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Terms of Service 2018-08-02T12:13:14+00:00

Introduction

Hello, and thank you for choosing Ubiquitti for your business. When you use our products and services you are agreeing to our terms, so please read these Terms of Service carefully as they contain important information regarding your legal rights and obligations.

Ubiquitti provides an online resource booking service (“Software Service”) and sells associated occupancy sensors and presentation displays (“Supported Equipment”), that permit its customers to book rooms, desks, parking spaces and other equipment and resources, using a phone, desktop, laptop or tablet.

These Terms of Service (“Agreement”) apply to any use of and access to the Software Service by you and your Affiliates and Users, as well as the technical support and replacement service we provide for Supported Equipment (collectively, “Services”). By accessing or using the Services (or enabling an Affiliate or User to access or use the Services), you are indicating that you have read this Agreement and agree to be bound by its terms. If you do not agree with all of the terms of this Agreement, you may not access or use any Services.

This Agreement is effective (“Effective Date”) on the earlier of (a) the date you accept this Agreement by submitting an Order Form to us, or (b) the date you (or an Affiliate or User) first access or use the Services.

1. General Terms.

1.1 Scope. This Agreement is a binding legal agreement between you and the Ubiquitti entity specified in Section 15.4 below, Inc. (“Ubiquitti”, “we”, “b” or “our”). If you enter into this Agreement on behalf of a corporation or other legal entity, you represent and warrant that you have the legal authority to bind that entity and its Affiliates to this Agreement, and all references to “you” and “your” in this Agreement are referring to that entity. You and Ubiquitti are also sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”. This Agreement applies to any use of the Services, whether in connection with a paid subscription or a free trial.

1.2    Definitions.    For the purposes of this Agreement, the following capitalized terms will have the meanings set forth for each of them below:

Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with you, and that has been designated to receive Services under this Agreement. “Control” for purposes of this definition means the power to direct or cause the direction of the management and policies of the subject entity, whether through equity ownership, a credit arrangement, franchise agreement or other contractual arrangement.

Aggregated Data” means anonymized, aggregated data derived by or through the operation of the Services that is created by or on behalf of Ubiquitti and that does not reveal any of Your Data or any personally identifying information about you or any Users.

Apps” means any mobile applications through which Ubiquitti makes the Software Service available.

Confidential Information” means (a) any software utilized by Ubiquitti in the provision of the Services and its respective source code; (b) each Party’s business or technical information, including but not limited to the Documentation, information relating to software plans, designs, costs, prices and names, business opportunities, personnel, research, development or know-how that is designated by the disclosing Party as “confidential” or “proprietary” or the receiving Party knows or should reasonably know is confidential or proprietary, and; (c) Your Data.

Documentation” means Ubiquitti’s online user guides, documentation, and help and training materials, as may be updated by Ubiquitti from time to time, and any other materials provided by Ubiquitti as part of the Services.

Equipment Support Services” means the technical support and failure replacement program offered by Ubiquiti with respect to the Supported Equipment.

Order Form” means a separate ordering document, purchase order, invoice or other documentation that (a) specifies Services and Supported Equipment to be purchased by you under this Agreement and the applicable fees, and other terms as agreed to between the Parties, and (b) has been accepted by Ubiquitti, either by acknowledgement of such acceptance or initiation of delivery. If an Order Form indicates that any of your Affiliates will be receiving Services hereunder, they will be bound by the terms of this Agreement as if they were an original party hereto.

Professional Services” means any services other than the Software Service or Equipment Support Service (e.g., services related to the establishment of the Software Service, custom training services, data transition services on termination of a Subscription Term, etc.) specified to be provided by Ubiquitti under an Order Form.

Services” means the Software Service, Equipment Support Service, Professional Services and the Apps.

Software Service” is defined in the Introduction.

Supported Equipment” means the occupancy sensors, video displays and any other equipment offered by Ubiquitti for use in connection with the Software Service.

Subscription Term” means the time period for which you have subscribed for the Software Service, as specified in each applicable Order Form.

Third Party Offerings” means any third-party mobile apps, websites, equipment or other products or services, that Ubiquitti offers for use in connection with the Services or that are identified in Documentation as compatible for use with the Services.

User” means a business or individual that is authorized by you to utilize your Software Service account.

Your Data” means any data, information or material provided or submitted by you, your Users and/or Affiliates to the Services.

