1. WELCOME AND INTRODUCTIONWelcome to Modifi! You are about to start using some great software. Modifi, Inc., a privately-owned company based in Seattle, Washington, offers an online platform ("Platform") via the website www.modifi.io (and any other website we operate or mobile application we offer; together, "Site") for creating customized apps ("App(s)") for your individual or company use (together, and as may be further defined by Modifi, "Services"). In these Terms and Conditions of Use ("Terms"), the use of the words "Modifi," "we," "our," and "us" refer to Modifi, Inc. The words “subscriber,” "user," "you," and "your"refer to entities or individuals that access and/or use the Services. These Terms do not alter in any way the terms or conditions of any other agreement you may have with us. If you are using the Services on behalf of any entity, you represent and warrant that you are authorized to accept these Terms on such entity's behalf.
2. READ CAREFULLY!These Terms govern your access to and use of the Services provided by Modifi. PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SERVICES. BY ACCESSING THE SITE, ENTERING INTO A SUBSCRIPTION AGREEMENT WITH US, CREATING A USER ACCOUNT OR AN APP, AND/OR USING THE SERVICES, YOU AGREE TO BE BOUND BY ALL OF THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, THEN YOU MAY NOT ACCESS OR USE THE SITE, APP(S), OR THE SERVICES. MODIFI'S ACCEPTANCE OF YOUR ACCESS TO OR USE OF THE SERVICES IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL OF THESE TERMS AND CONDITIONS.
5. OUR STUFF
As between you and Modifi, the Platform, App(s), Site, Services, as well as all design, layout, logo, text, code, and graphics contained therein ("Modifi Content"), any confidential or proprietary information, confidential materials, trade secrets of Modifi ("Confidential Information"), and Modifi's name, trademarks, and service marks ("Modifi Marks") (collectively, the "Modifi Properties") are all property of Modifi and are protected by intellectual property law, and except as permitted under these Terms, Modifi expressly reserves all right, title, and interest in and to the Services, content on the Site, aggregate data, and reports, and all processing, analytics, and other software and technology used by Modifi in the analysis of User Content (as defined below) and/or the provision of the Services, including, without limitation, any derivatives, improvements, enhancements, or extensions thereof conceived, reduced to practice, or otherwise developed on or on behalf of Modifi, all of which are valuable assets of Modifi, and any copyright, patent, trademark, or any other intellectual property right, or federal or state right, pertaining thereto.
6. YOUR STUFF
The Services may now or in the future allow users to select, input, upload, and share user- or subscriber-specific information and data in connection with the Services and allow you or other users to post, link, store, or otherwise make available a wide variety of user- or subscriber-specific information, text, and/or other materials (collectively, "User Content") to authorized users or others in connection with the use of the Services or otherwise. You are solely responsible for your use of any User Content and use such User Content at your own risk. By posting, submitting, or incorporating any User Content via the Services, you represent and warrant that you own and control all of the rights to the User Content that you post, submit, or use, or that you otherwise have the lawful right to use, distribute, or reproduce such User Content, and to grant Modifi the license for the User Content described below and that your use and posting of such User Content does not violate these Terms or any Subscription Agreement you have with us, will not violate any rights of or cause injury to any person or entity, and will not otherwise create any harm or liability of any type for us or for any third party. By using, submitting, selecting, and/or posting any User Content, you agree not to post, upload to, transmit, distribute, store, create, or otherwise publish through the Site or the Services any of the following:
We take no responsibility and assume no liability for any User Content used, posted, stored, or uploaded by you or any third party, or for any loss or damage thereto, nor are we liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography, or profanity you may encounter.
As a provider of interactive services, we are not liable for any statements, representations, User Content, or Advertiser and Corporate Partner Content (as defined below) provided by users in any form whatsoever on any area of the Site or through the Services. Although we have no obligation to screen, edit, or monitor any of the User Content or Advertiser and Corporate Partner Content posted anywhere on the Site or through the Services, we reserve the right, and have absolute discretion, to remove, screen, or edit any User Content and Advertiser and Corporate Partner Content posted or stored on the Site or through the Services at any time and for any reason without notice. You are solely responsible for creating backup copies of and replacing any User Content you post or store on the Site or through the Services, at your sole cost and expense.
We may monitor use of the Services by all of our customers or visitors and use the data gathered in an aggregate and anonymous manner. You agree that we may use and publish such information, provided that such information does not incorporate any Customer Data and/or identify you. You also acknowledge and agree that any feedback, including but not limited to suggestions, comments, ideas or other information, provided by you in the form of email or other submissions (collectively, "Feedback") to us is non-confidential and you hereby grant Modifi, its affiliates, subsidiaries, successors, and assigns an irrevocable, worldwide, transferable, nonexclusive, royalty-free, and fully sublicensable right to use such Feedback for any purpose without any compensation or attribution to you.
