1. Introduction
1.1 The iZUP mobile phone application and service, including the services offered on and through the Web site located at www.getiZUP.com (the “Website”) (collectively, “iZUP”) were developed by Illume Software, Inc. (the “Company”, “we” or “us”). Your use of iZUP is governed by a legal agreement between you and the Company consisting of these iZUP Terms of Service and the terms of our Privacy Notice (found at www.getiZUP.com/about/privacy_policy), which are incorporated herein by reference (collectively, the “Terms”).
1.2 You may use iZUP to run as a mobile phone utility (defined as a helpful application) for your mobile phone (“Device”). You agree that the Company is not responsible for any other applications, and services on Device that originates from a source other than the Company.
1.3 You accept the Terms by either (1) clicking to agree or accept where these options are presented to you, or (2) actually using iZUP.
1.4 In order to use iZUP you must be 14 years of age or older and parents or guardians may not agree to these Terms on your behalf if you are under the age of 14. If you are older than 13 but under the age of 18, you may use iZUP only with the consent and under the supervision of a parent or legal guardian who agrees to be bound by the Terms. If you are a parent or legal guardian agreeing to the Terms on behalf of a child between the ages 14 and 18, you agree that you are fully responsible for use of iZUP by that child, including any financial charges that the child may incur through use of iZUP.
1.5 You are purchasing either:
(a) an annual single-user license
(b) an annual multi-user/family license
Both the annual and monthly multi-user/family licenses entitle you to up to five single-user versions of the current version of iZUP for use within your family or group of users. Both single and multi-user versions of iZUP include access to your account on the Website. The license to use either the single user or multi-user version(s) of iZUP expires at 12:00 pm EDT on the 365th day of your usage. The Company will use best efforts to notify you of your license status and renewal opportunities within thirty (30) days of your expiration date. The Company reserves the right to send renewal e-mails and SMS (text messages) to your primary licensed mobile phone as part of the renewal notification process.
1.6 You may, at your option, suspend your service. If you do this, the Company has no obligation to extend your subscription by an equivalent period of time.
1.7 Your purchase is fully refundable within 24 hours of purchase. Refunds are handled via emailed requests to info@illumesoftware.com. Upon refund, your account will be deleted including all your settings. You will be provided with instructions on removing iZUP from your Device.
1.8 To provide iZUP, you acknowledge that we collect, maintain, use and may display your personal data and the geographic location of your mobile device (referred to as “location information” or “geo location”).
When you use iZUP, we derive location information from your wireless carrier, certain third-party service providers, or directly from the mobile device that you used to register on the Website. This location tracking of your mobile device may occur even when iZUP is not actively open and running.
1.9 You understand that your location information may be displayed and disclosed to your iZUP system administrator, which could be your parent, guardian, or employer paying for the iZUP services.
1.10 You acknowledge that we use your personal information (including location information) for the following purposes:
1.10 We do not use your personal information or location information to send commercial or marketing SMS text messages or email messages to you without your expressed consent or unless if you have opted-in to be part of a specific program or feature in accordance with the applicable iZUP service consent procedures.
1.11 You acknowledge that when we disclose information:
1.12 We use commercially reasonable physical, managerial, and technical safeguards to protect the security of the data we collect (including your location information). We cannot, however, ensure or warrant the security of any information that we receive on your behalf to operate iZUP or that you transmit to us, and you do so at your own risk. We also cannot guarantee that such information will not be accessed, disclosed, altered, or destroyed by breach of any of our physical, technical, or managerial safeguards.
1.13 If you wish to delete or close your account, please click here to contact us. As promptly as possible, your account will be deleted including all of your settings and personal information (including location information). Please note an archival copy of your personal information which is not accessible by you or third parties shall be retained by iZUP only for as long as iZUP reasonably considers necessary for audit and record purposes. We will retain logs and certain demographic and statistical information about you and keep an archival copy of this information in an anonymized form.
1.14 Please review our full privacy policy (found at http://www.getizup.com/about/privacy_policy) for detailed information on our information and privacy practices.
2. The Company’s Provision of IZUP
2.1 You agree that the Company may stop (permanently or temporarily) providing iZUP (or any features within iZUP) to you or to users generally at the Company’s sole discretion, without prior notice to you.
