UserWise, Inc
TERMS OF USE
These Terms of Service (the “Terms”)govern how you (“Customer”, “you”) may access and use the website(located at UserWise.io) (the “Site”), UserWise Software-as-a-service products,and other services (collectively, the “Services”) offered by UserWise, Inc.(“UserWise”, “we”, “us” or “our”). Along with theseTerms, our
Privacy Policy and Data Processing Addendum (“DPA”) are hereby incorporated andmade part of these Terms.
By registering or using our Site or Servicesyou agree to be bound by the Terms. IF YOU DO NOT AGREE TO BE BOUND BY THETERMS, YOU ARE EXPRESSELY PROHIBITED FROM USING THE SITE AND SERVICES AND MUSTDISCONTINUE USAGE IMMEDIATELY.
These Terms do not alter any other contract you may have with us. Those contracts will continue in full force and effect inaccordance with their terms.
The Site is for your personal, non-commercial and lawful use only. Other than as expressly permitted in the next paragraph, you may not copy, reproduce, distribute, transmit, display, perform, publish, license, modify, translate, reverse engineer, adapt, create derivative works from, transfer, sell, or otherwise exploit the Site, or any content, information, software, products or services obtained from the Site, for any commercial or non-commercial purpose or enterprise. You may not use the Site, or any content within the Site, for any purpose that is unlawful or prohibited by these Terms, or to solicit the performance of an illegal activity or other activity which violates these Terms or otherwise infringes our rights or the rights of other individuals or entities. Subject to your compliance with these Terms, you may access the Site, display and use the content of the Site, and, subject to any expressly stated restrictions or limitation relating to specific material on the Site, electronically copy or download onto your device or other technology used to access the Site, portions of the content from the Site, strictly for your personal, non-commercial, lawful use. Subject to your compliance with these Terms, we grant you a personal, limited, non-exclusive, nontransferable license to access and use the content made available in or otherwise accessible through the Site. If you make any other use of the Site, except as otherwise provided above, you may violate copyright and other laws of the United States, and other countries, as well as applicable state laws and may be subject to liability for such unauthorizeduse. We may terminate this license at any time for any reason or without reason.
You may not (a) decompile, disassemble, or reverse engineer theSite or Services or any portion there of; (b) attempt to gain unauthorize daccess to the Site or any Services, any portion thereof, including content accessible via the Site or Services, or any other system or platform through we provide; (c) use any automatic device, program, algorithm, or methodology, or engage in harvesting of email addresses or other personal information, unsolicited emailing, phone calls or mailings, spoofing, flooding, overloading, spidering, screen scraping, database scraping, or any similar or equivalent manual process to access, acquire, copy or monitor any portion of the Site orServices; or (d) reverse look up, trace or seek to trace any information on any other user of or visitor to the Site and Services to its source.
You agree that you will not use any of the Services in any manner that could damage, disable, overburden or impair the Site or interfere with any other party’s use and enjoyment of the Site or Services. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Services. You will not use the Site to violate any applicable law, rule or regulation and you will not encourage or enable others to violate these Terms, any applicable law, rule or regulation.
UserWise provides software services to Customers for purposes of creating, planning, targeting, and delivering information to users of Customer’s application(“Users”) including, but not limited to, user notifications including in-game messages and push notifications (“Messages”), offers and content for purchase(“Offers”), feedback requests including surveys and polls, controlling or changing application information and settings (“Variables”), and collecting user and game data to display in UserWise’s dashboard. UserWise shall perform theServices in a prompt manner and have a real-time API and dashboard provisioned and available such that the API software is provided as a service (“SAAS”).
You are responsible for connecting our Service correctly into your application and pass user information into the Services product. Any user segment data, game content, or survey responses that are either partially or entirely incorrect, inaccurate, not set up to the ideal requirements or specifications intended, or errors in setup that may impact the effectiveness of content served to users in a different manner than intended by you are not the responsibility of UserWise and you accept sole responsibility of the product setup to your required specifications. WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY ARISING FROM ANY RELIANCE PLACED ON ANY SERVICE FEATURE. WE ARE NOT RESPONSIBLE, OR LIABLE TOYOU OR ANY THIRD PARTY, FOR THE CONTENT OR ACCURACY OF ANY MATERIALS PROVIDED BY YOU OR ANY THIRD PARTIES.
