UBrands Terms of Service

 

UBRANDS TERMS OF SERVICE AGREEMENT

 

This Terms of Service ("TOS") sets forth the terms and conditions that govern your use of the UBrands Website www.u-brands.com and the UBrands Service (as defined below).  This TOS describes your rights and responsibilities and what you can expect from the UBrands Service and is in addition to any other agreement you may have entered into with UBrands.  Use of the UBrands Website constitutes your acceptance of and agreement to this TOS.

 

UBrands reserves the right to add, delete and/or modify any of the terms and conditions contained herein, at any time and in its sole discretion, by posting a change notice or a new agreement on the UBrands Website.  In the event of substantive changes to this TOS, you may be notified by email.  If any modification is unacceptable to you, your only recourse is to refrain from or discontinue using the Website and the UBrands Service.  Your continued use of the UBrands Website following any posted or notified changes to the terms and conditions shall constitute binding acceptance of the changes.

 

1.    The UBrands Service.Through the Website, UBrands provides a number of Internet-based services (the "UBrands Service").  One such service enables users to create customized products, including without limitation, adding one or more images to a white board or related products and accessories (collectively, "Products").  UBrands users may create and purchase individual Products for their own use.

 

2.    Use of the Web Site and UBrands Service.

 

2.1Eligibility.  UBrands will only knowingly provide the UBrands Service to parties that can lawfully enter into and form contracts under applicable law.  If you are under the age of 18, but at least 13 years of age, you may use the UBrands Service only under the supervision of a parent or legal guardian who agrees to be bound by this TOS.  The UBrands Service is not intended for children under the age of sixteen (16).

 

2.2Compliance with TOS and Applicable Law.  You must comply with all of the terms and conditions of this TOS, the applicable agreements and policies referred to below, and all applicable laws, regulations and rules when you use the UBrands Service and the Website.

 

2.3   Your License to Use the Web Site and the UBrands Service.

 

(a) UBrands solely and exclusively owns all intellectual property and other rights, title and interest in and to the UBrands Service and Website, except as expressly provided for in this TOS.  For example and without limitation, UBrands owns (i) the trademarks: UBRANDS, UBRANDS Design, U Design, MY DRY ERASE BOARD, mydryeraseboard.com and www.u-brands.com; (ii) the copyrights in any and all content on the Website, whether past, present or future, and (iii) certain technology used in providing the UBrands Service.  You shall not acquire any right, title or interest to any intellectual property of UBrands under this TOS.

 

(b)  UBrands grants you a limited revocable license to access and use the Website and the UBrands Service for its intended purposes, subject to your compliance with this TOS.  This license does not include the right to collect or use information contained on the Website for purposes prohibited by UBrands; to compete with UBrands; to create derivative works based on the content of the Website; or download or copy the Website (other than page caching).  If you use the Website in a manner that exceeds the scope of this license or you breach this TOS, UBrands may revoke the license granted to you.

 

(c)  This Section 2.3 does not pertain to your intellectual property rights.  For information regarding your intellectual property rights, please see Section 4.3.

 

3.    Prohibited Use.

 

You may only use the UBrands Service as expressly permitted by UBrands.  You may not cause harm to the Website or the UBrands Service.  For example, but not by way of limitation, you may not: (i) interfere with the UBrands Service by using viruses or any other programs or technology designed to disrupt or damage any software or hardware used to present the Website and to provide the UBrands Services; (ii) modify, create derivative works from, reverse engineer, decompile or disassemble any technology used to provide the UBrands Service; (iii) interfere with, or disrupt the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or by scripting the creation of Content in such a manner as to interfere with or create an undue burden on the UBrands Service; (iv) use a robot, spider or other device or process to monitor the activity on or copy pages from the Website, except in the operation or use of an internet "search engine", hit counters or similar technology; (v) collect electronic mail addresses or other information from third parties by using the UBrands Service; (vi) impersonate another person or entity in the course of using the Website and the UBrands Service; (vii) use any meta tags, search terms, key terms, or the like that contain UBrands' name or trademarks; (viii) engage in any activity that interferes with another user's ability to use or enjoy the Website and the UBrands Service; or (ix) assist or encourage any third party in engaging in any activity prohibited by this TOS.

 

4.    Create and Buy General Rules and License.

 

4.1Description.  As part of the UBrands Service, UBrands offers the “My Dry Erase Board” Service that allows you to upload images, data, and other content owned by you (collectively, "Your Content") to the Website to create, produce and purchase Products featuring the uploaded Your Content for your own use.

 

4.2Delivery of Your Content.  You shall upload or deliver to UBrands all of Your Content that you want to use with the My Dry Erase Board Service in accordance with the applicable instructions on the Website.  UBrands may, in its sole and exclusive discretion, determine whether any of Your Content complies with such instructions and is satisfactory for use with the My Dry Erase Board Service.

 

4.3Licensing Your Content to UBrands.  While you shall retain ownership of Your Content that you upload to the Website, you hereby grant to UBrands a royalty-free, worldwide, transferable, nonexclusive, right and license (a) to use Your Content in all media existing now or created in the future, including advertising designed to promote the My Dry Erase Board Service, (b) and as UBrands deems necessary to enable you to use the My Dry Erase Board Service to create, produce and purchase Products. 

 

5.    Reservation of Rights.

 

5.1Monitoring.  UBrands reserves the right, but does not assume any obligation, to monitor transactions and communications that occur through the Website.  If UBrands determines, in its sole and absolute discretion, that use by you of the Website and UBrands Service would breach a term or condition of this TOS, or that any transaction or communication by you in connection with your use of the Website and UBrands Service is inappropriate, UBrands may terminate such transaction, preclude further use of the Website and UBrands Service, and/or take any other action to restrict access to any material that may be considered objectionable, without any liability to you or any third party.

 

5.2Modification of the Service.  UBrands reserves the right to modify the organization, structure or "look and feel" of the UBrands Service or the Website, and may change, suspend, or discontinue any aspect of the UBrands Service, including the My Dry Erase Board Service, at any time without any liability to you or any third party.  UBrands shall have complete discretion over the features, functions, prices and other terms and conditions on which the UBrands Service is offered to UBrands users.

 

6.    Submissions By You.

 

When you submit questions, comments, suggestions, ideas, message board postings, content, material submitted via web forms, contest entries, communications or any other information ("Your Submissions"), you grant UBrands permission to use Your Submissions for marketing and other promotional purposes, including the right to sublicense Your Submissions.  You understand that UBrands shall have no obligation to keep any of Your Submissions confidential.  You shall not bring a claim against UBrands based on "moral rights" or the like arising from UBrands' use of Your Submissions.  This Section is separate from and does not apply to permission granted with respect to Your Content as addressed above.

 

7.    Representations and Warranties.

 

7.1 Representations and Warranties By You.  You represent and warrant to UBrands that: 

 

(i)  you have the full power and authority to enter into this Agreement and to and perform any and all actions and obligations under this TOS;

 

(ii) the execution and performance of your obligations under this TOS does not constitute a breach of, or conflict with, any other agreement or arrangement by which you are bound;

 

(iii)  you own, with full rights, title and authority, Your Content as set forth herein;

 

(iv) in using the Website and the UBrands Service, including the My Dry Erase Board Service, you will not: (a) cause injury to any third party, including but not limited to infringing the copyright, trademark, patent, trade secret, right of privacy, right of publicity or other legal right of any third party, and (b) violate any applicable laws, rules, and regulations, including, without limitation, by exploiting images or the likeness of minors;

 

(v) there are no claims, demands or any form of litigation pending, or to the best of your knowledge, none threatened with respect to any of Your Content; 

 

(vi) UBrands will not be required to make any payments to any third party in connection with its use of Your Content, except for the expenses that UBrands incurs in providing the Website and UBrands Service; 

 

(vii) Your Content does not contain viruses or any other programs or technology designed to disrupt or damage any software or hardware.

 

8.    Disclaimers, Exclusions and Limitations.

 

UBRANDS PROVIDES THE WEBSITE AND UBRANDS SERVICE ON AN "AS IS" AND "AS AVAILABLE" BASIS.  UBRANDS DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, THE UBRANDS SERVICE, OR THE USE OF EITHER: (i) WILL BE UNINTERRUPTED, (ii) WILL BE FREE OF INACCURACIES OR ERRORS, (iii) WILL MEET YOUR REQUIREMENTS, OR (iv) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE.  UBRANDS MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY HEREIN, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.