1.3 Changes to the Agreement. We may, in our sole discretion, make changes to this Agreement from time to time. Any changes we make will become effective when we post a modified version of the Agreement to our website and the following link [http://smartway2.com/terms-of-service], and we agree the changes will not be retroactive. If we make any material changes to the Agreement, we’ll also notify you within the Software Service or by sending you an email. If you continue using the Services after any changes, it means you have accepted them. If you do not agree to any changes, you must stop using the Services, and you can terminate your account by contacting us at support@smartway2.com. It is your obligation to ensure that you read, understand and agree to the latest version of the Agreement that’s posted on our website. The legend at the top of the Agreement indicates when it was last changed.

2. Services.

2.1    Provision.    Ubiquitti will make the Services that you have purchased and/or to which you have subscribed, as specified in each Order Form, available to you in accordance with the terms and conditions of this Agreement.

2.2    Changes to Services.    Notwithstanding Section 2.1, in addition to our rights set forth in Section 9.2, we reserve the right to suspend any Services (a) during planned downtime, (b) in connection with a Force Majeure event (as described in Section 15.9), or (c) if we believe any malicious software is being used in connection with your account. In addition, we reserve the right to change, suspend or discontinue any features, components or functions of the Services at any time, provided that such changes shall reduce or alter the warranties applicable to the Software Service specified in Section 10.1. If we make any material changes to the Software Service, we’ll notify you within the Software Service or by sending you an email. Notwithstanding the above, we have no obligation to update or enhance any Services or to produce or release new versions of any Services.

2.3    Software Service Support.    As part of the Software Service, you will have access to Ubiquitti’s standard support services applicable to the Software Service. You can initiate a support request by contacting us via email at support@smartway2.com.

2.4    Equipment Support Services.    Provided you have paid any fees required to receive the Equipment Support Services, you will have access to the Equipment Support Services. You can initiate a support request by contacting us via email at support@smartway2.com. Note that you must obtain a Return Material Authorization (“RMA”) number from Ubiquitti prior to returning any Supported Equipment for repair or replacement pursuant to the Equipment Support Services. Any equipment received without an RMA number may be returned to you, and you shall be liable to Ubiquitti for the cost of shipping associated with such return. For the avoidance of doubt, unless specified otherwise in an Order Form or Documentation, Equipment Support Services do not include onsite services provided at your facilities or support for any third-party equipment, software, or services.

2.5    Trial and Beta Services.    Ubiquitti may in its sole discretion offer trial services or beta services from time to time at no charge. Any trial or beta services are provided “AS IS” with no warranties of any kind. Ubiquitti may discontinue any trial or beta services at any time, with or without notice and without any further obligations to you. You acknowledge and agree that Ubiquitti will have no liability for any harm or damages suffered by you or any third party in connection with any trial or beta services.

3. Supported Equipment.

3.1    Delivery.    All Supported Equipment to be delivered under this Agreement shall be shipped ex works (as such term is described in Incoterms 2018 published by the International Chamber of Commerce) from Ubiquitti’s chief offices in Marlboro, Massachusetts, or any other plant or warehouse designated by Ubiquitti, via a common carrier acceptable to Ubiquitti, to your principal place of business, or any other location designated by you and approved by Ubiquitti (such approval not to be unreasonably withheld or delayed).

3.2    Conveyance of Title to Supported Equipment; Risk of Loss; Shipping Costs.    Title to Supported Equipment, and all risk of loss or damage for any Supported Equipment shall pass to you upon delivery of such Supported Equipment by Ubiquitti or its agents to a common carrier for shipment to you. Unless specified otherwise in an Order Form, all freight, handling, insurance, duties (including customs duties), and shipping expenses shall be borne by you.

4. Your Responsibilities.

4.1    Liability for Affiliates and Users.    You are responsible for all activity occurring under your account. You will ensure that your Affiliates and Users comply with all of the provisions of this Agreement and any applicable local, state, national and foreign laws, including those related to data privacy and transmission of personal data, at all times while using the Services. Any reference in this Agreement to your “access” or “use” of Services (or similar phrase) is deemed to include access or use by Affiliates and Users, and any act or omission of an Affiliate or User that does not comply with this Agreement will be deemed a breach of this Agreement by you.

4.2    Data; Unauthorized Access; Maintaining Networks.    You will: (a) have sole responsibility for the accuracy and quality of Your Data and for ensuring that your collection and use of Your Data complies with applicable laws, including those related to data privacy and transmission of personal data; (b) prevent unauthorized access to, or use of, the Services, and notify Ubiquitti promptly of any unauthorized access or use; and (c) have sole responsibility for obtaining, maintaining and paying for any hardware, telecommunications, Internet and other services needed to use the Services.

