TERMS AND CONDITIONS
1. SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, Moesif will use reasonable commercial efforts to provide Customer the Service in accordance with the Service Level Terms attached hereto as Exhibit A for the fees listed on the applicable Order Form (the “Fees”). “Service” means the enterprise API analytics and monetization service provided by Moesif (including any corresponding SDKs, APIs, documentation or software that may be made available by Moesif in connection with such service (“Software”)), as more fully described on the Order Form, and subsequent enhancements, updates and bug fixes to the foregoing made generally available by Moesif for no additional fee (“Updates”), but for clarity excludes Non-Moesif Products. “Non-Moesif Product” means a third party Web-based, mobile, offline or other software application that integrates with the Service, and that is clearly identifiable as such.
1.2 As part of the registration process, Customer will identify an administrative user name and password for Customer’s account (the “Account”). Customer may use the administrative user name and password to create standard users (each with a user password) up to the maximum number permitted in the applicable Order Form. Moesif reserves the right to refuse registration of, or cancel passwords it deems inappropriate or not in compliance with Moesif’s password policy specified on the website at the time of registration of the Account. Customer shall be responsible for the acts or omissions of any person who accesses the Service using passwords or access procedures provided to or created by Customer. Customer shall be responsible for all activities that occur under Customer’s Account. Customer must provide true, accurate, current and complete information as requested during the Account creation process, and must also keep that information true, accurate, current and complete.
1.3 During the term of the applicable Order Form, Moesif will make available to Customer as part of the Service, all Updates and provide Customer with product support, as follows: Customer can submit support inquiries via email at support@moesif.com or on the Moesif website 24 hours per day. Moesif standard support hours are 09:00 to 17:00 Pacific Time Monday through Friday for technical information, technical advice and technical consultation regarding Customer’s use of the Service. Moesif will use commercially reasonable efforts to respond to all support inquiries tickets within one (1) business day.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Moesif or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Moesif hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
2.2 Further, Customer and Customer’s users of the Software and Services may not remove or export from the United States or allow the export, re-export or transfer of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States including, but not limited to, those maintained by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (OFAC), or any other United States or foreign agency or authority. Customer agrees that it shall not, and shall ensure that its users shall not, export, re-export, or transfer any Services, Software or anything related thereto, or any direct product thereof, directly or indirectly, to jurisdictions that are subject to an embargo by the U.S. or other applicable governmental authorities (including Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk People’s Republic, and Luhansk People’s Republic regions of Ukraine) (the “Embargoed Countries”); (ii) any instrumentality, agent, entity, or individual that is located in, or acting on behalf of, or directly or indirectly owned or controlled by any governmental entity of, any Embargoed Country; (iii) the government of Venezuela, including any person or entity employed or owned or controlled, directly or indirectly, by any subdivision, agency, or instrumentality of the government of Venezuela; (iv) any organization, entity, or individual identified on any list of designated and prohibited parties maintained by governmental authorities in Canada, the United States, United Kingdom, or European Union (“Prohibited Party Lists”), including, but not limited to, the List of Specially Designated Nationals and Blocked Persons, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identifications List, which are maintained by OFAC, or the Entity List, Denied Persons List, or Unverified List, which are maintained by the Bureau of Industry and Security of the U.S. Commerce Department; or (vii) any entity which is 50% or more owned, individually or in the aggregate, or controlled by persons designated on Prohibited Party Lists (collectively, a “Sanctioned Party”). Customer and its users are not Sanctioned Parties. Customer understands and acknowledges that a violation of this Section by Customer shall be deemed a material breach of this Agreement and will entitle Moesif to terminate this Agreement immediately for cause.
2.3 As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.4 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Moesif’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Moesif against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Moesif has no obligation to monitor Customer’s use of the Services, Moesif may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.5 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
2.6 The Service may allow you to integrate with third party software, which You should undertake at Your own risk. Moesif does not control or endorse any such third party software or services and is not liable for your usage of, or integration to such third party offerings. All such third party software or services are separately governed by the terms of those respective sites. You are solely responsible for ensuring that You comply with any terms of service or other agreements applicable to the third party offering and that it is fit for your purpose. Moesif makes no warranties or representations, express or implied, with respect to such third party software or services.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Moesif includes but is not limited to non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Moesif to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 Customer shall own all right, title and interest in and to the Customer Data. Moesif shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with support, and (c) all intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, Moesif shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Moesif will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Moesif offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
3.4 Customer grants Moesif the right to use Customer’s company name and logo as a reference for marketing or promotional purposes on Moesif’s website and in other public or private communications with Moesif’s existing or potential customers, subject to Customer’s standard trademark usage guidelines as provided to Moesif from time-to-time.
4. PAYMENT OF FEES
4.1 Customer will pay Moesif the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Moesif reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Moesif has billed Customer incorrectly, Customer must contact Moesif no later than 15 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Moesif’s customer support department at support@moesif.com.
4.2 Moesif may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Moesif thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Moesif’s net income.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. In the event Customer breaches this Agreement any pre paid fee is non-refundable
7. WARRANTY AND DISCLAIMER
Moesif shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Moesif or by third-party providers, or because of other causes beyond Moesif’s reasonable control, but Moesif shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, MOESIF DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND MOESIF DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, MOESIF AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND MOESIF’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO MOESIF FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT MOESIF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. MISCELLANEOUS
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 will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Moesif’s prior written consent. Moesif may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Moesif in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Moesif to serve as a reference account upon request. The Service may use Artificial Intelligence (“AI”) to assist with functionality and automation of the Service. Customer prompts and AI responses are not used for training. Customer will be responsible for any data they provide to the AI and must ensure that no sensitive, confidential or personal data is included in the prompts or input. AI processing is performed solely to deliver the requested output and to operate and maintain the Service in accordance with this Agreement and applicable data protection laws. Outputs generated by the AI may not always be accurate, complete, or up to date. The Customer must review the AI-generated content and are responsible for any decisions made in reliance on such content. Moesif will implement appropriate technical and organisational measures to ensure that any AI processing complies with applicable data protection laws, including the GDPR, and does not result in automated decision-making that produces legal or similarly significant effects unless explicitly agreed otherwise.
EXHIBIT A
Service Level Terms
The Services shall be available 99.7%, measured monthly, excluding holidays and weekends and scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond Moesif’s control will also be excluded from any such calculation. Customer's sole and exclusive remedy, and Moesif's entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than one hour, Moesif will credit Customer 2.5% of Service fees for each period of 30 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to Moesif) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify Moesif in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. Moesif will only apply a credit to the month in which the incident occurred. Moesif’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Moesif to provide adequate service levels under this Agreement.