TERMS OF USE
MSUITE Corporation, a Delaware corporation, welcomes you to our website (the “Site”) and the
applications and services available from us, through the Site or other platforms (collectively with the Site, the
“Services”). Your use of the Site and the Services are governed by these Terms of Use (these
“Terms”). Any time you browse the Site or use the Services in any way, you agree to be bound
by these Terms. If you don’t agree to these Terms, do not use the Site or the Services.
Your use of the Services is also subject to our Privacy Policy, which is located on the Site, as well as any policies
and procedures we publish from time to time (collectively, the “Policies”). We reserve the
right to modify these Terms at any time, with such changes becoming effective when we post the modified Terms to the
Site. We also reserve the right to make any changes to the Site and Services in any manner and to deny or terminate your
access to the Site and Services, even if you have an Account, in our sole discretion.
Each time you use the Site or the Services, the then-current version of the Terms will apply. If you use the Site or the
Services after a modification of these Terms, you agree to be bound by the Terms as modified.
These Terms contain important information regarding your rights with respect to the Site and the Services,
including your relationship with us, and include an arbitration provision that may limit your ability to pursue
claims against us in court. Please read them carefully and review them regularly.
- Eligibility.
When you use the Services, you represent that you are (i) at least the age of majority in the jurisdiction where you
reside or (ii) if you have not reached the age of majority in the jurisdiction where you reside, that you have received
permission to use the Services from your parent or legal guardian.
You represent that any information you submit to us when using the Services is accurate, truthful, and current. You also
represent that your use of the Services does not violate any applicable law or regulation.
- Registration & Account.
Certain of the Services or portions of the Site may require you to register for an account
(“Account”), becoming a “Registered User”. As part of the Account
creation process, you may be asked to provide a username and password unique to the Account (“Login
Information”). You are responsible for the confidentiality and use of your Login Information and
agree not to transfer or disclose your Login Information to any third party other than an individual with express
authority to act on your behalf. If you suspect any unauthorized use of your Account, you agree to notify us
immediately. You are solely responsible for any activities occurring under your Account. You have no ownership right to
your Account. If you are registering an Account as the authorized user of an organization, that organization may have
administrator rights to access your account and any information provided under your Account.
- Organizational Accounts.
If you register for the Services on behalf of an organization, you may grant access to the Services to certain
authorized users, subject to the limits of any plan for which you enroll. We may require that each authorized user have
unique Login Information. When registering for an Account and accessing the Services, you represent or warrant that the
information you enter for your organization is correct. You acknowledge and agree that (i) the organizational account
owner is responsible for all activity under authorized user accounts and (ii) organizational administrators may have
access to all activity/data under all authorized users’ accounts.
- Permitted Uses/License.
You are authorized to access the Site for the sole purpose of viewing and using the Services on your computer or device.
We authorize you to copy materials from the Services to your hard drive solely for the purpose of viewing and using the
Services on your computer.
You may not decompile, disassemble, rent, lease, loan, sell, sublicense, or create derivative works from the Site, the
Services, or any data thereon. You may not use any robot, spider, or other automatic device or manual process to monitor
or copy the Site or its content without our prior written permission. Your failure to abide by these conditions will
immediately terminate your right to access the Site or to use the Services and may violate our intellectual property
rights or the intellectual property rights of third parties.
- Location-based Services.
Some of the Services may require that location functionality be enabled on the relevant device in order to work
properly. You acknowledge and agree that if location permissions and functionalities are not enabled on the device with
which you access the Services, the Services may not work appropriately or at all. We will use any location information
we receive from you in accordance with our Privacy Policy.
- Third Party Sites.
The Site may contain links to websites we do not operate, control, or maintain (“Third Party
Websites”). We do not endorse any Third Party Websites, and we make no representation or warranty
in any respect regarding the Third Party Websites. Any links to Third Party Websites on the Site are provided solely for
your convenience. If you do access any Third Party Websites, you do so at your own risk and waive any and all claims
against us regarding the Third Party Websites or our links thereto.
- Third Party Software and Equipment.
