Last Updated: May 2nd, 2023
- "Account" means the account you set up to access the Platform, and represents your legal and services relationship with Modular.
- “Code” means any software code that you write, develop, or otherwise import for use on the Platform.
- “Derivative Data” means data and information related to or derived from Users of the Platform that has been aggregated and/or anonymized by Modular, including any metrics, feedback, and ratings relating to any Code.
- “Developer” means a User who wrote or otherwise contributed to Code.
- “Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby.
- “Modular IP” means the Platform are and any and all intellectual property provided to you or any other User in connection with the foregoing. For the avoidance of doubt, Modular IP includes Derivative Data and any information, data, or other content derived from Modular’s provision of the Platform but does not include User Generated Content.
- “Platform” means Modular’s proprietary, hosted software platform, and other website functionality as made available to Users from time to time at www.modular.com (or a successor, or sub-site).
- “Third-Party Products” means any third-party products provided with, integrated with, or incorporated into the Platform.
- “User,” “you,” and “your” refer to the individual person, company, or organization that has visited or is using the Platform; that accesses or uses any part of an Account; or that directs the use of the Account in the performance of its functions. A User must be at least 18 years of age.
- “User Generated Content” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by a User through the Platform, including any Code; provided that, for purposes of clarity, User Generated Content as defined herein does not include Derivative Data.
2. Account Registration and Requirements
- Registration. You must provide a valid email address in order to complete the Account signup process. Account registration and provisioning is at Modular’s sole discretion, and signing up for our waitlist does not guarantee that you will be eligible for account registration.
- You must be a human to create an Account. Accounts registered by "bots" or other automated methods are not permitted.
- You must be age 18 or older. The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under thirteen (13). We do not knowingly collect or solicit personally identifiable information from children under thirteen (18). Users under the age of 18 are not permitted to use Modular.
- Modular does not target its Platform to children under 18, and we do not permit any Users under 18 on our Platform. If we learn of any User under the age of 18, we will terminate that User’s Account immediately.
- Your login may only be used by one person. You may not share your Account with others, and you may not use anyone else’s Account.
- Account Security. You are responsible for keeping your Account secure while you use the Platform. We offer tools to help you maintain your Account's security, but the content of your Account and its security are your responsibility. You are responsible for all content posted and activity that occurs under your Account (even when content is posted by others who have Accounts under your Account). You are responsible for maintaining the security of your Account and password. Modular cannot and will not be liable for any loss or damage from your failure to comply with this security obligation. You will promptly notify Modular if you become aware of any unauthorized use of, or access to, our Platform through your Account, including any unauthorized use of your password or Account.
3. Platform Access and Use
- Subject to and conditioned on your compliance with the terms and conditions of this Agreement, Modular hereby grants you a right to access and use the Platform on a non-exclusive, non-transferable, and non-sublicensable basis. Your use is limited to personal, non-commercial, internal business purposes.
- Use Restrictions. You shall not use the Platform for any purposes beyond the scope of the access granted in this Agreement. You shall at all times comply with Modular’s Acceptable Use Policy (https://www.modular.com/privacy).
- Reservation of Rights. Modular reserves all rights not expressly granted to you in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to you or any third party any intellectual property rights or other right, title, or interest in or to the Modular IP.
- Suspension. Notwithstanding anything to the contrary in this Agreement, Modular may temporarily suspend your Account and/or access to the Platform if: (i) Modular reasonably determines that (a) there is a threat or attack on any of the Modular IP; (b) your or another User’s use of the Modular IP disrupts or poses a security risk to the Modular IP or to any other User, customer, or vendor of Modular; (c) you are using the Modular IP for fraudulent or illegal activities or in violation of the Acceptable Use Policy; (e) Modular’s provision of the Platform to you is prohibited by applicable law; or (f) any User Generated Content (including any Code) submitted, posted, or otherwise transmitted by you through the Platform may infringe or otherwise violate any third party’s intellectual property or other rights; (ii) any vendor of Modular has suspended or terminated Modular’s access to or use of any Third-Party Products required to enable you to access the Platform; or (iii) in accordance with a violation of any other term of this Agreement (each of (i), (ii), or (iii), a “Service Suspension”). Modular shall use commercially reasonable efforts to provide written notice of any Service Suspension to you and to provide updates regarding resumption of access to the Platform following any Service Suspension. Modular shall use commercially reasonable efforts to resume providing access to the Platform as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Modular will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that you or any other User may incur as a result of a Service Suspension.
