These terms and conditions (“Terms and Conditions”) are between you (“ Client ”) and Mozenda, Inc., a Utah corporation (“Mozenda”) apply to Client’s use of the Content and Services (defined below).
1. Definitions. All capitalized Terms not defined in this Section shall have the meaning attributed to them elsewhere in the Agreement (as defined below).
1.1. “Agreement” means the DSA and these Terms and Conditions.
1.2. “Confidential Information” means all proprietary information of a party, including, without limitation, specifications, diagrams, use cases, procedures, information, data, materials, prototypes or models relating to a party’s products, programs, markets, customers, suppliers, inventions, designs, web-searches, research and development, business plans, financial projections, organizations, employees or consultants or any other similar aspects of the present or future business of either party. Any non-public information regarding Mozenda’s Intellectual Property Rights shall be deemed to be Confidential Information of Mozenda.
1.3. “DSA” means the Data Subscription Agreement entered into by and between Client and Mozenda.
1.4. “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
1.5. “Services” means the creation and delivery of databases created from publicly available information, as described more fully in the Section III of the DSA.
2. Grant of License; Ownership
2.1. License Grant: Subject to Client’s payment of the applicable fees and the restrictions set forth in Sections 2.3 and 2.4, Mozenda hereby grants to Client a non-exclusive, non-revocable right to use all data, databases, materials, reports, images, or other information in any form (the “Content”) that Mozenda provides to Client pursuant to the DSA. This license to use the Content (the “License”) is expressly limited to Client’s internal use and shall not be used in any other manner by Client, nor shall Client distribute the Content to a third party in any manner without the express written consent of Mozenda.
2.2. Authorized Use: Client may display, edit, revise, create derivative works based on and otherwise use the Content solely for Client’s internal purposes. In cases where copyrighted and or confidential data may be included in the Content, Client agrees to comply with copyright laws and rules applicable to such data. Client shall promptly notify Mozenda of any known unauthorized use of a Client’s user account that may have resulted in a breach of the License. Client is responsible for activity occurring under the Client’s user account(s) unless the activity is caused by an unauthorized third party accessing the Services using a Client user account.
2.3. Prohibited Use. Client shall not (i) license, sublicense, sell, resell, transfer, assign or distribute the Content in any way other than as permitted in writing by Mozenda; (ii) modify or make derivative works based upon the Content, other than for Client’s own internal use; (iii) publish, distribute, or otherwise make the Content available to third parties; or (iv) use the Content in any way that reflects poorly on Mozenda or otherwise disparages or devalues Mozenda’s reputation or goodwill. Violation of these policies may result in immediate termination of Client’s use of the Services without notice.
2.4. Ownership of Intellectual Property. Mozenda and its licensors (where applicable) own all right, title and interest, including all related Intellectual Property Rights, in and to the Content and the Services and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client or any other party relating to the Content or the Services. This License is not a sale and does not convey to Client any rights of ownership in or related to the Services, the Content, or Mozenda’s Intellectual Property Rights, except as expressly set forth herein. The Mozenda name, the Mozenda logo, and the product names associated with the Services are trademarks of Mozenda or third parties, and no right or license is granted to use them except in relation to the use of the Services.
3. License Fees; Payment
3.1. Fees. Client agrees to pay all fees specified in the DSA according to the terms set forth therein. Except as otherwise specified herein, payment obligations are non-cancelable and fees paid are non-refundable.
3.2. Invoicing and Payment. Mozenda will invoice Client in advance of the Services and Content to be provided under the DSA. Unless otherwise stated in the DSA, invoiced charges are due net 30 days from the invoice date. Client is responsible for providing complete and accurate billing and contact information to Mozenda and notifying Mozenda of any changes to such information.
3.3. Overdue Charges. If any invoiced amount is not received by Mozenda by the due date, then without limiting Mozenda’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) Mozenda may condition the provision of future Content and Services on payment terms shorter than those specified in Section 3.2 of the DSA.
3.4. Suspension of Services. If any amount owed by Client under this Agreement is 30 or more days overdue, Mozenda may, without limiting its other rights and remedies, immediately suspend Client’s access to the Content and the Services until such amounts are paid in full. Additionally, Client’s failure to make any payment within 30 days of the due date will be considered a material breach of the Agreement.
3.5. Taxes. The fees paid pursuant to this Agreement do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Client is solely responsible for paying all Taxes associated with the Services provided hereunder. For clarity, Mozenda is solely responsible for taxes assessable against it based on its income, property and employees.
4. Term; Termination
4.1. Term. The term of this Agreement is set forth in Section II of the DSA.
4.2. Termination. A party may terminate the Agreement for cause (i) upon 30 days’ advance written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon termination or expiration of this Agreement for any reason, Client shall immediately cease all use of the Services and access thereto will be terminated. Notwithstanding the foregoing, upon termination or expiration of this Agreement for any reason, Client may continue to use any Content received by Client before such termination or expiration, provided that such use shall remain subject to the terms set forth herein.
