechanism, including
without limitation, clear graphics interchange formats (“gifs”), 1×1
pixels, web bugs, cookies, or other similar devices (sometimes referred to
as “spyware” or “passive collection mechanisms” or “pcms”).
- Interfere with,
disrupt, or create an undue burden on the Application or the networks or
services connected to the Application.
- Harass, annoy,
intimidate, or threaten any of our employees or agents engaged in
providing any portion of the Application to you.
- Attempt to bypass
any measures of the Application designed to prevent or restrict access to
the Application, or any portion of the Application.
- Copy or adapt the Application’s
- Except as
permitted by applicable law, decipher, decompile, disassemble, or reverse
engineer any of the software comprising or in any way making up a part of
- Except as may be
the result of standard search engine or Internet browser usage, use,
launch, develop, or distribute any automated system, including without
limitation, any spider, robot, cheat utility, scraper, or offline reader
that accesses the Application, or using or launching any unauthorized
script or other software.
- Use a third party
to make purchases of or within the Application.
- Make any
unauthorized use of the Application, including collecting usernames and/or
email addresses of users by electronic or other means for the purpose of
sending unsolicited email, or creating user accounts by automated means or
under false pretenses.
- Use the Application
as part of any effort to compete with us.
13. USER GENERATED INFORMATION
Application may in certain use cases allow a User to input personal
information, comments or other material (collectively, "User Generated
Information" or “UGI”). UGI may be viewable by other users of the
Application within a given Company Account. When you create or make available
any UGI, you thereby represent and warrant that:
- The creation, distribution,
transmission, or performance, and the accessing, downloading, or copying
of your UGI do not and will not infringe the proprietary rights, including
but not limited to the copyright, patent, trademark, trade secret, or
moral rights of any third party.
- You are the creator and owner of or
have the necessary licenses, rights, consents, releases, and permissions
to use and to authorize us, the Application, and other users of the
Application to use your UGI in any manner contemplated by the Application
and these Terms of Service.
- You have the written consent,
release, and/or permission of each and every identifiable individual
person in your UGI to use the name or likeness of each and every such
identifiable individual person to enable inclusion and use of your UGI in
any manner contemplated by the Application and these Terms of Service.
- Your UGI is not obscene, lewd,
lascivious, filthy, violent, harassing, libelous, slanderous, or otherwise
objectionable (as determined by us).
- Your UGI does not violate any
applicable law, regulation, or rule.
- Your UGI does not otherwise
violate, or link to material that violates, any provision of these Terms
of Service, or any applicable law or regulation.
use of the Application in violation of the foregoing violates these Terms of
Service and may result in, among other things, termination or suspension of
your rights to use the Application.
14. UGI LICENSE
inputting (or making accessible) your UGI into the Application you
automatically grant, and you represent and warrant that you have the right to
grant, to us and the right to use your UGI within the Application for its
do not assert any ownership over your UGI. You retain full ownership of all of
your UGI and any intellectual property rights or other proprietary rights
associated with your UGI. We are not liable for any statements or
representations in your UGI provided by you in any area in the Application. You
are solely responsible for your UGI to the Application and you expressly agree
to exonerate us from any and all responsibility and to refrain from any legal
action against us regarding your UGI.
have the right, in our sole and absolute discretion to re-categorize any UGI to
place it in more appropriate locations in the Application for any reason,
have no obligation to monitor your UGI.
