Last Updated: June 19, 2020
Through https://UseMyBenefits.com, UMB International LLC (“UMB”, “we”, “us”, or “our”) provides a service for registered members (“Members”) to search and sort through aggregated discounts, offers, rewards, loyalty programs, affinity programs, cashback, free items, services or other benefits (collectively, the “Benefits”) available to a Member through the Member’s credit cards or memberships with corporations or other organizations, all in one personalized dashboard for each Member (“Member Dashboard”).
These Terms and Conditions are a binding agreement between you (“you” or “your”) and UMB. For purposes of clarity, references to “you” in these Terms and Conditions apply to any and all visitors to and users of the Service, including Members. You and UMB are the only parties to these Terms and Conditions and may be referred to in the singular as a “Party” or in the plural as “Parties”.
Please Note: These Terms and Conditions include an agreement to arbitrate all claims.
In addition to other capitalized terms defined in these Terms and Conditions, the following capitalized terms will have the following meanings:
1.1. “Account” means a Member account that enables the Member to access and use the Service.
1.2. “Aggregated Data” means de-identified and aggregated data derived from User Data, including Personal Information, which cannot be linked to a specific User.
1.3. “Benefit Provider” means entities, organizations, and vendors that offer and administer the Benefits to such entity or organization’s customers or members.
1.4. “Content” means all materials, excluding Personal Information, but otherwise including, without limitation, information, data, text, design elements, graphics, images, audio, video, and other content, contained in or delivered via the Service, whether made available by a User or UMB, or otherwise made available in connection with the Service.
1.5. “Intellectual Property Rights” means all legally recognized forms of intellectual property rights to the full extent such rights may arise or be recognized under any law, rule, or regulation.
1.6. “Mobile Application” means the native mobile application owned and operated by UMB, which UMB uses (along with the Website) to provide the Service.
1.7. “Personal Information” means any information that does or can identify a specific individual or, by or from, which a specific individual may be identified, contacted or located, such as the individual’s name, company’s name (if applicable), contact information, username, password, etc., and any other information relating to an identified or identifiable individual, including, without limitation, “nonpublic personal information,” as defined under the Gramm-Leach-Bliley Act (15 U.S.C. § 6801 et seq.), “protected health information” as defined under the Health and Insurance Portability and Accountability Act of 1996 (42 U.S.C. § 1320d), “personal information” as the term is defined in the California Consumer Privacy Act of 2018, Cal. Civ. Code §§ 1798.100 et seq. (CCPA), “personal data” as that term is defined in the General Data Protection Regulation (GDPR) (Regulation (EU) 2016/679), and all rules and regulations issued under any of the foregoing.
1.8. “Process” means to perform any operation or set of operations on any data, information, material, work, expression or other Content, including, without limitation, to: collect, capture, record, receive, input, upload, download, recover, reproduce, store, archive, organize, combine, log, catalog, cross-reference, manage, maintain, calculate, copy, adapt, alter, transform, translate, prepare derivative works, retrieve, output, use, disseminate, share, transmit, submit, post, transfer, display, provide, delete, block, erase, or otherwise process. “Processing” and “Processed” shall have correlative meanings.
1.9. “Service” means, collectively, the User-facing front-end of the Website and Mobile Application, as well as the services provided to Users by UMB through the Website and/or Mobile Application. All references to the Service in these Terms and Conditions refer to each of the above both separately and collectively.
1.10. “UMB Platform” means the back-end systems, software, equipment, processes, and platforms used to provide the Service.
1.11. “User” means any and all visitors to and users of the Service, including, but not limited to, Visitors and Members.
1.12. “User Data” means any information or data, including, without limitation, any Personal Information, feedback, suggestions, enhancement requests and recommendations, which a User or someone on behalf of a User, at any time, uploads, enters, inputs, sends, transmits or otherwise makes available or is collected from a User for Processing through or using the Service.
1.13. “Visitor” means any non-Member individual who visits the Website or Mobile Application or submits information through the Service.
1.14. “Website” means the website owned and operated by UMB, which UMB uses (along with the Mobile Application) to provide the Service.
2. YOUR USE OF THE SERVICE
2.2. Informational Service Only. The Service is provided for informational purposes only and is not intended to provide advice or recommendations of any kind. The Benefits displayed through the Service are directly sourced from Benefit Providers. UMB is not a provider or administrator of Benefits and does not in any way generate, create, review, investigate, or verify any of the Benefits or information related to the Benefits displayed through the Service. UMB expressly disclaims any representations or warranties about the applicability, suitability, reliability, availability, timeliness, or accuracy of any Benefit, Benefit Provider, or information displayed through the Service.