2.2 You agree that if the Company disables access to your account, you may be prevented from accessing iZUP, your account details or any files or other functions or data that are stored with your account.
3. Your Use of iZUP
3.1 In order to access certain services through iZUP, you may be required to provide information about yourself such as your name, address, and billing details. You agree that any such information you provide to the Company will always be accurate, correct and up to date.
3.2 You agree to use iZUP only for purposes that are permitted by (a) the Terms and (b) any applicable law, or regulation. You agree to comply with all applicable export controls, including, but not limited to, the United States Department of Commerce's Export Administration Regulations and sanctions programs administered by the United States Treasury Department's Office of Foreign Assets Control. By using iZUP, you represent and warrant that you are not prohibited from receiving exports or services under US or other applicable export laws. You agree to comply with all local laws and regulations regarding the download, installation and/or use of the iZUP.
3.3 You agree not to access (or attempt to access) iZUP by any means other than through the interface that is provided by the Company, unless you have been specifically allowed to do so in a separate agreement with the Company. You specifically agree not to access (or attempt to access) the Application through any automated means (including use of scripts, crawlers, or similar technologies).
3.4 You agree that you will not engage in any activity that interferes with or disrupts iZUP (or the servers and networks which are connected to iZUP). You agree that you will not use iZUP in a way that interferes or disrupts any servers, networks, or websites operated by the Company or any third-party.
3.5 Unless you have been specifically permitted to do so in a separate agreement with the Company, you agree that you will not reproduce, duplicate, copy, sell, trade, or resell iZUP for any purpose.
3.6 You agree that you are solely responsible for (and that the Company has no responsibility to you or to any third party for) your use of iZUP and any other application or service and any breach of your obligations under the Terms, and for the consequences (including loss or damage of any kind which the Company may suffer) of any such breach.
3.7 You agree to comply with any and all applicable tax laws, including the reporting and payment of any taxes arising in connection with your use of the Application, and that the reporting and payment of any such applicable taxes are your responsibility.
3.8 You agree that the Company and/or third parties own all right, title and interest in and to the Application and the Products, including without limitation all applicable Intellectual Property Rights in the Products. "Intellectual Property Rights" means any and all rights existing under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights worldwide. You agree that you will not, and will not allow any third party to, (i) copy, sell, license, distribute, transfer, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Products, unless otherwise permitted, (ii) take any action to circumvent or defeat the security or content usage rules provided, deployed or enforced by any functionality (including without limitation digital rights management or forward-lock functionality) in the Products, (iii) use the Products to access, copy, transfer, transcode or retransmit content in violation of any law or third party rights, or (iv) remove, obscure, or alter the Company's or any third party's copyright notices, trademarks, or other proprietary rights notices affixed to or contained within the Products.
3.9 You agree that iZUP will be used in a manner consistent with applicable federal, state and local laws, regulations and rules regarding use of cellular devices while operating a motor vehicle or other transportation vehicle. You hereby represent that you are familiar with the laws, regulations and rules in each location in which iZUP is intended to be used.
4. The Company’s Services and Third Party Products and Services
4.1 Some applications and services (whether developed by the Company or third parties) that are available through iZUP may contain features that are used in conjunction with the Company’s Products and other services. Accordingly, your use of such features in those Products is also governed by the Terms.
4.2 Some components of Products (whether developed by the Company or third parties) may also be governed by applicable open source software licenses. In the event of a conflict between the Terms and any such licenses, the open source software licenses shall prevail with respect to those components.
5. Automatic Updates
5.1 Products originating from the Company may communicate with the Company’s servers from time to time to check for available updates to the Products, such as bug fixes, patches, enhanced functions, missing plug-ins and new versions (collectively, "Updates"). By installing these Products, you agree to such automatically requested and received Updates.
6. Indemnification
You agree to indemnify and hold harmless the Company and its suppliers and affiliates, and their respective directors, officers, employees, agents, and contractors, from all claims, suits, proceedings, damages, injuries, liabilities, costs, fees, fines, penalties, and expenses (including, but not limited to, legal and accounting fees) arising from or in any way related to your violation of these Terms, the misuse of iZUP by you or any of your employees, contractors, agents, or family members, or any other claim arising from your negligence or otherwise culpable conduct.
