Umbo License Agreement

Effective: 11 February, 2015

This Umbo License Agreement (the "Agreement") is between Umbo LLC., a Texas Limited Liability Corporation ("Umbo") and the organization agreeing to these terms ("Customer"). This Agreement governs access to and use of the Umbo LLC client software ("Software") and services (together, the "Services" or "Umbo App"). By clicking "I Agree," signing your contract for the Services or using the Services, you agree to this Agreement as a Customer. If you are agreeing to this Agreement for use of the Services by an organization, you are agreeing to this Agreement on behalf of that organization. You must have the authority to bind that organization to this Agreement, otherwise you must not sign up for the Services.

Services.
1. Provision of Services. Customer and users of Customer's Services account ("End Users") may access and use the Services in accordance with this Agreement.
2. Facilities and Data Processing. Umbo will use, at a minimum, technical and organizational security measures to transfer, store, and process Customer Data. These measures are designed to protect the integrity of Customer Data and guard against the unauthorized or unlawful access to, use, and processing of Customer Data. Customer agrees that Umbo may transfer, store, and process Customer Data in locations other than Customer's country. "Customer Data" means Stored Data and Account Data. "Stored Data" means the files and structured data submitted to the Services by Customer or End Users. "Account Data" means the account and contact information submitted to the Services by Customer or End Users.
3. Modifications to the Services. Umbo may update the Services from time to time. If Umbo changes the Services in a manner that materially reduces their functionality, at Umbo's sole discretion, Umbo will inform Customer via the email address associated with the account.
4. Software. Some Services allow Customer to download Umbo Software which may update automatically. Customer may use the Software only to access the Services. If any component of the Software is offered under an open source license, Umbo will make the license available to Customer and the provisions of that license may expressly override some of the terms of this Agreement.
Customer Obligations.
1. Compliance. Customer is responsible for use of the Services by its End Users. Customer and its End Users must use the Services in compliance with the Acceptable Use Policy. Customer will obtain from End Users any consents necessary to allow Administrators to engage in the activities described in this Agreement and to allow Umbo to provide the Services. Customer will comply with laws and regulations applicable to Customer's use of the Services, if any.
2. Customer Administration of the Services. Customer may specify End Users as "Administrators" through the administrative console. Administrators may have the ability to access, disclose, restrict or remove Customer Data in or from Services accounts. Administrators may also have the ability to monitor, restrict, or terminate access to Services accounts. Umbo's responsibilities do not extend to the internal management or administration of the Services. Customer is responsible for: (i) maintaining the confidentiality of passwords and Administrator accounts; (ii) managing access to Administrator accounts; and (iii) ensuring that Administrators' use of the Services complies with this Agreement.
3. Unauthorized Use & Access. Customer will prevent unauthorized use of the Services by its End Users and terminate any unauthorized use of or access to the Services. The Services are not intended for End Users under the age of 13. Customer will ensure that it does not allow any person under 13 to use the Services. Customer will promptly notify Umbo of any unauthorized use of or access to the Services.
4. Restricted Uses. Customer will not (i) sell, resell, or lease the Services without the express written consent of Umbo; (ii) use the Services for activities where use or failure of the Services could lead to physical damage, death, or personal injury; or (iii) reverse engineer the Services, nor attempt nor assist anyone else to do so, unless this restriction is prohibited by law.
5. Third Party Requests.
  1. "Third Party Request" means a request from a third party for records relating to an End User's use of the Services including information in or from an End User or Customer's Services account. Third Party Requests may include valid search warrants, court orders, or subpoenas, or any other request for which there is written consent from End Users permitting a disclosure.
  2. Customer is responsible for responding to Third Party Requests via its own access to information. Customer will seek to obtain information required to respond to Third Party Requests and will contact Umbo only if it cannot obtain such information despite diligent efforts.
  3. Umbo will make commercially reasonable efforts, to the extent allowed by law and by the terms of the Third Party Request, to: (A) promptly notify Customer of Umbo's receipt of a Third Party Request; (B) comply with Customer's commercially reasonable requests regarding its efforts to oppose a Third Party Request; and (C) provide Customer with information or tools required for Customer to respond to the Third Party Request (if Customer is otherwise unable to obtain the information). If Customer fails to promptly respond to any Third Party Request, then Umbo may, but will not be obligated to do so.
Third-Party Services. If Customer uses any third-party service (e.g., a service that uses an Umbo API) with the Services, (a) Umbo will not be responsible for any act or omission of the third party, including the third party's access to or use of Customer Data and (b) Umbo does not warrant or support any service provided by the third party.
