UXCloud is a cloud-based service that may be used to host and record user research sessions. The service is provided by Ovo Studios, LLC. Ovo is run by two long-time UX/Usability professionals, Scott Butler and Rich Gunther. Scott and Rich have been active in the field since 1990 and have been providing UX/Usability solutions since 1996. Should you need to contact Scott or Rich about business matters, their contact information is scott@uxcloud.us, m: +1 330-348-1619 and rich@uxcloud.us, m:+1 336-460-1658. They are both in the Eastern Time zone (UTC-5) so please be considerate if you phone them. If you need support assistance, use the support request form at www.uxcloud.us/support.html.
UXCloud's websites and domains, including www.uxcloud.us, and all of the webpages, subdomains, country level domain variants and subparts of those websites (collectively, our "Site"), all of the services available on or through the Site or otherwise provided by us, and all of our mobile applications are offered, maintained and provided by UXCloud. We refer to all of these as our "Services."
Through the Services, UXCloud provides a simple and quick means for registered users to host and record user research sessions. We refer to the people who are registered with UXCloud, the people who initiate user research sessions, the people who are research subjects and who participate in the user research session ("Participant"), people who observe the user research session ("Observers"), and people who use any of USCloud's services as "Users".
If you are a User, the Services are provided to you by Ovo Studios, LLC with offices located at 355 Cherokee Drive, Canal Winchester, OH 43110 USA. ("UXCloud".)
The sections below contain our Terms of Service Agreement ("Terms of Service"). These Terms of Service govern all of our Services, all of which are offered subject to your acceptance without modification of these Terms of Service.
You agree to these Terms of Service and you enter into a binding contract with UXCloud either when you sign up for a registered account by clicking "Sign Up," "Register Now," "Get Started" or similar buttons, or if you are a Participant, or if you are an Observer, or if you are a User. If you do not agree to any portion of these Terms of Service, do not use or access the Services. If you will be using the Services on behalf of an entity, you agree to these Terms of Service on behalf of that entity and its affiliates and you represent that you have the authority to do so. In such case, "you" and "your" will refer to that entity. If you do not have such authority, or if you do not agree to any portion of these Terms of Service, do not use or access the Services.
THESE TERMS OF SERVICE INCLUDE (A) AN ARBITRATION PROVISION FOR USERS LOCATED IN THE UNITED STATES; (B) A WAIVER OF RIGHTS TO BRING A CLASS ACTION AGAINST UXCLOUD FOR USERS LOCATED IN THE UNITED STATES; (C) CERTAIN DISCLAIMERS OF WARRANTIES ON BEHALF OF UXCLOUD; (D) CERTAIN LIMITATIONS OF LIABILITY FOR THE BENEFIT OF UXCLOUD; AND (E) A RELEASE BY YOU OF ALL CLAIMS FOR DAMAGE AGAINST UXCLOUD ARISING OUT OF DISPUTES BETWEEN YOU AND THIRD PARTIES IN CONNECTION WITH YOUR USE OF THE SERVICES. BY USING ANY OF THE SERVICES, YOU AGREE TO THESE PROVISIONS.
UXCloud reserves the right, at its sole discretion, to modify or replace any of the terms or conditions of these Terms of Service (or any of the agreements that make up these Terms of Service) at any time (collectively, "Modifications"). Modifications to these Terms of Service will be posted to the UXCloud website with a change to the "Updated" date at the top of these Terms of Service. In certain circumstances UXCloud may provide you with additional notice of such Modifications, via email or with in-Service notifications. Modifications will be effective thirty (30) days following the "Updated" date or such other date as communicated in any other notice to you, except that changes addressing new functions of the Services or which do not impose any additional burdens or obligations on you will be effective immediately. It is your responsibility to check these Terms of Service periodically for Modifications. Your continued use of the Services following the effectiveness of any Modifications to these Terms of Service constitutes acceptance of those Modifications as well. If any Modification to these Terms of Service is not acceptable to you, you must cease accessing, browsing and otherwise using the Services. Other than as set forth in this paragraph, these Terms of Service may only be modified through a written agreement signed by you and an authorized officer of UXCloud.
