Please read these Terms of Service (the "Terms" or "Agreement") carefully. This UltraStorm Services Agreement is a legal agreement between Matthew Castellana, doing business as UltraStorm ("UltraStorm", "us", or "we") and the entity or person ("Customer", "you", "your", or "user") who registered on the Immersive Lighting Account page to receive certain software, licensing, distribution, data, technology, demos, and other business services that may be offered by UltraStorm and its affiliates (each, a "Service"). This Agreement describes the terms and conditions that apply to your use of the Services. We provide you with a more detailed description of the Services through published software libraries and application programming interfaces that may be used to access the Services (the “Technology”, “Plugin”, “SDK”, "API", or "APIs") and additional resources we make available to you on our website or through our products. The Services and their permitted use are further described in UltraStorm's standard documentation ("Documentation").
Wherever used in these Terms, "you", "your" or similar terms means the person or legal entity accessing or using the Services. If you are accessing or using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms.
YOU AGREE THAT BY REGISTERING FOR, ACCESSING OR USING THE SERVICES, YOU ARE ENTERING INTO A LEGALLY BINDING AGREEMENT WITH ULTRASTORM. IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCESS OR USE THE SERVICES.
UltraStorm reserves the right to modify, supplement or replace these Terms, effective upon posting the changes on the Site or notifying you otherwise. For continued use of the Services following the posting of changes to these Terms or receipt of notice, you will be required to accept and agree to such changes to continue using the Services. You are responsible for regularly consulting the current version of the Terms prior to your use of the Services.
You may not access or use any Services unless you agree to abide by all of the terms and conditions in this Agreement. If you do not understand any of the terms of this Agreement, please contact us before using the Services. You can contact us at: firstname.lastname@example.org.
1.1. Your Immersive Lighting Account
To register for an Immersive Lighting account, you or the person or people submitting the application (your “Representative”) must provide us with your business or trade name, email, and certain other information about you that we require. We may also collect personal information (including name and email) about your beneficial owners, principals, and your account administrator. Until you have submitted, and we have reviewed and approved, all required information, your Immersive Lighting Account will be available to you on a preliminary basis only, and we may terminate it at any time and for any reason.
1.1.2. Business Representative
You and your Representative individually affirm to UltraStorm that your Representative is authorized to provide the information described in this Section 1.1.1. on your behalf and to bind you to these Terms. We may require you or your Representative to provide additional information or documentation demonstrating your Representative’s authority. Without the express written consent of UltraStorm, neither you nor your Representative may register or attempt to register for an Immersive Lighting Account on behalf of a user UltraStorm previously terminated from use of the Services.
If you are a sole proprietor, you and your Representative also affirm that your Representative is personally responsible and liable for your use of the Services and your obligations to your customers, including payment of any amounts owed under these Terms.
1.1.3. Consent to Electronic Disclosures and Notices
By registering for an Immersive Lighting Account, you agree that such registration constitutes your electronic signature, and you consent to electronic provision of all disclosures and notices from UltraStorm ("Notices" or "Notice"), including those required by Law. You also agree that your electronic consent will have the same legal effect as a physical signature.
1.1.4. Plugin, API, SDK
UltraStorm has developed and provides access to the Immersive Lighting technology (“API”, “Plugin” and/or “SDK”) that may be used to access the Services. You may use the plugin solely as described in the Documentation to use the Services in video games, digital and physical content, entertainment productions, live and/or virtual shows, events, performances and applications identified in your Immersive Lighting Account. You may manage your Immersive Lighting Account, connect with other service providers, and enable additional features through the Account portal on the website.
You may not use the Immersive Lighting technology for any purpose, function, or feature not described in the Documentation or otherwise communicated to you by us. Due to the nature of the Services, we will update the API, Plugin, and/or SDK and Documentation from time to time, and may add or remove functionality. We will provide you Notice in the event of material changes, deprecations, or removal of functionality from the Plugin, API and/or SDK so that you may continue using the Services with minimal interruption.
We will make your licenses available to you in your Account portal. You are responsible for securing your licenses – do not publish or share them with any unauthorized persons. Failure to secure your license keys will increase the likelihood of unauthorized use of your Immersive Lighting Account and potential losses to you or your customers. You should contact us immediately if you become aware of any unauthorized use of your secret Tokens or any other breach of security regarding the Services.