If you access the Application
via a mobile application, then we grant you a revocable, non-exclusive,
non-transferable, limited right to install and use the mobile application on
wireless electronic devices owned or controlled by you, and to access and use
the mobile application on such devices strictly in accordance with the terms
and conditions of this mobile application license contained in these Terms of
Service. You shall not: (1) except as permitted by applicable law, decompile,
reverse engineer, disassemble, attempt to derive the source code of, or decrypt
the mobile application; (2) make any modification, adaptation, improvement,
enhancement, translation, or derivative work from the mobile application; (3)
violate any applicable laws, rules, or regulations in connection with your
access or use of the mobile application; (4) remove, alter, or obscure any
proprietary notice (including any notice of copyright or trademark) posted by
us or the licensors of the mobile application; (5) use the mobile application
for any revenue generating endeavor, commercial enterprise, or other purpose
for which it is not designed or intended; (6) make the mobile application
available over a network or other environment permitting access or use by
multiple devices or users at the same time; (7) use the mobile application for
creating a product, service, or software that is, directly or indirectly,
competitive with or in any way a substitute for the mobile application; (8) use
the mobile application to send automated queries to any website or to send any
unsolicited commercial e-mail; or (9) use any proprietary information or any of
our interfaces or our other intellectual property in the design, development,
manufacture, licensing, or distribution of any applications, accessories, or
devices for use with the mobile application.
Apple and Android Devices
The following terms apply
when you use a mobile application obtained from either the Apple Store or
Google Play (each an “App Distributor”) to access the Application: (1) the
license granted to you for our mobile application is limited to a
non-transferable license to use the application on a device that utilizes the
Apple iOS or Android operating systems, as applicable, and in accordance with
the usage rules set forth in the applicable App Distributor’s terms of service;
(2) we are responsible for providing any maintenance and support services with
respect to the mobile application as specified in the terms and conditions of
this mobile application license contained in these Terms of Service or as
otherwise required under applicable law, and you acknowledge that each App
Distributor has no obligation whatsoever to furnish any maintenance and support
services with respect to the mobile application; (3) in the event of any
failure of the mobile application to conform to any applicable warranty, you
may notify the applicable App Distributor, and the App Distributor, in
accordance with its terms and policies, may refund the purchase price, if any,
paid for the mobile application, and to the maximum extent permitted by
applicable law, the App Distributor will have no other warranty obligation
whatsoever with respect to the mobile application; (4) you represent and
warrant that (i) you are not located in a country that is subject to a U.S.
government embargo, or that has been designated by the U.S. government as a
“terrorist supporting” country and (ii) you are not listed on any U.S.
government list of prohibited or restricted parties; (5) you must comply with
applicable third-party terms of agreement when using the mobile application,
e.g., if you have a VoIP application, then you must not be in violation of
their wireless data service agreement when using the mobile application; and
(6) you acknowledge and agree that the App Distributors are third-party beneficiaries
of the terms and conditions in this mobile application license contained in
these Terms of Service, and that each App Distributor will have the right (and
will be deemed to have accepted the right) to enforce the terms and conditions
in this mobile application license contained in these Terms of Service against
you as a third-party beneficiary thereof.
As part of the
functionality of the Application, you may link your account with online
accounts you have with third-party service providers (each such account, a
“Third-Party Account”) by either: (1) providing your Third-Party Account login
information through the Application; or (2) allowing us to access your
Third-Party Account, as is permitted under the applicable terms and conditions
that govern your use of each Third-Party Account. You represent and warrant
that you are entitled to disclose your Third-Party Account login information to
us and/or grant us access to your Third-Party Account, without breach by you of
any of the terms and conditions that govern your use of the applicable
Third-Party Account, and without obligating us to pay any fees or making us
subject to any usage limitations imposed by the third-party service provider of
the Third-Party Account. By granting us access to any Third-Party Accounts, you
understand that we may use such Third-Party account to authenticate your access
and use of the Application. You will have the ability to disable the connection
between your account in the Application and your Third-Party Accounts at any
time. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS
ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S)
WITH SUCH THIRD-PARTY SERVICE PROVIDERS.