4.3    Restrictions on Use.    You and your Affiliates and Users will not: (i) submit any infringing, obscene, defamatory, threatening, or otherwise unlawful or tortious material to the Services, including material that violates privacy rights; (ii) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (iii) attempt to gain access to the Services or related systems or networks in a manner not permitted by this Agreement; (iv) post, transmit or otherwise make available through or in connection with the Services any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other harmful computer code, files, scripts agents or programs; (v) restrict or inhibit any other person or entity from using the Services; (vi) remove any copyright, trademark or other proprietary rights notice from the Services; (vii) frame or mirror any portion of the Services, or otherwise incorporate any portion of the Services into any product or service; (viii) systematically download and store Services content; or (ix) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Services content, or reproduce or circumvent the navigational structure or presentation of the Services.

4.4    User Names and Passwords.    User names and passwords are for internal business use only and may not be shared with any third party, including any competitor of Ubiquitti. You, and not Ubiquitti, are responsible for any use or misuse of user names or passwords associated with your Services account.

5. Fees and Payment.

5.1    Services and Supported Equipment.    Fees for the Software Service are based on a minimum number of bookable resources (e.g., conference rooms, desks, offices, parking spaces, etc., collectively “Resources”), at the per-Resource rates specified in each Order Form. Unless specified otherwise in an Order Form, the minimum Subscription Term for the Software Service is three years. Beginning on the effective date of each Order Form (each an “Order Start Date”) and on each anniversary of the Order Start Date during the applicable Subscription Term thereafter, Ubiquitti will invoice you in advance for the minimum annual fees applicable to the Software Service for the forthcoming year. Fees for Professional Services will be based on a fixed-fee or time-and-materials basis as specified in each Order Form. Ubiquitti will also invoice any fixed-fee Software Service establishment fees on the Order Start Date. Unless specified otherwise in an Order Form, fees for Supported Equipment shall be invoiced when such Supported Equipment has been provided to you in accordance with this Agreement and fees for Equipment Support Services shall be invoiced annually, in advance. All invoices (except to the extent of any fees or other charges subject to good faith dispute) shall be due and payable within thirty days of the applicable invoice date. Invoices that are not disputed in good faith within 180 days of the invoice date are conclusively deemed accurate. All fees are payable in United States Dollars. You shall provide Ubiquitti with complete and accurate billing and contact information including a valid email address for receipt of invoices. Except as expressly specified in this Agreement or an Order Form all Subscription Terms and payment obligations under any and all Order Forms are non-cancellable and all payments made are non-refundable.

5.2    Overdue Charges.    Any amounts not received by the applicable due date may accrue late interest at 1.5% of the outstanding balance per month, or the maximum interest permitted by applicable law, whichever is less, plus costs of collection. Any amount not received by Ubiquitti within thirty days after the applicable due date will be deemed a material default under this Agreement, and Ubiquitti will be entitled to either suspend the Services or terminate the Agreement in accordance with Section 9.2.

5.3    Taxes.    Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with purchases and transactions under this Agreement. If Ubiquitti is legally required to pay or collect any Taxes on your behalf, Ubiquitti will invoice you and you will pay the invoiced amount. For clarity, Ubiquitti will be solely responsible for taxes assessed on Ubiquitti based on its income.

6. Intellectual Property Rights.

6.1    Ubiquitti Intellectual Property.    Ubiquitti owns all right, title and interest in and to the Services and Aggregated Data, including, without limitation, all intellectual property rights therein. Subject to the limited rights expressly granted to you under this Agreement, Ubiquitti reserves all rights, title and interest in and to the Services and Aggregated Data. You agree that nothing in this Agreement will prohibit Ubiquitti from utilizing Aggregated Data for any purpose. Ubiquitti’s service marks, logos and product and service names, including, without limitation, Ubiquitti® (the “Ubiquitti Marks“) are owned by Ubiquitti. You agree not to display or use any Ubiquitti Marks in any manner without Ubiquitti’s express prior written permission.

