1. Application
    1. These Terms apply to your use of the Umajin Products. By accessing and using the Umajin Products:
      1. you agree to these Terms; and
      2. where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.
    2. If you do not agree to these Terms, you are not authorised to access or use the Umajin Products, and you must immediately stop doing so.
  2. Changes
    1. Umajin may change these Terms at any time by updating them on the Sites. Unless stated otherwise, any change takes effect immediately. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the Umajin Products, you agree to be bound by the changed Terms.
    2. These Terms were last updated on 14 June 2016.
  3. Interpretation
    1. In these Terms:Account means your user account registered on a Site.

      App means an application software or self-contained program created or designed by you or on your behalf using the Umajin Products, including for an End User, and includes a Published App.

      Authorised Viewer has the meaning given in clause 5.1.

      Client Content means any data or content:

      • owned, held or created by or on behalf of you or by an End User and that is stored using, inputted into or transmitted through a Umajin Product; and
      • data or content of yours or of an End User that existed prior to your acceptance of these Terms or that you or an End User developed independently of your agreement with Umajin under these Terms and which you supply to Umajin in connection with these Terms.

      Confidential Information means any and all information (whether that information is oral, written or embodied in any other physical or electronic form) which is obtained directly or indirectly from the other party under or in connection with these Terms, and which is marked or stated to be confidential or which by its nature is reasonably intended to be confidential. Intellectual Property owned by Umajin is Umajin’s Confidential Information.

      Content means any data or content inputted into or transmitted through a Umajin Product, by you or on your behalf or by an End User.

      Dashboard means the Umajin cloud service. This service provides access to all Projects both Published and in-progress for a particular Account. The Dashboard provides: a storage service for all Projects, a storage service for dynamic content to be fed to Apps, a content management service to create and maintain dynamic content, services to compile and build finished Apps and reporting and analytics services.

      Documentation means the technical documents associated with Umajin Products that are made available on the Site.

      Editor means the Umajin desktop app editing software that is used to design an App and configure App behaviour, including all Updates of that software made available to you via the Site after the Start Date.

      End User includes any client of yours on whose behalf you have created or designed an App, and any ultimate end user of an App.

      Fees means the charges:

      • set out on the Sites for use of the Umajin Products, and the Publication of Apps, as updated from time to time; or
      • otherwise agreed in writing between you and Umajin for the applicable Umajin Products.

      Force Majeure Event has the meaning given in clause 19.6.

      Insolvency Event means in respect of a party:

      • the party is, becomes, or is deemed by applicable legislation or a competent court having proper jurisdiction to be insolvent, liquidated or bankrupt;
      • the party goes into receivership or has an administrator, receiver, trustee and/or manager (including a statutory manager) appointed in respect of it or all or any of its property;
      • any resolution is passed or proceedings are commenced for its liquidation;
      • the party suspends or threatens generally the suspension of the payment of its debts;
      • the party becomes subject to any form of insolvency or similar external administration; or
      • the party ceases to carry on business.

      Intellectual Property Rights includes copyright and all worldwide rights conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.

      Invited User means any person or entity, other than you, that uses any part of the Umajin App Creator with your authorization from time to time, including your staff members and End Users that you authorize to use any part of the Umajin App Creator.

      Loss includes loss of profits, savings, revenue or data, and any other claim, damage, loss, liability and cost, including legal costs on a solicitor and own client basis.

      Personal Information means information about an identifiable individual.

      Privacy Policy means the Umajin privacy policy set out at http://www.umajin.com/privacy-policy/‎, as may be updated from time to time.

      Project means the creation, design and development work undertaken by you or on your behalf to create an App using the Umajin Products and prior to that App being Published.

      Publish means the making generally available of an App to third parties or end users, including via the Umajin Portal, an app store, website, intranet, kiosk, television display, internet link or by any other means. Publication and Published have consistent meanings.

      Site means a website operated by Umajin at http://www.umajin.com and/or http://dashboard.umajin.com, or any replacement website operated by Umajin.

      Start Date means the date on which you first set up an Account or access, download or use any Umajin Product.