To access and use UserWise Services, Customer must complete the registration process on the Site using complete, accurate and valid information. Customer will be responsible for maintaining the security ofCustomer’s account including account passwords, files, and all uses ofCustomer’s account including with or without Customer’s knowledge or consent.
From time to time, UserWise may make an application, feature, function or other technology that has not been made generally available to its customers, and has been designated as pilot, beta, limited release, developer preview, or by description of similar import (“Beta Feature”) available to Customers at no charge. Customers may choose to try such Beta Feature in its sole discretion via email confirmation or confirmation in the applicableServices. Beta Features may contain bugs or errors and UserWise make no representations or warranties regarding the Beta Features. Any participation in or use of Beta Features or related Content is at Customer’s sole risk. Customer acknowledges that UserWise may discontinue Beta Features at any time in its sole discretion without notice.
Customer will be charged for activity within the Services, based on the number of Monthly Active Users (“MAU")measured by the count of unique sessions recorded by UserWise during the previous month. Customer will pay all fees within thirty (30) days of receipt of an invoice from UserWise. Pricing is as follows:
A limited-time trial period (“Trial Period”) shall be available for Customers for the first thirty (30) days of Service, provided theTrial Period may be extended by UserWise for additional thirty (30) day periods in its sole discretion. All fees due within the Trial Period are waived andUserWise is providing the service free of charge, on an as-is basis, during theTrial Period. UserWise has the right to terminate the Trial Period at its sole discretion for any reason without prior notice. UserWise shall make a good faith effort to provide Customer prompt written notice if UserWise decides not to extend the Trial Period or to terminate the Trial Period.
Our Site and Services may be used by you in connection with a TheoremReach product. In those cases, your use of our Site and Services are subject to these Terms and your use of theTheoremReach product(s) are governed by any and all applicable terms provided by TheoremReach.
Part of our Site includes a community for game developers to communicate and consume content posted to the Site. UserWise reserves the right to remove any posted comments or content that violates these terms, including, but not limited to, any copyrighted, unauthorized, unlawful, offensive content, any comments or content that may be deemed as harassment or abuse, or any comments or content that detract or do not add value to the goal of the Academy. UserWise may remove any comments or content at our sole discretion and without notice.
The Site, products and Services of UserWise and the information contained therein contain copyrighted materials, trademarks, proprietary data, research and other information belonging to UserWise or used with permission of UserWise’s licensors.The Services and all content and materials on the Site, including, without limitation, all graphics, interfaces, features, functions, text, button icons, data compilations, software, code and materials thereon, the “look and feel”,selection and arrangement, design and organization of the Site and Services, trademarks and logos, audio and video clips, are owned by, or licensed to, us.We and our licensors and service providers reserve and retain the entire right, title, and interest in and to the Site, including, without limitation, all copyrights, trademarks, and other intellectual property rights therein or relating thereto You acknowledge and agree that the Site is provided under limited license and access rights. You do not acquire any ownership interest in the Site and Services under these Terms, or any other rights thereto other than to use the Site and Services in accordance with the limited license and rights granted in these Terms.
No copying, redistribution, retransmission, publication or commercial exploitation of any material available on or through the Site is permitted without the express prior written permission of UserWise or the copyright owner, as the case may be, or except as may be expressly authorized by applicable copyright laws. You shall not (a) remove, delete, alter, or obscure any trademarks or any notices of copyright, trademark, patent or other intellectual property or proprietary rights from the Site, including any copy thereof; or (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Site, or any features or functionality of the Site, to any third party for any reason, including, without limitation, by making the Site available on a network where it is capable of being accessed by more than one device at a time.
The information presented, statements, and UserWise materials posted on or through the Site or Services, including event listings, statements regarding maximized retention and improved Return on Investment (“ROI”), as well as free trials are not meant to be relied upon. UserWise cannot, and does not, guarantee that you will increase your customer base, and increase yourROI. Use of this information is at your own risk. We do not warrant the accuracy, completeness or usefulness of this information. WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY ARISING FROM ANY RELIANCE PLACED ON SUCH INFORMATION BY YOU OR ANY OTHER SITE VISITOR OR SERVICE USER.
The Site may include content provided by third parties, including materials provided by other users and users of our products and services. Any statements or opinions expressed in these materials, and all articles and comments and responses to such articles and other content, other than content provided by us, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect our opinion. WE ARE NOT RESPONSIBLE, OR LIABLE TO YOU OR ANY THIRD PARTY, FOR THE CONTENT OR ACCURACY OF ANY MATERIALS PROVIDED BY THIRD PARTIES.
You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advance of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part. The Site may provide certain social media features that enable you to link from your own or certain third-party websites to certain content on the Site or cause limited portions of content on the Site to be displayed or appear on your own or certain third-party websites. You may use these features solely as provided by us and solely with respect to the content they are displayed with. We may disable any or all social media features and any links at any time without notice in our discretion.
If the Site contains links to other sites or resources provided by third parties, these links are provided for your convenience only. AS WITH OUR SERVICE FEATURES, WEHAVE NO CONTROL OVER THE CONTENTS OF THESE SITES, OR RESOURCES, AND ACCEPT NO RESPONSIBILITY FOR THEM OR FOR ANY LOSS OR DAMAGE THAT MAY ARISE FROM YOUR USE OF THEM. If you access any of the third-party websites linked to the Site, you do so at your own rights and subject to the terms and conditions of use for such websites.
The Site may contain interactive features that allow users to post, submit, display, or transmit content or materials (collectively, “UserContributions”) on or through the Site. Unless specifically otherwise stated, you agree that by submitting User Contributions to us (a) such UserContributions shall be deemed to be non-confidential, and (b) you grant to us, our affiliates, successors, representatives and agents a perpetual, royalty-free, fully paid-up, irrevocable, transferable, worldwide right and license to use, transmit, copy, reproduce, publicly display or perform, create derivative works of, or otherwise use such User Contributions, without compensation, acknowledgement or notice to you. You also represent and warrant to us that you have all the necessary permissions and rights to provide suchUser Contributions to us. You understand and agree that you are responsible for any User Contributions you submit or contribute, and you, not us, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness. We are not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other user of the Site.
We have the right to:
We may from time to time, in our sole discretion, develop and provide Site updates, which may include error corrections or new features. We may add or remove features or requirements and we may suspend or stop a feature altogether. You agree that we have no obligation to provide any updates or to continue to provide or enable any particular features or functionality. You acknowledge that the Site may, from time-to-time, be unavailable due to events like scheduled and unscheduled maintenance, system upgrades, internet outages, and other reasons, some of which are beyond our control. We cannot, and do not, guarantee any specific minimum availability of the Site.
Customer shall have the right to terminate use of the Service and any related work in process with thirty (30) days prior written notice to UserWise at [email protected].In the event of termination prior to completion of Services, the Customer shall pay UserWise the fees due under Section 3.3 with respect to Services completed as of the date of termination. Upon payment of all funds due to UserWise, allCustomer provided materials and Customer data will be returned to Customer and all Customer use rights in the work in process as described in Section 13.Ownership of Data and SAAS will be transferred to Customer. We may terminate or suspend your access to the Site or Services immediately, without prior notice or liability, in our sole discretion, for any reason whatsoever, including, without limitation, a breach of these Terms or ourPrivacy Policy. All provisions of these Terms which by their nature should survive termination shall survive, including, without limitation, IP ownership, warranty disclaimers, indemnity and limitations of liability.
“Intellectual Property Rights” means any and all (a) rights associated with works of authorship, including but not limited to copyrights, (b) trademark and trade name rights and similar rights,(c) trade secret rights, (d) patents and (e) all other intellectual property rights in any jurisdiction throughout the world. Certain technology integrations and data shall be provided by Customer in order for UserWise to provide its Services. The Intellectual Property of any data provided by the Customer shall belong to the Customer. Such data shall be used in conjunction with other data from clients in order for UserWise to perform the Services. Customer shall retain ownership of all data provided to UserWise, while simultaneously granting to UserWise a perpetual, nontransferable, nonexclusive, worldwide license to use the data Customer provides through the implementation of theSAAS solely to perform the Services. TheIntellectual Property of any results, analysis, or other information derived from the use of Customer data and provided to a Customer by UserWise shall belong to UserWise. No data collected from or for the Customer shall be used by UserWise for marketing, retargeting, resale, or for directly communicating with any respondent subjects.
UserWise will maintain industry standard administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer data. These safeguards will include measures intended to prevent unauthorized access to or disclosure of Customer data. UserWise’sData Processing Addendum shall apply to the extent Customer data includesPersonal Data, as defined in the DPA.
UserWise represents that any materials used in the SAAS will not knowingly (a) infringe on the United States intellectual property rights of any third party or any rights of publicity or privacy or (b) violate any applicable law, statute, ordinance or regulation.
Customer represents that any materials provided to UserWise by Customer for incorporation into the SAAS will not (a) infringe on the intellectual property rights of any third party or any rights of publicity or privacy or (b) violate any law, statute, ordinance or regulation.
Your use of the Siteis at your sole risk. THE SITE AND SERVICES, INCLUDING, WITHOUT LIMITATION, ANY MATERIALS, INFORMATION, CONTENT, FUNCTIONS, PRODUCTS, TEXT, GRAPHICS AND LINKS THEREON, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
EXCEPT FOR THE REPRESENTATION SET FORTH IN SECTION 15.1 ABOVE, THE SERVICES ARE PROVIDED WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT,NON-INTERFERENCE, DATA ACCURACY, SYSTEM INTEGRATION,AND WARRANTIES ARISING FROM TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE. USERWISE DOES NOT REPRESENT OR WARRANT THAT THE OPERATION OF THE SERVICES WILL BE SECURE OR THAT USERWISE AND ITS THIRD PARTY VENDORS WILL BE ABLE TO PREVENT THIRD PARTIES FROM ACCESSING CUSTOMER DATA OR CUSTOMER’S CONFIDENTIAL INFORMATION, ORANY ERRORS WILL BE CORRECTED OR ANY STORED CUSTOMER DATA WILL BE ACCURATE OR RELIABLE.
WE DO NOT WARRANT THAT (A) THE SITE WILL FUNCTION UNINTERRUPTED, SECURELY OR BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) ANY ERRORS OR DEFECTS WILL BE CORRECTED; (C) THE SITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (D)THE RESULTS OF USING THE SITE WILL MEET YOUR REQUIREMENTS. WE DO NOT MAKE ANY WARRANTIES OR REPRESENTATIONS REGARDING THE USE OF CONTENT ON THE SITE OR WITH RESPECT TO ITS COMPLETENESS, ACCURACY, TRUTHFULNESS, AVAILABILITY, ADEQUACY, USEFULNESS,TIMELINESS, SECURITY, RELIABILITY OR OTHERWISE.
