All capitalized terms not defined in this Section shall have the meaning attributed to them in the applicable section of the Agreement or on the Statement of Work.
1.1. “Agent” means a Client created program that is used to identify and extract elements within a webpage. When an Agent is operating on the site it is referred to as a “job.”
1.2. “Agreement” means the Enterprise License Agreement, plus any applicable Statement of Work; and or Terms and Conditions
1.3. “Confidential Information” shall mean 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 the Mozenda Technology and Intellectual Property Rights shall be deemed to be Confidential Information of Mozenda.
1.3. “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;
1.4. “Mozenda Technology” means all of Mozenda’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Client in providing the Services;
1.5. “Services” means the automated process of extracting data from public websites;
1.6. “Statement of Work” means the document executed by Mozenda and Client containing the specific terms pertaining to the Services to be provided to Client;
1.7. “Term” shall mean the term set forth on the applicable License Agreement.
1.8. “User(s)” means a Client representative, consultant, contractor or agent who is authorized to use the Services and have been supplied user identifications and passwords by Client (or by Mozenda at Client’s request).
2. Grant of License; Ownership
2.1. License Grant: Subject to Client’s payment of the applicable fees, Mozenda hereby grants to Client a non-exclusive, non-transferable license during the Term, to access and use the Services in accordance with the terms of this Agreement (the “License”). All rights not expressly granted to Client are reserved by Mozenda and its licensors.
2.2. Authorized Use: Client agrees to use the Services solely in conjunction with the extraction of data from publicly accessible websites (including sites which may require a user login) (“Extracted Data”). In cases where copyrighted and or confidential data may be included in the Extracted Data, Client agrees to comply with copyright laws and rules applicable to such data including (but not limited to) the reproduction and resale of the Extracted Data. Client shall comply with applicable laws, treaties and regulations in connection with use of the Services, including those related to data privacy, international communications and the transmission of technical or personal data. Client shall promptly notify Mozenda of any known unauthorized use of a 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 Services in any way other than as permitted in writing by Mozenda; (ii) modify or make derivative works based upon the Services; (iii) create Internet “links” to the Services or “frame” or “mirror” any content of the Services on any other server or wireless or Internet-based device, (iv) use the Services to generate fraudulent impressions of or fraudulent clicks on Client’s ad(s) or third-party ad(s) through any automated, deceptive, fraudulent or other invalid means, including but not limited to through repeated manual clicks, the use of robots, agents or other automated query tools and/or computer generated search requests, and/or the unauthorized use of other search engine optimization services and/or software; (v) use the Services to extract data from adult or pornographic websites, gambling or casino-related websites, hate-related websites, websites that promote violence, or drug-related websites; or (vi) violate the terms and conditions of any website. (vii) engage in any action or practice 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 your use of the Services and the Website without notice, and may subject you to state and federal penalties and other legal consequences. For the avoidance of doubt, the Client’s use of any Extracted Data (defined below) is not limited by this License.
2.4. Ownership of Intellectual Property. Mozenda and its licensors (where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Mozenda Technology and the Services in addition to any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client or any other party relating to the Services or the Mozenda Technology. This License is not a sale and does not convey to Client any rights of ownership in or related to the Services, the Mozenda Technology or the Intellectual Property Rights owned by Mozenda, 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. License Fees. Client agrees to pay all fees specified on the License Agreement. 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 to be provided under this Agreement. Unless otherwise stated in the License Agreement, 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 Services on payment terms shorter than those specified in the Section 3.2 or the applicable License Agreement.
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 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 this Agreement.
3.5. Taxes. The License and other 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.
3.6. Future Functionality. Client understands and agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Mozenda regarding future functionality or features.
4. Processing Credits
4.1. Processing Credits. Processing credits are non-refundable and non-transferable. Processing credits shall be calculated solely based on records maintained by Mozenda for purposes of billing. No other measurements or statistics of any kind shall be accepted by Mozenda.
4.1.1. Standard Data Extractions: A Processing Credit is required for any individual request to a website to load a web page or any new portion of a web page, necessary for an Agent to complete navigation or data gathering.