Some of the Services may include the ability to integrate or connect with third party software (“Third Party
Software”). You acknowledge and agree that we do not operate, control, or maintain any Third Party
Software and we make no representation or warranty in respect to the Third Party Software or how our Services function
with any Third Party Software. Your use of any Third Party Software will be governed by the End User License Agreement,
Terms of Use, or other applicable agreement with the relevant third party, and you acknowledge and agree that your use
of the Third Party Software is contingent upon your review of and consenting to the applicable agreement prior to such
use. In addition, some of the integrations with Third Party Software may allow you to interact with or control physical
equipment manufactured or provided by a third party (“Third Party Equipment”). YOU ACKNOWLEDGE
AND AGREE THAT WE CANNOT AND DO NOT ACCEPT ANY RESPONSIBILITY FOR THE OPERATION OF THE THIRD PARTY SOFTWARE OR THIRD
PARTY EQUIPMENT, AND AS BETWEEN YOU AND US, YOU ACCEPT SOLE AND COMPLETE RESPONSIBILITY FOR ANY LOSS WHATSOEVER,
INCLUDING, BUT NOT LIMITED TO, PROPERTY DAMAGE, INJURY, OR DEATH OCCURRING FROM YOUR USE OF THIRD PARTY SOFTWARE OR YOUR
INTERACTIONS WITH OR CONTROL OF THIRD PARTY EQUIPMENT USING THE SERVICES. YOU AGREE TO READ AND COMPLY WITH ALL USER
GUIDES OR DOCUMENTATION MADE AVAILABLE BY THE PROVIDERS OF THE THIRD PARTY SOFTWARE AND THIRD PARTY EQUIPMENT AS WELL AS
ANY USER GUIDES OR DOCUMENTATION WE PROVIDE FOR THE SERVICES PRIOR TO USING THE SERVICES TO ACCESS ANY THIRD PARTY
SOFTWARE AND/OR INTERACT WITH OR CONTROL ANY THIRD PARTY EQUIPMENT.
- User Content Generally.
When you post content and information to the Site or in connection with the Services (“User
Content”), you represent and warrant to us that (i) you own or have rights to use the User
Content, (ii) the posting of the User Content does not violate any rights of any person or entity, and (iii) you have no
agreement with or obligations to any third party that would prohibit your use of the Site or Services in the manner so
used. You agree to pay all royalties, fees, and any other monies owing to any person or entity by reason of any User
Content posted by you to the Site or through the Services.
By posting User Content, you give us and our affiliates a perpetual, nonexclusive, irrevocable, royalty-free,
sublicensable and transferable worldwide license to all intellectual property rights you own or control to use,
transmit, reproduce, commercialize, distribute, modify, create derivative works from, and otherwise exploit such User
Content for any and all purposes and without further notice to you, attribution, and without the requirement of any
permission or payment to you or any other person or entity. You also authorize and appoint us as your attorney in fact
and agent with full power to enter into and execute any document or undertake any action we may consider appropriate to
use or enforce the grant of rights and waivers set forth in these Terms.
- User Conduct.
You agree not to use the Site or the Services to take any action or actions that (including with respect to any User
Content): (i) are patently offensive in any manner (as determined in our sole discretion), (ii) involve commercial
activities without our prior written consent, such as contests or sweepstakes, (iii) are contrary to our public image,
goodwill, or reputation, (iv) infringe on our or any third party’s intellectual property rights, (v) violate any law or
any third party’s legal rights, or (vi) “frame” or “mirror” any part of the Site without our prior written consent.
- Data.
You agree that we have the right to collect and analyze data and other information relating to the provision, use and
performance of various aspects of the Site and Services, and related systems (for example, anonymous and aggregated
information concerning user behavior and use of the Services), and we will be free (during and after the term hereof) to
(i) use such information and data to improve and enhance the Site Services and for other development, diagnostic and
corrective purposes in connection with the Site and Services and other of our offerings, and (ii) disclose such data
solely in aggregate or other de-identified form in connection with its business.
- Paid Services.
We may require Services to be paid for on a recurring basis (“Subscription Services”) or on an
as-used basis (“A La Carte Services” and, together with the Subscription Services,
“Paid Services”). We have the right to change, delete, discontinue or impose conditions on Paid
Services or any feature or aspect of a Paid Service. Subscription Services may subject you to recurring fees and/or
terms. By signing up for a Subscription Service, including after any trial period, you agree to pay us the subscription
fee and any applicable taxes as set forth in your Account settings or as otherwise agreed in writing
(“Subscription Fee”). A La Carte Services may subject you to fees charged per usage and/or
terms. By using an A La Carte Service, you agree to pay the fees and any taxes incurred at the time of usage
(“A La Carte Fees” and, together with Subscription Fees, the “Paid Service
Fees”).
