U2opia Mobile Pte. Ltd. having its registered office at 10 Jalan Besar, #10-02 Sim Lim Tower, Singapore-208787 & owns and operates the service with the brand name of “Message Central”, (the “Service(s)”).
Please read these Terms of Use (this “Agreement”) fully and carefully before using the Site and Services. This Agreement sets forth the legally-binding terms and conditions for your use of the Site and Services. BY REGISTERING FOR AND/OR USING THE SERVICES IN ANY MANNER, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND ACCEPT THIS AGREEMENT AND ALL OTHER OPERATING RULES, POLICIES AND PROCEDURES REFERENCED HEREIN, EACH OF WHICH IS INCORPORATED HEREIN BY THIS REFERENCE AND EACH OF WHICH MAY BE UPDATED FROM TIME TO TIME AS SET FORTH BELOW, TO THE EXCLUSION OF ALL OTHER TERMS. You may not use the Services if you do not unconditionally accept this Agreement. If you are accepting on behalf of an organization, you represent and warrant that you have the authority to do so; however, if your organization has entered into a separate contract with Vonage covering its use of the Services, then that contract shall govern instead.
EXCEPT FOR CERTAIN TYPES OF DISPUTES DEFINED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND VONAGE SHALL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
In this Agreement, “Customer” shall refer to you, unless you are accepting on behalf of a company in which case “Customer” shall mean that organization. U2opia and Customer are each referred to in this Agreement as a “Party” and collectively as the “Parties.” In consideration of the terms and covenants set forth herein, and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows.
1. U2opia’s Services.
U2opia offers a variety of communication-enabling services (“Services”) described at www.messagecentral.com (the “Site”), which include its APIs, SDKs, software, code snippets, documentation, technical support, the Site itself, and the features, functionality, and connectivity provided through U2opia’s proprietary platform. This Agreement governs the Parties’ respective obligations regarding all Services provided to or used by Customer.
a. Additional Terms and Policies. This Agreement incorporates the following additional policies:
- Privacy Policy (“Privacy Policy”)
- Acceptable Use Policy (“AUP”)
U2opia may update the foregoing additional terms and policies from time to time by posting a notice on the Site or by sending Customer notice through the Services.
b. Changes. Changes in the industry, carrier and other partner requirements, applicable law and regulations may require U2opia to make changes to the Services from time to time. It is Customer’s responsibility to ensure that its usage is compatible with the then-current Services. U2opia endeavours to maintain backward compatibility, but where it cannot, it will make commercially reasonable efforts to provide at least 60 days’ notice prior to implementing changes that do not maintain backward compatibility. U2opia may in its reasonable discretion suspend or discontinue any of the Services or component thereof at any time by posting a notice on the Site or by sending Customer notice through the Services, or by another appropriate means of electronic communication.
2. Customer Account.
To access and use certain Services, Customer must create an account (“Account”) on the Site. Customer shall provide accurate, complete, and current Account information and, as applicable, timely update the same. Customer is solely responsible for the activity that occurs on its Account (which includes its sub-accounts), including via the Customer Application (as defined below), and for keeping its Account password secure. U2opia will not be liable for losses caused by any unauthorized use of the Account. Customer represents and warrants that it is duly authorized to do business and use the Services in all jurisdictions in which Customer operates. Customer must notify U2opia promptly of any change in Customer’s eligibility to use the Services (including any changes to or revocation of any licenses from state authorities), breach of security or any known unauthorized use of Customer’s Account. Upon termination of this Agreement, Customer may delete its Account by emailing operations@messagecentral.com Notwithstanding deletion of Customer’s Account, U2opia may retain Customer data as reasonably necessary for compliance with applicable law.