You acknowledge and agree
that any questions, comments, suggestions, ideas, feedback, or other
information regarding the Application ("Submissions") provided by you
to us are non-confidential and shall become our sole property. We shall own
exclusive rights, including all intellectual property rights, and shall be
entitled to the unrestricted use and dissemination of these Submissions for any
lawful purpose, commercial or otherwise, without acknowledgment or compensation
to you. You hereby waive all moral rights to any such Submissions, and you
hereby warrant that any such Submissions are original with you or that you have
the right to submit such Submissions. You agree there shall be no recourse
against us for any alleged or actual infringement or misappropriation of any
proprietary right in your Submissions.
services are “commercial items” as defined in Federal Acquisition Regulation
(“FAR”) 2.101. If our services are acquired by or on behalf of any agency not
within the Department of Defense (“DOD”), our services are subject to the terms
of these Terms of Service in accordance with FAR 12.212 (for computer software)
and FAR 12.211 (for technical data). If our services are acquired by or on
behalf of any agency within the Department of Defense, our services are subject
to the terms of these Terms of Service in accordance with Defense Federal
Acquisition Regulation (“DFARS”) 227.7202-3. In addition, DFARS 252.227-7015
applies to technical data acquired by the DOD. This U.S. Government Rights
clause is in lieu of, and supersedes, any other FAR, DFARS, or other clause or
provision that addresses government rights in computer software or technical
data under these Terms of Service.
19. APPLICATION MANAGEMENT
reserve the right, but not the obligation, to: (1) monitor the Application for
violations of these Terms of Service; (2) take appropriate legal action against
anyone who, in our sole discretion, violates the law or these Terms of Service,
including without limitation, reporting such user to law enforcement
authorities; (3) in our sole discretion and without limitation, refuse,
restrict access to, limit the availability of, or disable (to the extent
technologically feasible) any of your UGI or any portion thereof; (4) in our
sole discretion and without limitation, notice, or liability, to remove from
the Application or otherwise disable all files and content that are excessive
in size or are in any way burdensome to our systems; and (5) otherwise manage
the Application in a manner designed to protect our rights and property and to
facilitate the proper functioning of the Application.
incorporated into these Terms of Service. Please be advised the Application is
hosted in the United States. If you access the Application from any
other region of the world with laws or other requirements governing personal
data collection, use, or disclosure that differ from applicable laws
in the United States, then through your continued use of the Application, you are
transferring your data to the United States, and you agree to have
your data transferred to and processed in the United States.
21. TERM AND TERMINATION
of Service shall remain in full force and effect while you use the Application.
WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OF SERVICE, WE RESERVE THE
RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS
TO AND USE OF THE APPLICATION (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY
PERSON FOR ANY REASON OR FOR NO REASON, INCLUDING WITHOUT LIMITATION FOR BREACH
OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE TERMS OF
SERVICE OR OF ANY APPLICABLE LAW OR REGULATION. WE MAY TERMINATE YOUR USE OR
PARTICIPATION IN THE APPLICATIONOR DELETE YOUR ACCOUNT
AND ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME, WITHOUT
WARNING, IN OUR SOLE DISCRETION.
terminate or suspend your account for any reason, you are prohibited from
registering and creating a new account under your name, a fake or borrowed
name, or the name of any third party, even if you may be acting on behalf of
the third party. In addition to terminating or suspending your account, we
reserve the right to take appropriate legal action, including without
limitation pursuing civil, criminal, and injunctive redress.
22. MODIFICATIONS AND INTERRUPTIONS
We reserve the right to
change, modify, or remove the contents of the Application at any time or for
any reason at our sole discretion without notice. However, we have no
obligation to update any information in our Application. We also reserve the
right to modify or discontinue all or part of the Application without notice at
any time. We will not be liable to you or any third party for any modification,
price change, suspension, or discontinuance of the Application.