Paid Service Fees may be paid by credit card, debit card, or other payment forms we may permit. If you link a debit or
credit card to your Account, you authorize us to collect Paid Service Fees by debit from your linked debit card or
charge to your linked credit card.
Unless otherwise provided in a Subscription Service’s terms, Subscription Fees will be charged on the renewal date
until canceled. You can cancel your subscription at any time via written communication to us at support@msuite.com; however, cancellations will not take effect until 90
days after we receive your cancellation notice, so to prevent automatic renewal, you must provide notice at least 90
days prior to the scheduled renewal date. If you cancel a Subscription Service, you will continue to have access to that
Subscription Service through the end of the subscription period that is in effect as of the effective date of
termination, but you will not be entitled to a refund or credit for any Subscription Fee already due or paid. We reserve
the right to change our Subscription Fee upon thirty (30) days’ advance notice. Your continued use of Subscription
Services after notice of a change to our Subscription Fee will constitute your agreement to such changes.
- Copyright Infringement.
We respect the intellectual property rights of others. The Digital Millennium Copyright Act of 1998 (the
“DMCA”) provides a complaint procedure for copyright owners who believe that website material
infringes their rights under U.S. copyright law. If you believe that your work has been improperly copied and posted on
the website, please provide us with the following information: (i) name, address, telephone number, email address and an
electronic or physical signature of the copyright owner or of the person authorized to act on his/her behalf; (ii) a
description of the copyrighted work that you claim has been infringed; (iii) a description of where on the Site the
material that you claim is infringing is located; (iv) a written statement that you have a good faith belief that the
disputed use is not authorized by the copyright owner, its agent, or the law; and (v) a statement by you, made under
penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or
authorized to act on the copyright owner’s behalf. These requirements must be followed to give us legally sufficient
notice of infringement. Send copyright infringement complaints to the following email address: info@msuite.com. We suggest that you consult your legal advisor before
filing a DMCA notice with our copyright agent. There can be penalties for false claims under the DMCA.
- Warranty Disclaimer.
You agree that the Services are available on an “as is” basis, without any warranty, and that you use the
Services at your own risk. We disclaim, to the maximum extent permitted by law, any and all warranties, whether
express or implied, including, without limitation, (a) warranties of merchantability or fitness for a particular
purpose, (b) warranties against infringement of any third party intellectual property or proprietary rights, (c)
warranties relating to delays, interruptions, errors, or omissions in the Services or on the Site, (d) warranties
relating to the accuracy or correctness of data on the Services, and (e) any other warranties otherwise relating to
our performance, nonperformance, or other acts or omissions.
We do not warrant that the Site or the Services will operate error-free or that the Site is free of computer
viruses and/or other harmful materials. If your use of the Site or the Services results in the need for servicing or
replacing equipment or data, we are not responsible for any such costs.
Some jurisdictions do not allow the exclusion or limitation of certain categories of damages or implied warranties;
therefore, the above limitations may not apply to you. In such jurisdictions, our liability is limited to the greatest
extent permitted by law.
- Limitation of Liability.
Any liability we have to you in connection with these Terms, under any cause of action or theory, is strictly
limited to, in aggregate for all violations, the amount paid to you by us for your use of the Services in the six
month period immediately preceding the events giving rise to the claim. Without limiting the previous sentence, in
no event shall we or any of our affiliates be liable to you for any indirect, special, incidental, consequential,
punitive, or exemplary damages arising out of or in connection with, these Terms. The foregoing limitations apply
whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if
we or our affiliates have been advised of the possibility of such damages.
You agree to indemnify and hold us harmless for any breach of security or any compromise of your
Account.
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential; therefore, the above
limitations may not apply to you. In such jurisdictions, our liability is limited to the greatest extent permitted by
law.
- Indemnification.
You agree to indemnify and hold harmless us, our affiliates and our and their officers, directors, partners, agents, and
employees from and against any loss, liability, claim, or demand, including reasonable attorneys’ fees (collectively,
“Claims”), made by any third party due to or arising out of your use of the Site and Services
in violation of these Terms, any breach of the representations and warranties you make in these Terms, or your User
Content. You agree to be solely responsible for defending any Claims against or suffered by us, subject to our right to
participate with counsel of our own choosing.