3. Return and Refund
a. Paid Services. Customer agrees to pay for its use of the Services as set forth on the pricing page on the Site, as may be updated from time to time, except and only to the extent Customer has entered a separate written agreement or addendum with U2opia for special pricing on certain Services and/or country-specific pricing, or U2opia has otherwise conveyed special pricing in writing to Customer. U2opia reserves the right to change pricing from time to time. Customer’s continued use of the Services after a price change becomes effective constitutes Customer’s agreement to pay the changed amount.
b. Prepayment. Except as set forth in the next sub-section, Customer shall pay in advance for the Services in the currency specified by U2opia, without the right of setoff, deductions, or counterclaim. Some of the Services may accept recurring period charges as agreed to by Customer on the Site. By choosing such auto-reload payment plan, Customer acknowledges that such Services have a recurring payment feature and Customer accepts responsibility for all recurring charges prior to cancellation. U2OPIA MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM CUSTOMER, UNTIL CUSTOMER PROVIDES PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY U2OPIA) THAT CUSTOMER HAS TERMINATED THIS AUTHORIZATION OR WISHES TO CHANGE ITS PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE U2OPIA REASONABLY COULD ACT. CUSTOMER MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR ITS BILLING ACCOUNT. IF CUSTOMER HAS REQUESTED AUTO-RELOAD PAYMENTS, CUSTOMER MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP ITS BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND CUSTOMER MUST PROMPTLY NOTIFY U2OPIA OR ITS PAYMENT PROCESSOR IF CUSTOMER’S PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF CUSTOMER BECOMES AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF CUSTOMER’S USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE IN THE ACCOUNT DASHBOARD. IF CUSTOMER FAILS TO PROVIDE ANY OF THE FOREGOING INFORMATION, CUSTOMER AGREES THAT U2OPIA MAY CONTINUE CHARGING CUSTOMER FOR ANY USE OF PAID SERVICES UNDER THE BILLING ACCOUNT UNLESS CUSTOMER HAS CANCELLED AUTORELOAD OR TERMINATED ITS PAID SERVICES AS SET FORTH ABOVE. Customer may change its payment method or terminate any auto-reload authorization via the Account dashboard.
c. Post-payment. Where authorized by U2opia in writing, U2opia will invoice Customer for the Services monthly in arrears, and payment shall be due 30 days following the date of invoice, without deduction. Invoices may be sent to the e-mail address specified in Customer’s Account, and shall be deemed received on the date sent. Customer shall pay interest on past due amounts at a rate of 1.5% per month or the maximum rate permitted by law, whichever is less, and shall be responsible for all costs of collection. If Customer disputes any invoiced charges exceeding USD 1,000 in a detailed writing provided to U2opia, and such disputes are reasonable and made in good faith (as reasonably determined by U2opia), then (i) the Parties shall discuss and attempt to resolve the dispute in good faith in a timely manner, and (ii) Customer may withhold the disputed portion of the invoice exceeding USD 1,000 if Customer has paid the undisputed portion of the invoice in accordance with the Agreement, until the dispute is resolved. Customer’s credit shall be limited to the amount indicated by U2opia from time-to-time in connection with Customer’s Account.
d. Taxes. Unless otherwise provided on the pricing page on the Site, all charges and fees for the Services are exclusive of any country, province, federal, state or local taxes, including without limitation, use, sales, value-added, privilege, or other taxes, levies, imports, duties, fees, surcharges, governmental assessments and withholdings (“Taxes”). Customer will be solely liable for and will pay upon demand all Taxes associated with Customer’s access to and use of the Services and shall not deduct any such amounts, or any other withholdings, set-offs or deductions, from amounts Customer owes U2opia, but will not be responsible for taxes based on U2opia’s net income. Customer may present U2opia with an exemption certificate eliminating Customer’s and U2opia’s liability to pay certain Taxes. Once U2opia has received and approved the exemption certificate, Customer shall be exempt from those Taxes on a going-forward basis. If, a taxing jurisdiction determines that Customer is not exempt from Taxes and assesses those taxes, Customer shall pay those Taxes to U2opia, plus any applicable interest or penalties. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE U2OPIA REASONABLY COULD ACT.
e. Billing Disputes (Return and Refund). Billing disputes must be initiated within 30 days of the date the Service was provided, by contacting U2opia at operations@messagecentral.com Upon expiration of such 30- day period, Customer will not be entitled to dispute any fees paid or payable to U2opia. The Parties will work together in good faith to resolve billing disputes. A pending billing dispute shall not exempt Customer from timely paying any undisputed amounts owed. Any disputes that cannot be resolved in accordance with the foregoing shall be handled in accordance with Section 13 below. Other than in accordance with the foregoing, fees paid are non-refundable.
4. License
Subject to Customer’s compliance with this Agreement, U2opia hereby grants Customer a limited, revocable, personal, non-exclusive, non-transferable, non-sublicenseable license until this Agreement or Customer’s Account is terminated (the “Term”) to (i) use the documentation and APIs U2opia makes available to Customer to create an original application that interfaces with the Services (“Customer Application”), and (ii) make the Services available to Customer’s end users (“End Users”) through the Customer Application. The foregoing license shall extend to Customer Affiliates, provided that such Customer Affiliates are acting via Customer’s Account and provided further that Customer remains jointly and severally liable for all acts and omissions of its Affiliates. An “Affiliate,” with respect to a Party, means any entity that controls, is controlled by, or is under common control with that Party.
5. Restrictions.
Customer shall not, and shall ensure that its End Users and Affiliates do not, and shall not authorize, assist or enable any other third party to:
a. Transfer, resell, lease, license, or otherwise make available the Services to third parties, except for Customer’s use of the Services to provide its Customer Application to third parties as set forth in Section 4;
b. Use the Services in any manner that violates the AUP;
c. Decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services, except to the limited extent applicable laws specifically prohibit such reverse-engineering restrictions;
d. Alter, modify, translate, or otherwise create derivative works of any part of the Services, except as may be authorized by specific licensing terms accompanying certain software or software development kits; or
6. Intellectual Property.
a. Customer’s Application and Application Content. As between Customer and U2opia, Customer owns and reserves all right, title and interest in Customer Applications, and any content originally transmitted by Customer or its End Users via the Customer Applications (“Application Content”). Customer authorizes U2opia to use the Application Content to provide the Services and perform in accordance with this Agreement.
b. Suggestions. Customer’s suggested improvements to and feedback regarding the Services are not Confidential Information (as defined below), and Customer grants to U2opia an unrestricted, irrevocable, fully paid-up, and non-exclusive right to use such suggestions and feedback for any purpose.
c. U2opia Services and U2opia Content. U2opia owns and reserves all right, title and interest in and to the Services and all improvements, modifications and derivative works thereof. Other than the Customer Application and Application Content, all content made available through the Site or the Services (collectively, “U2opia Content”) are as between Customer and U2opia owned by U2opia.
d. Publicity. Except as explicitly granted herein, neither Party is granted a license or other right (express, implied or otherwise) to use any trademarks, copyrights, service marks, logos, trade names, patents, trade secrets or other form of intellectual property of the other Party or its Affiliates without the express prior written authorization of the other Party. Customer will not issue any press release or other public statement relating to this Agreement, except as may be required by law or agreed by U2opia in a writing signed by an authorized representative of U2opia.
e. Notices and Restrictions. The Services may contain U2opia Content specifically provided by U2opia, U2opia's partners, U2opia’s customers, or other third parties that is subject to and protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and other laws and international conventions. Customer shall abide by and maintain all copyright notices, information, and restrictions contained in any U2opia Content accessed through the Services.
7. Confidentiality.
a. Confidential Information. “Confidential Information” means any non-public information or data, regardless of whether it is in tangible form, disclosed by either Party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure. “Confidential Information” does not include any information which: (i) is publicly available through no fault of receiving Party, (ii) was properly known to receiving Party, without restriction, prior to disclosure by the disclosing Party, (iii) was properly disclosed to receiving Party, without restriction, by another person without violation of disclosing Party’s rights, or (iv) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information. Each Party agrees that it will use the Confidential Information of the other Party solely in accordance with the provisions of this Agreement (and for U2opia to provide the Services) and it will not disclose such information to any third party without the other Party’s prior written consent, except as otherwise permitted hereunder or for U2opia to provide the Services or make other disclosures identified in the Privacy Policy. Each Party agrees to exercise due care in protecting the other Party’s Confidential Information from unauthorized use and disclosure. Each Party may also disclose the Confidential Information of the other Party, in whole or in part to its employees, representatives, actual or potential investors and subcontractors who have a need to know and are bound to keep such information confidential consistent with the terms of this Section. In addition, U2opia may disclose this Agreement under a comparable non-disclosure agreement in response to a third-party due diligence request supporting a financing or non-ordinary course of business corporate transaction. Either Party may disclose the Confidential Information of the other as required by law, legal process or court order; provided that, subject to applicable law, it promptly notifies the other Party of such required disclosure in order to allow the other Party to seek a protective order or other appropriate remedy.