7. IMPORTANT INFORMATION ABOUT CHILDREN
The Children's Online Privacy Protection Act ("COPPA") (https://www.ftc.gov/tips-advice/business- center/guidance/complying-coppa-frequently-asked-questions) requires that online service providers obtain parental (or legal guardian) consent before they collect personally identifiable information online from children who are under 13. Therefore, we only collect personal information through the Services from a child under 13 where that parent or guardian (or a student's school, district, and/or teacher has agreed to obtain parental/guardian consent for that child) to use the Services and disclose personal information to us, for the use and benefit of the learning environment. If you are a child or student under 13, please do not send any personal information about yourself to us if your parent, guardian, school, district, and/or teacher has provided this prior consent to us, and please do not send any personal information other than what we request from you in connection with the Services. If we learn we have collected personal information from a child or student under 13 without parental/guardian consent being obtained or if we learn a child under 13 has provided us personal information beyond what we request from him or her for the Services, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information in violation of this paragraph, please contact us at email@example.com.
Parents and legal guardians, if your child is under the age of 13, consent may need to be given in order for such child to use certain features of the Services. You are responsible for understanding how the Services you use, subscribe to, make available, and/or distribute on behalf of yourself or other users may collect and use information of users of Modifi's Services. If you are the parent or legal guardian of a child who has created an account with us and you did not receive an email seeking your consent, you can email us at firstname.lastname@example.org to have that child's account deleted.
8. YOUR USE
Use of these items is subject to these Terms and is only permitted within normal access or use of the Services and in conformance with any Subscription Agreement (discussed below) you may have with us. Your access to or use of the Services grants you no right or license to reproduce, or otherwise use any Modifi or third-party trademarks except as expressly set forth herein. All goodwill generated from use of Modifi's marks will inure to
You may access and use the Services only in compliance with these Terms, your Subscription Agreement, and all applicable local, state, national, and international law, rules, and regulations. Absent breach by you of any of these Terms, and unless otherwise expressly permitted by Modifi, you are granted a limited license to access our Site and, in connection with your Subscription Agreement, use the certain aspects of our Services, and, as permitted, to electronically view, copy (except where prohibited without a license), and print to hard copy portions of the Modifi Properties. However, in no case whatsoever shall you: (a) use any data mining, scraper, spider robots or similar data gathering or extraction methods to access, monitor, or copy any Modifi Properties or other content or information used by the Services; (b) violate the restrictions in any robot exclusion headers on the Site or the Services or bypass or circumvent other measures used to prevent or limit access to the Site or the Services; (c) take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on our infrastructure; (d) deep-link to any portion of the Services for any purpose, unless expressly authorized in writing by Modifi; (e) "frame," "mirror," or otherwise incorporate any part of the Site or the Services into any other web site, unless expressly authorized in writing by Modifi; (f) reverse engineer or alter the Site, the Services, or the Modifi Properties or probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures; (g) use the Site, the Services, or the Modifi Properties other than for their intended purpose and as expressly permitted by these Terms.
Access to certain areas of our Site or Services may be restricted. Any access to or use of the Site, the Services, or the Modifi Properties other than as specifically authorized in these Terms, without our prior written permission, is strictly prohibited and will terminate the license granted in these Terms and any Subscription Agreement you have with us. Such unauthorized use may also violate applicable laws including, but not limited to, copyright and trademark laws and applicable communications regulations and statutes. We reserve the right to restrict access to areas of our Services, or indeed all our Services, at our discretion. We reserve the right to revoke your authorization to access or use the Site and the Services if we believe in good faith that you have violated these Terms or any laws whatsoever. Unless explicitly stated herein, nothing in these Terms or any Subscription Agreement you have with us will be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. The license granted by these Terms is revocable at any time.
You acknowledge and agree Modifi may conduct an audit of all your records that pertain to the Services within the scope of the license granted herein electronically remotely at any time with respect to information or records available to us based on your interaction with us, or in person provided that we give you reasonable notice of said audit and conduct said audit during standard business hours between 8:00 a.m. to 5:00 p.m. or as otherwise agreed by the parties.