Suspension
1. Of End User Accounts by Umbo. If an End User (i) violates this Agreement or (ii) uses the Services in a manner that Umbo reasonably believes will cause it liability, then Umbo may request that Customer suspend or terminate the applicable End User account. If Customer fails to promptly suspend or terminate the End User account, then Umbo may do so.
2. Security Emergencies. Notwithstanding anything in this Agreement, if there is a Security Emergency then Umbo may automatically suspend use of the Services. Umbo will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency. "Security Emergency" means: (i) use of the Services that do or could disrupt the Services, other customers' use of the Services, or the infrastructure used to provide the Services and (ii) unauthorized third-party access to the Services.
Intellectual Property Rights.
1. Reservation of Rights. Except as expressly set forth herein, this Agreement does not grant (i) Umbo any Intellectual Property Rights in Customer Data or (ii) Customer any Intellectual Property Rights in the Services or Umbo trademarks and brand features. "Intellectual Property Rights" means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights.
2. Limited Permission. Customer grants Umbo only the limited rights that are reasonably necessary for Umbo to offer the Services (e.g., hosting Stored Data). This permission also extends to trusted third parties Umbo works with to offer the Services (e.g., payment provider used to process payment of fees).
3. Suggestions. Umbo may, at its discretion and for any purpose, use, modify, and incorporate into its products and services, license and sublicense, any feedback, comments, or suggestions Customer or End Users send Umbo or post in Umbo's forums without any obligation to Customer.
4. Customer List. Umbo may include Customer's name in a list of Umbo customers on the Umbo website or in promotional materials.
Fees & Payment.
1. Fees. Customer will pay, and authorizes Umbo to charge using Customer's selected payment method, for all applicable fees. Fees are non-refundable except as required by law. Customer is responsible for providing complete and accurate billing and contact information to Umbo. Umbo may suspend or terminate the Services if fees are past due.
2. Auto Renewals and Trials. IF CUSTOMER'S ACCOUNT IS SET TO AUTO RENEWAL OR IS IN A TRIAL PERIOD, UMBO MAY AUTOMATICALLY CHARGE AT THE END OF THE TRIAL OR FOR THE RENEWAL, UNLESS CUSTOMER NOTIFIES UMBO THAT CUSTOMER WANTS TO CANCEL OR DISABLE AUTO RENEWAL. Umbo may revise Service rates by providing Customer at least 30 days notice prior to the next charge.
3. Taxes. Customer is responsible for all taxes. Umbo will charge tax when required to do so. If Customer is required by law to withhold any taxes, Customer must provide Umbo with an official tax receipt or other appropriate documentation.
4. Purchase Orders. If Customer requires the use of a purchase order or purchase order number, Customer (i) must provide the purchase order number at the time of purchase and (ii) agrees that any terms and conditions on a Customer purchase order will not apply to this Agreement and are null and void.
Term & Termination.
1. Term. This Agreement will remain in effect until Customer's subscription to the Services expires or terminates, or until the Agreement is terminated.
2. Termination for Breach. Either Umbo or Customer may terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days.
3. Effects of Termination. If this Agreement terminates: (i) the rights granted by Umbo to Customer will cease immediately (except as set forth in this section); and (ii) after a commercially reasonable period of time, Umbo may delete any Stored Data relating to Customer's account. The following sections will survive expiration or termination of this Agreement: 2(e) (Third Party Requests), 5 (Intellectual Property Rights), 6 (Fees & Payment), 7(c) (Effects of Termination), 8 (Indemnification), 9 (Disclaimers), 10 (Limitation of Liability), 11 (Disputes), and 12 (Miscellaneous).
Indemnification.
1. By Customer. Customer will indemnify, defend, and hold harmless Umbo from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising out of any claim by a third party against Umbo and its affiliates regarding: (i) Customer Data; (ii) Customer's use of the Services in violation of this Agreement; or (iii) End Users' use of the Services in violation of this Agreement.
2. By Umbo. Umbo will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising out of any claim by a third party against Customer to the extent based on an allegation that Umbo's technology used to provide the Services to the Customer infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of the third party. In no event will Umbo have any obligations or liability under this section arising from: (i) use of any Services in a modified form or in combination with materials not furnished by Umbo and (ii) any content, information, or data provided by Customer, End Users, or other third parties.