These Terms of Service are effective upon your Acceptance as set forth under Section 3.1 above and continue in effect until terminated.
Except to the extent we have agreed otherwise in a separate written agreement between you and an authorized officer of UXCloud, UXCloud may terminate your right to use the Services at any time for (a) your violation or breach of these Terms of Service; (b) your misuse or abuse of the Services; or (c) if allowing you to access and use the Services would violate any applicable local, state, provincial, national and other laws, rules and regulations or would expose UXCloud to legal liability. We will use reasonable efforts to provide you notice of any such termination. Further, you agree that UXCloud shall not be liable to you or any third-party for any such termination of your right to use or otherwise access the Services.
Except to the extent you have agreed otherwise in a separate written agreement between you and an authorized officer of UXCloud, you may terminate your access to the Services and these Terms of Service by deleting your account. If you need help deleting your account, please contact us. In the event there is a separate agreement between you and UXCloud governing your use of the Services and that agreement terminates or expires, these Terms of Service (as unmodified by such agreement) shall govern your use of the Services unless and until you delete your account.
All provisions of these Terms of Service that by their nature should survive termination of these Terms of Service shall survive (including, without limitation, all limitations on liability, releases, indemnification obligations, disclaimers of warranties, agreements to arbitrate, choices of law and judicial forum and intellectual property protections and licenses).
The Services are subject to United States export controls and economic sanctions laws. In accepting these Terms of Service you represent and warrant that:
(a) you are not located in, and you are not a national or resident of, any country to which the United States, United Kingdom, European Union, Australia or Canada has embargoed goods and/or services of the same type as the Services ("Restricted Countries"), including without limitation, Cuba, Iran, North Korea, Sudan or Syria; and
(b) you are not a person or entity, or owned by, under the control of, or affiliated with, a person or entity (i) that appears on the U.S. Office of Foreign Assets Control’s Specially Designated Nationals List, Foreign Sanctions Evaders List or Palestinian Legislative Council List; (ii) that appears on the U.S. Department of State’s Terrorist Exclusion List; (iii) that appears on the Bureau of Industry and Security’s Denied Persons, Entity or Unverified List; (iv) that appears on the Consolidated List of Targets published by the U.K. HM Treasury; (v) that appears on the Consolidated List published by the A.U. Department of Foreign Affairs and Trade; (vi) that is subject to sanctions in any other country; or (vii) that is engaged in the design, development or production of nuclear, biological or chemical weapons, missiles or unmanned aerial vehicles.
You agree to defend, indemnify and hold UXCloud, and its affiliates and subsidiaries, and each of its and their respective officers, directors, agents, co-branders, licensors, payment processing partners, other partners and employees, harmless from any and all damage (whether direct, indirect, incidental, consequential or otherwise), loss, liability, cost and expense (including, without limitation, reasonable attorneys’ and accounting fees) resulting from any claim, demand, suit, proceeding (whether before an arbitrator, court, mediator or otherwise) or investigation made by any third party (each a "Claim") due to or arising out of: (a) your breach of these Terms of Service, including, without limitation the Terms of Use, the Merchant Agreement and any other part of these Terms of Service; (b) your improper use of the Services; (c) your breach of any applicable local, state, provincial, national or other law, rule or regulation or the rights of any third party; or (d) in the case of Organizers, your events or the fact that UXCloud was providing Services with respect to those events, provided that in the case of (d), this indemnification shall not apply to the extent that the Claim arises out of UXCloud’s gross negligence or willful misconduct. UXCloud shall provide notice to you of any such Claim, provided that the failure or delay by UXCloud in providing such notice shall not limit your obligations hereunder except to the extent you are materially disadvantaged by such failure.