9. THIRD PARTY STUFF
The Services allow (or may in the future allow) you to select, input, upload, and share information and data in connection with and through designated user accounts ("User Accounts") maintained by you on certain third-party social media platforms or via third parties for services (together, "Third Party Services"). The Services allow (or may in the future allow) you to access Third Party Services using the Site and/or the Services to post, link, message users of Third Party Services, or otherwise act on a wide variety of information accessed by the Site and/or the Services and originating from User Accounts on Third Party Services, and to collect data and generate reports based on these activities (collectively, "User Materials"). You are solely responsible for User Materials. By accessing Third Party Services through our Services, you represent and warrant that you have the lawful right to access such Third Party Services, and that the creation, distribution, and reproduction of the User Materials complies with the terms applicable to the Third Party Services. You shall ensure that your use of the Services, including access to or use of User Materials with the Site and/or the Services and Third Party Services, does not contain code, files, or programs that may interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment, including, without limitation, by introducing viruses or similar code into the Site or the Services, hosted systems or servers, or systems or servers maintained by providers of Third Party Services accessed through the Site or the Services. Modifi is not responsible for any loss or damage to User Materials. You assume all risks for the User Materials and are solely responsible for protecting and backing up the same.
10. ADS AND PROMOTIONS
We may now or in the future allow advertisers and corporate partners to post content on the Site and within our Services and provide links to sites and content of third parties (collectively the "Advertiser and Corporate Partner Content") as a service to those interested in this information. These advertisements may be targeted to users based on information provided while registering for an account, through use of the Site or the Services, through queries made through the Services, or based other information. We do not control, endorse, or adopt any Advertiser and Corporate Partner Content and we make no representation or warranties of any kind regarding the Advertiser and Corporate Partner Content. The types and extent of advertising by Modifi in connection with the Services are subject to change. You acknowledge and agree Modifi may access and use data and information received or generated through your access to or use of the Services to identify other potential users of the Services, demonstrate the capabilities of the Services, and/or pursue additional marketing and promotional activities using such. You further agree that we may send you messages, alerts, and other communications through the Services, including via email, web alert, text messages, push notifications and other similar means, in accordance with the preferences you may set through the Services, and you agree to accept such messages, and pay any applicable network access, data usage, or similar fees.
11. SUBSCRIPTION OPTIONS
To access or use certain features of the Services, unless as otherwise expressly provided herein, you must be eighteen (18) years of age or older and new subscribers must enter into an agreement with us for a subscription to the Services ("Subscription Agreement"). By entering into a Subscription Agreement, you represent and warrant that any information that you submit to us is true and accurate and that you are eighteen (18) years of age or older and are fully able and competent to enter into and abide by these Terms and the terms of the Subscription Agreement. You further agree to (a) provide accurate, current, and complete information about you as may be prompted by any signup, login, subscription, and/or registration forms within our registration process ("Registration Data"); (b) maintain the security of your password and identification; (c) maintain and promptly update the Registration Data, and any other information you provide to us, to keep it accurate, current, and complete; (d) accept all risks of unauthorized access to the Registration Data and any other information you provide to us; and (e) notify us immediately of any unauthorized access to or use of your account or any other breach of security by emailing us at email@example.com. Access to or use of the Services is void where prohibited.
Modifi provides multiple payment plan options with the ability for users to subscribe to the Modifi Services, including options to be permitted to provide Apps to downstream users. All subscriptions with Modifi require a valid payment method to which charges are automatically applied, are billed in advance for the payment period (monthly or annual), and are non-refundable. There will be no refunds or credits for partial periods of service, or refunds for period unused with an open account. In order to treat everyone equally, no exceptions will be made. All charges are exclusive of all taxes, levies, or duties imposed by taxing authorities. You shall be responsible for payment of all such taxes, levies, or duties. Modifi reserves the right to modify payment plans at any time upon 30 days' notice.
In the event of a dispute regarding fees and payments, Modifi shall have the right to conduct an audit of all records that pertain to the disputed amounts and related App(s) or Modifi Properties provided that Modifi gives reasonable notice of said audit and conducts said audit during standard business hours between 8:00 a.m. to 5:00 p.m. or as otherwise agreed by the parties. If it is determined that an invoice or payment was inaccurate, then the error shall be adjusted in the next payment. If the error exceeds five percent (5%) of the amount due, then you shall, in addition, pay the reasonable cost of the audit actually paid by Modifi.
12. APP STORE ADDITIONAL TERMS AND CONDITIONS
The following additional terms and conditions apply to you if you are using an App from an App Store. To the extent the other terms and conditions of these Terms are less restrictive than, or otherwise conflict with, the terms and conditions of this Section, the more restrictive or conflicting terms and conditions in this Section apply, but solely with respect to Apps from the App Stores.