4.3. Refund or Payment upon Termination. If Client terminates this Agreement in accordance with Section 4.2, Mozenda will refund any prepaid fees covering the remainder of the term. If Mozenda terminates this Agreement in accordance with Section 4.2, Client will pay any unpaid fees covering the remainder of the term. In no event will termination relieve Client of Clients’ obligation to pay any fees. Except in the case of Section 4.2 above, no refunds shall be given for any unused portion of Client’s data subscription for early termination.
5.1. General. Each party agrees that it shall (a) hold all Confidential Information in strict confidence, (b) use the same degree of care which it uses to protect its own confidential information to maintain the confidentiality and secrecy of the Confidential Information, (c) disclose the Confidential Information, and permit the Confidential Information to be disclosed, only to employees who need access to the Confidential Information to carry out the terms and intent of this Agreement, and (d) use the Confidential Information only in furtherance of its rights and obligations set forth in this Agreement.
5.2. Exceptions. Information will not be deemed Confidential Information hereunder if such information (a) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (b) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (d) is independently developed by the receiving party.
5.3. Additional Remedies. Notwithstanding anything to the contrary in this Agreement, in the event of any breach of this Section 5, the non-breaching party will be entitled to any remedies available at law and/or in equity.
5.4. Disclosure Protection. The obligations in this Section 5 shall not restrict any disclosure by either party pursuant to any applicable law, or by order of any court or government agency provided that the disclosing party shall give prompt notice to the nondisclosing party of any such proposed disclosure and the nondisclosing party will be given as much time as possible before disclosure to seek a protective order or other appropriate relief. The disclosing party shall cooperate with the nondisclosing party’s efforts to preclude, quash, limit, or impose protective orders on such disclosure or with respect to any other appropriate action taken by the nondisclosing party.
Client agrees to indemnify, defend and hold harmless Mozenda, its subsidiary and parent companies, and each of their officers, directors, employees, agents and related third parties, for any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any third-party claim related to (a) Client’s use of the Services; (b) Client’s infringing or misappropriating of a copyright or other intellectual property contained in the Extracted Data; (c) Client’s violation of applicable law; (d) Client’s breach of this Agreement; or (e) the unauthorized or unlawful use of the Content or Services by any person using a Client’s user account. Mozenda reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Client, in which event Client will fully cooperate with Mozenda in asserting any available defenses.
THE CONTENT AND SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS-IS” AND, EXCEPT AS EXPRESSLY PROVIDED HEREIN, MOZENDA DOES NOT MAKE ANY GUARANTEE OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AS TO THE SUCCESSFUL USE OF THE CONTENT AND SERVICES, AND MOZENDA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ADDITIONALLY, THE CONTENT AND SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. MOZENDA DISCLAIMS ALL LIABILITY AND INDEMNIFCATION FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. MOZENDA DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
8. LIMITATION OF LIABILITY
EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS IN SECTION 6 HEREUNDER, (i) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THESE TERMS FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND (ii) EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO FEES PAID BY CLIENT UNDER THE AGREEMENT DURING THE PREVIOUS TWELVE (12) MONTHS.
9.1. Governing Law. This Agreement shall be governed by the laws of the State of Utah except for its conflicts of laws principles. Any dispute or claim arising out of or in connection with the Agreement shall be adjudicated in Utah County, Utah.
9.2. Entire Agreement. This Agreement, including any documents incorporated herein, constitutes the entire agreement between the parties with respect to the subject matter hereof.
9.3. Amendment; Waiver. Any modifications to the Agreement must be made in writing and executed by both parties. The waiver of any breach or default of the Agreement will not constitute a waiver of any subsequent breach or default.
9.4. Notice. Unless otherwise expressly set forth herein, any notices shall be sent to the following address Mozenda, Inc, 4626 N. 300 W. STE 360, Provo, UT 84604. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing certified, first class, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim).
9.5. Severability. If any provision herein is held unenforceable, then such provision will be modified to reflect the parties’ intention, and the remaining provisions of the Agreement will remain in full force and effect.
9.6. Attorneys’ Fees. If any action in law or in equity is brought by a party to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and disbursements, in addition to any other relief to which such party may be entitled.
9.7. Export Compliance. The Services and other technology available to Client hereunder, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Client represents that it is not named on any U.S. government denied-party list. Client shall not permit Users to access or use the Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
9.8. Assignment. Mozenda may assign this Agreement, in whole or in part, in its sole discretion. Client may not assign its rights under this Agreement without Mozenda’s prior written permission. Any attempt by Client to assign its rights under this Agreement without Mozenda’s permission shall be void.
9.9. Headings. The headings of sections contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
9.10. Survival. Upon the termination of this Agreement, Sections 2.4, 5, 6, 7 and 8 shall survive.
Terms and Conditions ( Terms and Conditions)