      Term means the period from the Start Date until the date your access to and/or use of the Umajin Products is terminated in accordance with these Terms.

      Umajin means Umajin Inc., a Delaware corporation.

      Umajin App Creator includes the Dashboard, the Editor, Umajin Preview and the Umajin Portal.

      Umajin Portal means Umajin’s private app portal which is used for displaying and distributing Published apps, created using the Umajin App Creator.

      Umajin Preview means the Umajin app that allows you and your Authorised Viewers to view a Project created using the Umajin App Creator, on a target mobile device or computer platform.

      Umajin Products includes:

      • the Umajin App Creator;
      • any other product or library (such as app templates, plug-ins, components and/or actions) Umajin may make available to you from time to time; and
      • any other service (such as template creation, integration, implementation, consulting, support, training and/or development services) Umajin may make available to you from time to time.

      Update means an update, upgrade, modification, enhancement, new version or new release of a Umajin Product.

      Year means a 12 month period from the Start Date or from any anniversary of that date.

      You means you or, if clause 1.1b applies, both you and the other person on whose behalf you are acting.

    2. In these Terms, unless the context requires otherwise:
      1. clause and other headings are for ease of reference only and do not affect the interpretation of these Terms;
      2. words importing the singular include the plural and vice versa; and
      3. a reference to:
        1. a party includes that party’s permitted assigns;
        2. personnel includes officers, employees, contractors, and agents;
        3. a person includes a body corporate, unincorporated association or a partnership; and
        4. including and similar words do not imply any limitation;.
  4. Your Obligations
    1. In order to use the Editor and the Dashboard, you must have an Account with Umajin.
    2. You must provide true, current and complete information in your dealings with Umajin (including when setting up an Account), and must promptly update that information as required so that the information remains true, current and complete.
    3. You must only use the Umajin Products:
      1. for your own business purposes (which, to avoid doubt, may include the creation, design, development and Publishing of Apps for End Users);
      2. for lawful purposes; and
      3. in accordance with these Terms.
    4. You are not permitted to sub-license or permit any other person (including any affiliate or related company or any End User) to use your Account, other than as may be permitted under the subscription option you have selected.
    5. You must ensure that all usernames and passwords required to access the Umajin Products are kept secure and confidential. You must immediately notify Umajin of any unauthorized use of any username or password or any other breach of security.
    6. You are responsible for any Invited User accounts you create, and must delete the Invited User’s account if you no longer wish the Invited User to have access (for example, where a staff member leaves your organisation or you end a relationship with an End User). Umajin takes no responsibility for the level of access granted to an Invited User, or for the deletion of Invited Users’ accounts.
    7. You are responsible for obtaining all permissions, consents, and licenses that are required to enable you to use the Umajin Products and the Content, and to enable you or an End User to Publish an App. Without limiting the previous sentence:
      1. you are responsible for ascertaining, and ensuring compliance with, all applicable local, national and international laws in regard to the creation, Publication and use of an App in any jurisdiction within which any App is Published; and
      2. you (or the relevant End User) is responsible for ensuring that an App complies with any publication requirement or other term applying to any app store or other third party distribution platform through which that App is Published.
  5. Authorised Viewers
    1. You may authorize up to 5 individuals at any one time (or such other number as is permitted under the subscription option you have selected) (Authorized Viewers) to use Umajin Preview to view a Project for testing and other pre-Publication purposes. To view the Project, an Authorized Viewer must download Umajin Preview.
    2. You must procure your personnel and Authorized Viewers’ compliance with these Terms and any other reasonable condition notified to you by Umajin. A breach of these Terms by any of your personnel or Authorized Viewers will be deemed to be a breach by you.
  6. Dashboard
    1. The Editor and Published Apps must be used in conjunction with the Dashboard.
    2. Although Umajin intends that the Dashboard should be continuously available, Umajin cannot guarantee that the Dashboard will be available 24/7. Without limitation, the Dashboard may be unavailable due to:
      1. network failures, external to Umajin;
      2. maintenance of the Dashboard or the computing systems and networks underlying the Dashboard ;
      3. service over-utilization due to unforeseen increase in traffic; or
      4. a Force Majeure Event.
    3. If for any reason Umajin has to interrupt the Dashboard for longer periods than Umajin would normally expect, Umajin will use reasonable efforts to publish in advance details of such activity on the Sites.
  7. Updates
    1. You acknowledge that Umajin may Update the Umajin App Creator including; the Editor, Umajin Preview and Umajin Portal app at any time. You are responsible for ensuring that you are using the most recent version of the Editor, Umajin Preview and Umajin Portal, and to regularly check the Sites for Updates and install those Updates as required and in accordance with the Documentation and any other Umajin instructions. Your rights and obligations under these Terms will continue to apply to the Editor, Umajin Preview and Umajin Portal as Updated by Umajin.
    2. Despite any other clause in these Terms, Umajin will not be responsible, liable or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that such failure is attributable to your failure to comply with clause 7.1.
  8. Third Party Features
    1. Through the use of web services and APIs, the Umajin Products interoperate with a range of third party service features. Umajin does not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, Umajin may cease to make available that feature to you. To avoid doubt, if Umajin exercises its right to cease the availability of a third party feature, you are not entitled to any refund, discount or other compensation.
  9. Restriction of Use
    1. You acknowledge that the Umajin Products contain valuable trade secrets of Umajin and/or its affiliates. You, your personnel and your Authorized Viewers must:
      1. not make or distribute copies of the Editor, Umajin Preview or the Umajin Portal;
      2. not copy, interfere with, modify, decompile, disassemble, reverse engineer or otherwise attempt to derive the source code of the Editor, Umajin Preview or the Umajin Portal from object code except to the extent expressly permitted by applicable law or treaty despite this limitation;
      3. not sell, rent, lease, license, sublicense, resell, display, time share, grant a security interest over, outsource or otherwise transfer the, Editor, Umajin Preview or the Umajin Portal to, or permit the use of the, Editor, Umajin Preview or the Umajin Portal, by any third party;
      4. not modify, adapt or translate the, Editor, Umajin Preview or the Umajin Portal, or merge all or any part of them with any other software or source code without Umajin’s prior written consent;
      5. use reasonable care and protection to prevent the unauthorized use, copying, publication or dissemination of the, Editor, Umajin Preview or the Umajin Portal and Umajin’s Confidential Information learned from your use of the Umajin Products;
      6. not attempt to undermine the security or integrity of the computing systems or networks that provide or host the Dashboard service, including by gaining unauthorized access to those computing systems or networks;
      7. not attempt to view, access or copy any material or data through the Umajin Products, other than the Content;
      8. not use the Umajin Products or create or Publish any App:
        1. for any illegal purpose or activity; or
        2. to transmit or distribute any data or other material in violation of any law or any third party rights, or any data or other material which is unlawful, defamatory, harassing, invasive of any individual’s privacy, abusive, harmful, threatening, vulgar, pornographic, obscene, otherwise objectionable, or offends religious sentiments, promotes racism, or contains viruses; and
      9. not circumvent or attempt to circumvent, the requirement in clause 6.1 to use Published Apps in conjunction with the Dashboard without Umajin’s prior written consent.
    2. You must ensure that your End Users do not Publish or use an App for a purpose described in clauses 9.1hi and 9.1hii
  10. Consequences of Unauthorised Use
    1. You acknowledge that a breach of the Terms by you may result in loss to Umajin that may not be adequately compensated by the payment of damages. Umajin will have the right to obtain injunctive relief against any actual or threatened violation of the restrictions set out in these Terms, in addition to any other available remedies.
    2. Without limiting any other right or remedy available to Umajin, Umajin may:
      1. limit or suspend your access to the Umajin Products, or any part of the Umajin Products, or any Authorized Viewer’s access rights to a Project; and/or
      2. delete, edit or remove any relevant Content,

      where Umajin considers any of the following events has occurred or is likely to occur:

      1. a breach of these Terms by you, your personnel or your Authorized Viewers; or
      2. any End User is Publishing or using an App for a purpose described in clauses 9.1hi and 9.1hii.
    3. You indemnify Umajin against all liability, damages, losses, costs and expenses of any kind (including the actual legal fees charged by Umajin’s lawyers) arising out of or in connection with any actual or alleged claim:
      1. relating to any Content infringing a third party’s Intellectual Property Rights or privacy rights;
      2. relating to a breach (or alleged breach) of these Terms by you, including (to avoid doubt) any breach (or alleged breach) of clause 9.1 by you, your personnel or your Authorized Viewers;
      3. relating to any End User Publishing or using an App for a purpose described in clause 9.1hi and 9.1hii;
      4. relating to use by you, your personnel, any Authorized Viewer or any End User of any third party intellectual property incorporated in or accessed by the Umajin Products or an App other than in accordance with any applicable third party terms, including those set out in or referred to the open source software attributions document available at a Site; or
      5. brought against Umajin by any Authorized Viewer or any End User relating to any exercise by Umajin of its rights under these Terms to limit, suspend and/or terminate your access to the Umajin Products, or any part of the Umajin Products, or any Authorized Viewer’s access rights to a Project.
  11. Umajin Obligations
    1. Umajin must use best efforts to provide the Umajin Products:
      1. in accordance with these Terms and applicable law; and
      2. exercising reasonable care, skill and diligence.
  12. Fees
    1. In consideration for the rights granted by Umajin to you under these Terms, you must pay the Fees to Umajin without set off or deduction in accordance with the payment terms and other provisions set out on the Sites from time to time or advised to you by an authorised reseller or authorised distributor of the Umajin Products (as the case may be).
    2. Umajin may increase the Fees at any time by notifying the change on the Sites, and you must pay those increased Fees. If the subscription option you have selected includes a minimum term requirement, the increased Fees will take effect at the end of the applicable minimum term.
    3. Without limiting Umajin’s other rights or remedies, if you fail to pay any amount due under or in connection with these Terms (including the Fees) by the due date:
      1. Umajin may:
        1. pending payment in full, suspend your access to and/or use of the Umajin Products, or any Authorised Viewer’s access rights to a Project; and/or
        2. charge interest on the overdue amounts and on any accrued interest under this clause. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by Umajin’s primary trading bank as at the due date (or if Umajin’s primary trading bank ceases to quote such a rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 4%. Interest will be calculated daily and compounded monthly; and/or
        3. in addition to the unpaid amounts and interest, recover all costs incurred in recovering such sums from you, including the actual fees charged by its lawyers and any debt collection agency; and
      2. you must, and must procure any End User to, remove any and all Published Apps from any app store or other third party distribution platform.
  13. Audit
    1. Umajin may collect information electronically about your use of the Umajin Products and the number of Apps Published by you or an End User to calculate the applicable Fees and verify your compliance with these Terms. You authorize Umajin to collect and use that information for this purpose.
    2. You agree that both during the Term and for a period of 1 year after its termination or expiry, Umajin or its authorized representatives may at any time during normal business hours on business days, on reasonable notice, inspect and have access to any premises, computer equipment and records of yours, to ensure you are complying with or have complied with these Terms. Without limiting Umajin’s other rights and remedies, if an audit reveals any non-compliance with these Terms, you must:
      1. reimburse Umajin for all of its costs in carrying out the audit; and
      2. pay any unpaid Fees within 7 days of notice in writing from Umajin.