- Electronic Signatures and Notices.
Certain activities on the Services may require you to make an electronic signature. You understand and accept that an
electronic signature has same legal rights and obligations as a physical signature.
If you have an Account, you agree that we may provide you any and all required notices electronically through your
Account or other electronic means. You agree that we are not responsible for any delivery fees charged to you as a
result of your receipt of our electronic notices.
- Governing Law.
These Terms are governed by Iowa law, without giving effect to conflicts of law principles. You agree that, to the
extent applicable and expressly subject to the dispute resolution provisions below, to submit to the exclusive
jurisdiction of the state and federal courts located in Cedar Rapids, Iowa in circumstances where these Terms permit
litigation in court.
- Dispute Resolution.
Please read this section carefully. It contains procedures for mandatory binding arbitration and a class action
waiver.
Notice Requirement and Informal Dispute Resolution. Before either we or you may seek arbitration, the party
seeking arbitration must send the other party a written Notice of Dispute (“Notice”)
describing the nature and basis of the claim or dispute and the requested relief. A Notice to us should be sent to:
MSuite Corporation, 311 3rd Ave SE, Ste 400, Cedar Rapids, IA 52401. After the Notice is received, you and
we may attempt to resolve the claim or dispute informally. If we do not resolve the claim or dispute within thirty (30)
days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer
made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the
award, if any, to which either party is entitled.
Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association
(“AAA”), an established alternative dispute resolution provider (“ADR
Provider”) that offers arbitration as set forth in this section. If AAA is not available to
arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern
all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration,
except to the extent such rules are in conflict with the Terms. The AAA Commercial Arbitration Rules (the
“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be
conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less
than Ten Thousand U.S. Dollars (US $10,000.00) shall be resolved through binding non-appearance-based arbitration. For
claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the
right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in Cedar Rapids, Iowa, unless
the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of
competent jurisdiction. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out
of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
Additional Rules for Non-Appearance Based Arbitration. The arbitration shall be conducted by telephone, online
and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the
arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise
agreed by the parties.
Time Limits. If either you or we pursue arbitration, the arbitration action must be initiated and/or demanded
within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under
the AAA Rules for the pertinent claim.
Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities,
if any, of the parties involved, and the dispute will not be consolidated with any other matters or joined with any
other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any
claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or
relief available to an individual under applicable law, the Arbitration Rules, and these Terms. The arbitrator shall
issue a written award and statement of decision describing the essential findings and conclusions on which the award is
based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an
individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you
and us.
Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND
HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by
arbitration under these terms. Arbitration procedures are typically more limited, more efficient and less costly than
rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise
between you and us in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU
AND WE WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS SECTION 18 MUST BE
ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE USER CANNOT BE
ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER USER.
Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the
arbitrator and compliance therewith, shall be strictly confidential. You agree to maintain confidentiality unless
otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information
necessary to enforce this Section 18, to enforce an arbitration award, or to seek injunctive or equitable relief
Severability. If any part or parts of this Section 18 are found under the law to be invalid or unenforceable
by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be
severed and the remainder of this Section 18 shall continue in full force and effect.
Right to Waive. Any or all of the rights and limitations set forth in this Section 18 may be waived by the
party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Section 18.
Survival of Agreement. This Section 18 will survive the termination of your relationship with us.
Small Claims Court. Notwithstanding the foregoing, either you or we may bring an individual action in small
claims court.
Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief
before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures
shall not be deemed a waiver of any other rights or obligations under this Section 18.
Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of
the Computer Fraud and Abuse Act, and infringement or misappropriation of our patent, copyright, trademark or trade
secrets rights shall not be subject to this Section 18.
- Notice for California Users. Under California Civil Code Section 1789.3, California Website
users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the
Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at
1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210. - Miscellaneous.
We may assign, transfer, delegate, or otherwise hypothecate our rights under these Terms in our sole discretion. If we
fail to enforce a provision of these Terms, you agree that such a failure does not constitute a waiver to enforce the
provision (or any other provision hereunder). If any provision of these Terms is held or made invalid, the invalidity
does not affect the remainder of these Terms. We reserve all rights not expressly granted in these Terms and disclaim
all implied licenses.