3. Possible Infringement. If Umbo believes the Services infringe or may be alleged to infringe a third party's Intellectual Property Rights, then Umbo may: (i) obtain the right for Customer to continue using the Services; (ii) provide a non-infringing functionally equivalent replacement; or (iii) modify the Services so that they no longer infringe. If Umbo does not believe the options described in this section are commercially reasonable then Umbo may suspend or terminate Customer's use of the affected Services (with a pro-rata refund of prepaid fees for the Services).
4. General. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (i) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed and (ii) the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE UMBO AND CUSTOMER'S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.
Disclaimers. THE SERVICES ARE PROVIDED "AS IS." TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER CUSTOMER NOR UMBO AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR NON-INFRINGEMENT. CUSTOMER IS RESPONSIBLE FOR MAINTAINING AND BACKING UP ANY STORED DATA.
Limitation of Liability.
1. Limitation on Indirect Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR UMBO OR CUSTOMER'S INDEMNIFICATION OBLIGATIONS, NEITHER CUSTOMER NOR UMBO AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS WILL BE LIABLE UNDER THIS AGREEMENT FOR (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR (II) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
2. Limitation on Amount of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, UMBO'S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE LESSER OF $10,000 OR THE AMOUNT PAID BY CUSTOMER TO UMBO HEREUNDER DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
Disputes.
1. Informal Resolution. Umbo wants to address your concerns without resorting to a formal legal case. Before filing a claim, each party agrees to try to resolve the dispute by contacting the other party through the notice procedures in section 12(e). If a dispute is not resolved within 30 days of notice, Customer or Umbo may bring a formal proceeding.
2. Agreement to Arbitrate. Customer and Umbo agree to resolve any claims relating to this Agreement or the Services through final and binding arbitration, except as set forth below. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be held in Del Rio (TX), or any other location both parties agree to in writing.
3. Exception to Agreement to Arbitrate. Either party may bring a lawsuit in the federal or state courts of Val Verde County, TX solely for injunctive relief to stop unauthorized use or abuse of the Services or infringement of Intellectual Property Rights without first engaging in the informal dispute notice process described above. Both Customer and Umbo consent to venue and personal jurisdiction there.
4. NO CLASS ACTIONS. Customer may only resolve disputes with Umbo on an individual basis and will not bring a claim in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.
Miscellaneous.
1. Terms Modification. Umbo may revise this Agreement from time to time and the most current version will always be posted on the Umbo App website. If a revision, in Umbo's sole discretion, is material, Umbo will notify Customer (by, for example, sending an email to the email address associated with the applicable account). Other revisions may be posted to Umbo's blog or terms page, and Customer is responsible for checking such postings regularly. By continuing to access or use the Services after revisions become effective, Customer agrees to be bound by the revised Agreement. If Customer does not agree to the revised Agreement terms, Customer may terminate the Services within 30 days of receiving notice of the change.
2. Entire Agreement. This Agreement, including Customer's invoice and order form, constitutes the entire agreement between Customer and Umbo with respect to the subject matter of this Agreement and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of this Agreement. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the invoice, the order form, the Agreement.
3. Governing Law. THE AGREEMENT WILL BE GOVERNED BY TEXAS LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES.
4. Severability. Unenforceable provisions will be modified to reflect the parties' intention and only to the extent necessary to make them enforceable, and the remaining provisions of the Agreement will remain in full effect.
5. Notice. Notices to Umbo are deemed given when received. Notices to Customer may also be sent to the applicable account email address and are deemed given when sent. Notices to Umbo must be sent to help@umboapp.com and will be sent in hard copy form at Umbo's request.
6. Waiver. A waiver of any default is not a waiver of any subsequent default.
7. Assignment. Customer may not assign or transfer this Agreement or any rights or obligations under this Agreement without the written consent of Umbo. Umbo may not assign this Agreement without providing notice to Customer, except Umbo may assign this Agreement or any rights or obligations under this Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void.
8. No Agency. Umbo and Customer are not legal partners or agents, but are independent contractors.
9. Force Majeure. Except for payment obligations, neither Umbo nor Customer will be liable for inadequate performance to the extent caused by a condition that was beyond the party's reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance).
10. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. Without limiting this section, a Customer's End Users are not third-party beneficiaries to Customer's rights under this Agreement.
11. Export Restrictions. The export and re-export of Customer Data via the Services may be controlled by the United States Export Administration Regulations or other applicable export restrictions or embargo. The Services may not be used in Cuba; Iran; North Korea; Sudan; or Syria or any country that is subject to an embargo by the United States and Customer must not use the Services in violation of any export restriction or embargo by the United States or any other applicable jurisdiction. In addition, Customer must ensure that the Services are not provided to persons on the United States Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals.