Terms of Service
PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING OR OBTAINING ANY DATA, MATERIALS, INFORMATION, PRODUCTS OR SERVICES THROUGH THE SERVICES.
These Terms of Service (“Terms”) govern your use of the Services, which are owned or operated by Unacast, Inc., a Delaware corporation operating under the name Unacast and its affiliated entities (“Unacast”, “we”, “our” or “us”). The “Services” means (i) the website located at https://app.unacast.com (the “Site”), (ii) any data (“Unacast Data”), services, features and content downloadable or accessible from the Site (for example, and without limitation, when you log in to your Account via the Site), and (iii) any other Unacast application, software, product, or service licensed, downloaded or otherwise accessed by you, whether through Unacast or third party websites or sources.
These Terms may apply to you individually, the business or other legal entity user you represent, or both. If you are entering into these Terms, or using the Services, on behalf of a company or other legal entity, you hereby represent and warrant that you have the authority to enter into these Terms on behalf of such entity. By ordering, accessing, registering for or using the Services, you: (1) acknowledge that you have read and understand these Terms; (2) agree to be bound by them in their entirety, and (3) are entering into a legally binding agreement with us. As used in these Terms and unless separately identified as applicable to either an individual or entity, “you” and “your” refer to both you individually and the entity on behalf of which you are entering into these Terms. In the event you have entered into a separate written agreement with Unacast regarding the Services that contemplates terms that are inconsistent with these Terms, the written agreement shall control and these Terms will not apply to you to the extent inconsistent with such written agreement, or, if such written agreement is contemplated to be in lieu of these Terms, then these Terms shall not apply at all.
IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THE SERVICES. YOUR USE OF OUR SERVICES REQUIRES YOUR ACCEPTANCE OF THESE TERMS AS THEY MAY BE AMENDED FROM TIME TO TIME, INCLUDING THE POLICIES INCORPORATED BY REFERENCE HEREIN.
1.1 The Services are not designed for use by or in connection with anyone under the age of 18, and you accept all responsibility that may arise from your use of the Services in connection with any minors. Any use of or access to the Services by anyone under 18 is only permitted with the express written permission of such individual’s legal guardian, and, if necessary, you represent and warrant that you have received such permission. Any use or access to the Services by anyone under 13 is strictly prohibited and in violation of these Terms.
Subject to these Terms, Unacast hereby grants to you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to access and use the Services. This license may be revoked by Unacast at any time for any reason, with or without notice.
III. RESTRICTIONS AND RESPONSIBILITIES
3.1 You will not, directly or indirectly, or allow any third party to (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services; (b) re-identify any anonymized or statistical data provided by Unacast, (c) modify, translate, or create derivative works based on the Services, (d) use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party, (e) remove any proprietary notices or labels, (e) circumvent any security control or access mechanism of the Services, or (f) use the Services in connection with any products, services, or activities that compete with Unacast. You may display to third parties Unacast Data; provided, however, that you must include an attribution to Unacast and comply with other terms and conditions, if any, that Unacast may specify.
3.2 You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). To use some of the Services, you may be required to create an account with Unacast (an “Account”). Any information submitted as part of the Account creation process must be accurate and complete. You shall be responsible for maintaining the security of the Equipment, Account (including but not limited to administrative and user passwords), passwords and files, and for all uses of your Equipment or Account with or without your knowledge or consent.
3.3 You may access and use Unacast Data, subject to the following provisions of this paragraph only:
A. You shall not attempt to re-identify any Unacast Data that has been deidentified or obfuscated by Unacast.
B. You shall not attempt to build a user profile for a given individual or device based on the Unacast Data and may not attempt, facilitate, or encourage others to identify a given individual or user or reconstruct user profiles based on the Unacast Data.
IV. ACCEPTABLE USE
You agree to comply with all applicable laws and regulations in connection with your use of Unacast Data and the Services. You may not use the Unacast Data and/or our Services for any illegal purposes, including without limitation any uses that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law or regulation. In particular, the following is a representative, non-exhaustive list of acts that are prohibited:
- Acts that may materially and adversely affect the quality of other users’ experience;
- Actual or attempted unauthorized use or sabotage of any computers, machines or networks;
- Introducing malicious programs into the Services, network or servers (e.g. viruses, worms, Trojan horses, etc.);
- Engaging in any monitoring or interception of data not intended for you without authorization;
- Attempting to circumvent authentication or security of any host, network, or account without authorization;
- Reverse engineering, decompiling, disassembling, deciphering or otherwise attempting to derive the source code for any underlying intellectual property used to provide the Services, or any part thereof;
- Adapting, modifying or creating derivative works based on the Services, technology underlying the Services, or other users’ content, in whole or part;
- Duplicating, licensing, sublicensing, publishing, broadcasting, transmitting, distributing, performing, displaying, selling, rebranding, or otherwise transferring information found on the Services except as permitted in these Terms, or as expressly authorized by Unacast in writing;
- Using any method, software or program designed to collect identity information, authentication credentials, or other information;
- Falsifying user identification information;
- Using the Services and/or Unacast Data for anything other than lawful purposes including, but not limited to, intentionally or unintentionally violating any applicable local, state, national or international law; or
- Impersonating any person or entity, including, but not limited to, a Unacast representative, or falsely stating or otherwise misrepresenting your affiliation with a person or entity.
Moreover, you acknowledge and agree that you may not use the Unacast Data and/or the Services:
- To promote any illegal product, or engage in any illegal activity;
- To associate any natural person or device with any venue that is related to healthcare, addiction, pregnancy or pregnancy termination, gender-affirming care, or sexual orientation, or to otherwise infer an interest or characteristic related to any of the foregoing;
- For the purposes of making decisions about an individual’s eligibility for employment, health care, credit or insurance, or for any other purpose that is covered by the Fair Credit Reporting Act;
- For purposes of targeting any natural person or device for purposes of directly identifying the natural person or tracking the geolocation of a natural person across time and/or space; or
- To market or sell to law enforcement agencies or to any governmental agency to be used for a law enforcement purpose.
Subject to your reasonable security and confidentiality procedures, we, or any third party retained by us, may at any time upon prior reasonable written (including, not by way of limitation, e-mail) notice to you, during normal business hours, at our cost, audit your compliance with this Section 8. Our right to audit under this Section 4 shall survive the expiration or termination of these Terms for a period of one (1) year after the date of such expiration or termination.
V. PROPRIETARY RIGHTS
5.1 Unacast shall own and retain all right, title and interest in and to (a) the Services, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services, including, without limitation, support for the Services, and (c) all intellectual property rights related to any of the foregoing. No licenses are granted by estoppel or by implication.
5.2 . Feedback. You may from time to time identify problems, solutions to identified problems, provide suggestions, comments or other feedback related to our Services or otherwise relating to Unacast (“Feedback”) to Unacast. You acknowledge and agree that all Feedback is and shall be given entirely voluntarily and Unacast shall be free to use or disclose such Feedback for any purpose. You further acknowledge and agree that your Feedback does not contain confidential or proprietary information and you are not entitled to any compensation or reimbursement of any kind from Unacast under any circumstances relating to such Feedback.
5.3 In the course of using the Services, you may upload data (e.g., your customer data) to the Services. Such uploaded data is referred to herein as “Customer Data”. You and your licensors own all rights to Customer Data. You hereby grant Unacast a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicensable and transferable right to anonymize and aggregate Customer Data (“Anonymized Customer Data”) in connection with the Services and use such Anonymized Customer Data for purposes of developing and improving the Services. For clarity, the foregoing license grant to Unacast and users of the Services does not affect your ownership of your Customer Data. Unacast reserves the right to remove any Customer Data and/or Anonymized Customer Data from the Services at any time for any reason. You, not Unacast, remain solely responsible for all Customer Data that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Services, and you warrant that you possess all rights necessary to provide such Customer Data to Unacast and to grant the rights to use such Customer Data as provided herein.
VI. TERM AND TERMINATION
6.1 The Terms will remain effective until terminated.
6.2 You may terminate your use of the Services at any time for any reason. Unacast may terminate the Terms and your access to the Services (or, at Unacast’s discretion, applicable portions of the Services) at any time for any reason.
6.3 In addition, Unacast may take any actions it deems appropriate (including without limitation suspending or terminating your Account and your access to the Services), without notice to you, if Unacast suspects or determines that you may have (i) failed to comply with any provision of the Termst, or (ii) engaged in actions relating to or in the course of using the Services that may be illegal or cause liability, harm, abuse or disruption for you, Unacast, the Services, or any third parties. You may, as a result of termination, lose your Account and all information and data associated therewith.
6.4 The following will survive any termination of the Terms and any order forms related to the Terms: Sections 3, 4, 5, and 6 through 11 of these Terms.
VII. WARRANTY DISCLAIMER
7.1 YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES AND UNACAST DATA ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, UNACAST MAKES NO WARRANTY THAT THE SERVICES OR UNACAST DATA WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, OR FREE OF VIRUSES OR OTHER HARMFUL CODE. FURTHER, UNACAST MAKES NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.
7.2 Unacast is not a backup service, and you are solely responsible for creating any backups of data. Unacast is not responsible for decisions made based on the Services.
You agree to indemnify, defend and hold Unacast and its affiliates or subsidiaries, or any of their directors, employees, agents, licensees or licensors (collectively, the “Unacast Parties”) harmless from and against any and all claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys’ fees and court costs) arising out of or relating in any way to (1) your (or anyone accessing the Services using your Account) use of the Services, (2) information in your Account and any information you (or anyone accessing the Services using your Account) submit, post or transmit through the Services including, not by way of limitation, Customer Data, (3) your (or anyone accessing the Services using your Account) violation of the Terms, and (4) your (or anyone accessing the Services using your Account) violation of any rights of any other person or entity. Unacast reserves the right, at your expense, to assume the exclusive defense and control of any indemnifiable matter and you agree to cooperate with Unacast to defend these claims.
IX. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES WILL UNACAST, ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS OR OTHER THIRD PARTY PARTNERS (“UNACAST PARTIES”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICES OR UNACAST DATA, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY; INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR BUSINESS INTERRUPTION, WHETHER DIRECT OR INDIRECT, ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICES OR UNACAST DATA, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY. YOUR SOLE AND EXCLUSIVE REMEDY UNDER THESE TERMS SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SERVICES.
A UNACAST PARTY’S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID UNACAST FOR YOUR USE OF THE SERVICES IN THE PRIOR THREE (3) MONTHS; AND (B) THE SUM OF ONE HUNDRED (100) US DOLLARS.
SOME STATES OR JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY. IN SUCH STATES OR JURISDICTIONS, THE UNACAST PARTIES’ LIABILITY TO YOU SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY UNACAST 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 THESE TERMS. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THESE TERMS
X. EXPORT CONTROL
You may not remove or export from the United States or allow the export or re-export of the Services and/or Unacast Data, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
11.1 Unacast reserves the right, at its discretion, to change, modify, add or remove portions of the Terms at any time by posting the amended terms on the Site. Except as otherwise expressly stated, all amended terms shall automatically be effective immediately when posted, and you will be deemed to have accepted such changes by continuing to use the Services. If at any point you do not agree to any portion of the then-current version of the Terms, or any other policy or rules relating to your use of the Services, you must immediately stop using the Services, and your license to use the Services shall immediately terminate.
11.2 Except as may be expressly specified in an order form for paid Services signed by both you and Unacast, Unacast reserves the right to add, change, suspend or discontinue the Services, or any aspect or feature of the Services, without notice or liability.
11.3 The Terms are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of the Terms
11.4 The failure of either party to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision, and no waiver by either party of any breach or default by the other party shall be deemed to be a waiver of any preceding or subsequent breach or default.
11.5 If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Terms will otherwise remain in full force and effect and enforceable.
11.6 The Terms are not assignable, transferable or sublicensable by you except with Unacast’s prior written consent. Unacast may transfer and assign any of its rights and obligations under the Terms without consent.
11.7 No agency, partnership, joint venture, or employment is created as a result of the Terms, and you do not have any authority of any kind to bind Unacast in any respect whatsoever.
11.8 You hereby grant Unacast a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, sublicensable and transferable right to use your user name, company name, company logo, and any comments you make publicly or privately for Unacast’s promotional purposes (such as on our Site, on third-party websites, and in marketing presentations, etc.).
11.9 The Agreement shall be governed by the laws of the State of New York without regard to conflict of laws provisions thereof. Any dispute, controversy or claim arising out of or in connection with these Terms, or the breach, termination or invalidity thereof, shall be settled by arbitration administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The seat of arbitration shall be New York County, New York, United States. The number of arbitrators shall be one (1). The language to be used in the arbitral proceedings shall be English. Nothing contained in these Terms shall deny either Party the right to seek injunctive or other equitable relief from a court of competent jurisdiction in the context of a bona fide emergency or prospective irreparable harm and such an action may be filed and maintained notwithstanding any ongoing arbitration proceeding.
THE PARTIES TO THESE TERMS KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE (TO THE EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHT THAT EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THESE TERMS.
Subject to any applicable law to the contrary, you agree that any cause of action arising out of or related to the use of our Services and/or Unacast Data must be commenced within one (1) year after the cause of action accrues, or such action will be permanently barred.
All rights and remedies available to Unacast, pursuant to these Terms or otherwise, at law or in equity, are cumulative and not exclusive of any other rights or remedies that may be available to Unacast. In no event shall you seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the Services, or any other materials issued in connection therewith, or exploitation of the Services or any content or other material used or displayed through the Services. Except as otherwise expressly set forth herein, there shall exist no right of any person, other than you and Unacast, to claim a beneficial interest in these Terms or any rights occurring by virtue of these Terms.