2.3. Benefits and Benefit Providers. UMB is not affiliated with any Benefit Provider and has no control over any Benefit Provider or the offering or administration of any Benefit. Registering as a Member to use the Service does not entitle you to any Benefits or guarantee that any Benefits may be available to you. You must be eligible for the Benefit under the terms and conditions of the applicable Benefit Provider in order to obtain the Benefit. Benefits change from time to time, which changes may not be reflected by the Service. We encourage you to always check with the applicable Benefit Provider prior to each use of a Benefit to confirm the Benefit is still offered and is applicable to you. UMB is not responsible for acceptance or denial of any Benefit. The fact that a Benefit Provider’s Benefits are displayed by the Service does not, and is not meant to, imply that UMB endorses or recommends such Benefit Provider or such Benefit for any purpose.
2.6. Restrictions on Use of the Service. Your use of the Service is restricted to your personal, non-commercial, and informational use only. Further, you agree that you shall not, and you shall not attempt, or otherwise authorize, encourage, or support a third party’s attempts, to do any of the following:
- Use the Service for any unlawful personal, commercial, research, or information gathering purposes;
- Circumvent, re-engineer, decompile, decrypt, break, or otherwise alter or interfere with the Service;
- Breach or otherwise circumvent any security or authentication measures for the Service;
- Probe, scan or test the vulnerability of the Service, the Service or any network associated with the Service;
- Create derivative works of or reproduce, modify, distribute, sell, or otherwise transfer any rights in or to any of the content of the Service;
- Register to use, use, access or copy any information from the Service if you are a competitor of UMB;
- Register to use, use, access or copy any information from the Service for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes;
- Meta tag, frame, or mirror the Website or Mobile Application;
- Restrict, inhibit, or prevent any access to, use or enjoyment of the Service;
- Use any search engine, software, tool, agent or other device or mechanism, including, without limitation, browsers, spiders, robots, scrapers, avatars or intelligent agents, deep-link, or other similar automated devices, program, algorithm, or methodology (other than those made available by UMB through the Service or other generally available third party web browsers, e.g., Internet Explorer, Chrome, Firefox or Safari), to access, acquire, copy, monitor, navigate, or search the Website or Mobile Application unless otherwise consented to in writing by UMB. If you are interested in requesting such consent from UMB, which may be withheld at UMB’s sole discretion, please contact us at firstname.lastname@example.org;
- Use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, data mine, scrape, or in any way reproduce or circumvent the navigational structure or presentation of the Website or Mobile Application, unless otherwise consented to in writing by UMB. If you are interested in requesting such consent from UMB, which may be withheld at UMB’s sole discretion, please contact us at email@example.com;
- Plant in, or otherwise use, the Service to distribute malware;
- Send altered, deceptive or false source-identifying information, including spoofing or phishing, through the Service;
- Send unsolicited communications or SPAM through the Service;
- Promote or advertise products or services, except as expressly authorized by UMB in writing and in advance, through the Service; or
- Impersonate or misrepresent your affiliation with any other person or entity.
You also agree that you shall not transmit, submit or post any of the following to or through the Service or otherwise to UMB:
- Information that is false, inaccurate, incomplete, untimely or misleading;
- Information that violates any law, statute, ordinance or regulation;
- Information that is trade libelous, unlawfully threatening, unlawfully harassing, defamatory, obscene, explicit or vulgar, or otherwise injurious to UMB or third parties;
- Information that breaches or infringes on UMB’s or any third party’s rights of confidentiality, publicity, privacy, intellectual property and/or other proprietary rights;
- Copyrighted and/or trademarked information without prior written permission from UMB;
- Data that contains any viruses, worms, Trojan horses, trap doors, back doors, Easter eggs, time bombs, cancelbots or other enabling or disabling code or computer programming routines that contain contaminating or destructive properties or that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
- Information containing or constituting chain letters, mass mailings, political campaigning, unsolicited or unauthorized advertising, or any form of SPAM; or
- Commercial advertisements or solicitations without prior written permission from UMB.
2.7. Network Transmissions. You understand that the technical processing and transmission of the Service, any Content, and your User Data may involve (i) transmissions over various networks; and/or (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
2.8. Availability. Your use of the Service may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the Service, or other actions that we may take in our sole discretion and from time to time. We reserve the right to modify, suspend, or discontinue the availability of the Service, or any portion or feature of either, at any time and in our sole discretion and without prior notice. You, and not UMB, are solely responsible for maintaining, protecting, backing-up, and providing redundant access to your User Data.