Subject to the terms of this Agreement, UltraStorm shall use commercially reasonable efforts to provide you with the Services. The Services are available on a free or paid subscription basis. You must select a subscription plan at the time of registration detailing the Services to be provided by UltraStorm, along with any applicable fees and payment terms (the "Subscription Plan").
1.3. Updates and Functionality
You acknowledge that from time to time UltraStorm may apply updates to the Services and that such updates may result in changes in the appearance and/or functionality of the Services (including the addition, modification, or removal of functionality, features, or content), and you agree to such changes. Without limiting the foregoing, UltraStorm may, in its sole discretion, change the functionality associated with certain Subscription Plans, including but not limited to discontinuing all or part of the Services offered on a free subscription basis.
1.4. Permitted Uses
You are responsible for your own conduct when using the Services. You agree that you will only use the Services for lawful purposes and in a manner consistent with these Terms and any applicable rules, policies and guidelines established by UltraStorm in respect of the Services. Misuse or unauthorized use of the Services and its related systems or networks, or of any information or material available through the Services is strictly prohibited and UltraStorm reserves the right, at its sole discretion and without liability or prejudice to any other remedies that it may have, to immediately suspend or terminate access by any user who is using, or who UltraStorm reasonably believes is using, the Services in violation of these Terms.
1.5. Prohibited Uses
Without limiting Section 1.4, you agree not to use the Services to: (i) engage in conduct that would constitute a criminal or quasi-criminal offence, that would give rise to civil liability, or that would otherwise violate any applicable local, provincial, state, federal or international law or accepted Internet protocol; (ii) communicate, transmit, upload or post information that is inaccurate, incomplete, misleading, false or libelous; (iii) communicate, transmit, upload or post information or material that infringes intellectual property rights, privacy rights, rights of publicity or any other rights of any person; (iv) communicate, transmit, upload or post material that is obscene, vulgar, pornographic, abusive, defamatory, threatening, racist, sexist or otherwise objectionable; (v) attempt to interfere with or gain unauthorized access to the Services or its related systems or networks; (vi) advertise, solicit or otherwise promote the sale or other distribution of products or services, including products or services that compete with those offered through the Services, without UltraStorm’s consent; (vii) use or attempt to use the Services to gain unauthorized access to any person’s data or network; (vii) use or attempt to use the Services to create a competing product; (viii) use or attempt to reverse-engineer the Services and/or underlying technologies; or (ix) otherwise use the Services in a manner that could, in the opinion of UltraStorm, adversely affect the ability of other users to use the Services or the Internet, including post or transmit information or data containing worms, viruses, Trojan horses or other disruptive components.
1.6. Third Party Products and Services
The Services may enable you to access, interact with or purchase products or services provided by third parties, including from third party websites or applications linked to or accessible through the Services (“Third Party Services”). UltraStorm provides access to Third Party Services as a convenience only, and such access does not imply any warranties, representations, endorsements, approvals or verification by UltraStorm of such Third-Party Services. You acknowledge that the use of Third-Party Services may be subject to the terms and conditions of such Third-Party Services, and that any contract entered into or transaction completed through Third Party Services is between only you and the relevant third party.
1.7. Authorized Users
Only the specific individuals for whom you have paid the required fees and whom you designate through the applicable Service ("Authorized Users") may access and use the Services. Some Services may allow you to designate different types of Authorized Users, in which case pricing and functionality may vary according to the type of Authorized User. Authorized Users might be you or your Affiliates’ employees, representatives, consultants, contractors, agents, or other third parties who are acting for your benefit or on your behalf. You may also permit your customers to have limited access to certain Services as Authorized Users, subject to the terms of our Customer Use Addendum. You may increase the number of Authorized Users permitted to access your instance of the Services by placing a new Subscription Plan or, in some cases, directly through the Service. In all cases, you must pay the applicable fee for the increased number of Authorized Users. You are responsible for compliance with this Agreement by all Authorized Users. All use of Services by you and your Authorized Users must be within the Scope of Use and solely for the benefit of you or your Affiliates. "Affiliate" means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where "control" means the power to direct the management or affairs of an entity, and "ownership" means the beneficial ownership of 50% (or, if the applicable jurisdiction does not allow majority ownership, the maximum amount permitted under such law) or more of the voting equity securities or other equivalent voting interests of the entity.
1.8. Access to Services
Subject to the terms and conditions of this Agreement, UltraStorm grants you a non-exclusive right to access and use the Services during the applicable Subscription Term (as defined below) in accordance with this Agreement, your applicable Scope of Use and the Documentation. If UltraStorm offers client software (e.g., a desktop or mobile application) for any Service, you may use such software solely with the Service, subject to the terms and conditions of this Agreement. You acknowledge that our Services are on-line, subscription-based products and that we may make changes to the Services from time to time.
1.9. Subscription Terms and Renewals
Services are provided on a subscription basis for a set term specified in your Subscription Plan ("Subscription Term"). Except as otherwise specified in your Subscription Plan, all subscriptions will automatically renew for periods equal to your initial Subscription Term (and you will be charged at the then-current rates) unless you cancel your subscription through your account at Immersive-Lighting.com. If you cancel, your subscription will terminate at the end of then-current billing cycle, but you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.
You must ensure that all Authorized Users keep their user IDs and passwords for the Services strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. You are responsible for any and all actions taken using your accounts and passwords, and you agree to immediately notify UltraStorm of any unauthorized use of which you become aware.
1.11. Your Data
"Your Data" means any data, content, code, software, video, images or other materials of any type that you upload, submit or otherwise transmit to or through Services. You will retain all right, title and interest in and to Your Data in the form provided to UltraStorm. Subject to the terms of this Agreement, you hereby grant to UltraStorm a non-exclusive, worldwide, royalty-free right to (a) collect, use, copy, store, transmit, modify and create derivative works of Your Data, in each case solely to the extent necessary to provide the applicable Service to you and (b) for Services that enable you to share Your Data or interact with other people, to distribute and publicly perform and display Your Data as you (or your Authorized Users) direct or enable through the Service. UltraStorm may also access your account or instance in order to respond to your support requests.
UltraStorm implements security procedures to help protect Your Data from security attacks. However, you understand that use of the Services necessarily involves transmission of Your Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of Your Data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of Your Data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third-party service providers.
1.13. Duplicate Accounts
You may not create duplicate accounts. If you would like to restart your account's trial period or get a trial extension, please contact our support. Upon detection of a duplicate account, we may suspend your access immediately without notice. We have no liability to you for removing or deleting Your Data or suspending your access to any Services as described in this section.
1.14. Responsibility for Your Data
You must ensure that your use of Services and all Your Data is at all times compliant with our Terms and all applicable local, state, federal and international laws and regulations ("Laws"). You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to provide all Your Data to UltraStorm and to grant the rights granted to UltraStorm in this Agreement and (ii) Your Data and its transfer to and use by UltraStorm as authorized by you under this Agreement do not violate any Laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. Other than its security obligations, UltraStorm assumes no responsibility or liability for Your Data, and you shall be solely responsible for Your Data and the consequences of using, disclosing, storing, or transmitting it.
1.14.2. Sensitive Data
You will not submit to the Services (or use the Services to collect): (i) any personally identifiable information, except as necessary for the establishment of your UltraStorm account; (ii) any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations; (iii) sensitive financial information such as credit card number or bank account information; or (iv) any other information subject to regulation or protection under specific laws such as the Gramm-Leach-Bliley Act (or related rules or regulations); ((i) through (iv), collectively, "Sensitive Data"). You also acknowledge that UltraStorm is not acting as your Business Associate or subcontractor (as such terms are defined and used in HIPAA) and that the Services are not HIPAA compliant. "HIPAA" means the Health Insurance Portability and Accountability Act, as amended and supplemented. Notwithstanding any other provision to the contrary, UltraStorm has no liability under this Agreement for Sensitive Data.
1.14.3. Indemnity for Your Data
You will defend, indemnify and hold harmless UltraStorm from and against any loss, cost, liability or damage, including attorneys’ fees, for which UltraStorm becomes liable arising from or relating to any claim relating to Your Data, including but not limited to any claim brought by a third party alleging that Your Data, or your use of the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonable necessary cooperation of UltraStorm at your expense.
1.14.4. Removals and Suspensions
UltraStorm has no obligation to monitor any content uploaded to the Services. Nonetheless, if we deem such action necessary based on your violation of this Agreement or in response to takedown requests that we receive following our guidelines for Reporting Copyright and Trademark Violations, we may (1) remove Your Data from the Services or (2) suspend your access to the Services. We will generally alert you when we take such action and give you a reasonable opportunity to cure your breach, but if we determine that your actions endanger the operation of the Service or other users, we may suspend your access immediately without notice. We have no liability to you for removing or deleting Your Data or suspending your access to any Services as described in this section.
1.14.5. Deletion at End of Subscription Term
We may remove or delete Your Data within a reasonable period of time after the termination of your Subscription Term. We cannot provide data recovery services after this occurs.
2. Intellectual Property
2.1 Ownership of UltraStorm IP
UltraStorm and its licensors exclusively own all rights, title, and interest in the patents, copyrights (including rights in derivative works), moral rights, rights of publicity, trademarks or service marks, logos and designs, trade secrets, and other intellectual property embodied by, or contained in the technology, API, Plugin, SDK, Services, Website, and Documentation (collectively, “UltraStorm IP”) or any copies thereof. UltraStorm IP is protected by copyright, trade secret, patent, and other intellectual property Laws, and all rights in UltraStorm IP not expressly granted to you in this Agreement are reserved.
You may choose to or we may invite you to submit comments or ideas about improvements to the Service, our Plugin, API, SDK, our platform, or any other component of our products or services (“Ideas”). If you submit an Idea to us, we will presume that your submission was voluntary, unsolicited by us, and delivered to us without any restrictions on our use of the Idea. You also agree that UltraStorm has no fiduciary or any other obligation to you in connection with any Idea you submit to us, and that we are free to use your Ideas without any attribution or compensation to you.
You are granted a nonexclusive and nontransferable license to electronically access and use the UltraStorm IP only in the manner described in this Agreement. UltraStorm does not sell to you, and you do not have the right to sublicense the UltraStorm IP. We may make updates to the UltraStorm IP or new Services available to you automatically as electronically published by UltraStorm, but we may require action on your part before you may use the UltraStorm IP or new Services (including activation through the Account portal, or acceptance of new or additional terms). UltraStorm may revoke or terminate this license at any time if you use UltraStorm IP in a manner prohibited by this Agreement.
You may not: (i) claim or register ownership of UltraStorm IP on your behalf or on behalf of others; (ii) sublicense any rights in UltraStorm IP granted by us; (iii) import or export any UltraStorm IP to a person or country in violation of any country’s export control Laws; (iv) use UltraStorm IP in a manner that violates this Agreement or Laws; or (v) attempt to do any of the foregoing.
2.3. UltraStorm Marks; References to Our Relationship
We may make certain UltraStorm logos or marks (“UltraStorm Marks”) available for use by you and other users to allow you to identify UltraStorm as a service provider. To use UltraStorm Marks, you must first agree to the UltraStorm Marks Usage Agreement. UltraStorm may limit or revoke your ability to use UltraStorm Marks at any time. You may never use any UltraStorm Marks or UltraStorm IP consisting of trademarks or service marks without our express permission, or in a manner that may lead people to confuse the origin of your products or services with ours.
During the term of this Agreement, you may publicly identify us as the provider of the Services to you and we may publicly identify you as a UltraStorm user. If you do not want us to identify you as a user, please contact us. Neither you nor we will imply any untrue sponsorship, endorsement, or affiliation between you and UltraStorm. Upon termination of your UltraStorm Account, both you and UltraStorm will remove any public references to our relationship from our respective websites.
You may use the Services to upload, store or publish text, data, images, and other content (collectively, “Content”) to your Immersive Lighting Account and to third-party sites or applications but only if you agree to obtain the appropriate permissions and, if required, licenses to upload or publish any such Content using the Services. You agree to fully reimburse UltraStorm for all fees, fines, losses, claims, and any other costs we may incur that arise from publishing illegal Content through the Services, or claims that Content you published infringes the intellectual property, privacy, or other proprietary rights of others.
If you are purchasing a paid subscription for the Services, you must provide UltraStorm with a valid credit card or other form of payment instrument approved by UltraStorm to pay for the subscription fee set out in the Subscription Plan. You agree that UltraStorm has permission to retain and/or share with financial institutions and payment processing firms your submitted payment information in order to process your purchase. You agree that UltraStorm may bill your credit card or other form of payment instrument approved by UltraStorm in advance and on a periodic basis in accordance with the Subscription Plan.
3.2. Account Charges and Cancellations
You may cancel, upgrade or downgrade your subscription at any time. Following an upgrade or downgrade of your subscription, you will be charged or issued a credit, as applicable, for the difference in fees between your old and new subscriptions prorated for the number of days remaining in the subscription period. Following the cancellation of your subscription, the service will remain active for number of days remaining in the subscription period.