UXCLOUD PROVIDES OUR SERVICES USING A COMMERCIALLY REASONABLE LEVEL OF SKILL AND CARE AND WE TRY TO KEEP UXCLOUD UP, BUG-FREE AND SAFE. BUT THERE ARE CERTAIN THINGS THAT WE DON’T PROMISE ABOUT OUR SERVICES AND YOU USE THE SERVICES AT YOUR OWN RISK. TO THE EXTENT PERMITTED BY APPLICABLE LAWS, THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. UXCLOUD HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. BY WAY OF EXAMPLE, UXCLOUD MAKES NO WARRANTY THAT (A) THE SERVICES (OR ANY PORTION OF THE SERVICES) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; OR (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE. YOU ACKNOWLEDGE THAT UXCLOUD HAS NO CONTROL OVER AND DOES NOT GUARANTEE THE QUALITY, SAFETY OR LEGALITY OF EVENTS ADVERTISED, THE TRUTH OR ACCURACY OF ANY USERS’ (INCLUDING ATTENDEES’, OTHER NON-ORGANIZERS’ AND ORGANIZERS’) CONTENT OR LISTINGS OR THE ABILITY OF ANY USER (INCLUDING ATTENDEES AND ORGANIZERS) TO PERFORM OR ACTUALLY COMPLETE A TRANSACTION AND UXCLOUD IS NOT AFFILIATED WITH, AND HAS NO AGENCY OR EMPLOYMENT RELATIONSHIP WITH, ANY THIRD PARTY SERVICE PROVIDER USED IN CONJUNCTION WITH THE SERVICES, AND UXCLOUD HAS NO RESPONSIBILITY FOR, AND HEREBY DISCLAIMS ALL LIABILITY ARISING FROM, THE ACTS OR OMISSIONS OF ANY SUCH THIRD PARTIES.
NOTHING IN THESE TERMS OF SERVICE IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY WILLFUL ACTS, NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THOSE LIABILITY AND OTHER LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION (IF ANY) WILL APPLY TO YOU AND OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
TO THE EXTENT PERMITTED BY APPLICABLE LAWS, UXCLOUD, AND ITS AFFILIATES AND SUBSIDIARIES, AND EACH OF ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, CO-BRANDERS, LICENSORS, PAYMENT PROCESSING PARTNERS, OTHER PARTNERS, EMPLOYEES AND ANY APPLICABLE CARD SCHEMES, SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WITH RESPECT TO THE SERVICES, OR ANY OTHER SUBJECT MATTER OF THESE TERMS OF SERVICE, INCLUDING WITHOUT LIMITATION THE TERMS OF USE, THE MERCHANT AGREEMENT AND ANY OTHER PART OF THESE TERMS OF SERVICE, FOR: (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF UXCLOUD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), (B) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, (C) ANY OF YOUR CONTENT (AS DEFINED IN THE TERMS OF USE) OR ANY CONTENT OF ANY OTHER USER OF THE SERVICES, OR (D) ANY MATTERS BEYOND UXCLOUD’S REASONABLE CONTROL. IN ADDITION, THE MAXIMUM AGGREGATE LIABILITY OF UXCLOUD, ITS PAYMENT PROCESSING PARTNERS, LICENSORS AND ANY APPLICABLE CARD SCHEMES FOR ALL DAMAGES, LOSSES, LIABILITIES, COSTS AND EXPENSES UNDER ANY LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WITH RESPECT TO, ARISING OUT OF OR RELATED TO THE SERVICES, OR ANY OTHER SUBJECT MATTER OF THESE TERMS OF SERVICE, INCLUDING WITHOUT LIMITATION THE TERMS OF USE, THE MERCHANT AGREEMENT AND ANY OTHER PART OF THESE TERMS OF SERVICE, SHALL BE LIMITED TO (I) FOR ORGANIZERS OF EVENTS WITH PAID REGISTRATIONS, AND SUBJECT TO THE TERMS OF THE MERCHANT AGREEMENT, THE FEES (NET OF UXCLOUD PAYMENT PROCESSING FEES) THAT YOU PAID US IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE CIRCUMSTANCES GIVING RISE TO YOUR CLAIM; AND (II) FOR ORGANIZERS OF FREE EVENTS, ATTENDEES AND OTHER USERS, EITHER (1) THE TOTAL AMOUNT OF ALL REGISTRATIONS THAT YOU PURCHASED OR MADE THROUGH THE SERVICES IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE CIRCUMSTANCES GIVING RISE TO YOUR CLAIM; OR (2) IF YOU MADE NO SUCH PURCHASES, ONE HUNDRED U.S. DOLLARS (US$100).