2.9. Communications. By submitting a request or inquiry through the Service to UMB, you agree to receive e-mails, phone calls, and/or text messages, whether from the Service or UMB, in response to your request or inquiry. By registering as a Member, you agree to receive e-mails, phone calls, and/or text messages, whether from the Service or UMB, related to the Service or your Account. If you opt-in to receive the UMB newsletter, you will receive newsletters via e-mail which may contain news, blog posts, messages, promotional materials, marketing materials, or other information that may be of interest to you based on your preferences. Every e-mail from UMB contains a link to opt-out of these communications or you can e-mail us at firstname.lastname@example.org.
BY SUBMITTING A REQUEST OR INQUIRY THROUGH THE SERVICE OR DIRECTLY TO UMB, YOU ACKNOWLEDGE AND AGREE THAT YOU MAY BE CHARGED UNDER YOUR PHONE PLAN FOR ANY PHONE CALLS OR TEXT MESSAGES AND THAT MESSAGE AND DATA RATES (FOR EXAMPLE, FROM YOUR NETWORK PROVIDER) MAY APPLY. YOU ARE RESPONSIBLE FOR ANY CHARGES THAT MAY BE BILLED TO YOU BY YOUR COMMUNICATIONS CARRIERS WHEN YOU CONTACT US OR WHEN WE CONTACT YOU.
2.10. International Use. Although the Service is accessible worldwide, the Service is neither designed nor intended for use outside the United States. Those who choose to access the Service from locations outside the United States do so on their own initiative and at their own risk and are responsible for compliance with all local laws. We reserve the right, at any time and in our sole discretion, to limit the availability and/or use of the Service to any person, geographic area, or jurisdiction. You shall, at all times, comply with all applicable laws and regulations of the United States and all other applicable governmental entities governing, restricting, or otherwise pertaining to the use, transmission, display, exporting, or importing of data, products, services, and/or technical information.
3. MEMBER ACCOUNT AND DASHBOARD
3.1. Account Registration. To access and use the Service, you must register for an Account with a password and your full name, zip code, e-mail address, and mobile phone number. Your zip code is necessary for the Service to provide you with Benefits within your geographical region. No Account may be shared or used by more than one person. You shall immediately notify UMB by e-mail if you become aware of any actual or suspected unauthorized access to or use of your Account or any other actual or potential security breach involving the Service. UMB may, in our sole discretion and at any time, require you to change your password upon notice to you.
3.2. Account Use. You are solely responsible for any and all activities that are conducted through your Account and your actions with respect to maintaining the confidentiality, maintenance, and proper use of your Account. Use of your Account and the Service is currently provided at no charge. However, UMB reserves the right, at any time, to charge for the use of the Service or any part thereof, provided that UMB will provide you with notice and relevant options to continue use of the Service. Your continued use of the Service after receiving such notice may result in charges for use of the Service.
3.3. Account Security. You agree to (i) keep the password of your Account secure and strictly confidential and understand you are responsible for maintaining the security and confidentiality of your Account; (ii) not allow, provide or facilitate access to your Account to any other person or third party; and (iii) notify UMB immediately and change your password if you believe there has been unauthorized access to your Account or associated e-mail account. If we suspect any unauthorized access to an Account, upon our request, the Member shall promptly change the Member’s password and take any other related action as we may reasonably request. In the event you share your password with an unauthorized person or fail to reasonably safeguard your password, you are responsible for any and all transactions made and other actions taken with your Account, including fraudulent or unintentional transactions, and we may suspend or cancel your Account without notice.
3.4. Member Dashboard. Upon registering for an Account, a Member will be granted access to their Member Dashboard, which they may access each time they log into their Account. The Member Dashboard allows Members to add and remove applicable Benefit Providers to the Member Dashboard and search and sort through the Benefits provided or administered by such Benefit Providers by benefit type, location, period or vendor. No account numbers or other information related to your selected Benefits are required for any part of the Service. Members may also rate and comment on Benefits and Benefit Providers through the Member Dashboard.