13. FREE TRIAL OPTIONS
Modifi offers or may offer a range of subscription plans for its Services, which may be selected as you set up an account, access or use the Services, or enter into a Subscription Agreement with us. Certain Services may begin with a free trial period, and/or a ramping up period where you are able to explore the scope of Services offered under our Subscription Agreements without charge ("Free Trial"). Not all Services or functionality of such Services may be available during a Free Trial period. We reserve the right to determine if you are eligible for a Free Trial and to discontinue any Free Trial without notice for any or no reason. We also reserve the right to modify, cancel, and or limit a Free Trial without notice at any time. Each Free Trial and/or subscription term for Services will begin on the Start Date as set forth in the Subscription Agreement or as otherwise set by Modifi (or at the end of your Free Trial) and will continue for the term length as set forth in the Subscription Agreement. Your subscription will automatically renew unless you or we terminate pursuant to these Terms. The renewal terms will be for additional terms equal to the expiring subscription term and on or in connection with the current Terms and the provisions of your Subscription Agreement, subject to the renewal pricing provided for in your Subscription Agreement or, if not specified in your Subscription Agreement, on our standard pricing as may be available through our Site. You are responsible for all fees related to your initial term as well as any renewal terms. If you wish to upgrade your subscription level or certain Services to which you subscribe, please contact us at firstname.lastname@example.org or via your account representative. Upgrading your subscription may require a new Subscription Agreement to be executed. Any discounts applied to a previous subscription or an initial term may not apply to a renewed subscription, including to any automatic renewals.
You are solely responsible for properly closing any account or terminating any Subscription Agreement you may have with us if you no longer desire to pay for or use the Services. Written notice of termination by either party must be sent forty-eight (48) hours prior to your renewal date, or pursuant to the terms of any account or Subscription Agreement, and such termination becomes effective at the end of the then-current subscription term. Termination is not available during any designated free trial period. To close your account or terminate your Subscription Agreement, please email us at email@example.com or as otherwise indicated by Modifi from time to time. Suspension, amendment, or termination does not relieve your obligation to pay amounts due and owing to Modifi.
If you do not amend your subscription to another subscription, upon terminating your Subscription Agreement or any account you have with us you will immediately lose all access to the Services and any data or information stored within your account or associated with the cancelled Subscription Agreement. In the event you fail or refuse to timely pay any amount due, Modifi may, in addition to any other remedies available to it hereunder, at law or equity, suspend delivery of all Services until such payments have been delivered to Modifi. Under no circumstance shall such suspension constitute a default or breach under these Terms and Modifi shall not be liable for any damages, costs, or expenses incurred or suffered by you as the result.
If you upgrade or downgrade your Subscription Agreement, your credit card or other payment provider as indicated in your account information may be immediately charged for the new subscription fees as stated in your new Subscription Agreement. Any downgrading of your subscription becomes effective at the end of your then-current subscription term, and may cause the loss of account content, features, or capacity. Modifi disclaims liability for any such loss.
Upon suspension or termination for any reason, Modifi will cease providing the suspended or terminated Services; Modifi shall delete or confirm you have deleted all copies of any relevant Modifi software or data from your web page(s) or computers; any outstanding balance you owe to Modifi will become immediately due and payable and any collection expenses incurred will be included in the amount owed; you will not be entitled to any refunds of any subscription fees or any other fees, unless expressly agreed by Modifi; and all of your historical report data will no longer be available to you through Modifi. Refunds are not granted after seven (7) days after the start of your Subscription Agreement, or at any time if any coupon or discount has been applied or if you have participated in the Free Trial option. You understand and acknowledge that, unless and until all Modifi software and data is deleted from your web page, computers, or account, the Services may continue to track data on an automated basis. Upon termination, you agree to discontinue all use of the Services, and to delete any Confidential Information (as defined herein) in your systems within one hundred eighty (180) days after the effective date of termination. Modifi may terminate or suspend your access to use the Site and/or the Services, and to block or prevent your future access to and use of the Site and/or the Services, without prior notice or liability, if you breach this Agreement, or for any other reason.
15. FEES AND PAYMENTS
Payment and pricing terms for the Services are as specified in the Subscription Agreement utilized to order Service subscriptions or as otherwise set forth by us from time to time. By entering into a Subscription Agreement or by setting up a user account with us, you agree to pay Modifi and be responsible for all subscription fees indicated for the Services, any other fees for additional services you may purchase for yourself or others, and any applicable taxes in connection with your access to or use of such. All fees charged by Modifi are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties excluding taxes based solely on Modifi's income. For any paid Services, including Subscription Agreements or other services or features available only to certain accounts, after seven (7) days, unless otherwise agreed by both parties and memorialized in your Subscription Agreement or other relevant agreement, all sales are final, all invoices due net thirty (30) upon receipt, and consistent with other provisions in the Terms, Modifi is not obligated to issue refunds, including for prepaid fees.