NOTHING IN THESE TERMS OF SERVICE IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY WILLFUL ACTS, NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THOSE LIABILITY AND OTHER LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION (IF ANY) WILL APPLY TO YOU AND OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
UXCloud provides a marketplace in which Attendees and Organizers can transact. However, UXCloud could not function if it were held responsible for the actions or inactions of different Attendees, Organizers and/or third parties both on and off the Services. Therefore, as an inducement to UXCloud permitting you to access and use the Services, you hereby agree to release UXCloud, and its affiliates and subsidiaries, and each of its and their respective officers, directors, agents, partners and employees from all damages (whether direct, indirect, incidental, consequential or otherwise), losses, liabilities, costs and expenses of every kind and nature, known and unknown, arising out of or in any way connected with disputes between you and third parties (including other Users) in connection with the Services or any event listed on the Services. In addition, you waive any applicable law or statute, which says, in substance:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE RELEASED PARTY."
The trademarks, service marks and logos of UXCloud (the "UXCloud Trademarks") used and displayed in connection with the Services are registered and unregistered trademarks or service marks of UXCloud. Other company, product and service names used in connection with the Services may be trademarks or service marks owned by third parties (the "Third Party Trademarks," and, collectively with UXCloud Trademarks, the "Trademarks"). The offering of the Services shall not be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed in connection with the Services without the prior written consent of UXCloud specific for each such use. The Trademarks may not be used to disparage UXCloud, any third party or UXCloud’s or such third party’s products or services, or in any manner that may damage any goodwill in the Trademarks. Use of any Trademarks as part of a link to or from any site is prohibited unless UXCloud approves the establishment of such a link by prior written consent specific for each such link. All goodwill generated from the use of any UXCloud Trademark shall inure to UXCloud’s benefit.
A number of issued patents and patents pending may apply to the Services. The Content (as defined in the Terms of Use) of the Services is also protected by copyrights owned by UXCloud and/or third parties. Please note that if you copy portions of the Services you are violating these patent rights and copyrights.
Notices to you may be sent via either email or regular mail to the address in UXCloud’s records. The Services may also provide notices of changes to these Terms of Service or other matters by displaying notices or links to notices to you generally on the Services. If you wish to contact UXCloud or deliver any notice, you can do so as follows:
Ovo Studios, LLC 355 Cherokee Drive Canal Winchester, OH 43110 Facsimile: 001-440-287-6094 Email: sales@uxcloud.us
These Terms of Service, including the Terms of Use, Merchant Agreement and any other part of these Terms of Service, constitute the entire agreement between you and UXCloud and govern your use of the Services, superseding any prior or contemporaneous agreements, proposals, discussions or communications between you and UXCloud on the subject matter hereof, other than any written agreement between you and an authorized officer of UXCloud relating to a specified services.
Except as set forth in Section 6.10 below, these Terms of Service and the provision of the Services to you are governed by the laws of the state of Ohio, U.S.A., without reference to principles of conflict of laws.
ONLY FOR USERS LOCATED IN THE UNITED STATES:
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS. ANY DISPUTE OR CLAIM UNDER THESE TERMS OF SERVICE OR WITH RESPECT TO THE SERVICES WILL BE SETTLED BY BINDING ARBITRATION OR IN SMALL CLAIMS COURT (TO THE EXTENT THE CLAIM QUALIFIES) AND WILL TAKE PLACE ON AN INDIVIDUAL BASIS ONLY; CLASS, CONSOLIDATED OR REPRESENTATIVE ARBITRATIONS AND CIVIL ACTIONS ARE NOT PERMITTED ONCE THIS SECTION IS EFFECTIVE.
(a) Contact Us First.
If you have a question or concern about the Services, please contact us first at sales@uxcloud.us. Our customer support team will try to answer your question or resolve your concern.
(b) Agreement to Arbitrate.