4. USER CONTENT AND USER DATA
4.1. User Content. You acknowledge and agree that if you contribute, provide or make available any Content through the Service (“User Content”), you hereby grant to UMB a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable, sub-licensable (through multiple tiers) right and license to use, reproduce, adapt, modify, distribute, translate, publish, create derivative works based on, perform, display and otherwise exploit User Content, in whole or in part, in any media now known or hereafter developed, for any purpose whatsoever, with no compensation from UMB. You represent and warrant that you own or otherwise have all the rights, power and authority necessary to grant the foregoing license of User Content and that User Content (i) does not infringe, violate, misappropriate or otherwise conflict with the rights, including Intellectual Property Rights, of UMB or any third party; (ii) complies with all applicable laws and regulations; (iii) complies with these Terms and Conditions; (iv) is complete, accurate and truthful; and (v) is displayed on the Service as you intended. We have no obligation to retain, provide you with copies of or protect the confidentiality or privacy of any User Content.
4.2. Blogs, Forums, Chat Rooms, and Bulletin Boards. The Service includes blogs, forums, chat rooms, and/or bulletin boards (each, a “Forum”), which allows Users to post User Content and interact. UMB does not prepare, approve, or endorse any User Content that may appear in a Forum. You acknowledge and agree that UMB has no control over and is not responsible for the accuracy, correctness, timeliness, safety, or legality of any User Content. You may find User Content to be deceptive, inaccurate, harmful or offensive. Please use caution and common sense when reading User Content posted in our Forums, and do not rely solely on such information. You hereby acknowledge and agree that your use and/or reliance on any User Content is at your own risk. UMB reserves the right, but not the obligation, from time to time and at our sole discretion for any reason or no reason, to monitor, edit, remove and/or re-post any User Content.
4.4. Translations. We cannot guarantee the accuracy or quality of any Content which is translated for display through the Service, and you are solely responsible for review, verification, and accuracy of such translation.
5. INTELLECTUAL PROPRIETARY RIGHTS
5.1. Trademarks. The trademarks, service marks, and logos of UMB, as well as the look and feel of the Website and Mobile Application (collectively, the “UMB Trademarks”), are registered and unregistered trademarks, service marks and/or trade dress of UMB. Other company, product, and service names used in connection with the Service, including as related to Benefit Providers and Benefits, may be trademarks or service marks owned by third parties (“Third Party Trademarks”, and, collectively with the UMB Trademarks, the “Trademarks”). The use of the Service shall not be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed in connection with the Service without the prior written consent of UMB specific for each such use. The Trademarks may not be used to disparage UMB, any third party, or UMB’s or a third party’s products or services, or in any manner (in UMB’s sole judgment) that may damage any goodwill in the Trademarks. Use of any Trademarks as part of a link to or from any website or application is prohibited unless UMB approves the establishment of such a link by prior written consent specific for each such link. All goodwill generated from the use of any UMB Trademark shall inure to UMB’s benefit.
5.2. UMB Copyrights. The Service, including, without limitation, the look and feel, design and organization, compilation of the content, code, data and other materials on the Website and Mobile Application, all non-User Content and the compilation of any non-User Content and all of UMB’s URLs, website domain names, graphics, logos, page headers, button icons, scripts, other markings (collectively, the “UMB Copyrights”), are the property of UMB or UMB’s Content providers and are protected by U.S. and international copyright laws. You acknowledge and agree that UMB Copyrights are protected by all relevant proprietary rights and laws. Except as expressly authorized by UMB, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on any UMB Copyrights or the Service, in whole or in part.
5.3. Aggregated Data. As between you and UMB, UMB exclusively owns all right, title, and interest in and to all Aggregated Data. UMB has no obligation to retain, provide you with copies of or protect the confidentiality of any Aggregated Data.
5.4. Prohibited Use. You may not use any of the UMB Trademarks or UMB Copyrights without our express, prior written permission. You shall not delete or in any other manner alter the copyright, trademark, and other proprietary notices appearing on the Service or in any way connected with the Service. We make no proprietary claim to any third party names, copyrights, service marks, trademarks, or trade dress appearing on the Website or Mobile Application. Any third party names, copyrights, service marks, trademarks, or trade dress appearing on the Website or Mobile Application are property of their respective owners. Except as otherwise permitted under the copyright laws of the United States, no copying, distribution, redistribution, transmission, publication, or use is permitted. Your use of the Service does not grant to you ownership of any content, code, data, or other materials you may access on or through the Service. UMB expressly reserves all rights not expressly granted to you in these Terms and Conditions.