6.2    License Grant to You.    Subject to the terms and conditions of this Agreement, Ubiquitti hereby grants to you a limited, non-exclusive, non-transferable, non-sublicenseable, revocable license and right to use the Services set forth in an Order Form, during the Subscription Term and solely for your internal business purposes. You will not: (a) modify, copy or create any derivative works based on the Services; (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services available to any third party, other than to Affiliates and Users as permitted herein; (c) reverse engineer or decompile any portion of the Services, including but not limited to, any software utilized by Ubiquitti in the provision of the Services; (d) access or use (or allow a third party to access or use) the Services for competitive analysis or to build any competing products or services; (e) copy any features, functions, integrations, interfaces or graphics of the Services; or (f) otherwise use or exploit the Services in any manner not expressly permitted by this Agreement.

6.3    License Grant to Ubiquitti.    You hereby grant to Ubiquitti and its Affiliates a worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license (a) to modify, copy, distribute and incorporate into the Services (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by you, Affiliates or End Users relating to the Services or Ubiquitti’s business; and (b) to use your business name(s), trademarks, service marks or logos (collectively, “Your Marks”) in connection with providing the Services and for marketing and promotional purposes in connection with Ubiquitti’s business. Ubiquitti agrees that any use by Ubiquitti of any of Your Marks will inure solely to the benefit and goodwill of your business. Other than those rights specifically granted to Ubiquitti herein, all right, title and interest in and to Your Marks are expressly reserved by you.

7. Data Ownership and Use.

7.1    Your Data.    As between you and Ubiquitti, you own all right, title and interest in Your Data. You hereby grant to Ubiquitti a nonexclusive, worldwide, assignable, sublicensable, fully paid-up and royalty-free license and right to copy, distribute, display and perform, publish, prepare derivative works of and otherwise use Your Data to the extent necessary to provide you the Services. You represent and warrant to Ubiquitti that you have all rights necessary to grant the licenses in this Section, and that your provision of Your Data through and in connection with the Services does not violate any applicable laws or rights of any third party.

7.2    Protection and Security.    During the Subscription Term, Ubiquitti will maintain administrative, physical and technical safeguards designed to protect and maintain the integrity of Your Data.

7.3    Unauthorized Disclosure.    If either Party believes that there has been a disclosure of Your Data in a manner not authorized under this Agreement, such Party will promptly notify the other Party. Additionally, each Party will reasonably assist the other Party in remediating or mitigating any potential damage, including any notification which should be sent to individuals impacted or potentially impacted by such unauthorized disclosure.

8. Confidential Information.

A Party will not disclose or use any Confidential Information of the other Party except: (a) as reasonably necessary to perform its obligations or exercise any rights granted pursuant to this Agreement; (b) with the other Party’s prior written permission; or (c) to the extent required by law or order of a court or other governmental authority or regulation. Each Party agrees to protect the other Party’s Confidential Information in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a commercially reasonable standard of care. Confidential Information will not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the disclosing Party; (b) was known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party; (c) was independently developed by a Party without breach of any obligation owed to the other Party; or (d) was or is received from a third party without breach of any obligation owed to the other Party.

9. Term, Termination, Suspension.

9.1    Term.    The term of this Agreement will begin on the Effective Date and shall remain in effect throughout the Subscription Term. Unless specified otherwise in an Order Form, upon expiration of a Subscription Term, the Subscription Term shall be automatically renewed for additional one-year periods, unless either Party provides the other Party with written notice of non-renewal, delivered within thirty days of the date of such expiration. Upon expiration of the final Subscription Term without renewal, either Party may terminate this Agreement at any time, by providing notice to the other Party. Unless otherwise specified in an Order Form, fees for the Software Service applicable to any automatic renewal of the Subscription Term will be adjusted to Ubiquitti’s then-current prices at the time of such renewal.

9.2    Termination for Cause.    Either Party may terminate this Agreement upon thirty days’ prior written notice to the other Party of a material breach by the other Party, if such breach remains uncured at the expiration of such notice period. In the event of a termination by Ubiquitti pursuant to this Section, in addition to other amounts you may owe Ubiquitti, you must immediately pay any unpaid fees associated with the remainder of the Subscription Term. In no event will any termination relieve you of your obligation to pay any fees payable to Ubiquitti for the period prior to the effective date of termination.

9.3    Rights on Termination or Expiration.    Upon termination of this Agreement (a) you will have no rights to continue use of the Services and will cease accessing and/or using the Services; and (c) except as specified in the following paragraph, Ubiquitti will have no obligation to maintain your Services account or to retain or forward any data to you or any third party, except as required by applicable law.

