These Moxo Terms and Conditions (this “Agreement”) govern the use of the Moxo Service by the party executing an Order Form (“Company”). This Agreement is by and between Moxo, Inc., having its principal place of business at 1601 South De Anza Blvd, Suite 158, Cupertino, California 95014, USA (“Moxo”) and Company. Company and Moxo are referred to herein individually as a “Party” and collectively as the “Parties”.
Whereas, Moxo offers a one stop client interaction hub to help companies efficiently manage their business relationships and workflows from anywhere and keep their clients engaged, referred to herein as the “Moxo Service”;Whereas, Company and Moxo desire Company to procure the Moxo Service as set forth in this Agreement;
Now, therefore, in consideration of the promises, agreements, representations, covenants and warranties herein contained, the Parties agree as follows.
1. Definitions:(a) “Affiliate” shall mean any legal entity worldwide in which a Party, directly or indirectly, owns more than fifty percent (50%) of the stock, shares, membership or other indicia of ownership, entitled to vote for the board of directors or other governing body of such entity.(b) “Company Data” means any data or content which is stored in or transmitted through the Moxo Service by Users.(c) “Customer” shall mean a third party that is a client or customer of Company and who is given access to the Moxo Service from Company for interacting with Company personnel.(d) “Description of Services” shall mean the description of the Moxo Service at https://www.moxo.com/legal/description-of-services.(e) “Error” means that one or more functions of the Moxo Service is not performing in the manner described in the Description of Services.(f) “Intellectual Property Rights” shall mean all rights in and to trade secrets, patents, copyrights, trademarks, know-how, as well as moral rights and similar rights of any type under the laws of any governmental authority, domestic or foreign.(g) “Moxo Service” shall mean the Moxo service as described in the Description of Services.(h) “Order Form” shall mean the Moxo Order Form for ordering the Moxo Service. An Order Form may be an initial Order Form (for the initial order of the Moxo Service) or an amended Order Form (for changing a prior order).(i) “Service Fees” shall mean the fees that Moxo charges Company for the Moxo Service. The initial Service Fees will be stated in the Order Form and are subject to change as specified in Section 5. Service Fees may include one-time fees, subscription fees and overage fees.(j) “Start Date” shall mean the Start Date specified on the initial Order Form which is signed by an authorized representative of Company.(k) “Subscription Term” shall mean the “Initial Term” and each “Renewal Term” as specified in the Order Form.(l) “Territory” shall mean countries in which (i) the Moxo Service is available in each such country’s primary language, and (ii) use of the Moxo Service would not violate U.S. export control law.(m) “Third Party Apps” means applications or services provided by vendors other than Moxo to which a User may gain access through the Moxo Service. (n) “Users” shall mean Company Users and Customer Users. “Company Users” are Company employees and contractors authorized by Company to access the Moxo Service. “Customer Users” are individuals who are Customers or employees or contractors of Customers and who are authorized by Company to access the Moxo Service. For Order Forms which refer to “Active Users," that term shall mean a User who in the applicable month took a proactive action with respect to the Moxo Service, including starting a workspace, starting or joining a meeting, sending a message, posting content, sharing/annotating a file, creating/managing business actions (To-Do's, Forms, Approvals, Acknowledgments, eSignatures, File Requests, Third Party Objects, etc.). Merely logging into or accessing the Moxo Service or reading content or messages posted by others is NOT considered a proactive action which would make one an Active User.
2. License, Training and Documentation(a) License. Moxo hereby grants to Company and Company accepts a non-exclusive, non- transferable right and license, under Moxo’s Intellectual Property Rights, to access and use the Moxo Service and permit Customers to access and use the Moxo Service in the Territory. Company shall not, and shall prohibit Users from, using the Moxo Service in any manner, including but not limited to the storage or transmission of any Company Data, that would violate applicable laws or regulations, would violate the rights of third parties, or would give rise to civil liability.(b) Non-exclusive Relationship. The parties acknowledge that the relationship set forth in this Agreement is non-exclusive and that Moxo and Company are free to enter into other similar arrangements with other parties.(c) Training and Documentation. Moxo will provide training and documentation to the support personnel of the Company to familiarize them with the Moxo Service and enable them to provide first line support for the Moxo Service.
3. Moxo Responsibilities: Moxo will be responsible for developing, testing, hosting, managing, maintaining, supporting and providing the Moxo Service. Support includes answering questions and providing information not included in the end user help screens and providing work-arounds and/or resolutions for any Errors in the Moxo Service or lack of availability of the Moxo Service.