We cannot guarantee the Application
will be available at all times. We may experience hardware, software, or other
problems or need to perform maintenance related to the Application, resulting
in interruptions, delays, or errors. We reserve the right to change, revise,
update, suspend, discontinue, or otherwise modify the Application at any time
or for any reason without notice to you. Subject to the terms of Section 23, you
agree that we have no liability whatsoever for any loss, damage, or
inconvenience caused by your inability to access or use the Application during
any downtime or discontinuance of the Application. Nothing in these Terms of
Service will be construed to obligate us to maintain and support the Application
or to supply any corrections, updates, or releases in connection therewith.
in Section 22 to the contrary, in the event the Application is Unavailable for
your access for more than 30 minutes during the hours of 6 am to 12 am, local
Orlando time (the “Business Day”) in any given calendar month during the
Subscription Term, upon your written request which must be within seven (7)
days of the Unavailable event, we shall credit the Subscription Fee owed for
the next renewal term based on the following formula (all as related to the
affected Subscription Term) which computes the Credit Amount:
Total Business Day
Subscribed Hours means the total hours that fall within a Business Day in the
entire Subscription Term.
Total Hours of Business
means the total hours that fall within a Business Day within the calendar month
for which the Application was Unavailable.
Subscription Cost Per Hour = Subscription Fee / Total
Business Day Subscribed Hours
Allowance = 30 minutes
Credit Amount = The greater amount of
2 * Subscription
Cost Per Hour * (Total Hours of Business Day Downtime – Allowance); and
We will credit you the
lesser amount of
Credit Amount; and
total Subscription Fee paid for the affected Subscription Term
Unavailable means that the
Application and/or a major component thereof are completely inaccessible or the
majority of the Application’s functionality is unusable.
24. GOVERNING LAW
These Terms of Service and
your use of the Application are governed by and construed in accordance with
the laws of the State of Florida applicable to agreements
made and to be entirely performed within the State of Florida,
without regard to its conflict of law principles.
25. DISPUTE RESOLUTION
Any legal action of
whatever nature brought by either you or us (collectively, the “Parties” and
individually, a “Party”) shall be commenced or prosecuted in the state and
federal courts located in United States, Florida, and the
Parties hereby consent to, and waive all defenses of lack of personal
jurisdiction and forum non conveniens with respect to venue and jurisdiction in
such state and federal courts. Application of the United Nations
Convention on Contracts for the International Sale of Goods and the Uniform Computer
Information Transaction Act (UCITA) are excluded from these Terms of Service. In
no event shall any claim, action, or proceeding brought by either Party related
in any way to the Application be commenced more than one
(1) years after the cause of action arose.
There may be information
on the Application that contains typographical errors, inaccuracies, or
omissions, including descriptions, pricing, availability, and various other
information. We reserve the right to correct any errors, inaccuracies, or
omissions and to change or update the information on the Application at any
time, without prior notice.
THE APPLICATION IS
PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. YOU AGREE THAT YOUR USE OF THE APPLICATION
AND OUR SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY
LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE APPLICATION
AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE
MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE
APPLICATION’S CONTENT OR THE CONTENT OF ANY WEBSITE LINKED TO THE APPLICATION
AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES,
OR INACCURACIES OF CONTENT AND MATERIALS, (2) PERSONAL INJURY OR PROPERTY
DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE APPLICATION,
(3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL
PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (4) ANY
INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE APPLICATION, (5) ANY
BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR
THROUGH THE APPLICATION BY ANY THIRD PARTY, AND/OR (6) ANY ERRORS OR OMISSIONS
IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A
RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE
AVAILABLE VIA THE APPLICATION.