Unless otherwise agreed by both parties and memorialized in your Subscription Agreement, all payments due will be charged on the day you sign up for Services or a subscription for such and will cover access to or use of those Services for a period as indicated or the term for which you subscribed. Payments are made for the upcoming billing cycle and are immediately due upon the first day of such. You will be billed for the Services, as applicable, until you properly terminate your subscription (and corresponding account, if any) or Modifi terminates your Subscription Agreement and/or account. Your termination may not take effect until completion of the billing cycle for the then-current term.
We will bill the fees due under your Subscription Agreement or for any other agreed-to services to the credit card or other payment option you provide to us or select during registration (or to a different credit card or payment option if you change your payment information). You acknowledge that the amount billed for each renewal term may vary due to promotional offers, changes in the subscription or Services, changes to our standard pricing, and changes in applicable taxes, and you authorize us to bill you the corresponding amounts.
You also authorize your credit card issuer, bank, or payment service to pay any amounts described herein and associated with your account and authorize us (or a billing agent acting on our behalf) to continue charging all such amounts to your credit card account, bank account, or payment service account until you or we terminate your Subscription Agreement as provided herein or these amounts are paid in full, whichever is later.
You represent and warrant that you are authorized to use such credit card, bank, or payment service for the purpose of purchasing such Services from us. You further authorize us to store your credit card, bank, and/or payment service information. You must of course provide us with current, complete, and accurate billing, credit card, and Registration Data information. At the beginning of each billing cycle Modifi will make attempts to charge the applicable fee to the credit card, bank, or payment service on record, and if we are unable to process the payment due, the Services, and your access to them, will be immediately disabled. You must also promptly update all billing information to keep your account and Registration Data current, complete, and accurate, and you must promptly contact Modifi if your credit card or other relevant account information is lost, stolen, compromised, or if you become aware of a potential breach of account security. You authorize us to obtain or determine updated or replacement expiration dates for your credit card or other payment method in the event that such, as you provided to us, expires or is terminated. We reserve the right to charge any renewal card or payment method issued to you to the same extent as the expired or terminated card or payment method. If payment is not received from your credit card issuer, bank, or payment service, you agree to pay all amounts due upon demand. You also agree to pay all costs of collection, including attorneys' fees and costs, on any outstanding balance. Unless otherwise stated, all fees are quoted in U.S. Dollars. Modifi reserves the right, with respect to any amount not paid when due, to charge a finance charge equal to one and one-half percent (1.5%) of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid.
16. ELECTRONIC COMMUNICATIONS
By accessing the Site and/or using the Services, you consent to receiving electronic communications from us. Such communications may include notices about your account and information concerning or relating to the Services. You agree that any electronic notices, signatures, acknowledgements, transfers, agreements, disclosures, or other communications will satisfy any legal communication requirements, including any requirements that such communications be in writing.
"Confidential Information" means any information disclosed to you by us, directly or indirectly, in writing, orally, or by inspection of tangible objects. Confidential Information does not include any information that you can demonstrate (a) was publicly known and made generally available in the public domain prior to the time of disclosure to you by us; (b) became publicly known and made generally available after disclosure to you by us through no action or inaction of you; or (c) was in the possession of you, without confidentiality restrictions, at the time of disclosure by us, as shown by your files and records. You agree to not use any Confidential Information for any purpose except as permitted by these Terms and any applicable Subscription Agreement you have with us.
You will not disclose, make accessible, or communicate any Confidential Information to third parties, and you agree to limit access to Confidential Information to those of your employees and contractors who need that access for purposes consistent with these Terms and any applicable Subscription Agreement you have with us, and who have signed confidentiality agreements with you containing protections no less stringent than those herein. You will not reverse engineer, disassemble, or decompile any prototypes, software, or other tangible objects that embody our Confidential Information and that are provided to you in accordance with these Terms and any applicable Subscription Agreement you have with us. You will use your best efforts to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, you will take at least those measures that you take to protect your own most highly confidential information. You will reproduce our proprietary rights notices on all copies made containing any Confidential Information or as directed by Modifi. You will immediately notify us in the event of any unauthorized use or disclosure of the Confidential Information. ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS." WE MAKE NO WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS, OR PERFORMANCE OF THE CONFIDENTIAL INFORMATION.