4. Order Forms: In order to commence a subscription to the Moxo Service, Company must execute an Order Form. An Order Form will be effective upon Company’s agreement to the Order Form sent to Company by Moxo. Each Order form will specify the length of the Initial Term and each Renewal Term. Order Forms will automatically renew for a Renewal Term at the end of the Initial Term and each Renewal Term unless notice of termination is sent by one party to the other at least thirty (30) days prior to commencement of the next Renewal Term. If Company desires to increase the number of Users, Company may execute an amendment to the Order Form.
5. Service Fees: Company must pay the Service Fees at the commencement of each Subscription Term or as otherwise specified in the Order Form. The Service Fees in effect at the commencement of a Subscription Term will remain in effect at least through the end of that Subscription Term. Moxo is free to change its prices at any time, but any such price change will not be effective with respect to an Order Form until the commencement of the next Subscription Term, which takes place at least sixty (60) days after the notice of the price change.
6. Independent Contractor Status: The Parties are independent contracting parties and nothing in this Agreement shall be deemed to establish or otherwise to create a relationship of principal and agent, partners, fiduciaries, or joint venturers. Neither Party will be deemed an agent of the other Party for any purpose whatsoever and neither Party nor any of its agents or employees will have any right or authority to assume or create any obligation of any kind, whether express or implied, on behalf of the other Party. This Agreement is not a franchise agreement and does not create a franchise relationship between the Parties and if any provision of this Agreement is deemed to create a franchise between the Parties, then those provisions shall be deemed void and will automatically terminate as if such provision had been deemed unenforceable by a court.
7. Changes to Moxo Service: Moxo may, in its sole discretion and at any time, modify or change the Moxo Service and the software that enables the Moxo Service. Moxo will use commercially reasonable efforts to provide at least thirty (30) days prior written notice to Company of any change that materially affects the functionality of the Moxo Service.
8. Marks: Company will retain and will not modify, alter or obscure the “Powered by Moxo” logo as it appears in the Moxo Service. Moxo may use Company’s name, logo and other branding assets provided by Company in order to personalize the Moxo Service for Company.
9. Confidentiality: Each party (the “Receiving Party”) agrees it shall not during the term of this Agreement and for five (5) years thereafter, directly or indirectly, use (except in connection with its performance under this Agreement) or disclose to others any Confidential Information obtained from the other party (the “Disclosing Party”), without the Disclosing Party’s prior written consent. As used herein, “Confidential Information” shall mean any information which the Disclosing Party will disclose to the Receiving Party either orally, in writing (including digital or electronic transmission), or by other means, including information related to the Moxo Service and any Company Data. Notwithstanding the foregoing, Confidential Information shall not include information that: (a) is in the possession of the Receiving Party prior to disclosure by the Disclosing Party; (b) at the time of disclosure, is in the public domain; (c) after disclosure, lawfully enters the public domain other than as a result of the act or omission of Receiving Party; (d) is already lawfully known to the Receiving Party, prior to receiving it from the Disclosing Party; or (e) is developed by the Receiving Party independently of and without direct or indirect access to the Confidential Information disclosed by the Disclosing Party. The Receiving Party may disclose Confidential Information compelled by subpoena or other legal process, provided the Receiving Party provides prompt written notice to the Disclosing Party and cooperates in seeking confidential treatment for the information. Upon termination, the Receiving Party will return or destroy all the Disclosing Party’s Confidential Information.