LIMITATIONS OF LIABILITY
IN NO EVENT WILL WE
OR OUR DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR
ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE
DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES
ARISING FROM YOUR USE OF THE APPLICATION, EVEN IF WE HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS
OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT
PAID, IF ANY, BY YOU TO US DURING THE SIX (6) MONTH PERIOD PRIOR
TO ANY CAUSE OF ACTION ARISING. CERTAIN US STATE LAWS AND INTERNATIONAL
LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR
LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE
ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE
You agree to defend,
indemnify, and hold us harmless, including our subsidiaries, affiliates, and
all of our respective officers, agents, partners, and employees, from and
against any loss, damage, liability, claim, or demand, including reasonable
attorneys’ fees and expenses, made by any third party due to or arising out
of: (1) your UGI; (2) use of the Application; (3) breach of these Terms
of Service; (4) any breach of your representations and warranties set forth in
these Terms of Service; (5) your violation of the rights of a third party,
including but not limited to intellectual property rights; or (6) any overt
harmful act toward any other user of the Application with whom you connected
via the Application. Notwithstanding the foregoing, we reserve the right, at
your expense, to assume the exclusive defense and control of any matter for
which you are required to indemnify us, and you agree to cooperate, at your
expense, with our defense of such claims. We will use reasonable efforts to
notify you of any such claim, action, or proceeding which is subject to this
indemnification upon becoming aware of it.
We will maintain certain
data that you transmit to the Application for the purpose of managing the
performance of the Application, as well as data relating to your use of the Application.
Although we perform regular routine backups of data, you are solely responsible
for all data that you transmit or that relates to any activity you have
undertaken using the Application. You agree that we shall have no liability to
you for any loss or corruption of any such data, and you hereby waive any right
of action against us arising from any such loss or corruption of such data.
ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES
Using the Application,
sending us emails, and completing online forms constitute electronic
communications. You consent to receive electronic communications, and you agree
that all agreements, notices, disclosures, and other communications we provide
to you electronically, via email and in the Application, satisfy any legal
requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE
OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO
ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED
OR COMPLETED BY US OR VIA THE APPLICATION. You hereby waive any rights or
requirements under any statutes, regulations, rules, ordinances, or other laws
in any jurisdiction which require an original signature or delivery or
retention of non-electronic records, or to payments or the granting of credits
by any means other than electronic means.
CALIFORNIA USERS AND RESIDENTS
If any complaint with us
is not satisfactorily resolved, you can contact the Complaint Assistance Unit
of the Division of Consumer Services of the California Department of Consumer
Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento,
California 95834 or by telephone at (800) 952-5210 or (916) 445-1254.
AND USE TAX
We do not collect sales
tax. You are responsible for any use tax owed to your local government.
AND SEARCH WARRANTS
If we are
subpoenaed or a search warrant is executed on your UGI, you will be responsible
for any costs we incur to provide authorities with the information demanded
including attorney fees. This includes our time, which will be billed at our
standard rates for professional services. All such costs shall be invoiced to
you promptly after they are incurred and will be owed on a net thirty (30) day basis
to us in cash or other immediately available funds.
These (i) Terms of Service,
(ii) any policies or operating rules posted by us in the Application or in
respect to the Application, and (iii) any separate written agreements we enter
into with you, constitute the entire agreement and understanding between you
We may use your name,
logo, or other identifying marks to identify you as a client/customer of ours,
and by use of the Application you expressly license such intellectual property
to us solely for such purpose in whatever medium we elect to market ourselves
Our failure to exercise or
enforce any right or provision of these Terms of Service shall not operate as a
waiver of such right or provision. These Terms of Service operate to the
fullest extent permissible by law.
We may assign any or all
of our rights and obligations to others at any time.
We shall not be
responsible or liable for any loss, damage, delay, or failure to act caused by
any cause beyond our reasonable control.
If any provision or part
of a provision of these Terms of Service is determined to be unlawful, void, or
unenforceable, that provision or part of the provision is deemed severable from
these Terms of Service and does not affect the validity and enforceability of
any remaining provisions.
There is no joint venture,
partnership, employment or agency relationship created between you and us as a
result of these Terms of Service or use of the Application.
You agree that these Terms
of Service will not be construed against us by virtue of having drafted them.
You hereby waive any and
all defenses you may have based on the electronic form of these Terms of
Service and the lack of signing by the parties hereto to execute these Terms of
to resolve a complaint regarding the Application or to receive further
information regarding use of the Application, please contact us at:
State Road 434, Suite 2001
Springs, FL 32708