 

UBRANDS SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH YOUR USE OF THE WEBSITE AND THE UBRANDS SERVICE OR YOUR AGREEING TO THIS TOS, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

9.    Indemnification.

 

You hereby indemnify and hold UBrands and its employees, representatives, agents, affiliates, directors, officers, managers and shareholders (the "Parties") harmless from any damage, loss, or expense (including without limitation, attorneys' fees and costs) incurred in connection with any third-party claim, demand or action ("Claim") brought against any of the Parties alleging that you have breached any provision of this TOS through any act or omission, including without limitation monetary damages incurred by UBrands due to any breach of this TOS Agreement or violation of any policy.  If you are obligated to indemnify UBrands pursuant to this TOS Agreement, UBrands shall have the right to control the defense, settlement, and resolution of any Claim against any of the Parties, and you shall not settle or otherwise resolve any such Claim without UBrands' express written permission.

 

 

10.    Termination.

 

10.1Termination.  In its sole discretion, with or without notice to you, UBrands may: (i) suspend, limit your access to, and/or terminate your use of the Website and/or the UBrands Service, (ii) suspend, limit your access to, or terminate your account, (iii) remove any of Your Content from UBrands' servers and directories and (iv) prohibit you from using the UBrands Service and/or the Website.

 

10.2Survival.  Notwithstanding Paragraph 10.1 above, this TOS shall survive indefinitely unless and until UBrands chooses to terminate this TOS.

 

10.3Effect of Termination.  Upon termination or cessation by you of the Website and the UBrands Service, UBrands may permanently delete, from any and allUBrands' servers or from its possession, any of Your Content or other materials or submissions relating to your use of the Website and the UBrands Service, and UBrands shall have no liability to you or any third party for doing so.

 

11.    Miscellaneous.

 

11.1Notice.  Notice required or permitted to be given under these TOS shall be in writing and delivered to the other party to this TOS by any of the following methods: (i) U.S. mail, (ii) overnight courier, or (iii) electronic mail.  The addresses for UBrands are: (a) 27401 Los Altos, Suite 100, Mission Viejo, CA 92691, and (b) info@u-brands.com.  Your contact information shall be that which you provide to Ubrands via the Website, and it shall be your responsibility to update the address if appropriate.  Notice shall be deemed received as follows: (i) if by delivery by U.S. mail, seven (7) business days after dispatch, (ii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iii) if by electronic mail, 24 hours after the message was sent, if no "system error" or other indicia of non-delivery is generated.  If applicable law requires that a given communication be "in writing," you agree that email communication will satisfy this requirement.

 

11.2Dispute Resolution.  All disputes arising out of, relating to or connected with these TOS or your use of any part of the UBrands Service shall be exclusively resolved under confidential binding arbitration held in Orange County, California, before and in accordance with the Rules of JAMS, by a sole arbitrator applying California law (without regard for conflicts of law principles).  The arbitrator's award will be binding and may be entered as a judgment in any court of competent jurisdiction.  Any action to enforce an arbitrator's award shall be brought in a federal or state court located in Orange County, California.  Each party to this TOS hereby irrevocably submits to the personal jurisdiction of the Federal and California State courts in Orange County.  You acknowledge that UBrands may seek equitable relief, including without limitation, injunctive relief and specific performance, without the requirement of posting a bond or other security or proving that money damages are insufficient, from a court of competent jurisdiction.

 

11.3This TOS (and all provisions herein) shall be binding upon each party hereto and its successors and permitted assigns, and governed by and construed in accordance with the laws of the State of California without reference to conflict of law principles.  This TOS is not assignable or transferable by you without the prior written consent of UBrands.  This TOS (including all of the policies and other applicable agreements identified herein) contain the entire understanding of the parties regarding its subject matter, and supersedes all prior and contemporaneous agreements and understandings between the parties regarding its subject matter.  No failure or delay by a party in exercising any right, power or privilege under this TOS shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege.  You and UBrands are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this TOS.  The invalidity or unenforceability of any provision of this TOS shall not affect the validity or enforceability of any other provision of this TOS, all of which will remain in full force and effect.