In the unlikely event that our customer support team is unable to resolve your concerns, we each hereby agree to resolve any and all disputes or claims under these Terms of Service or with respect to the Services through binding arbitration or in small claims court (to the extent the claim qualifies) instead of in courts of general jurisdiction and only on an individual basis and not as part of any purported class, consolidated or representative proceeding. Arbitration, which is often cheaper, faster and less formal than a lawsuit in court, uses a neutral arbitrator instead of a judge or jury. Arbitrators can award the same damages and relief as a court. Binding arbitration is subject to very limited review. Only the arbitrator appointed pursuant to this Section, and not any federal, state or local court or agency, shall have the authority to resolve any dispute or claim relating to this Section, including, without limitation, the scope, enforceability and arbitrability of these Terms of Service. This arbitration provision shall survive termination of these Terms of Service. These Terms of Service evidence a transaction in interstate commerce and the interpretation and enforcement of this Section 6.10 is governed by the Federal Arbitration Act, notwithstanding the choice of law set forth in Section 6.9 above.
(c) Scope of Agreement.
This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to: (i) all claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; (ii) all claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising); and (iii) all claims that may arise after termination of these Terms of Service and/or your use of the Services.
(d) Exceptions.
Notwithstanding this Agreement to arbitrate, either party may (i) bring an action on an individual basis in small claims court (to the extent the applicable claim qualifies), (ii) bring issues to the attention of federal, state or local agencies, including, for example, the Federal Trade Commission and the California Division of Consumer Services, which agencies may be able to seek relief on a party’s behalf (the Complaint Assistance Unit of the Division of Consumer Services may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210), and (iii) bring suit in court to seek a preliminary injunction or other interim relief pending the outcome of arbitration. In addition, the portion of any dispute or complaint relating to our participation in the US-EU or US-Swiss Safe Harbor Frameworks is subject to the Dispute Resolution section of our Privacy Policy before being subject to this Section.
(e) No Class Actions
YOU AND UXCloud AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, CONSOLIDATED OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT PRESIDE OVER ANY FORM OF CLASS, CONSOLIDATED OR REPRESENTATIVE PROCEEDING AND MAY ONLY PROVIDE RELIEF IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM.
(f) Notice of Dispute
A party who intends to seek arbitration must first send to the other a written Notice of Dispute ("Notice"). The Notice to UXCloud must be addressed to the address in Section 6.7 above ("Notice Address") and must be sent by certified mail. The Notice to you must be addressed to a mailing, home or payment address currently on record with UXCloud and must be sent by certified mail. If UXCloud has no records of such physical address, such notice may be delivered to your UXCloud account email address. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought. If UXCloud and you do not reach an agreement to resolve the claim within sixty (60) calendar days after the Notice is received, you or UXCloud may commence an arbitration proceeding.
(g) Arbitration Proceedings
The arbitration will be governed by the Commercial Arbitration Rules, or, if the actions giving rise to the dispute or claim relate to your personal or household use of the Services (rather than business use), the Consumer Arbitration Rules (in each case, the "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Section 6.10, and will be administered by the AAA and settled by a single arbitrator. The AAA Rules are available online at adr.org or by calling the AAA at 1-800-778-7879. The arbitrator is bound by the terms of these Terms of Service. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Section 6.10. Unless UXCloud and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location in the United States for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, AAA shall determine the location. If your claim is for ten thousand dollars ($10,000) or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds ten thousand dollars ($10,000), the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. All decisions by the arbitrator shall be final and binding and judgment on the award rendered may be entered in any court having jurisdiction.
(h) Costs of Arbitration; Legal Fees
i. Payment of all filing, administration, and arbitrator costs and expenses imposed by AAA will be governed by the AAA rules, provided that if you are initiating an arbitration against UXCloud and the value of the relief sought is ten thousand dollars ($10,000) or less, then UXCloud will advance all filing, administrative and arbitration costs and expenses imposed by AAA (subject to reimbursement as set forth below). If the circumstances in the preceding sentence apply, but the value of relief sought is more than ten thousand dollars ($10,000) and you demonstrate to the arbitrator that such costs and expenses would be prohibitively more expensive than a court proceeding, then UXCloud will pay the amount of any such costs and expenses that the arbitrator determines are necessary to prevent the arbitration from being prohibitively more expensive than a court proceeding (subject to reimbursement as set forth below). In the event that the arbitrator determines that all of the claims you assert in arbitration are frivolous according to Federal Rule of Civil Procedure 11, you agree to reimburse UXCloud for all such cost and expenses that UXCloud paid and that you would have been obligated to pay under the AAA rules.