Upon request by you within thirty days following termination of this Agreement, and provided that you have paid Ubiquitti all amounts owed under this Agreement, Ubiquitti will make a copy of Your Data available to you through Ubiquitti’s standard web services for a period of up to thirty days following receipt of such notice. After such thirty-day period, Ubiquitti will have no obligation to retain or provide Your Data, except as required by applicable law. If at any time during the Subscription Term you require Ubiquitti’s assistance in retrieving a complete copy of Your Data, additional fees may apply.

9.4    Survival.    The following Sections of this Agreement will survive its expiration or termination, howsoever occurring: 1.1, 1.2, 2.3, 2.6, 3, 4, 5, 6, 7, 8, 9.3, 9.4, 10, 11, 12, 14 and 15.

10. Warranties & Disclaimer.

10.1    Warranty of Functionality.    Ubiquitti warrants to you that during the Subscription Term: (a) the Software Service and Supported Equipment covered under the Equipment Support Services will perform in accordance with the specification described in the Documentation applicable to such Software Service and Supported Equipment, in all material respects; and (b) the functions and features of the Software Service will not be materially decreased. Your sole and exclusive remedy for a breach of this warranty will be as follows: (a) with respect to a breach of the warranty applicable to the Software Service, Ubiquitti will use commercially reasonable efforts to modify the applicable portions of the Software Service to achieve the functionality described above, and will re-deliver such services to you free of additional charge, and (b) with respect to Supported Equipment, Ubiquitti will provide you with replacement Supported Equipment in accordance with its RMA policy. If following reasonable efforts Ubiquitti is unable to restore such functionality, Ubiquitti may, upon written notice to you, terminate some or all of any affected Services. In the event that Ubiquitti terminates any Services pursuant to this Section, we will promptly provide you with a pro-rata refund of any pre-paid fees applicable to such Services. Ubiquitti will have no obligation with respect to a warranty claim under this Section unless notified by you in writing no later than thirty (30) days after the first instance of any material functionality problem. This warranty will only apply if the applicable subscribed Services have been utilized in accordance with this Agreement and applicable laws. For clarity, this warranty will not apply to any trial or beta services.

10.2    DISCLAIMER.    EXCEPT AS EXPRESSLY PROVIDED IN SECTION 10.1 ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UBIQUITTI MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES, SUPPORTED EQUIPMENT AND/OR RELATED DOCUMENTATION. UBIQUITTI DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, TIMELY, ERROR-FREE OR UNINTERRUPTED, OR THAT THE SERVICES ARE OR WILL REMAIN UPDATED, COMPLETE OR CORRECT, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE SYSTEMS THAT MAKE THE SERVICES AVAILABLE (INCLUDING WITHOUT LIMITATION THE INTERNET, OTHER TRANSMISSION NETWORKS, AND YOUR LOCAL NETWORK AND EQUIPMENT) WILL BE UNINTERRUPTED OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS PROVIDED IN SECTION 10.1, THE SERVICES AND ANY SUPPORTED EQUIPMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.

11. Indemnification.

You agree to indemnify, defend, and hold Ubiquitti harmless from and against any and all third-party claims alleged or asserted against Ubiquitti, and all related charges, damages and expenses (including, but not limited to, reasonable attorneys’ fees and costs) to the extent arising from or relating to any actual or alleged breach by you or your Affiliates or Users of any provisions of this Agreement.

12. Limitations and Exclusions on Liability.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE UBIQUITTI’S AGGREGATE LIABILITY, COLLECTIVELY, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE INCIDENT GIVING RISE TO SUCH LIABILTY.
IN NO EVENT WILL UBIQUITTI HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, DATA OR OPPORTUNITIES, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES OR SUPPORTED EQUIPMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES OR SUPPORTED EQUIPMENT, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF UBIQUITTI, ITS SUPPLIERS OR AGENTS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. THE FOREGOING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

13. Export Controls.

You will comply with all applicable laws with respect to your use and receipt of the Services and Supported Equipment, including, if applicable, the export laws and restrictions and regulations of the US Department of Commerce, the US Department of Treasury Office of Foreign Assets Control, or other United States or foreign agency or authority, and you will not use the Services to export, or allow any export or re-export in violation of any such restrictions, laws or regulations. You represent and warrant to Ubiquitti that you are not a prohibited party or located in, under the control of, or a national or resident of any restricted country, and that you will otherwise comply with all applicable export control laws. If you reside outside the United States, then in addition to complying with the foregoing, you will comply with any relevant export control laws in your local jurisdiction.