5.5. Third Party Infringement Claims. In the event that at any time: (i) any third party infringement claim is brought or threatened against UMB as related to the Service; or (ii) UMB reasonably believes that the Service used in accordance with these Terms and Conditions infringes or poses a significant risk of infringing any third party U.S. Intellectual Property Rights of which UMB has actual knowledge, UMB may, at UMB’s sole discretion, but shall not be required to, exercise commercially reasonable efforts to (1) obtain the right for you to continue to access and use the Service subject to these Terms and Conditions without infringing said third party Intellectual Property Rights and without material loss of functionality of the Service; or (2) modify or replace the Service as to cause same not to infringe said third party U.S. Intellectual Property Rights without material loss of functionality. If UMB elects not to pursue, or for any other reason does not obtain, the results described in parts (1) or (2), UMB, in UMB’s sole discretion, shall have the option but shall have no obligation, to terminate your Account, your continued use of the Service, and/or these Terms and Conditions effective immediately and automatically without notice to you.
5.6. DMCA Copyright Infringement Notice. The Digital Millennium Copyright Act of 1998 (“DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that any Content made available in connection with the Service infringes your copyright(s), you (or your agent) may send UMB a notice requesting that the Content be removed, or access to it be blocked. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA (see http://www.loc.gov/copyright for details). Notices and counter-notices with respect to the Service should be sent to:
UMB International LLC
Attn: Designated Agent
777 South Flagler Drive, Suite 500 East
West Palm Beach, Florida, 33401
UMB has adopted and currently implements a policy of terminating, in appropriate circumstances, the Accounts of Users, as well as suspending and/or terminating access to and use of the Service by any such Users, who are deemed repeat infringers or who are repeatedly charged with infringement.
To provide feedback regarding our business or other Users, simply send an e-mail to email@example.com. You agree that: (i) all submissions and all Content will automatically become the property of UMB, and you are not entitled to any compensation; (ii) UMB may use or redistribute any such submission and its contents for any purpose and in any way on an aggregated and anonymized basis; (iii) there is no obligation for UMB to review any submission; (iv) there is no obligation for UMB to perform any actions related to any submission; and (v) there is no obligation for UMB to keep any submission confidential.
7.2. Linking to the Service. You may link to the Website or Mobile Application’s homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you may not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. You may not establish a link from any website that is not owned by you. Neither the Website nor Mobile Application may be framed on any other website, nor may you create a link to any part of the Website or Mobile Application other than the homepage. You agree to cooperate with us in causing any unauthorized framing or linking to cease immediately. We reserve the right to withdraw linking permission without notice.
8. SERVICE SUPPORT AND SECURITY
8.1. Ancillary Facilities. In no event shall UMB have any obligation to provide, maintain or support any hardware, connectivity, third party software, communications services, bandwidth, and other goods, software, services, and facilities necessary to access and use the Service.
8.2. Security and Other Risks. We have implemented and we routinely update and maintain appropriate administrative, physical and technical security measures to help protect your User Data from unauthorized access. Some of the safeguards we use to protect your User Data are firewalls and data encryption, information access controls, controlled access to our facilities, and 24/7 monitoring of our systems databases. Specifically, Account passwords are stored as 35-byte hashes using a salted MD5 encryption algorithm. This salted encryption requires both the “salt” keyword and an MD5 decrypter to access the encrypted data. You acknowledge that your acceptance of these Terms and Conditions and access to and use of the Service are voluntary and undertaken with full knowledge and awareness that such activities necessarily entail risks, including security breaches, unavailability, loss or corruption of data, and other inherent risks associated with computer software, communications via the Internet, electronic communications and Processing. You should take special care in deciding what information you send or otherwise make available to us, and you should always back up any User Data or Content you send or otherwise make available to us. Except as otherwise required by applicable law, UMB shall not be liable for the storage or loss of any of your User Data or Content.
8.3. Service Modifications and Suspensions. Your use of the Service may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair, or other actions that we may take in our sole discretion and from time to time. We reserve the right at any time to, and from time to time may, modify, suspend or discontinue, temporarily or permanently, the Service (or any part thereof) for any reason or no reason with or without notice. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service or for storage or loss of your Content or User Data.
9. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
YOU AGREE THAT THE DISCLAIMERS OF REPRESENTATIONS AND WARRANTIES SET FORTH IN THESE TERMS AND CONDITIONS ARE REASONABLE, REFLECT AN INFORMED, VOLUNTARY ALLOCATION OF THE RISKS BOTH KNOWN AND UNKNOWN THAT MAY EXIST IN CONNECTION WITH THESE TERMS AND CONDITIONS, AND ARE FUNDAMENTAL ELEMENTS OF THESE TERMS AND CONDITIONS WHICH MATERIALLY INDUCED UMB TO ENTER INTO THESE TERMS AND CONDITIONS. THE DISCLAIMERS OF REPRESENTATIONS AND WARRANTIES SET FORTH IN THESE TERMS AND CONDITIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND SHALL CONTINUE TO APPLY EVEN IF ANY EXCLUSIVE REMEDY HEREUNDER FAILS OF ITS ESSENTIAL PURPOSE.