ii. Just as in any court proceeding, each party will initially bear its own attorneys’ fees and expenses in connection with any arbitration. Should either party be determined to have substantially prevailed in the arbitration, then upon such party’s request, the arbitrator shall award such prevailing party the reasonable attorneys’ fees and expenses that it incurred in connection with the arbitration, provided that to the extent that the dispute or claim relate to your personal or household use of the Services (rather than business use) UXCloud will not seek to recover its attorneys’ fees and expenses in an arbitration initiated by you. The arbitrator may make rulings and resolve disputes as to the reimbursement of attorneys’ fees and expenses upon request from either party made within fourteen (14) days of the arbitrator’s ruling on the merits.
(i) Future Changes
Notwithstanding any provision in these Terms of Service to the contrary, you and UXCloud agree that if UXCloud makes any future change to this arbitration provision (other than a change to the Notice Address) UXCloud will provide you with notice of such change and you may reject any such change by sending us written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision as unmodified by such rejected change.
(j) Special Severability
In the event that the provisions of Section 6.10(e) above are found to be invalid or unenforceable for any dispute or claim, then, notwithstanding Section 6.11, the entirety of this Section 6.10 shall be null and void with respect to such dispute or claim and Section 6.12 shall apply in lieu of this Section 6.10.
(k) Opt Out
We believe that on a whole this agreement to arbitrate will benefit our Users. However, if you are an existing registered User and you do not wish to accept this agreement to arbitrate with respect to some or all of your accounts registered prior to October 1, 2015 you may opt-out by sending us a written notice to the Notice Address which (i) states you do not agree to this agreement to arbitrate, (ii) includes your name and all email addresses associated with the accounts you wish to opt-out, and (iii) is signed by the individual who owns the account, or in the event the account is held by an entity, an authorized signer for such entity (the "Opt-Out Notice"). The Opt-Out Notice must be received by November 14, 2015 in order to be effective; otherwise this agreement to arbitrate will be effective as of October 1, 2015. For new registered users and existing registered users who register new accounts following October 1, 2015, there is no option to opt-out and this provision will be effective as to such new accounts upon account creation. For unregistered Attendees and other Users, this provision will apply to all future activities on the Services after October 1, 2015. In the event that you opt-out of this agreement to arbitrate as set forth above, Section 6.12 shall apply.
The failure or delay of UXCloud to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision. No oral waiver, amendment or modification shall be effective under any circumstance whatsoever. If any provision of these Terms of Service is found by an arbitrator or court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service shall remain in full force and effect.
In the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt-out of the Agreement to Arbitrate or for any other reason, then any dispute or claim not subject to arbitration shall be resolved exclusively by a federal court located in San Francisco County, California, and to the extent there is no subject matter jurisdiction in such federal court, then a state court in San Francisco County, California. Both you and UXCloud agree to submit to the personal jurisdiction and venue of such courts and agree that such forum is convenient.
Any Section titles in these Terms of Service are for convenience only and have no legal or contractual effect.
Please report any violations of these Terms of Service by email to sales@uxcloud.us.
We may, without your consent or approval, freely assign these Terms of Service and our rights and obligations under these Terms of Service, whether to an affiliate or to another entity in connection with a corporate transaction or otherwise.
No independent contractor, agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by these Terms of Service, except to the extent expressly set forth in Section 4 of the Terms of Use and the Merchant Agreement.
UXCloud is not intended to be used anonymously or for free. UXCloud insists on knowing your name, billing address, phone number, and credit card information. The reason for this is because UXCloud needs to charge your credit card for services you use and in the event you contact us, we would like to be able to associate you with your account.
UXCloud uses your information to charge you for the UXCloud services you consume and to render support, if necessary. UXCloud does not share, sell, or barter your information. UXCloud saves your credit card information using the services of the industry-leading credit card service provider Stripe.