- Derivative Data. Notwithstanding anything to the contrary in this Agreement, Modular may monitor your use of the Platform and collect and compile Derivative Data. As between you and Modular, all right, title, and interest in Derivative Data, and all intellectual property rights therein, belong to and are retained solely by Modular. You acknowledges that Modular may compile Derivative Data based on User Generated Content input into and transmitted via the Platform. Notwithstanding anything to the contrary in this Agreement, you further acknowledges that Modular may use and disclose Derivative Data for any lawful purpose.
4. User Responsibilities
- General. You are at all times responsible and liable for all uses of the Platform resulting from access from your Account, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement.
- User Generated Content. You shall not upload to the Platform any User Generated Content that you do not have sufficient rights to upload. You hereby represent and warrant that you have sufficient rights to use any Code you upload to or otherwise use or incorporate as part of the Platform. You shall at all times abide by and comply with the Modular Acceptable Use Policy (https://www.modular.com/terms). You hereby grant to Modular a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display your User Generated Content and perform all acts with respect to your User Generated Content as may be necessary for Modular to provide the Platform, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display your User Generated Content incorporated within the Derivative Data, and as otherwise necessary to provide you with Platform functionality.
- Third-Party Products. Modular may from time to time make Third-Party Products available to you or may allow for certain Third-Party Products to be integrated with the Platform to allow for the transmission of Code or other User Generated Content from such Third-Party Products into the Platform (including, for example and without limitation, Github, AWS Code Commit, BitBucket, etc.). For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. Modular is not responsible for the operation of any Third-Party Products and makes no representations or warranties of any kind with respect to Third-Party Products or their respective providers. If you do not agree to abide by the applicable terms for any such Third-Party Products, then you should not install or use such Third-Party Products. By authorizing Modular to transmit your User Generated Content from Third-Party Products into the Platform, you represent and warrant to Modular that you have all right, power, and authority to provide such authorization.
- User Controls and Responsibility. You have and will retain sole responsibility for: (i) all your own User Generated Content; (ii) your technology infrastructure and network and internet connection(s) from which you access the Platform; (iii) the security and use of your Account and associated credentials; and (iv) all access to and use of the Platform, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
5. Account Fees
- You may access the Platform for free, or we may charge a fee for using the Platform (the “Paid Services”).
- Paid Platform Access. Certain aspects of features of the Platform may be subject to payments now or in the future (“Account Fees”).
- Payment Processor. We use a third-party payment processor (the “Payment Processor”) to bill you through a payment account linked to your Account on the Platform (your “Billing Account”) for any owed Account Fees. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement.
- Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
- Recurring Billing. Some of the Paid Services may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Paid Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, CONTACT US.
- Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT ACCOUNT SETTINGS BY CONTACTING US. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.
- Change in Amount Authorized. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
- Reaffirmation of Authorization. Your non-termination or continued use of a Paid Service reaffirms that we are authorized to charge your Payment Method for that Paid Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Paid Service.
- Free Trials and Other Promotions. Any free trial or other promotion that provides access to a Paid Service must be used within the specified time of the trial. You must stop using a Paid Service before the end of the trial period in order to avoid being charged for that Paid Service. If you cancel prior to the end of the trial period and are inadvertently charged for a Paid Service, please contact us at email@example.com.
- Your Confidentiality Obligations. You agree that any non-public information we give you, such as information about a private beta offering or any information or materials made available on non-public portions of the Platform, is Modular’s confidential information, regardless of whether it is marked or identified as such (collectively, “Confidential Information”). You agree to only use such Confidential Information for the express purpose of testing and evaluating such beta products and not for any other purpose. You should use the same degree of care as you would with your own confidential information, but no less than reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of our Confidential Information. You promise not to disclose, publish, or disseminate any Confidential Information to any third party, unless we don’t otherwise prohibit or restrict such disclosure (for example, you might be part of a Modular-organized group discussion about a private beta feature).
- Exceptions. Confidential Information will not include information that is: (a) or becomes publicly available without breach of this Agreement through no act or inaction on your part (such as when a private beta feature becomes part of our publicly offered Platform); (b) known to you before we disclose it to you; (c) independently developed by you without breach of any confidentiality obligation to us or any third party; or (d) disclosed with permission from Modular. You will not violate the terms of this Agreement if you are required to disclose Confidential Information pursuant to operation of law, provided Modular has been given reasonable advance written notice to object, unless prohibited by law.