THE SERVICE INCLUDING, BUT NOT LIMITED TO, THE WEBSITE, THE MOBILE APPLICATION, AND ALL RELATED CONTENT, LICENSES, FUNCTIONS, MATERIALS, AND INFORMATION, IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PROVIDED BY LAW, UMB HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THESE TERMS AND CONDITIONS AND THE SERVICE, EITHER EXPRESS OR IMPLIED, WHETHER ARISING UNDER ANY STATUTE, LAW, COMMERCIAL USAGE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
UMB MAKES NO REPRESENTATION OR WARRANTY THAT (I) THE SERVICE OR ANY CONTENT OR BENEFIT WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (II) THE SERVICE OR ANY CONTENT OR BENEFIT WILL BE AVAILABLE, UNINTERRUPTED, RELIABLE, TIMELY, SECURE, ACCURATE OR ERROR-FREE; (III) BENEFIT PROVIDERS OR OTHER THIRD PARTIES WILL HONOR ANY BENEFIT; (IV) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR ANY CONTENT OR BENEFIT WILL BE ACCURATE OR RELIABLE; (V) THE SERVICE IS OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (VI) THE SERVICE WILL BE SECURE FROM UNAUTHORIZED ACCESS; (VII) THE SERVICE WILL DETECT EVERY SECURITY OR OTHER VULNERABILITY OF YOUR DEVICE, NETWORK OR SYSTEM; (VIII) THE SERVICE IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE PLATFORM; OR (IX) ANY ERRORS IN THE SERVICE OR ANY CONTENT OR BENEFIT WILL BE CORRECTED. UMB WILL HAVE NO LIABILITY WITH RESPECT TO ANY REPRESENTATION OR WARRANTY DISCLAIMED IN (I) THROUGH (IX) ABOVE. UMB IS NOT RESPONSIBLE FOR AND MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO VETTING, USE, STORAGE OR LOSS OF ANY OF YOUR CONTENT OR USER DATA. YOU ARE SOLELY RESPONSIBLE FOR BACKING-UP AND STORING YOUR CONTENT AND USER DATA.
NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY UMB OR ANY OF OUR AUTHORIZED REPRESENTATIVES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. WE MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY BENEFIT, BENEFIT PROVIDER OR OTHER THIRD PARTY PRODUCT, SERVICE, CONTENT, DATA, MATERIAL, SOFTWARE, EQUIPMENT OR HARDWARE. WE SHALL NOT BE LIABLE FOR YOUR USE OF THE SERVICE, INCLUDING, WITHOUT LIMITATION, THE CONTENT OF THE SERVICE AND ANY ERRORS CONTAINED WITHIN THE SERVICE. YOU EXPRESSLY AGREE AND ACKNOWLEDGE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK. THE TRANSMISSION, STORAGE, VIEWING, AND RETRIEVAL OF DATA AND FILES THROUGH THE INTERNET ARE SUBJECT TO A VARIETY OF CONDITIONS BEYOND OUR CONTROL THAT MAKE SUCH TRANSMISSION, STORAGE, VIEWING AND RETRIEVAL POTENTIALLY UNRELIABLE.
The Service may become unavailable due to any number of factors, including, without limitation, scheduled or unscheduled maintenance, technical failure of the software, telecommunications infrastructure, or the unavailability or interruption of access to the Internet. The disclaimers set forth in this section shall apply regardless of whether (i) we determine that your device, network or system is deemed secure; (ii) you perform such modifications to your device, network or system as we reasonably suggest in order for your device, network or system to be deemed secure, or (iii) otherwise.
Some state laws do not allow disclaimers of implied warranties. If these laws apply to you, some or all of the above disclaimers, exclusions, or limitations may not apply to you.