  14. Intellectual Property
    1. Subject to clause 14.3, Umajin and its licensors own all Intellectual Property Rights in respect of the Umajin Products, including all:
      1. IT solutions, systems and networks (including software and hardware) used to provide the Dashboard , including third party solutions, systems and networks;
      2. all materials and components (including configurable components) forming part of and/or underlying the Umajin Products or a Project or an App (regardless of whether that App is Published or not), including all outputs and other material created using the Umajin App Creator (including any user interface, scripts and underlying software);
      3. ideas, know how, techniques and methodologies used by Umajin in the provision of the Umajin Products and the Additional Services; and
      4. Updates, including resulting from any contribution, recommendation, improvement or information submitted or suggested by you or on your behalf in respect of the Umajin Products.
    2. You agree not to claim or assert title to or ownership of any of the Intellectual Property Rights in items described in clause 14.1. You must not, without Umajin’s prior written consent, remove or alter any copyright or proprietary notice from copies of the Editor, the Documentation, Umajin Preview or Umajin Portal or any App.
    3. As between the parties, you own all Intellectual Property in the Content, including your End User branding and trade marks. You grant to Umajin (or will ensure that Umajin is granted) a worldwide, non-exclusive, fully paid up, irrevocable license to use, copy, make available and communicate the Intellectual Property in the Content, for the purpose of fulfilling Umajin’s obligations and exercising Umajin’s rights under these Terms.
  15. Client Content
    1. Umajin will use reasonable efforts to keep all Client Content confidential and not disclose Client Content to third parties except:
      1. to service providers working with Umajin on the operation and ongoing development of the Umajin Products; or
      2. to the extent clause 16.2 applies.
    2. No compensation is to be paid to you in respect of any use by Umajin, or any third party, of Client Content.
    3. While Umajin uses reasonable endeavors to take standard industry measures to back up Client Content stored through the Dashboard, you agree to take separate back-up copies at regular intervals in accordance with good industry practice. You acknowledge that Umajin will not retain back-up copies of any Client Content previously inputted into or stored in the Dashboard other than the version subject to the most recent disaster recovery back-up.
    4. You agree that Umajin may store Client Content (including any Personal Information) in servers of Umajin’s service providers, which may be located in a different country to you, and may access Client Content (including any Personal Information) in that country or any other country from time to time.
  16. Confidentiality
    1. Each party must, unless it has the prior written consent of the other party:
      1. keep confidential at all times the Confidential Information of the other party;
      2. effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorized access or use; and
      3. disclose Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that the personnel or professional advisor is aware of, and complies with, the provisions of clauses 16.1a and 16.1b.
    2. The obligation of confidentiality in clause 16.1a does not apply to any disclosure or use of Confidential Information:
      1. for the purpose of performing these Terms or exercising a party’s rights under these Terms;
      2. required by law (including under the rules of any stock exchange);
      3. which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
      4. which was rightfully received from a third party without restriction and without breach of any obligation of confidentiality; or
      5. by Umajin if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that Umajin enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 16.
  17. Privacy
    1. In accessing, collecting, holding, processing or distributing any Personal Information, Umajin will comply with:
      1. the Privacy Policy; and
      2. applicable privacy and data protection laws.