4.1.2. Premium Harvesting: Utilizing Mozenda’s premium harvesting service requires additional Processing Credits as outlined in the License Agreement.
4.1.3. Image/File Downloads: Images and files can be downloaded and renamed according to User’s specifications, and then stored in a separate folder that can be exported or published via FTP. Downloading images (gif, tif, jpeg, etc.) and files (.doc, .xls, .pdf, etc.) from web pages require additional Processing Credits as outlined in the License Agreement.
4.1.4. Document Extraction: Additional Processing Credits apply for Document (PDF, doc, xls, etc.) extraction as outlined in the License Agreement.
5. Term; Termination
5.1. Term. This Agreement commences upon the Start Date of the License Agreement and shall continue for one (1) year unless otherwise stated.
5.2. Termination. A party may terminate this 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 Mozenda Technology and the Services and access thereto will be terminated.
5.3. Refund or Payment upon Termination. If this Agreement is terminated by Client in accordance with Section 5.2, Mozenda will refund any prepaid fees covering the remainder of the term. If this Agreement is terminated by Mozenda in accordance with Section 5.2, 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 5.2 above, no refunds shall be given for any unused portion of Clients Enterprise License for early termination or at Term expiration.
6.1. 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.
6.2. 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.
6.3. Notwithstanding anything to the contrary in this Agreement, in the event of any breach of this Section 6, the non-breaching party will be entitled to any remedies available at law and/or in equity.
6.4. Disclosure Protection. The obligations in this Section 6 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.
7.1. Mozenda will defend Client, its affiliated companies, and their respective officers, directors, employees, and agents (the “Client’s Parties”) against any third party claim that arises, directly or indirectly, from: (a) any damage to any property or any other damage or loss due to any defect in the Services; (b) any infringement or misappropriation of any proprietary right by the Services; (c) Mozenda’s gross negligence or intentional misconduct; or (d) Mozenda’s breach of this Agreement (individually, a “Mozenda Claim”, and collectively, the “Mozenda Claims”). Mozenda will indemnify and hold harmless each Client Party against any liability, loss, damage, cost or expense (including reasonable attorneys’ fees) incurred by that Client Party relating to any Mozenda Claim, except to the proportional extent the liability is caused by the negligence or intentional misconduct of that Client Party as determined by a final, non-appealable order of a court having jurisdiction.
7.2. Client will defend Mozenda, its affiliated companies, and their respective officers, directors, employees, and agents and licensors (the “Mozenda Parties”) against any third party claim that arises, directly or indirectly, from (a) Client’s use of the Services or the Mozenda Technology; (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; or (d) Client’s breach of this Agreement (individually, a “Client Claim”, and collectively, the “Client Claims”). Client will indemnify and hold harmless each Mozenda Party against any liability, loss, damage, cost or expense (including reasonable attorneys’ fees) incurred by that Mozenda Party relating to any Client Claim, except to the proportional extent the liability is caused by the negligence or intentional misconduct of that Mozenda Party as determined by a final, non-appealable order of a court having jurisdiction.
7.3. Neither Party will consent to the entry of a judgment or settle a dispute without the other Party’s prior written consent, which may not be unreasonably withheld. Each Party’s obligations under this Section are independent of its other obligations under this Agreement.
7.4. This Section 6 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 6.
THE 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 MOZENDA SOFTWARE, 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 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.
9. LIMITATION OF LIABILITY
EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS IN SECTION 7 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 CURRENT OR PREVIOUS TERM.
10.1. 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.
10.2. Entire Agreement. This Agreement, including any applicable Statement of Work, constitutes the entire agreement between the parties with respect to the subject matter hereof and any terms and conditions , purchase order, invoice or other document relating to the subject matter hereof and any additional terms contained therein shall be null and void.
10.3. 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.
10.4. 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).
10.5. 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.
10.6. 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.
10.7. 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 any Service in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
10.8. Survival. Upon the termination of this Agreement, Sections 2.4, 5.4, 6, 7, 8 and 9 shall survive.