7. Termination
7.1 These Terms will continue to apply until terminated by either you or the Company as set out below.
7.2 If you want to terminate these Terms, you may do so by ceasing your use of the Application and any Products downloaded from the Application.
7.3 The Company may at any time, terminate these Terms with you if: (A) you have breached any provision of these Terms; or (B) the Company is required to do so by law; or (C) the Company decides to no longer provide the Application.
7.4 When these Terms terminate, all of the legal rights, obligations and liabilities that you and the Company have benefited from, been subject to (or which have accrued over time while these Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of paragraph 10.6 shall continue to apply to such rights, obligations and liabilities indefinitely.
8. Disclaimer of Warranties
8.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE APPLICATION AND PRODUCTS DOWNLOADED OR OBTAINED THROUGH THE APPLICATION IS AT YOUR SOLE RISK AND THAT THE APPLICATION IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8.2 YOUR USE OF THE APPLICATION AND ANY PRODUCTS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE APPLICATION IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE DEVICE, OR OTHER DEVICE, OR LOSS OF DATA THAT RESULTS FROM SUCH USE.
8.3 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WITH RESPECT TO ANY PRODUCTS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE APPLICATION AS WELL AS THE APPLICATION ITSELF.
8.4 You understand and agree that, pursuant to applicable law, and to the fullest extent possible, neither THE COMPANY nor its affiliated companies or their respective licensors, suppliers, subcontractors and their respective directors, officers, employees, agents, contractors, shareholders and representatives of each, shall be liable for any decision made or action taken by any user in reliance on the information or services provided by THE COMPANY, including software made available for download. You are responsible for the entire risk arising out of the use of the Products and the Applications.
8.5 You understand and agree that The company shall not be liable to you or to any other person for any loss or damage caused by any interruption of the services, regardless of cause. In no event shall the company’s liability to You exceed the amount paid by you for the services. the company shall not be liable to you or any third party for consequential, incidental, general, special or exemplary damages, including, without limitation, loss of or damage to your vehicle or loss of profits, revenues or data, even if the company has been advised of the possibility of such damages. No action shall be brought for any breach of the service agreement more than one year after the accrual of such cause of action, except for money due on an open account. Certain of the above limitations may not apply in some states.
9. Warnings Regarding Use
9.1 You acknowledge and represent that you have read the What is iZUP section of the www.getiZUP.com Web site and that you understand the function of iZUP as described therein.
9.2 You understand that the default miles-per-hour setting for iZUP is 5 MPH. You further understand that the Company makes no recommendations or representations concerning the appropriate speed setting to activate the block mode, and you assume the entire risk associated with such speed setting.
9.3 You understand that any use of a cellular device while operating a motor vehicle or other transportation vehicle may cause some level of distraction. You further understand that iZUP cannot eliminate the risk of driver distraction associated with the use of a cellular device, nor can it prevent usage in a stationary vehicle. You understand that use of a cellular device in these and other conditions may cause driver distraction which could result in an accident and serious injury or death.
9.4 You understand that iZUP permits a user to program a white list of telephone numbers that iZUP will not block even when the vehicle is traveling above the pre-set speed. You understand that the Company makes no recommendations or representations concerning the programming of a white list, and you assume the entire risk associated with any communications received by or sent to a white list number.
9.5 You understand that iZUP block mode is designed to activate when the cellular device is traveling above the pre-set speed, regardless of whether you are a driver or passenger in a motor vehicle or other transportation vehicle. Accordingly, you understand that there may be situations in which the block mode will prevent use of a cellular device even in situations in which you or the user of the device is not operating a vehicle.
9.6 You understand and agree that the Company shall have no liability for a failure to provide, or a delay in providing, the services described in these Terms due directly or indirectly to causes beyond the control of the Company or its subcontractors. If the Company is unable wholly or partially to provide such services because of any cause beyond its control, the Company may terminate your service without any liability to you, other than the refund of any amounts paid for the undelivered services.