3.3. Late Payment
If any amounts due under these Terms are not received by UltraStorm by the due date set out in the Subscription Plan, UltraStorm may: i) temporarily suspend your access to the Services until payment is received in full; or ii) cancel your subscription and suspend your access to the Services.
4.1. Support for the Services
6.1. Confidential Information
"Confidential Information" means any information or materials of UltraStorm that is reasonably considered in the circumstances to be confidential or proprietary, including, but not limited to, trade secrets, hardware, software (source code and object code), specifications, designs, plans, drawings, data, prototypes, discoveries, research, developments, processes, procedures, intellectual property, market research, marketing techniques and plans, business plans and strategies, pricing policies and price lists, and financial information or other business and/or technical information and materials, whether in oral, written, electronic, graphic or machine-readable form. You agree to keep strictly confidential the Confidential Information and to not use or disclose the Confidential Information for any purpose other than as required for your use of the Services.
7. Terms and Termination
These Terms shall commence on the date on which you first register for, access or use the Services and shall continue until your subscription is cancelled.
You may cancel your subscription in accordance with Section 3.2, above, and discontinue your use of the Services at any time. If you violate these Terms or any applicable rules, policies or guidelines established by UltraStorm in respect of the Services, or create any legal risk for UltraStorm through your use of the Services, UltraStorm reserves the right, in its sole discretion and without liability or prejudice to any other remedies that it may have, to immediately suspend your account or cancel your subscription.
7.3. Effects of Termination
Upon termination of these Terms for any reason: i) you shall immediately discontinue your use of the Services, ii) any rights and licenses granted to you under these Terms will terminate, and iii) you shall immediately pay to UltraStorm any amounts that are outstanding.
The following will survive termination of these Terms: Sections 2, 3.2, 3.3, 5, 6, 7.3. 7.4, 8, 9, 10, 11.1, 11.2, and 11.3.
8. Disclaimer of Warranties
YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THAT THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ULTRASTORM EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ULTRASTORM EXPRESSLY DISCLAIMS THAT: (I) THE SERVICES WILL MEET YOUR EXPECTATIONS OR SATISFY YOUR REQUIREMENTS; (II) THE SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE; (III) THE RESULTS OBTAINED FROM YOUR USE OF THE SERVICES WILL BE COMPLETE, ACCURATE, RELIABLE OR USEFUL; AND (IV) THAT ANY ERRORS OR DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SERVICES WILL BE CORRECTED. IN ADDITION, ULTRASTORM EXPRESSLY DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO: (I) ANY CONTENT MADE AVAILABLE THROUGH THE SERVICES, INCLUDING BUT NOT LIMITED TO, ANY SUBSCRIBER CONTENT; (II) ANY PRODUCTS OR SERVICES OFFERED OR PROVIDED BY THIRD PARTIES IN ASSOCIATION OR CONNECTION WITH THE SERVICES, INCLUDING ANY THIRD PARTY SERVICES; (III) ANY HACKING OR OTHER UNAUTHORIZED ACCESS TO OR USE OF THE SERVICES; AND (IV) ANY DAMAGE TO YOUR SOFTWARE, COMPUTER SYSTEM OR OTHER PROPERTY CAUSED BY VIRUSES OR OTHER MALICIOUS CODE AS A RESULT OF YOUR ACCESS OR USE OF THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT IF YOU ARE DISSATISFIED WITH OR HARMED BY THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY WILL BE TO DISCONTINUE USE OF THE SERVICES AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 7.
9. Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OUR AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER BY STATUTE, CONTRACT, TORT OR UNDER ANY OTHER FORM OF LIABILITY, EXCEED THE AMOUNT OF FEES PAID BY YOU FOR THE SERVICES HEREUNDER DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ULTRASTORM WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF ULTRASTORM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM OR RELATED TO: (I) THE USE OR THE INABILITY TO USE OR ACCESS THE SERVICES, INCLUDING ANY CONTENT, PRODUCTS, SERVICES, OFFERINGS, INFORMATION OR OTHER MATERIAL AVAILABLE THROUGH THE SERVICES; (II) ANY ERRORS OR OMISSIONS IN THE SERVICES OR ANY CONTENT; (III) THE SUSPENSION OR TERMINATION OF YOUR ABILITY TO ACCESS THE SERVICES; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SITE OR FAILURE OF OUR SYSTEMS; (V) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (VI) UNAUTHORIZED ACCESS TO OR ALTERATION OF OUR SYSTEMS OR YOUR TRANSMISSIONS, DATA AND/OR PERSONAL INFORMATION; (VII) STATEMENTS OR CONDUCT OF ANY THIRD PARTY USING THE SITE; (VIII) ANY BUGS, VIRUSES OR THE LIKE THAT ARE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY; OR (IX) ANY OTHER MATTER OR EVENT RELATING TO YOUR OR ANY OTHER PARTY’S USE OF THE SITE OR THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT IF YOU ARE DISSATISFIED WITH OR HARMED BY THE SERVICES, OR WITH ANYTHING RELATED TO THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY WILL BE TO DISCONTINUE USE OF THE SERVICES AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 7.
YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY GREATER IF ULTRASTORM WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN.
10. User Indemnity
You agree to defend, indemnify and hold us, our affiliates and licensors, and each of their respective officers, partners, directors, employees and agents, harmless from and against any and all claims, actions or demands, including without limitation reasonable legal and accounting fees, resulting from or related to: (i) your access to or use of the Services or any Subscriber Content; (ii) your violation of these Terms; or (iii) your violation of any third party right, including without limitation, any intellectual property, privacy or proprietary right, or obligation of confidentiality. You will use your best efforts to cooperate with UltraStorm in the defense of any claim. UltraStorm reserves the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
11.1. Governing Law
You agree that these Terms, and your use of the Services, are governed exclusively by the laws of the State of California, excluding its conflict of law provisions. You and UltraStorm agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Orange, California, to resolve any dispute or claim arising from this Agreement. If (a) you are not a U.S. citizen; (b) you do not reside in the U.S.; and (c) you are not accessing the Service from the U.S., you hereby agree that any dispute or claim arising from this Agreement shall be governed by the applicable law set forth below, without regard to any conflict of law provisions, and you hereby irrevocably submit to the non-exclusive jurisdiction of the courts located in the state, province or country identified below whose law governs.
11.2. Dispute Resolution
(a) Means of Resolution. You and UltraStorm agree that any disputes arising under these terms or otherwise in connection with your use of the Site will be resolved through arbitration under the Commercial Arbitration Act, R.S.B.C. 1996, c. 55, as amended from time to time. Arbitration will be held in the county of Orange, CA, United States, and conducted in the English language. Notwithstanding the foregoing, you agree that: (i) the courts in any relevant venue will have jurisdiction for the purposes of obtaining and enforcing injunctive or other equitable relief, and for the purposes of enforcing the decision of any arbitrator appointed in accordance with this provision, and (ii) UltraStorm may bypass arbitration in cases of fraud or other crimes against it, and in the case of interference with its technical operations or violations of its rights or property.
(b) Class Waiver. You acknowledge and agree that you and UltraStorm are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and UltraStorm otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this paragraph is held unenforceable, then the entirety of this Section 11.2 will be deemed void.
11.3. Jurisdiction and Venue
If Section 11.2 is deemed void or is otherwise inapplicable, all disputes under these Terms will be resolved by a court of competent jurisdiction located in California, United States, provided that the courts in any relevant venue will have jurisdiction for the purposes of obtaining and enforcing injunctive or other equitable relief.
11.4. Force Majeure
Neither party shall be liable for delay or failure in performance (other than the making of payments) resulting from any cause beyond the reasonable control of such party, including but not limited to, acts of God, acts of war, riot, fire, flood, or other disaster, acts of government, strike lockout, power failures, or the inability to use or the failure of any third party telecommunications carrier or other services, which events or conditions prevent in whole or in part the performance by such party of its obligations hereunder or which renders the performance of such obligations so difficult or costly as to make performance commercially unreasonable.
You may not assign any of your rights or obligations under these Terms without our prior written consent. UltraStorm may freely assign our rights and obligations under these Terms, either in part or in full, without notice to you.
UltraStorm may communicate with you about the Services or these Terms, including any changes to these Terms, by email or by posting notices on the Site. Unless expressly prohibited by law, you consent to receive communications relating to the Services or our business relationship from UltraStorm electronically, and agree that all notices, waivers, agreements, disclosures and other communications satisfy any legal requirements that such communications be in writing. You may provide legal notice to UltraStorm at email@example.com.