UXCloud bills your credit card for services after you use them. There are two kinds of services that UXCloud bills for: (a) online UX sessions with cloud-based recording and (b) storage of recordings. Every week, UXCloud charges your credit card for the UX session-related services you used during the past week and for the recoding storage-related services you will use in the upcoming week. UXCloud charges your credit card on the day of the week that you registered with UXCloud. For example, if you registered on Wednesday, April 4, 2016, UXCloud would calculate your weekly bill and charge the applicable amount, if any, every Wednesday.
There are two kinds of services that UXCloud bills for: (a) online UX sessions with cloud-based recording and (b) storage of recordings. Billing examples for both are provided below.
UX Session Billing Example: There is a base charge for a session which is billed at $0.10/minute for the duration of the session. This charge pays for the usage of the two attendees with the longest times. Each additional attendee is billed at $0.05/minute for their actual attendance time. Imagine a UX session with a Moderator, a participant, and two team members. The following table presents attendance details for everyone in the session.
| Role | Join/Leave Details | Time in Session |
|---|---|---|
| Moderator | Starts the session at 1100h and ends it at 1158h. | 58 minutes |
| Observer #01 | The UX Designer joins the session at 1101h and gets ejected when the meeting is ended at 1158h. | 57 minutes |
| Participant | Jane Doe, a user who was recruited from Poughkeepsie, NY, signs in at 1105h and signs out at 1155h. | 50 minutes |
| Observer #02 | Project Manager signs in at 1120h and signs out at 1145h. | 25 minutes |
Billing for this sample session would be calculated as follows:
The base charge for the session is calculated using the time of the longest attendee. That time is charged at $0.10/minute. In this case, the longest time is the time of Moderator, i.e., 58 minutes and the resulting base charge for the session would be 58 minutes * $0.10/min = $5.80.
Charges for Observers are calculated as follows. First, the times for all attendees are ordered from longest to shortest, e.g., 58 min, 57 min, 50 min, and 25 min. The two longest times are deleted because they are considered to be the first two attendees and their usage is covered by the base charge for the session. The remaining people are considered to be Observers for purposes of billing and are charged $0.05/min for their times. In this example, given the pattern of attendance time, the Participant is charged at Observer pricing, 50 minutes * $0.05/min = $2.50 and Observer #2 is charged 25 minutes * $0.05/min = $1.25. Total charge for observers is $3.75
The total charge for this session would be $5.80 + $3.75 = $9.55.
Recording storage example: Recordings are stored at no charge for one week and for $0.01/MB per week or partial week after that. The following table presents examples of video files to illustrate how this pricing is applied to recordings of different dates. File sizes in these examples may or may not be representative of your files sizes.
| Recording Date | File Size | Free Storage Ends | Billing Date | Disposition | Charge |
|---|---|---|---|---|---|
| Thursday, 28 April 2016, 1700h | 90 MB | Thursday, 5 May 2016, 2359h | Saturday, 7 May 2016, 0001h | Free storage has expired, charge storage for one additional week through 12 May 2016, 2359h. | $0.90 |
| Friday, 29 April 2016, 1200h | 100 MB | Friday, 6 May 2016, 2359h | Saturday, 7 May 2016, 0001h | Free storage has expired, charge storage for one additional week through 13 May 2016, 2359h. | $1.00 |
| Monday, 2 May 2016, 1158h | 100 MB | Monday, 9 May 2016, 2359h | Saturday, 7 May 2016, 0001h | Free storage has not ended yet. No charge. | -nc- |
| Total Charge for Storage for Billing Period: | $1.90 |
If you are an active user of UXCloud's services, i.e., you are conducting sessions and you have video you are paying to store, you will receive an email alerting you that your credit card on file with UXCloud is about to expire. If your credit card will expire within the current billing period, you will not be able to conduct sessions until a usable credit card is on file with UXCloud. If your credit card is expired when payment is due for video storage, videos requiring payment for continued storage will be deleted. Videos for which payment is not due for continued storage will continue to be accessible.
If you are not an active user of UXCloud, you will not receive credit card expiration emails. When you try to use UXCloud, you will not be permitted use any features until a valid credit card is on file.