8. Indemnification.
a. Customer Indemnification. Customer agrees to defend, indemnify and hold harmless U2opia, its Affiliates, suppliers, and partners, and each of their respective employees, contractors, directors, officers and representatives, from and against any damages, liabilities, claims, demands, obligations, losses, fines, penalties, and expenses (including reasonable attorney’s fees) (collectively, “Losses”) incurred in connection with claims made or brought by a third party arising from or relating to:
(i) unauthorized or prohibited use of the Services, including violations of the AUP or applicable law, by Customer, its Affiliates or its or their End Users, employees, agents or subcontractors;
(ii) Application Content,
(iii) claims by End Users to the extent they purport to extend U2opia’s liability or obligations beyond the limitations and disclaimers set forth in this Agreement, or
(iv) gross negligence or willful misconduct of Customer, its Affiliates or its or their employees, agents or subcontractors.
b. Procedure. U2opia shall notify Customer promptly after U2opia learns of the existence of an indemnifiable claim hereunder; provided, however, that failure to give such notice shall only affect the rights of U2opia to the extent that Customer is prejudiced. U2opia shall not admit any liability whatsoever. Customer shall be entitled to take sole control of the defense and investigation of the indemnifiable claim at its own expense, by providing prompt written notice to U2opia, subject to U2opia’s approval of Customer’s counsel, such approval not to be unreasonably withheld or delayed. U2opia shall cooperate in all reasonable respects with Customer and its attorneys in the defense of the claim (including by making available books, records, and personnel), and may reasonably participate at its own expense, through its attorneys or otherwise, provided that such participation does not interfere with Customer’s defense. All settlements of indemnifiable claims under this Section shall: (i) be entered into only with U2opia’s consent if such settlement requires any admission of guilt or imposes any restriction on U2opia; and (ii) include an appropriate confidentiality agreement prohibiting disclosure of the terms of such settlement.
9. Warranties and Disclaimers.
a. Representations. U2opia represents and warrants to Customer that it (i) has the corporate power and authority to enter into this Agreement and perform its obligations hereunder, and (ii) is authorized to do business and provide the Services.
b. Assumption of Risk. U2opia has no special relationship with or fiduciary duty to Customer. Customer acknowledges and agrees that U2opia has no control over and has no duty to take any action regarding and shall have no liability for acts, faults or omissions of any third party telecommunications systems, networks or operators (including, without limitation, suspension or termination of U2opia’s connections, or faults in or failures of their apparatus or network), in the jurisdictions in which it operates.
c. DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH ABOVE IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND U2OPIA CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, QUALITY (E.G., AS TO LATENCY AND THROUGHPUT), AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. U2OPIA, AND U2OPIA’S SUPPLIERS, PARTNERS AND LICENSORS, AND EACH OF U2OPIA’S AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, DO NOT WARRANT (AND HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES) THAT: (I) THE SERVICES (OR ANY MOBILE OPERATORS) WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED, (III) ANY CONTENT OR SOFTWARE AVAILABLE ON OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, (IV) THE CONTENT ON THE SITES OR SERVICES (OR ANY THIRD PARTY SITES OR SERVICES LINKED THERETO) IS ACCURATE, ERROR-FREE, APPROPRIATE, COMPLIANT, OR COMPLETE, OR (V) THE RESULTS OF USING THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS. CUSTOMER’S USE OF THE SERVICES IS SOLELY AT CUSTOMER’S OWN RISK. U2OPIA DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY CONTENT OF, COMMUNICATION BY, OR PRODUCT OR SERVICE ADVERTISED OR OFFERED BY, A THIRD PARTY THROUGH THE SERVICES, AND U2OPIA WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN CUSTOMER AND THIRD PARTIES.
d. Reservation of Rights. U2opia reserves the right, but is not obligated, to monitor and audit Customer’s use of the Services for any reason or no reason, without notice, to ensure Customer’s compliance with this Agreement. U2opia reserves the right, but is not obligated, to reject, refuse to transmit or post, block, or remove any posting (including Application Content), or to restrict, suspend or terminate Customer’s access to all or any part of the Services at any time if Customer has violated the AUP or this Agreement or to prevent harm to U2opia’s business or reputation. U2opia also reserves the right to access, read, preserve, and disclose any information that U2opia reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental or agency request, (ii) enforce this Agreement, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of U2opia, its customers, its customers’ end users, and/or the public. Customer agrees to provide U2opia with any information U2opia reasonably requests to investigate and resolve problems relating to Customer’s Account.
e. No Emergency Services. U2opia’s Services are not intended for and may not be used (i) in connection with 911, E911, or other emergency, public safety or similar services (“Emergency Services”), or (ii) as a replacement for any primary phone services (e.g., landline or mobile phones) used to contact Emergency Services. Customer acknowledges that U2opia and U2opia’s suppliers have no responsibility to connect any 911 calls to any Public Safety Answering Point.
f. Beta Services. Certain Services may be designated or offered as a “beta” version (“Beta Version”) of a Service, which may or may not be released as a full commercial service in the future. Customer is not required to use any Beta Version and does so at its sole risk. Except as otherwise indicated under separate terms and conditions that may apply to such Beta Version, U2opia shall not charge for such Beta Version, but reserves the right to charge for subsequent versions of the Beta Version, including any potential commercial releases. Customer acknowledges and agrees that the Beta Version may contain, in U2opia’s sole discretion, more or fewer features or different licensing terms than a subsequent commercial release version of the Beta Version. U2opia reserves the right not to release later commercial release versions of the Beta Version. Without limiting any disclaimer of warranty or other limitation stated in this Agreement (or any separate terms and conditions that would otherwise be applicable to such Beta Versions), Customer agrees that Beta Versions are not considered by U2opia to be suitable for commercial use, and that may contain errors affecting their proper operation. CUSTOMER ACKNOWLEDGES AND AGREES THAT USE OF ANY BETA VERSION MAY EXHIBIT SPORADIC DISRUPTIONS THAT HAVE THE POTENTIAL TO DISRUPT CUSTOMER’S USE OF ANY SERVICES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, U2OPIA SPECIFICALLY DISCLAIMS ALL DAMAGES RESULTING FROM CUSTOMER’S USE OF ANY BETA VERSION. The fact and existence of any Beta Version shall be deemed to be U2opia Confidential Information under this Agreement. The Support Policy shall not apply to Beta Versions.
10,000 OTP SMS for free is a Beta service of Message Central. Offer is valid only for Verify Now generated OTP messages in India.
g. Deletion of Customer Data. Except as agreed by U2opia and Customer in writing, U2opia may periodically delete Customer’s data including any Application Content. Further, data storage is not guaranteed by U2opia and U2opia shall not have any liability whatsoever for any damage, liabilities, losses, or any other consequences that Customer may incur relating to the loss or deletion of Customer’s data.
10. Suspensions and Terminations.
U2opia has implemented administrative, physical, and technical safeguards to help protect the Personal Data that we transmit and maintain. Those measures are heightened for sensitive data such as Social Security numbers and payment account numbers. However, no system or service can provide a 100% guarantee of security, especially a service that relies upon the public internet. Therefore, you acknowledge the risk that third parties may gain unauthorized access to your Personal Data and other information. Keep your account password secret and please let us know immediately if you think your password was compromised. Remember, you are responsible for any activity under your account using your account password or other credentials.