10. Representations and Warranties:(a) Limited Warranty. Moxo warrants during the term of this Agreement that the Moxo Service will operate substantially in conformance with the Description of Services. In the event of a breach of this warranty, Moxo’s sole obligation and Company’s sole and exclusive remedy is for Moxo to make reasonable commercial efforts to correct or remedy the non-conformity or, if Moxo is unable to correct the non-conformity within a reasonable time, for Company to terminate this Agreement.(b) Warranty Disclaimers. Except for the express warranties set forth in this Section 10, Moxo expressly disclaims all warranties of any kind, whether express, implied, statutory, or otherwise, including without limitation any warranty of merchantability, title, performance, quality, non-infringement, fitness for a particular purpose, or accuracy of informational content. Except for the express warranties set forth in this Agreement, Moxo makes no warranty or representation regarding the Moxo Service or that the Moxo Service will meet Company’s or Customers’ requirements, or be uninterrupted, timely, secure or free from error or defect.(c) Mutual Warranties. Each Party represents and warrants solely to and for the benefit of the other that: (i) it has the right and power to enter into and fully perform the obligations it has undertaken in this Agreement; and (ii) it is not under any obligations, contractual or otherwise, to any other entity that is inconsistent with any of the provisions of this Agreement.(d) Third Party Apps. Customer acknowledges that Third Party Apps are not provided by Moxo and that Moxo has no liability or responsibility for such Third Party Apps for technical support, defects, errors or otherwise. Moxo expressly disclaims all warranties of any kind, whether express, implied, statutory, or otherwise, including without limitation any warranty of merchantability, title, performance, quality, non-infringement, fitness for a particular purpose, or accuracy of informational content with respect to any Third Party Apps or that the Third Party Apps will meet Company’s or Customers’ requirements, or be uninterrupted, timely, secure or free from error or defect.
11. Limitation of Liability: To the extent permitted by applicable law, under no circumstances will Moxo be liable under this Agreement for any consequential, special, indirect, incidental or punitive damages of any kind, including, but not limited to, lost profits, lost data, business interruption, loss of business reputation or goodwill, or the cost of procurement of substitute goods or services, even if Moxo has been advised of the possibility of such damages. In no event will Moxo’s cumulative liability for all causes of action, including but not limited to breach of contract or negligence, arising under or related to this Agreement exceed the Service Fees paid to Moxo in the previous 12 months.
12. Intellectual Property Rights: Moxo retains all Intellectual Property Rights in and to the Moxo Service and all associated software and documentation.
13. Indemnification:(a) By Moxo. Subject to Section 13(b), Moxo, at its own expense, will defend Company and its officers, directors, employees, and agents (the “Company Indemnities”) against any action, suit, or proceeding brought by a third party against the Company Indemnities based on a claim that the Moxo Service infringes any Intellectual Property Right of any third party (each, a “Claim”). Moxo will pay any and all costs and damages (including reasonable attorneys’ fees) incurred by or awarded against Company or its Affiliates in connection with or arising from any Claim, or any amounts which Moxo has agreed to pay in settlement of any Claim. Moxo will have no indemnification obligation hereunder for any infringement claim to the extent the infringement arose from: (i) any modification (including alterations, additions or changes) to the Moxo Service other than by Moxo, (ii) the combination of the Moxo Service with products, services or content provided other than by Moxo, or (iii) Company Data.(b) Mechanics. Company agrees to provide prompt notice of any Claim, to permit Moxo to control the defense and settlement of any Claim, and to provide reasonable assistance in that defense and settlement. Moxo may settle any Claim without Company’s prior written approval, provided such settlement imposes no affirmative obligation on, and no admission against interest on behalf of Company.
14. Term and Termination:(a) Term. The term of this Agreement shall commence on the Effective Date and, unless earlier terminated in accordance with Section 14(b), will terminate when all Order Forms have terminated or expired.(b) Termination. Each Party may immediately terminate this Agreement and any Order Forms by giving the other Party written notice if the other Party:(i) defaults in the performance of any of its obligations under any of the terms or conditions of this Agreement which default is not remedied within thirty (30) days after notice thereof; or(ii) defaults in the performance of any of its obligations under the terms and conditions which default, by its nature, cannot be remedied; or(iii) is unable to pay any and/or all of its debts as they become due or becomes insolvent or ceases to pay any and/or all of its debts as they mature in the ordinary course of business, or makes an assignment for the benefit of its creditors; or(iv) is liquidated or dissolved or if any proceedings are commenced by, for or against it under any bankruptcy, insolvency, reorganization of debts or debtors relief law, or law providing for the appointment of a receiver or trustee in bankruptcy.(c) Termination of Order Forms for Convenience. Either party may terminate an Order Form for convenience by providing written notice to the other party. Termination pursuant to this Section 14(c) will be effective at the conclusion of the first Subscription Term which ends at least thirty (30) days after such notice.(d) Surviving Obligations and Limitations. The termination or expiration of this Agreement will not operate to discharge any liability that had been incurred by either Party prior to any such termination or expiration. Upon termination of this Agreement all licenses granted hereunder will immediately terminate. The following provisions shall survive expiration or termination of this Agreement: Sections 1, 5, 9, 11, 12, 13, 14, 15 and 16 of this Agreement.