All documents and other tangible objects containing or representing Confidential Information and all copies of them will be and remain the property of Modifi. Upon our request, you will (a) promptly deliver to us all Confidential Information, without retaining any copies, and (b) promptly destroy analyses, studies, and other documents prepared based on the Confidential Information, without retaining copies. Nothing in this Agreement is intended to grant any rights to Recipient under any patent, copyright, or other intellectual property right of Company, nor will this Agreement grant Recipient any rights in or to the Confidential Information, except as expressly set forth in this Agreement.
Your obligations regarding Confidential Information will survive until all Confidential Information becomes publicly known and made generally available through no action or inaction of you. You acknowledge that any breach or threatened breach of these Terms regarding Confidential Information would cause irreparable harm to us, and in addition to any other remedies at law or in equity that we may have, we are entitled, without the requirement of posting a bond or other security, to equitable relief, including injunctive relief and specific performance. You agree to indemnify and hold us harmless from any damage, loss, cost, or liability (including reasonable attorney fees) arising or resulting from any unauthorized use or disclosure of the Confidential Information by you or any of your employees.
You may disclose Confidential Information to the extent compelled by law to do so, provided you give us prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the our cost, if we wish to contest the disclosure. Nothing in this Agreement is intended to prevent disclosure of Confidential Information to a court, administrative agency, or other governmental authorities as required by law. Pursuant to the Defend Trade Secrets Act of 2016, an individual may not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that: (a) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (b) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding.
18. LEGAL INDEMNIFICATION
You agree, at your sole expense, to defend, indemnify, and hold us, our independent contractors, service providers, and consultants, and their respective directors, employees, and agents, harmless from and against any and all actual or threatened suits, actions, legal proceedings, judgments, and any other legal claims, damage awards, or other compulsory payment or performance of any kind arising out of, resulting from, attributable to or in any way incidental to: (a) your access to or use of the Site, the Services, and/or the Modifi Properties; (b) your conduct; (c) your violation of these Terms; (d) your violation of the rights of any third party; and (e) any User Content posted by you. Modifi is not liable for any loss or damage that results from your failure to comply with your obligations in these Terms or from unauthorized access to or use of your account or Services to which you have subscribed.
We will, at our expense, either defend you from or settle any claim, proceeding, or suit ("Claim") brought by a third party against you alleging that your use of the portion of the Services provided by us infringe or misappropriate any patent, copyright, trade secret, or trademark, right of any third party, and indemnify you from all damages, costs, and attorneys' fees finally awarded in any such Claim or paid to any third party to settle any such Claim, subject to the following limitations: Our obligation under this Section is contingent on your giving us prompt written notice of the Claim; your granting us full and complete control over the defense and settlement of the Claim; and your providing assistance in connection with the defense and settlement of the Claim as we may reasonably request, at our cost. You will not defend or settle any Claim eligible for indemnification under this Section without our prior written consent. Our obligation to indemnify, defend, or settle under this Section is obviated should you alter the Services or any Modifi Properties, or use such contrary to these Terms or the terms of your Subscription Agreement, if you use a version of such that has been superseded, if the Claim could have been avoided by using an unaltered current version of the Services or Modifi Properties provided to you, or if you continue to use the Services or Modifi Properties after the end of your license. Further, Modifi shall not indemnify you to the extent that an infringement claim is based upon any information, design, specification, instruction, software, data, or material not furnished by us, for any portion of a Claim that is based upon the combination of the Services or Modifi Properties with any products or services not provided by Modifi, for infringement or a Claim caused by your actions against any third party if the Services or Modifi Properties as delivered to you and used in accordance with the Terms or your Subscription Agreement would not otherwise infringe or violate any third party rights, or for any Claims known to you at the time licensed rights are obtained.
If you are enjoined or otherwise prohibited from using the Services or a portion thereof based on an allegation that the Services violate any third party intellectual property right (including a Claim), or if we reasonably determine that such prohibition is likely, then we will, at our sole expense and option: (a) obtain for you the right to use the allegedly infringing portions of the Services; (b) modify the allegedly infringing portions of the Services so as to render them non-infringing without substantially diminishing or impairing their functionality; or (c) replace the allegedly infringing portions of the Services with non- infringing items of substantially similar functionality. If we determine that the foregoing remedies are not commercially reasonable, then we may terminate the impacted Subscription Agreement, or portion thereof, and will promptly provide a prorated refund to you for any prepaid fees received by us for any Services that have not yet been performed at the time of termination. However, we will have no obligation for any infringement or misappropriation to the extent that it arises out of or is based upon use of the Services in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; any aspects of the Services that are provided to comply with designs, requirements, or specifications required by or provided by you, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; use of the Services by you for purposes not intended or outside the scope of the license granted to you; your failure to use the Services in accordance with written instructions provided by us, if the infringement or misappropriation would not have occurred but for such failure; or any modification of the Services not made or authorized in writing by us where such infringement or misappropriation would not have occurred absent such modification.