Where we store your information and international transfers
a. Termination for Convenience. Customer may terminate its use of the Services any time for any reason, and may close its Account by following the instructions on the Site or by contacting U2opia at ………………………. U2opia may terminate this Agreement by providing 30 days’ advance notice to Customer.
b. Suspension of Services; Termination for Cause. U2opia may suspend Customer’s right to use the Services or terminate this Agreement in its entirety (and, accordingly, Customer’s right to use the Service), for cause: (A) if Customer is in breach of this Agreement and has failed to cure such breach within 30 days after written notice thereof, or (B) immediately (i) if Customer has violated or U2opia has reason to believe Customer has violated or has encouraged others to violate any provision of the AUP, (ii) upon Customer’s liquidation, commencement of dissolution proceedings, disposal of Customer’s assets, failure to continue Customer’s business in the ordinary course, assignment for the benefit of creditors, or if Customer becomes the subject of a voluntary or involuntary bankruptcy or similar proceeding, or (iii) if Customer is in default of any payment obligation with respect to any of the Services or if any payment mechanism Customer has provided to U2opia is invalid or charges are refused for such payment mechanism
c. Effect of Suspension. Upon U2opia’s suspension of Customer’s use of or access to any Services, in whole or in part, for any reason: (i) fees will continue to accrue for any Services that are still in use by Customer, notwithstanding the suspension, (ii) Customer remains liable for all fees, charges and any other obligations Customer has (or Customer’s Account has) incurred through the date of suspension with respect to the Services, and (iii) all of Customer’s rights with respect to the Services will be terminated during the period of the suspension.
11. Limitation of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL U2OPIA OR U2OPIA’S PARTNERS, SUPPLIERS, LICENSORS, OR CONTENT PROVIDERS, OR ANY OF ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS, BE LIABLE UNDER ANY CONTRACT, TORT, WARRANTY, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES OR OTHER SUBJECT MATTER OF THIS AGREEMENT FOR: (I) ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, LOST PROFITS, GOODWILL, REVENUE, INCOME OR BUSINESS, DATA LOSS, INTERRUPTION OF BUSINESS, COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, RIGHTS OR SERVICES (HOWEVER ARISING AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES); (II) ANY LIABILITY THAT EXCEEDS THE AMOUNT OF FEES ACTUALLY PAID TO U2OPIA IN THE 6MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM; OR (III) USE OF OR INABILITY TO USE THE SERVICES IN CONNECTION WITH EMERGENCY SERVICES.
12. Governing Law and Venue.
This Agreement shall be governed by and construed in accordance with the laws of the jurisdiction of Singapore without reference to its principles of conflicts of law rules.
13. Arbitration and Dispute Resolution.
a. Management Resolution. In the event either Party has a dispute or claim against the other Party (except with respect to billing disputes), the disputing Party shall provide written notice to the other Party. The Parties agree to escalate disputes to their respective management, who will use commercially reasonable efforts to resolve the dispute by consulting with each other in good faith to reach an equitable resolution satisfactory to both Parties within 30 calendar days of the receipt of notice. Neither Party shall pursue or commence proceedings regarding the dispute in any court, administrative arbitral or other adjudicative body prior to engaging in such consultations and negotiations.
b. Binding Arbitration. If negotiations fail to resolve the dispute within 30 calendar days, and/or small claims court is not a valid option due to the size or nature of the claim, all disputed claims (except for claims relating to intellectual property rights, indemnity, or confidentiality obligations, fraudulent or unauthorized use, theft, or piracy of service, or matters relating to injunctions or other equitable relief) must be resolved by binding arbitration before a single arbitrator, in the English language. This agreement to arbitrate is intended to be given the broadest possible meaning under applicable law. The initiation of an arbitration dispute shall not otherwise prevent U2opia or Customer from terminating Services in accordance with the Agreement.
c. Location and Procedure. A Party who intends to seek arbitration must first send to the other Party a written notice of dispute, which must describe the nature and basis of the dispute and set forth the specific relief sought. The location of arbitration will be Singapore and this dispute resolution provision will be governed by the applicable arbitration act. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with this Agreement. The prevailing Party in any action or proceeding to enforce this Agreement shall be entitled to recover its reasonable attorneys’ fees and costs.
d. Equitable Relief. Notwithstanding the foregoing, each Party shall be entitled to enforce its intellectual property rights and seek equitable relief in any court of competent jurisdiction at any time.