IF YOU ARE DISSATISFIED WITH THE SITE OR THE SERVICES, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SITE AND SERVICES. YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE SITE OR DELETION OF YOUR ACCOUNT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
INDEMNIFICATION. YOU WILL INDEMNIFY, DEFEND, AND HOLD HARMLESS USERWISE, THEOREMREACH INC, OUR AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS,EMPLOYEES, AGENTS, SUCCESSORS, AND ASSIGNS, AS WELL AS OTHER USERS OF THE SITE,FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, LIABILITIES, DEFICIENCIES,CLAIMS, ACTIONS, JUDGMENTS, SETTLEMENTS, INTEREST, AWARDS, PENALTIES, FINES,COSTS, OR EXPENSES OF WHATEVER KIND, INCLUDING, WITHOUT LIMITATION, ALL REASONABLE ATTORNEYS’ FEES, ARISING FROM OR RELATING TO (A) USE AND ACCESS OFTHE SITE AND/OR SERVICES, BY YOU OR ANY PERSON USING OUR SERVICES IN YOUR NAMEOR ON YOUR BEHALF; (B) BREACH OF THESE TERMS BY YOU OR ANY PERSON USING OUR SERVICES IN YOUR NAME OR ON YOUR BEHALF; (C) VIOLATION OF ANY APPLICABLE LAW ORANY THIRD-PARTY RIGHT BY YOU OR ANY PERSON USING OUR SERVICES IN YOUR NAME ORON YOUR BEHALF; AND (D) ANY ACTIVITY OTHERWISE RELATED TO USE OF THE SITE(INCLUDING NEGLIGENT OR WRONGFUL CONDUCT) BY YOU OR ANY PERSON USING OUR SERVICES IN YOUR NAME OR ON YOUR BEHALF.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE OR OUR AFFILIATES HAVE ANY LIABILITY ARISING FROM OR RELATED TO THESE TERMS OR YOUR USE OF OR INABILITY TO USE THE SERVICES FOR: (A) PERSONAL INJURY, DEATH,PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OFDATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION,OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES; OR (B) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED TWO HUNDRED AND FIFTY DOLLARS ($250.00).
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR USERWISE WAS ADVISED OFTHE POSSIBILITY OF SUCH DAMAGES.
YOU AGREE THAT ANY CLAIM OR CAUSE OF ACTION RELATED TO THE SERVICES AND/OR THESE TERMS MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
Each party shall perform all of its obligations under thisAgreement in compliance at all times with all applicable foreign, federal, state and local statutes, orders and regulations, including those relating to privacy and data protection.
You may not assign, delegate or transfer this Agreement or any rights or licenses granted hereunder without the prior written consent of UserWise and any attempt to do so will be void. Any notice or consent under thisAgreement will be in writing to the address specified below. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect.
Governing Law and Venue
These Terms shall be governed by and construed in accordance with the laws of the State of Wisconsin, without giving effect to principles of conflicts of law.Any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Madison, Wisconsin, before one arbitrator. The arbitration shall be administered by JAMS pursuant to itsComprehensive Arbitration Rules and Procedures and in accordance with theExpedited Procedures in those Rules or pursuant to JAMS’ StreamlinedArbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a federal or state court in DaneCounty, Wisconsin, to whose venue and jurisdiction each party irrevocably submits.
Notwithstanding the forgoing, any dispute arising hereunder will be negotiated in good faith between the parties within forty-five (45) days commencing upon written notice from one party to the other and neither party will file an action to arbitrate or litigate prior to the termination of such forty-five(45) day period.
UserWise reserves all remedies available at law or equity for any disputes that arise under this Agreement. In the event of a suit or proceeding under this Agreement, Customer agrees to pay all attorneys’ fees if the federal or state court renders judgment substantially in UserWise’s favor.
TheseTerms, together with our Privacy Policy, each as may be amended from time to time, constitute the entire agreement between you and us regarding the Site andServices. Neither the course of conduct between us nor trade practice shall act to modify these Terms. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power under these Terms will act asa waiver thereof, nor will a single or partial exercise of any right or power under these Terms preclude further exercise of that or any other right under these Terms. Any waivers or amendments shall be effective only if made in writing signed by a representative of the respective parties.
The communications between you and us use electronic means, whether through theSite or via email. For contractual purposes, you (a) consent to receive communications from us in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were in a writing.
We reserve the right, at our sole discretion, to modify or replace these Terms at any time without prior notice. Any changes to these Terms will become effective upon posting of revised terms.
If you believe your copyright, other intellectual property or privacy right has been violated by content accessible via the Site, please contact us by email at [email protected].
If you have any questions about these Terms contact us by email at [email protected].