14. Third-Party Offerings.

Although the Services may allow you to access or use Third Party Offerings, they are not “Services” under this Agreement and are not subject to any of the warranties, service commitments or other obligations with respect to Services hereunder. The availability of any Third-Party Offerings through the Services does not imply Ubiquitti’s endorsement of or affiliation with the provider. Ubiquitti does not control Third-Party Offerings and will have no liability to you or your Affiliates or Users in connection with any Third-Party Offerings. Ubiquitti has no obligation to monitor or maintain Third-Party Offerings, and may disable or restrict access to any Third-Party Offerings at any time. By using or enabling any Third-Party Offering, you are expressly permitting Ubiquitti to disclose Your Data or other information to the extent necessary to utilize the Third-Party Offering. YOUR USE OF THIRD PARTY OFFERINGS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD-PARTY OFFERINGS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD-PARTY OFFERINGS).

15. Miscellaneous.

15.1    Governing Law.    This Agreement will be governed by and interpreted in accordance with the internal laws of the State of Massachusetts without regard to conflicts of laws principles. The provisions of the Uniform Commercial Code and U.N. Convention on the International Sale of Goods will not apply.

15.2    Mandatory Informal Dispute Resolution.    If you have any dispute with Ubiquitti arising out of or relating to this Agreement, you agree to notify Ubiquitti in writing with a brief, written description of the dispute and your contact information, and Ubiquitti will have thirty days from the date of receipt within which to attempt resolve the dispute to your reasonable satisfaction. If the Parties are unable to resolve the dispute through good faith negotiations over such thirty-day period under this informal process, either Party may pursue resolution of the dispute in accordance with the arbitration agreement below.

15.3    Arbitration Agreement.    ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND UBIQUITTI, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, THAT ARE NOT RESOLVED PURSUANT TO SECTION 14.2 ABOVE WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND UBIQUITTI AND YOU EACH HEREBY WAIVE THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules and Mediation Procedures (currently accessible at www.adr.org/aaa/faces/rules/searchrules/rulesdetail?doc=ADRSTG_004130) as amended by this Agreement. Any arbitration hearing will be held in Marlboro, Massachusetts. The applicable governing law will be as set forth in Section 14.1 (provided that with respect to arbitrability issues, federal arbitration law will govern). The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction.

15.4    Ubiquitti Entity.    The table below sets forth the Ubiquitti entity you have entered into this Agreement with (“Ubiquitti Entity”) depending on where you are domiciled:

If you are domiciled in: The Ubiquitti Entity is:
United States, Canada or any country located in North or South America Ubiquitti, Inc., a Delaware corporation
UK, any member state of the European Union and all other countries Smartway2, Ltd., a private limited company registered in England and Wales

15.5    Entire Agreement.    This Agreement, together with any Order Forms and any terms and policies that are incorporated into this Agreement by reference (including by reference to a URL), constitutes the entire agreement between the Parties with respect to its subject matter and supersedes any prior and/or contemporaneous agreements, proposals or representations, written or oral, between you and Ubiquitti. In the event of a conflict between an Order Form and this Agreement, the Order Form will control. No terms or conditions stated in any purchase order or in any other ordering documentation, other than Order Form, provided by you to Ubiquitti shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. Except with respect to Ubiquitti’s rights under Section 1.3, no modification or amendment of any provision of this Agreement shall be effective unless in writing and signed by an authorized representative of each of the Parties.

15.6    Waiver and Severability.    No waiver of any provision of this Agreement by either Party will be effective unless in writing and signed by such Party. No waiver by either Party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.

15.7    Assignment.    You may not assign, delegate or transfer this Agreement in whole or in part, without Ubiquitti’s prior written consent. Any attempt to assign this Agreement in breach of this Section shall be void and of no effect.

15.8    Notices.    Any notices provided by Ubiquitti under this Agreement may be delivered to you within the Services or to the email address(es) we have on file for your account. You hereby consent to receive notice from Ubiquitti through the foregoing means, and such notices will be deemed effective when sent if on a business day, and if not sent on a business day then on the next business day. Except as otherwise specified in the Agreement, any notices to Ubiquitti under this Agreement must be delivered via first class registered U.S. mail, overnight courier, to Ubiquitti, Inc., Attn: Legal Dept., 225 Cedar Hill Street, Suite 200, Marlboro, MA 01752.

15.9     Force Majeure.    Neither Party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving Ubiquitti’s or your employees, respectively), computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

15.10    Electronic Communications and Signatures.    You agree to the use of electronic communication in order to enter into agreements and place orders, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.

15.11    Relationship of the Parties.    This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Ubiquitti.