14. Miscellaneous.
a. Entire Agreement; Headings. This Agreement constitutes the entire agreement between Customer and U2opia with respect to the Site and Services, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and U2opia with respect thereto. The section and paragraph headings in this Agreement are for convenience of reference only and shall not affect their interpretation. No oral or written information or advice given by U2opia or its employees and other representatives will create any obligations or warranty on behalf of U2opia unless otherwise agreed in a writing signed by an authorized U2opia representative. Any purchase orders, confirmations, payment documentation, or other terms provided by Customer, even if signed by the Parties after the date hereof, shall have no force or effect. In the event that the Parties have executed versions of this Agreement drafted in more than one language, the English language version shall govern and prevail.
b. Modifications/Waivers. Except as expressly provided elsewhere in this Agreement, this Agreement may not be changed or modified, nor may any provisions hereof be waived, nor may any consent or confirmation be considered to have been given, except by an agreement in writing signed by the Party against whom enforcement of the change or modification is asserted, and any such modification, change, waiver, consent or confirmation on U2opia’s behalf may only be given by an authorized signatory of U2opia. The failure of either Party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
c. Severability. If any provision of this Agreement, or any part of such provision, is found to be unenforceable or invalid, that provision will be (to the minimum extent necessary) replaced by a valid and enforceable provision the effect of which comes as close as possible to the intended economic effect of the unenforceable or invalid provision, so that this Agreement will otherwise remain in full force and effect and enforceable.
d. Force Majeure. Neither Party is liable for any failure of performance (other than for delay or performance in the payment of money due and payable hereunder) to the extent such failure is due to any cause or causes beyond such Party’s reasonable control, including acts of God, fire, explosion, vandalism, cable cut, adverse weather conditions, governmental action, acts of terrorism, strikes and similar labor difficulties, war, sabotage, outages of third party connections, utilities, or telecommunications networks, including, without limitation, carrier-related problems or issues, internet-access issues, denial of service attacks, shortage or unavailability of supplies, and other mechanical, electronic or communications failures or degradation. Either Party’s invocation of this clause will not relieve Customer of its obligation to pay for any Services actually provided or permit Customer to terminate any Services except as expressly provided herein.
e. Notices. Customer hereby authorizes U2opia to send notices to Customer relating to this Agreement (e.g., Service updates, notices of breach and/or suspension) via email to the email address Customer provides to U2opia in Customer’s Account, in addition to the other means and methods set forth in this Agreement. It is Customer’s responsibility to keep Customer’s email address current, and Customer will be deemed to have received any email sent to the last known email address U2opia has on record for Customer. Notices that U2opia sends to Customer via email will be deemed effective upon U2opia’s sending of the email. Notices provided to U2opia under this Agreement shall be sent to the attention of Customer’s account manager, with a copy sent to the following address with respect to any legal matters, at:
U2opia Mobile Pte.
Ltd. 10 Jalan Besar,
#10-02 Sim Lim Tower,
Singapore-208787
Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day after it is sent, if sent via next day delivery by recognized overnight delivery service.
f. Relationship of the Parties. The relationship of the Parties shall not be that of partners, agents or joint venturers for one another, and nothing contained in the Agreement shall be deemed to constitute a partnership or agency agreement between the Parties for any purpose. U2opia and Customer shall be independent Parties and shall discharge their contractual obligations at their own risk subject to the terms of this Agreement.
g. Assignment. This Agreement inures to and is binding upon the Parties’ successors and permitted assignees. Customer shall not assign this Agreement without U2opia’s prior written consent.
i. Government Terms. If Customer (or its End Users) is an agency, department or other entity of any government, then any use, modification, duplication, reproduction, release, performance, display, transfer or disclosure of the Services and accompanying documentation shall be governed solely by this Agreement. Any other use shall be prohibited and no other rights are granted.