10. LIMITATION OF LIABILITY
YOU AGREE THAT THE LIMITATIONS OF LIABILITY PROVISIONS SET FORTH IN THESE TERMS AND CONDITIONS ARE REASONABLE, REFLECT AN INFORMED, VOLUNTARY ALLOCATION OF THE RISKS BOTH KNOWN AND UNKNOWN THAT MAY EXIST IN CONNECTION WITH THESE TERMS AND CONDITIONS, AND ARE FUNDAMENTAL ELEMENTS OF THESE TERMS AND CONDITIONS WHICH MATERIALLY INDUCED UMB TO ENTER INTO THESE TERMS AND CONDITIONS. THE LIMITATIONS OF LIABILITY PROVISIONS SET FORTH IN THESE TERMS AND CONDITIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND SHALL CONTINUE TO APPLY EVEN IF ANY EXCLUSIVE REMEDY HEREUNDER FAILS OF ITS ESSENTIAL PURPOSE.
UMB SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL THEORY, WHETHER IN TORT, CONTRACT OR OTHERWISE, WITH RESPECT TO THE SERVICE, ACCESS TO AND/OR USE OF THE SERVICE, OR ANY OTHER SUBJECT MATTER OF THESE TERMS AND CONDITIONS OR ANY OTHER AGREEMENT ENTERED INTO WITH UMB, FOR (I) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, PRIVACY, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF UMB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES); (II) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, DATA, CONTENT OR MATERIAL; (III) AMOUNTS IN EXCESS OF U.S. $100.00 IN THE AGGREGATE FOR ALL CLAIMS WITH RESPECT TO THE SERVICE OR ANY OTHER SUBJECT MATTER OF THESE TERMS AND CONDITIONS; OR (IV) ANY MATTERS BEYOND UMB’S REASONABLE CONTROL. UMB SHALL HAVE NO LIABILITY WITH RESPECT TO (I) ANY BENEFITS; (II) ANY BENEFIT PROVIDERS; (III) ANY OF YOUR CONTENT; (IV) ANY CONTENT OF ANY OTHER USER; OR (V) THE ACTS OR OMISSIONS OF ANY USER. THE LIMITATIONS ON AND EXCLUSIONS FROM LIABILITY SET FORTH IN THESE TERMS AND CONDITIONS DO NOT APPLY TO ANY LIABILITY ARISING OUT OF ANY FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
Some state laws do not allow limitations on certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions, or limitations may not apply to you.
11. LIMITATION ON TIME TO FILE CLAIMS
You agree to defend, indemnify, and hold harmless UMB and its officers, directors, shareholders, employees, affiliates, independent contractors, agents, and representatives from and against any and all claims and expenses, including, but not limited to, attorneys’ fees and costs, arising, directly or indirectly, out of or attributable to (i) any breach or violation by you of these Terms and Conditions; (ii) your failure to provide accurate, complete and/or current information when registering to use or using the Service and/or submitting information through the Service; (iii) your use or misuse of the Service; and (iv) any agreement between you and any third party.
13. CUSTOMER SUPPORT
UMB International LLC
Attn: Customer Support
777 South Flagler Drive, Suite 500 East
West Palm Beach, Florida, 33401
14. DISPUTE RESOLUTION
14.1. Customer Service Department. Most concerns involving the Service can be resolved quickly and efficiently through our customer service department. If you are unable to resolve your concern within ten (10) business days of contacting our customer service department, then either party may file an arbitration proceeding pursuant to these Terms and Conditions to resolve the dispute.
14.2. Arbitration. Any controversy or dispute not resolved through our customer service department and arising, directly or indirectly, out of or related to these Terms and Conditions shall be submitted to final binding arbitration in Miami-Dade County, Florida before the American Arbitration Association under the commercial arbitration rules then administered by the American Arbitration Association. Any award or decision obtained from any such arbitration proceeding shall be final and binding on the parties, and judgment upon any award thus obtained may be entered in any court having jurisdiction thereof. Except as otherwise provided in these Terms and Conditions, no action at law or in equity based upon any claim arising, directly or indirectly, out of or related to these Terms and Conditions shall be instituted in any court by any party, except (i) an action to compel arbitration pursuant to this section; (ii) an action to enforce an award obtained in an arbitration proceeding in accordance with this section; or (iii) an action for injunctive relief. Any arbitration arising, directly or indirectly, out of or related to these Terms and Conditions shall take place on an individual basis and class arbitrations and class actions are hereby specifically agreed to as not permitted. You agree that you and UMB are each waiving their right to trial by jury or to participate in a class action.
14.3. Prevailing Party Attorneys’ Fees. The prevailing party in any arbitration proceeding or any action to compel arbitration, enforce an arbitration award, or seek injunctive relief and arising, directly or indirectly, out of or related to these Terms and Conditions will be entitled to an award of their reasonable attorney’s fees and costs (including, without limitation, all taxable and non-taxable costs, and all fees and costs to determine the amount of fees and costs to be awarded) incurred prior to any such arbitration or legal action, as well as at all levels of trial and appeal.