    2. You agree that, except as set out in clauses 17.4 and 17.5, to the extent Client Content contains Personal Information and Umajin collects, holds and/or processes that Personal Information through the Dashboard, Umajin is acting as an agent on your behalf for the purposes of applicable privacy law. You must obtain all necessary consents from the relevant individual to enable Umajin to collect, hold and process that information in accordance with these Terms.
    3. To the extent Client Content contains Personal Information:
      1. Umajin will hold and process that Personal Information in accordance with your reasonable instructions as set out in these Terms or as otherwise agreed in writing; and
      2. you must comply, and you must ensure Umajin’s use of such Personal Information in accordance with these Terms complies, with applicable privacy law.
    4. Umajin may collect information electronically, including data volume information, in relation to the use of any App (whether Published or not) and the Umajin Preview, and may use that information for its internal business purposes and make that information available to third parties providing services related to the Umajin Products. You must obtain all consents required (including End User and Authorized Viewer consent) for Umajin to collect and use that information in accordance with these Terms.
    5. Umajin may collect Personal Information through the use of cookies on a Site. Cookies are alphanumeric identifiers that Umajin transfers to the computer hard drive of the person using the Site to enable Umajin’s systems to recognize the user’s browser. Cookies may be disabled by changing the settings on the user’s browser. However, this may prevent use of some or all the functions of the Umajin Products.
  18. Warranties
    1. Each party warrants that it has full power and authority to enter into and perform its obligations under these Terms.
    2. Umajin does not warrant to either you or any End User that the Umajin Products will satisfy your requirements, that the Umajin Products are without defect or error or that the operation of the Umajin Products will be uninterrupted or that they will operate in combination with other software or any hardware selected by you or any End User.
    3. To the extent permitted by law, Umajin and its licensors have no liability or responsibility to you or any other person for any Loss in connection with:
      1. the Umajin Products or a Site being unavailable (in whole or in part) or performing slowly;
      2. any error in, or omission from, any information made available through the Umajin Products or a Site;
      3. any exposure to viruses or other forms of interference which may damage your computer system or expose you to fraud when you access or use the Umajin Products or a Site. To avoid doubt, you are responsible for ensuring the process by which you access and use the Umajin Products and the Sites protects you from this;
      4. any site linked from a Umajin Product or a Site. Any link on a Umajin Product or a Site to other sites does not imply any endorsement, approval or recommendation of, or responsibility for, those sites or their contents, operations, products or operators; or
      5. an App not being accepted for Publication via any third party app store, website or other means of Publication, except to the extent that the failure for the App to be accepted arises directly from any breach by Umajin of its representations and warranties under these Terms.
    4. Umajin makes no other warranty, condition, representation, or promise to either you or any End User in respect of the Umajin Products, the Sites or any Project or App other than those expressly set out in these Terms. To the fullest extent permitted by law, all implied or statutory warranties are excluded, including those of merchantable quality, fitness for purpose, title and/or non-infringement, and this clause 18 sets out your only remedies and the sole basis of warranty liability of Umajin to you.
  19. Liability
    1. Umajin will not be responsible, liable, or held to be in breach of these Terms for:
      1. any failure to perform its obligations under these Terms or otherwise;
      2. any delay or deficiency in a Site, a Umajin Product, a Project or an App, or in any services provided by Umajin or any Umajin affiliate; or
      3. any loss or liability of yours arising out of any of the above,