This Section states Modifi's sole and exclusive liability, and your sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by the Services.
19. WARRANTIES DISCLAIMED
THE SITE, THE SERVICES, THE MODIFI PROPERTIES, AND ALL USER CONTENT, OTHER SUBMISSIONS, AND OTHER MATERIALS, INFORMATION, PRODUCTS, AND SERVICES INCLUDED IN OR MADE AVAILABLE IN CONNECTION WITH THE SITE, THE SERVICES, AND THE MODIFI PROPERTIES ARE PROVIDED "AS IS," WITH NO WARRANTIES WHATSOEVER. MODIFI AND OUR LICENSORS EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. MODIFI AND OUR LICENSORS DISCLAIM ANY WARRANTIES REGARDING THE ACCURACY, SECURITY, RELIABILITY, TIMELINESS, AVAILABILITY, COMPATIBILITY, AND PERFORMANCE OF THE SITE, THE SERVICES, THE MODIFI PROPERTIES AND THE USER CONTENT. MODIFI AND OUR LICENSORS DISCLAIM ANY WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SITE OR IN CONNECTION WITH THE SERVICES OR RECEIVED THROUGH ANY LINKS DISPLAYED ON THE SITE OR THROUGH THE SERVICES OR ANY USER CONTENT, AS WELL AS FOR ANY INFORMATION OR ADVICE RECEIVED THROUGH ANY LINKS DISPLAYED ON THE SITE OR THROUGH THE SERVICES OR ANY USER CONTENT.
YOU AGREE THAT YOUR ACCESS TO OR USE OF THE SITE, THE SERVICES, THE MODIFI PROPERTIES, AND ALL USER CONTENT SHALL BE AT YOUR SOLE RISK.
YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL OR DATA THROUGH THE ACCESS TO OR USE OF THE SITE AND/OR THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY USER CONTENT, AT YOUR OWN DISCRETION AND RISK. MODIFI DOES NOT WARRANT THAT THE SITE, THE SERVICES, THE MODIFI PROPERTIES, OR ANY USER CONTENT WILL BE ERROR-FREE, THAT ACCESS THERETO WILL BE UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT DATA WILL NOT BE LOST OR THAT THE SITE OR THE SERVER THAT MAKES SUCH CONTENT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. IN SUCH EVENT, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. MODIFI DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE ACCESS TO OR USE OR THE RESULTS OF THE ACCESS TO OR USE OF THE SITE, THE SERVICES, THE MODIFI PROPERTIES OR ANY USER CONTENT. YOU HEREBY IRREVOCABLY WAIVE ANY CLAIM AGAINST MODIFI, ITS AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS WITH RESPECT TO THE SITE, THE SERVICES, THE MODIFI PROPERTIES AND THE USER CONTENT AND ANY CONTENT YOU PROVIDE TO THIRD PARTIES (INCLUDING CREDIT CARD AND OTHER PERSONAL INFORMATION).
20. LIMITATION OF LIABILITY
MODIFI, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AND AGENTS ASSUME NO LIABILITY OR RESPONSIBILITY FOR, AND IN NO EVENT, INCLUDING NEGLIGENCE, SHALL MODIFI, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR AGENTS, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM, ANY:
Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you.
EXCEPT FOR LIABILITY ARISING OUT OF MODIFI'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT,UNDER NO CIRCUMSTANCES WILL MODIFI'S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS OR ANY APPLICABLE SUBSCRIPTION AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY YOU TO MODIFI UNDER THE APPLICABLE SUBSCRIPTION AGREEMENT DURING THE SIX (6) MONTHS PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION). EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY MODIFI TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Except for actions for nonpayment or breach of a party's proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
21. GOVERNING LAW AND APPLICABLE VENUE
Modifi is designed for users located in the United States only, and subscribers, users, and creators assume all risks of using Modifi Services and Apps from outside the United States. Your use of Modifi is subject to all applicable local, state, national, and international laws and regulations.