15. Notices:(a) Any notices given under this Agreement shall:(i) if to Moxo, be given to: oemcontracts@moxtra.com or to V.P., Global Sales, 1601 S. De Anza Blvd. Suite 158, Cupertino, CA 95014 USA; and(ii) if to Company, be given to the email address specified in the Company’s most recent Order Form. Notice information may be subsequently changed by either Party by notice duly given under this Section 15(a).(b) Method of Transmission. Any notices given under this Agreement shall be in writing and will be deemed to have been sufficiently given when delivered by hand, electronic mail, overnight courier service or by certified or registered mail, postage and other charges prepaid, to the Parties at the addresses above or as subsequently changed by notice duly given. The date of receipt of any notice given hereunder will be the date on which such notice is deemed to be given.
16. General:(a) Assignment. Neither Party may assign or otherwise transfer this Agreement or any interest or right hereunder or delegate the performance of any of its obligations hereunder to any third party without the prior written consent of the other Party, except that either Party may assign this Agreement to an Affiliate or in connection with a merger, acquisition, consolidation, reorganization or the sale of all or substantially all of the Party’s assets. Any attempted assignment, transfer or delegation in violation of this Section 16(a) will be deemed null and void and result in the immediate termination of this Agreement without necessity of notice.(b) Waivers. Waiver by either Party of any default, or either Party’s failure to enforce any of the terms and conditions of this Agreement, shall not in any way affect, limit or waive such Party’s right thereafter to enforce and compel strict performance of every term and condition hereof.(c) Non-Exclusiveness; Remedies. Any specific right or remedy provided in this Agreement shall not be exclusive but will be cumulative of all other rights and remedies set forth herein and allowed in law or equity.(d) Litigation. In the event of any litigation between the Parties with respect to this Agreement, the prevailing Party (the Party entitled to recover costs of suit at such time as all appeals have been exhausted or the time for taking such appeals has expired) shall be entitled to recover reasonable attorneys’, accountants’ and experts’ fees, and costs in addition to such other relief as the court may award.(e) Headings. The headings of Sections in this Agreement are for convenience and reference only, and they shall in no way define, limit, broaden, or otherwise describe the scope of the provisions or be considered in the interpretation, construction or enforcement hereof.(f) Publicity. Any and all publicity relating to this Agreement and subsequent transactions between Company and Moxo and the method of its release shall be subject to the advance written approval of both Company and Moxo.(g) Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the United States and the State of California as applied to agreements entered into and to be performed entirely within California between California residents. The Parties hereby submit to the jurisdiction of, and waive any venue objections against, the state courts in Santa Clara County, California and the federal district court for the Northern District of California in any litigation arising out of the Agreement.(h) Compliance with Laws. The Parties shall abide by all applicable laws and regulations in connection with its performance under this Agreement, including but not limited to those with respect to bribery and corrupt practices, privacy, export control and the issuance of unsolicited commercial email. Each party represents that it and its employees, contractors and other users who provide or utilize the Moxo Service are not citizens of an embargoed country or a prohibited end user under any U.S. export control or anti-terrorism laws, regulations or lists.(i) Invalidity. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.(j) Government Contracts. No provision required in any United States government contract or subcontract related thereto shall be deemed a part of this Agreement, or be imposed upon or binding upon either Party, and this Agreement will not be deemed an acceptance of any government provisions that may be included or referred to in any Company order or other purchasing document.(k) Force Majeure. Neither Party shall be liable to the other for any delay in the performance of any of its obligations hereunder due to any cause beyond such Party’s reasonable control or due to acts of god, acts of civil or military authorities, fires, labor disturbances, floods, epidemics, governmental rules or regulations, war, riot, delays in transportation, shortages of raw materials, power outages, or unauthorized hacking on or through the internet.(l) Construction and Complete Agreement. This Agreement supersedes, terminates and otherwise renders null and void any and all prior or contemporaneous written and/or oral agreements between Company and Moxo with respect to the matters herein expressly set forth. This Agreement represents and incorporates the entire understanding of the Parties hereto with respect to the matters herein expressly set forth and each Party acknowledges that there are no warranties, representations, covenants or understandings of any kind, nature or description whatsoever made by either Party to the other, except as are herein expressly set forth. This Agreement may be modified only be a written instrument signed by the Parties to this Agreement, which instrument makes specific reference to this Agreement and the changes to be made hereto. This Agreement includes the exhibits attached hereto and shall become effective upon execution by authorized representatives of both Parties.