      in each case to the extent caused by any act, omission, delay or direction of your, or your personnel, Authorized Viewers or End Users.

    2. UMAJIN WILL NOT BE LIABLE TO YOUR OR ANY THIRD PARTY (INCLUDING AN END USER) FOR ANY:
      1. LOSS OF PROFIT, LOSS OF DATA, LOSS OF REVENUE, LOSS OF ANTICIPATED SAVINGS, OR LOSS OF BUSINESS;
      2. LOSS OF USE OF ANY UMAJIN PRODUCT, A PROJECT OR AN APP; OR
      3. CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGE OR LOSS OF ANY KIND.
    3. UMAJIN’S TOTAL AGGREGATE LIABILITY TO YOU UNDER OR IN CONNECTION WITH THESE TERMS OR RELATING TO THE UMAJIN PRODUCTS, A PROJECT OR AN APP, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE, WILL NOT IN ANY YEAR EXCEED THE TOTAL FEES PAID BY YOU IN THE PREVIOUS YEAR, WHICH DURING THE FIRST YEAR FOLLOWING THE START DATE IS DEEMED TO BE THE TOTAL FEES PAID BY YOU FROM THE START DATE TO THE DATE OF THE FIRST EVENT GIVING RISE TO LIABILITY.
    4. Clause 19.3 does not limit Umajin’s liability:
      1. for personal injury or death caused by negligence; or
      2. for fraud or willful default.
    5. Umajin will not be liable to you in respect of a claim under or in connection with these Terms unless that claim is notified in writing to Umajin within 6 months of the date that the circumstances giving rise to the claim were reasonably discoverable to you.
    6. Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with these Terms.
    7. Neither party will be liable to the other party for any failure to comply with these Terms or delay in complying with these Terms to the extent caused by a Force Majeure Event. To avoid doubt, the act or omission of an End User is deemed to be within your control and you must ensure you have in place all contractual arrangements to ensure End User’s compliance with these Terms.
    8. Except to the extent permitted by law, nothing in these Terms has the effect of contracting out of any law, or excluding any liability, that cannot be excluded under applicable law. To the extent Umajin’s liability cannot be excluded but can be limited, Umajin’s liability is limited to one month’s fees.
  20. Terms and Termination
    1. Unless terminated under this clause 20, your right to access and use the Umajin Products:
      1. starts on the Start Date; and
      2. subject to clause 20.3, continues until a party gives at least 30 days’ notice that your access to and use of the Umajin Products will terminate on the expiry of that notice.
    2. If the subscription option includes a minimum term requirement, a notice under clause 20.1 will not be effective prior to the end of the applicable minimum term.
    3. Either party may, by notice to the other party, immediately terminate your access to and use of the Umajin Products if:
      1. the other party breaches any material provision of these Terms and the breach is not:
        1. remedied within 10 days of the receipt of the notice from the first party requiring it to remedy the breach; or
        2. capable of being remedied; or
      2. an Insolvency Event occurs in respect of the other party.
    4. In addition and without prejudice to its rights under clause 20.2, Umajin may terminate your access to and use of the Umajin Products immediately by notice in writing if you breach any provision of these Terms (whether material or not), having previously breached either that provision or any other provision and irrespective of whether the earlier breach was remedied.
    5. No compensation is payable by Umajin to you as a result of termination of your access to and use of the Umajin Products for whatever reason, and you will not be entitled to a refund of any fees that you have already paid.
    6. Termination of your access to and use of the Umajin Products is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination.
    7. On termination of your access to and use of the Umajin Products for any reason, you must:
      1. immediately cease to use the Umajin Products, the Documentation, and all Umajin Confidential Information;
      2. return, destroy and erase (as requested by Umajin) all copies of the Editor, Umajin Preview and Umajin Portal, Documentation, and Umajin Confidential Information;
      3. pay all unpaid Fees and other amounts owing under these Terms; and
      4. remove any and all Published Apps from any app store or other third party distribution platform, and must procure any End User to do the same.
    8. On request by Umajin, you must certify in writing to Umajin that to the best of your knowledge (having made due enquiry) all copies in any form of the Editor, Umajin Preview and Umajin Portal, Documentation, and Umajin Confidential Information in your possession or control have been returned, destroyed or erased.
    9. Umajin will, within 14 days of termination of your access to and use of the Umajin Products for any reason, delete your Client Content stored through the Dashboard.
    10. Termination of these Terms does not affect clauses which by their nature are intended to survive termination or expiry, including clauses 10, 13, 14, 16, 17, 19 and 20.
  21. General
    1. These Terms set out everything agreed by the parties relating to the Umajin Products, the Projects and the Apps, the relationship between the parties, and supersedes and cancels anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the subject matter of these Terms that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the Start Date.
    2. Subject to clauses 2.1 and 12.2, any variation to these Terms must be in writing and signed by both parties.
    3. If any provision of these Terms is, or becomes, illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If such modification is not possible, the provision must be treated for all purposes as severed from these Terms without affecting the legality, enforceability or validity of the remaining provisions of these Terms.
    4. No person other than you and Umajin has any right to a benefit under, or to enforce, these Terms.
    5. Any failure by Umajin to enforce any provision of these Terms will not constitute or be construed as a waiver of such provisions or the right to enforce it at a later date. Umajin will not be deemed to have waived any right unless that waiver is in writing and signed by a duly authorized representative. Any waiver will apply only to the particular matter in respect of which it is given.
    6. If Umajin needs to contact you, Umajin may do so by email or by posting a notice on the Sites. You agree that this satisfies all legal requirements in relation to written communications.
    7. You may not assign, novate, subcontract or transfer any right or obligation under these Terms, without the prior written consent of Umajin. You remain liable for the performance of your obligations under these Terms despite any approved assignment, subcontracting, or transfer.
  22. Governing Law
      These Terms are governed by, and must be interpreted in accordance with, the laws of the State of Delaware. Each party submits to the non-exclusive jurisdiction of the courts of the State of Delaware in relation to any dispute connected with these Terms.