11.7. Nature of Relationship
Nothing in these Terms or from your use of the Services will create or be deemed to create any partnership, joint venture, agency, franchise or other business relationship between you and UltraStorm, even if your use of the Services is for a commercial purpose which has been authorized by us. You and UltraStorm will, at all times, be and remain independent contractors.
The provisions of these Terms are severable. If any individual provision is held to be invalid, unenforceable or contrary to applicable law, such provision shall be construed, limited, altered or deleted, as necessary, to eliminate the invalidity, unenforceability or conflict with applicable law while endeavoring to preserve the intention of these Terms, and all other provisions shall remain in full force and effect.
11.9. Entire Agreement
The failure by UltraStorm to exercise or enforce any right or remedy under these Terms will not constitute a waiver of such right or remedy.
The General Data Protection Regulation (GDPR) is a comprehensive set of regulations made by the European Union that dictates what companies like UltraStorm must do in order to properly protect our customers' data. These Terms act as a contract between UltraStorm and each customer, i.e. you.
12.1. Data Processing Addendum
The following GDPR Data Processing Addendum ("DPA") forms part of the Terms entered into by and between the Customer and UltraStorm. The purpose of this DPA is to reflect the parties' agreement with regard to the processing of personal data in accordance with the requirements of Data Protection Legislation as defined below. By using our Services, you agree to be bound to the full Terms, including the DPA.
In the course of providing the Services to the Customer in accordance with the Agreement, UltraStorm may process personal data on behalf of the Customer. UltraStorm agrees to comply with the following provisions with respect to any personal data submitted by or for the Customer to the Services or collected and processed by or for the Customer through the Services.
This DPA shall not replace or supersede any agreement or addendum relating to processing of personal data negotiated by Customer and referenced in the Agreement, and any such individually negotiated agreement or addendum shall apply instead of this DPA.
In compliance with the Privacy Shield Principles, UltraStorm commits to resolve complaints about our collection or use of your personal information. EU individuals with inquiries or complaints regarding our Privacy Shield policy should first contact UltraStorm at firstname.lastname@example.org.
In this DPA, "Data Protection Legislation" means the European Directives 95/46/EC and 2002/58/EC (as amended by Directive 2009/136/EC) and any legislation and/or regulation implementing or made in accordance with them, or which amends, replaces, re-enacts or consolidates any of them (including the General Data Protection Regulation [Regulation EU 2016/279]), and all other applicable laws relating to processing of personal data and privacy that may exist in any relevant jurisdiction.
In order to prevent accidental loss of data, by default we retain a backup of data for up to 30 days after an account is closed. This backup is deleted after the account has been closed long enough to be sure you won’t need to recover any of the data.
You may request at any time that we delete all of the data in your UltraStorm account. Upon request, we may ask you for additional information for the purpose of verifying your identity to ensure that you have permission to enact the request.
Please note that after the data has been deleted, it cannot be recovered.
UltraStorm will act as a Data Controller to you by allowing you to retrieve any information that you store in our Services. This processing will continue from the time you create an account with us until you close the account. In order to prevent accidental loss of data, by default we retain a backup of data for up to 30 days after an account is closed. This backup is deleted after the account has been closed long enough to be sure you won’t need to recover any of the data.
You may request at any time that we delete all of the data in your UltraStorm account. Upon request, we may ask you for additional information for the purpose of verifying your identity to ensure that you have permission to enact the request.
Please note that after the data has been deleted, it cannot be recovered.
UltraStorm shall process information to provide the Services in accordance with the Agreement. UltraStorm shall process information sent by the Customer and by the Customer's end users (the "Data Subjects"), identified through the Customer's implementation of the Services.
If a member of UltraStorm must access any information about your Data Subjects while performing their duties as a Data Processor, they are obligated to a duty of confidence.
We must assist you in meeting your GDPR obligations in relation to the security of processing, the notification of personal data breaches, and data protection impact assessments.
We must submit to audits and inspections, provide the controller with whatever information it needs to ensure that they are both meeting their Article 28 obligations, and tell the controller immediately if it is asked to do something infringing the GDPR or other data protection law of the EU or a member state.
If you wish to contact UltraStorm with any questions, comments or concerns regarding these Terms, please contact email@example.com. For contact concerning the Services, please contact firstname.lastname@example.org.