9.7 You understand that iZUP cannot prevent cell phone use in all circumstances. For example, (a) iZUP will not prevent use in a stationery vehicle, (b) iZUP cannot prevent passenger use of a non-subscriber device, and (c) iZUP cannot prevent driver use of a non-subscriber device.
9.8 You understand there may be driving scenerios and environments that cause intermittent loss of coverage or inaccuracies. iZUP uses the phones Global Positioning System (GPS) to determine the speed the phone is traveling at and blocks the phone's services when the speed goes above a user set threshold. Because of iZUP's reliance on accurate and timely speed reading from the phones' GPS subsystem, the functionality and effectiveness of iZUP can be reduced for the following reasons that are a function of the phone's GPS subsystem:
For example, meteorological conditions, tunnels, underground parking or driving structures, terrain, high-rise buildings, faulty installation, motor function, mobile phone’s Global Positioning System inaccuracies or malfunction, and other electrical noises or signals from external sources may interfere with iZUP at times.
9.9 You understand that iZUP requires that the mobile phone’s Global Positioning System be activated to perform properly.
9.10 You understand that iZUP from time to time may requirement network service maintenance and thus iZUP may experience temporary performance limitations.
9.11 You understand that iZUP uses 911 for emergency calls and that when 911 is activated the iZUP application is suspended until re-activated by the account holder. You understand that the 911 emergency service functions only in the U.S. with domestic wireless carrier service plans. Travel outside of the U.S. with a domestic wireless service plan will not allow you to use emergency services in the country of destination. You understand traveling outside of the USA you should suspend your iZUP application in order to allow for in-country emergency service capabilities.
10. General Legal Terms
10.1 These Terms constitute the whole legal agreement between you and the Company and govern your use of the Application and Products, and completely replace any prior agreements between you and the Company in relation to the Application and Products.
10.2 You agree that if the Company does not exercise or enforce any legal right or remedy which is contained in these Terms (or which the Company has the benefit of under any applicable law), such inaction will not be taken to be a formal waiver of the Company’s rights and that those rights or remedies will still be available to the Company.
10.3 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of these Terms will continue to be valid and enforceable.
10.4 You acknowledge and agree that each of the Company’s affiliates and subsidiaries, if any, shall be third party beneficiaries of these Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of these Terms that confers a benefit on (or rights in favor of) them. Other than this, no other person or company shall be a third party beneficiary of these Terms.
10.5 These terms and any rights granted hereunder may not be assigned or transferred by you, but may be assigned or transferred by the Company without restriction.
10.6 The Terms are governed by and will be construed according to the laws of the Commonwealth of Massachusetts in any proceeding or legal process, without regard to any conflict of law provisions. Any claim or cause of action arising out of or relating to the Terms or use of iZUP may be brought only in the state or federal courts in the Commonwealth of Massachusetts, and in using iZUP, you consent to jurisdiction of such courts for the purpose of litigating such actions. Whenever possible, each provision of these terms will be interpreted in such manner as to be effective and valid under applicable law, but if any provision is deemed prohibited or invalid under applicable law, such provision will be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of the Terms.
11. Modifications to Terms of Service
The Company reserves the right to make changes to the Terms or any related policies or practices. You should therefore review this page from time to time for updated information. Any changes to the Terms will be posted to the Website.
These Terms of Service are effective as of October 30, 2009.
These Terms of Service were last modified on November 16, 2010.
12. "Trademarks"
"The trademarks, logos, and service marks (collectively the "Trademarks") displayed on this Web Site are registered and unregistered trademarks of Illume Software, Inc. its affiliates and others. You can view trademarks owned by Illume Software, Inc. on Trademarkia at this link: http://www.trademarkia.com/company-illume-software-inc-3640237-page-1-2. Nothing contained on this Web Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on this Web Site without the written permission of Illume Software, Inc. or such third party that may own the trademark displayed on this Web Site. Your misuse of the Trademarks displayed on this Web Site, or any other content on this Web Site, except as provided herein, is strictly prohibited."
13. Contact Information
Please contact info@illumesoftware.com or by postal mail at Illume Software, Inc., 75 Second Avenue, Suite 140, Needham, MA, 02494 with any questions or comments regarding the Terms. We will respond to your inquiry within 30 days of its receipt.