14.4. Injunctive Relief. Notwithstanding the arbitration obligation set forth above, you acknowledge and agree that UMB may be irreparably damaged if these Terms and Conditions are breached by you, and damages at law would be an inadequate remedy. In the event of a breach or threatened breach of any provision of these Terms and Conditions by you, we shall be entitled, in addition to all rights and remedies, to an injunction restraining such breach or threatened breach, without being required to show any actual damage or to post an injunction bond, or to a decree for specific performance of the provisions of these Terms and Conditions.
15.2. Agreement to be Bound and Survival. Your agreement to be bound by these Terms and Conditions commence with your accessing or using the Service or otherwise submitting information to UMB through the Service, and your agreement to be so bound will continue until your right to access and use the Service is terminated, subject to the survival of each of the following after such cancellation or termination: Sections and subsections 2, 3.2, 3.3, 3.5, 3.6, 4 through 12, 14, and 15, and any other obligation you have to UMB which by its nature is intended to continue after termination. If following the cancellation or termination of your right to access and use the Service, you access or use the Service or otherwise submit information through the Service, then you again, automatically and immediately, are bound by these Terms and Conditions.
15.3. Modification. At our sole discretion and at any time, we may amend these Terms and Conditions. You should review these Terms and Conditions for amendments each time you visit or use the Service. For your convenience, we post on the Service the last date these Terms and Conditions were updated. If our Terms and Conditions are amended, the amended Terms and Conditions will take effect immediately for all users of the Service. Your continued use of the Service following an amendment will evidence your acceptance of the amended Terms and Conditions.
15.4. Waiver. The failure or delay of UMB to exercise or enforce any right or provision of these Terms and Conditions shall not constitute a waiver of such right or provision. No oral waiver, amendment, or modification shall be effective under any circumstance whatsoever.
15.5. Binding Effect. Except as expressly provided in these Terms and Conditions, nothing in these Terms and Conditions will confer any rights or remedies under or by reason of these Terms and Conditions on any person or entity other than the Parties and their respective successors and permitted assigns.
15.6. No Assignment. Your rights and obligations under these Terms and Conditions and your right to access and use the Service are not assignable, transferable or sub-licensable by you.
15.7. Severability. The determination by any court of competent jurisdiction that any provision of these Terms and Conditions is not enforceable in accordance with its terms shall not affect the validity or enforceability of the remaining provisions of these Terms and Conditions.
15.8. Governing Law, Jurisdiction, And Venue. These Terms and Conditions shall be governed by and construed in accordance with the internal laws of the State of Florida, without giving effect to principles of conflicts of law. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. For any action to compel arbitration or enforce an arbitration award or seek injunctive relief pursuant to these Terms and Conditions, the parties hereby expressly consent to the jurisdiction and venue of the state and/or federal courts in and/or for Miami-Dade County, Florida, USA, and each party hereby expressly waives any objection to such venue based upon forum non-conveniens or otherwise.
15.9. Jury Trial Waiver. YOU AND UMB EACH HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY FOR ANY LEGAL PROCEEDING ARISING, DIRECTLY OR INDIRECTLY, OUT OF OR RELATING TO THESE TERMS AND CONDITIONS OR YOUR USE OF THE SERVICE.
15.10. Notices. Notices to you may be made via either e-mail or regular mail to the address in UMB’s records. We may also provide notices of changes to these Terms and Conditions or other matters by displaying notices or links to notices through the Service or by updating the date at the top of these Terms and Conditions. Any notice from you to us shall be sent in writing to our mailing address at UMB, Inc., Attn: Legal Department, 2740 SW Martin Downs Blvd. #53, Palm City, FL 34990.
15.11. Force Majeure. Neither party shall be liable for any delay in performing its obligations if such delay is caused by circumstances beyond the party’s reasonable control, including, without limitation, any delay caused by any act or omission of the other party, acts of God, war, terrorism, floods, windstorm, labor disputes, or delay of essential materials or services. The delayed party shall promptly notify the other party of the reasons for and the likely duration of the delay, whereupon an extension of time equal to the period of delay, but not greater than thirty (30) days, shall be granted to the delayed party. If the period of the delay shall exceed thirty (30) days, then the non-delayed party may cancel further performance of the delayed obligation without any penalty whatsoever.