These Terms and your use of the Services will be governed by and construed in accordance with the laws of the State of Washington, applicable to agreements made and to be entirely performed within the State of Washington, without resort to its conflict of law provisions. You agree that any action at law or in equity arising out of or relating to these Terms or your access to or use of the Services will be filed only in the state and federal courts located in Washington and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these Terms and/or your access to or use of the Services.
The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement. The Modifi Services are controlled by U.S. Export Regulations, and may not be exported to or used by embargoed countries or individuals.
Recognizing the global nature of the internet and the rapid changes around online privacy, you agree to comply with all local rules regarding online conduct and acceptable content. Without limiting the foregoing, you agree to comply with all applicable laws regarding the transmission of technical data exported to or from the U.S. or in the country in which you operate or reside and to comply with any other local laws affecting the Services.
22. COPYRIGHT ISSUES In accordance with the Digital Millennium Copyright Act ("DMCA") and other applicable laws, we have adopted a policy of terminating, in appropriate circumstances and at our sole discretion, access to the Services for users who we have deemed, in our sole discretion, to be repeat infringers. We may also, at our sole discretion, limit and/or terminate access to the Services (or any portion thereof) for any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement. Additionally, we reserve the right to limit access to the Services (or any portion thereof) for any users for reasons of our own discretion, that we are not obligated to reveal, at any time.
If you believe that anything in our Services infringes upon any copyright you own or control you may file a notification of such infringement with our Designated Agent as set forth below.
• Name of Agent Designated to receive notification of claimed infringement: James Poss
• Full address of Designated Agent to which notification should be sent: c/o SURF, 999 3rd Ave Suite 700, Seattle, WA 98104
• Telephone Number of Designated Agent: +1.415.758.1930
• E-Mail Address of Designated Agent: firstname.lastname@example.org
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. You should note that if you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages including but not limited to costs and attorneys' fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
23. ADDITIONAL TERMS AND PROVISIONS
Relationship of the Parties. The relationship between Modifi and you is not one of a legal partnership relationship, but is one of independent contractors. No agency, partnership, joint venture, employment, or franchise relationship is intended or created by this Agreement. Nothing in these Terms or in any applicable Subscription Agreement, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit, or remedy of any nature whatsoever under or by reason of these Terms or any applicable Subscription Agreement.
Contract for Services. These Terms are a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States ("U.S."), the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern these Terms or the rights and obligations of the parties under these Terms or any applicable Subscription Agreement.
Compliance with Laws. We will strive to comply with all U.S. state and federal laws in our provision of the Services. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws in your use of the Services, including any applicable export laws. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Services to prohibited countries or individuals or permit use of the Services by prohibited countries or individuals.
Headings. The headings of the Sections contained in these Terms are for convenience only and shall not be deemed to control or affect the meaning or construction of any provision of these Terms. Publicity. You grant us the right to add your name and company logo to our customer list and Site. Survival. In addition to those provisions identified in the Terms to survive termination, all provisions of the Agreement which, by their nature, are intended to survive its termination or expiration, shall survive its termination or expiration. Waiver. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
Notice. Any notice required or permitted to be given in accordance with these Terms will be effective if it is in writing and sent by fax, e-mail, U.S. mail, or insured courier, return receipt requested, to the appropriate party using the contact information noted in these Terms or in the Subscription Agreement between the parties. Either party may change its address for receipt of notice by notice to the other party in accordance with these Terms. Notices are deemed given two (2) business days following the date of mailing or one (1) business day following delivery to a courier or sending an email or fax. Force Majeure. A party will not be liable to the other should its performance under these Terms or any Subscription Agreement be prevented, restricted, or interfered with by circumstances or events beyond its reasonable control ("Force Majeure Event"), provided that the affected party uses its best efforts to resume performance promptly at the end of the Force Majeure Event. Assignment. You will not assign or transfer any Subscription Agreement without our prior written consent, which will not be unreasonably withheld. We may assign our rights or obligations to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control, or operation of law.
Entire Agreement. These Terms, including all Policies, constitute the entire agreement between Modifi and you concerning our Services. These Terms supersede any and all prior agreements or communications between Modifi and you concerning the subject matter of these Terms. Authority. Each party represents and warrants to the other that it has full power and authority to enter into these Terms and any applicable Subscription Agreement and that such are binding upon such party and enforceable in accordance with its terms.
24. QUESTIONS AND CONTACT INFORMATION
Questions, comments, and any other correspondence regarding our Services may be directed to us at the
email address email@example.com.
Name: James Posss
Address: c/o SURF, 999 3rd Ave Suite 700, Seattle, WA 98104
Phone: +1.415.758.1930 / Email: firstname.lastname@example.org