7. Data Security and Processing of personal Information
- Security Measures. Modular will implement and maintain commercially reasonable administrative, physical, and technical safeguards designed to protect applicable User Generated Content from unauthorized access, use, alteration or disclosure.
8. Intellectual Property Ownership; Feedback.
- Modular IP. You acknowledge that, as between you and Modular, Modular owns all right, title, and interest, including all intellectual property rights, in and to the Modular IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
- Your User Generated Content. Modular acknowledges that, as between you and Modular, you and your licensors (if any) retain all right, title, and interest, including all intellectual property rights, in and to User Generated Content.
- Feedback. If you sends us any communications or materials by mail, email, telephone, or otherwise, suggesting or recommending changes to the Modular IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Modular is free to use such Feedback.
9. Warranty Disclaimer
MODULAR AND ITS LICENSORS, SUPPLIERS, PARTNERS, PARENT, SUBSIDIARIES OR AFFILIATED ENTITIES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, CONSULTANTS, CONTRACT EMPLOYEES, REPRESENTATIVES AND AGENTS, AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (MODULAR AND ALL SUCH PARTIES TOGETHER, THE “MODULAR PARTIES”) MAKE NO REPRESENTATIONS OR WARRANTIES CONCERNING THE MODULAR IP, AND THE MODULAR PARTIES WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, AVAILABILITY, OCCURRENCE OF ERRORS, COPYRIGHT COMPLIANCE, LEGALITY, OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE PLATFORM OR ANY CLAIMS, ACTIONS, SUITS PROCEDURES, COSTS, EXPENSES, DAMAGES OR LIABILITIES ARISING OUT OF USE OF, OR IN ANY WAY RELATED TO YOUR ACCESS OF THE PLATFORM OR USE OF ANY MODULAR IP. THE MODULAR PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OFFERED THROUGH OR IN CONNECTION WITH YOUR USE OF THE PLATFORM. THE MODULAR IP IS PROVIDED BY MODULAR (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE MODULAR IP WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
You agree to indemnify and hold the Modular Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) your use of the Modular IP (including any actions taken by a third party using your Account), and (b) your violation or breach of any of the terms of this Agreement. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your Account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
11. Limitation of Liability
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE MODULAR PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) ONE-HUNDRED ($100) DOLLARS OR (II) THE AMOUNTS PAID AND/OR PAYABLE BY YOU TO MODULAR IN CONNECTION WITH THE ACCOUNT FEES FOR THE PLATFORM IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
- Assignment. You may not assign, delegate or transfer this Agreement or your rights or obligations hereunder, or your Account, in any way (by operation of law or otherwise) without Modular’s prior written consent. We may transfer, assign, or delegate this Agreement and our rights and obligations without consent.
- Choice of Law. This Agreement are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of California, without regard to the conflicts of laws provisions thereof.
- Miscellaneous. The failure of Modular to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that this Agreement shall otherwise remain in full force and effect and enforceable. You and Modular agree that this Agreement is the complete and exclusive statement of the mutual understanding between you and Modular, and that the terms contained herein supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and Modular. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venturer of Modular, and you do not have any authority of any kind to bind Modular in any respect whatsoever.
- Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with Modular and limits the manner in which you can seek relief from Modular. Both you and Modular acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of this Agreement, Modular's officers, directors, employees and independent contractors (“Representatives”) are third-party beneficiaries of this Agreement, and that upon your acceptance of this Agreement, Representatives will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as the third-party beneficiary hereof.
- Arbitration Rules; Applicability of Arbitration Agreement. You and Modular shall use best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of this Agreement directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in San Mateo County, California. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
- Costs of Arbitration. The Rules will govern payment of all arbitration fees. Modular will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. Modular will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
- Waiver of Jury Trial. YOU AND MODULAR WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Modular are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Modular over whether to vacate or enforce an arbitration award, YOU AND MODULAR WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Modular is entitled to arbitration; instead all claims and disputes will be resolved in a court.
- Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: Modular, Inc., 228 Hamilton Ave. 3rd Floor Palo Alto, CA 94301 postmarked within thirty (30) days of first accepting this Agreement. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your Account, and (iii) a clear statement that you want to opt out of this Agreement’s arbitration agreement.
- Exclusive Venue. If you send the opt-out notice in (e), and/or in any circumstances where the foregoing arbitration agreement permits either you or Modular to litigate any dispute arising out of or relating to the subject matter of this Agreement in court, then the foregoing arbitration agreement will not apply to either party, and both you and Modular agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, San Mateo County, California, or the federal district in which that county falls.
- Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with Modular.