This end user license agreement (this "EULA" or this "Agreement") applies to the application to which it is linked during the download or installation process and to the service associated with that application. This agreement may have been presented to you in connection with you registration to use the associated service. The term "product" includes both the client application and the service which is accessed and used in conjunction with the application. Your use of the product is conditioned upon your compliance and acceptance of this agreement.
By clicking/checking the "I agree" button/box or downloading, installing, registering for, accessing, or using the product, you agree to be bound by this agreement. This product is not available to persons who are not legally eligible to be bound by this agreement.
This Agreement is between You and Moxtra Inc. (DBA Moxo) for use of the Product. “You” refers to the individual who is using or accessing the Product or is registered to use the Product either directly with Moxo or through a third party or, if an individual is using the Product on behalf of an entity and is authorized to act on behalf of such entity, then “You” refers to such entity. If You do not agree with the terms of this Agreement, do not download, install, use or access the Product.
Moxo reserves the right to modify this Agreement by posting a new EULA on its website. Your continued use of the Product after the new EULA is posted will constitute your acceptance of the new EULA.
Any software associated with the Product and website is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
1. PRODUCT. Moxo will provide the Product in accordance with this Agreement. Moxo may at its sole discretion, discontinue the Product or modify the features of the Product from time to time without prior notice. Use of the Product requires one or more compatible devices, Internet access (fees may apply), and certain software (fees may apply), and may require obtaining updates or upgrades from time to time. Because use of the Product involves hardware, software, and Internet access, Your ability to use the Product may be affected by the performance of these factors. High speed Internet access is recommended. You acknowledge and agree that such system requirements, which may be changed from time to time, are Your responsibility. You agree that Moxo is free to use in any manner, including incorporating into Product, any feedback, suggestions, recommendations or ideas you submit to Moxo regarding the Product, without notice or compensation to You.
2. RESPONSIBILITY FOR REGISTRATION INFORMATION AND CONTENT OF YOUR COMMUNICATIONS. You may be required to provide information about Yourself in order to register for and/or use certain Product. You agree that any such information shall be accurate. You may also be asked to choose a user name and password. You are entirely responsible for maintaining the security of Your user name and password and agree not to disclose such to any third party. By registering with Moxo, you understand that we may send you communications or data regarding our products and services, including but not limited to (a) notices about your use of the Product, including any notices concerning violations of use, (b) updates, and (c) promotional information and materials regarding our products and services, via electronic mail. We give you the opportunity to opt-out of receiving electronic mail from us constituting marketing or promotional material by following the opt-out instructions provided in the message.You acknowledge that it is necessary for Moxo to send certain electronic mail in order to deliver the Product to you and that your decision to opt-out of receiving marketing and promotional materials will not result in discontinuing the delivery of electronic mail necessary for use or delivery of the Product.
You agree that You are solely responsible for the pictures, video, graphics, text or other content (“Content”) sent by You or displayed or uploaded by You with or to the Product, either directly or through another application. Except for material that we license to you, we don’t claim ownership of any Content that is transmitted, stored, or processed in your account(s). We also don’t control, verify, or endorse the Content that you and others make available on the Product. We provide functions that allow you to control who may access your Content. If you enable the features that allow you to share the Content with others, anyone you’ve shared content with (including the general public, in certain circumstances) may have access to your Content. You hereby grant Moxo and its contractors the right, to use, modify, adapt, reproduce, distribute, display and disclose Content posted on the Product solely to the extent necessary to provide the Product or as otherwise permitted by this Agreement. By publishing Content to any Moxo Facebook page or other Moxo social network page or by sending Content over Twitter and including #Moxo #MyMoxo @MyMoxo or any other Moxo social media handle, you agree that Moxo has the right to use, distribute, publish, display and disclose such Content in connection with Moxo sales, advertising, marketing and promotional activity.You represent and warrant that: (a) you have all the rights in the Content necessary for you to use the Product and to grant the rights in this Agreement, and (b) the storage, use or transmission of the Content doesn’t violate any law, this Agreement, or the rights of any third parties. You will: (i) be solely responsible for the nature, quality and accuracy of the Content; (ii) ensure that the Content (including the storage or transmission thereof) complies with this Agreement and any and all applicable laws and regulations; (iii) promptly handle and resolve any notices and claims relating to the Content, including any notices sent to you by any person claiming that any Content violates any person’s rights, such as take-down notices pursuant to the Digital Millennium Copyright Act and any other notices; and (iv) maintain appropriate security, protection and backup copies of the Content, which may include, your use of additional encryption technology to protect the Content from unauthorized access. Moxo will have no liability of any kind as a result of the deletion of, correction of, destruction of, damage to, loss of or failure to store or encrypt any Content.You must immediately notify Moxo in writing of any unauthorized use of any (a) Content (b) Your account, or (c) the Product that comes to your attention. In the event of any such unauthorized use by any third party that obtained access through you, you will take all steps necessary to terminate such unauthorized use. You will provide Moxo with such cooperation and assistance related to any such unauthorized use as Moxo may reasonably request.
You agree that You will not use the Product to send unsolicited commercial e-mail in violation of applicable law. You further agree not to use the Product to communicate any message or material that is harassing, libelous, threatening, obscene, indecent, would violate the intellectual property rights of any party or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation. You further agree not to provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act. You further agree not to upload or transmit any software, Content or code that does or is intended to harm, disable, destroy or adversely affect performance of the Product in any way or which does or is intended to harm or extract information or data from other hardware, software or networks of Moxo or other users of Product. Recognizing the global nature of the Internet, You also agree to comply with applicable local rules or codes of conduct (including codes imposed by Your employer) regarding online behavior and acceptable content and the transmission of technical data exported from the United States or the country in which You reside. Moxo reserves the right to investigate and take appropriate action against anyone who, in Moxo’s sole discretion, is suspected of violating this provision, including without limitation, reporting You to law enforcement authorities. Use of the Product is void where prohibited. Although Moxo is not responsible for any Content in violation of this provision, Moxo may delete any such Content of which Moxo becomes aware, at any time without notice to You. You retain copyright and any other rights You already hold in Content which You submit, post or display on or through, the Product. You understand and agree that by displaying, exchanging or uploading Content to a Moxo website transmitting Content using the Product or otherwise providing Content to Moxo, You automatically grant (and warrant and represent You have a right to grant) to Moxo a world-wide, royalty-free, sublicensable (so Moxo affiliates, contractors, resellers and partners can deliver the Product) perpetual, irrevocable license to use, modify, publicly perform, publicly display, reproduce and distribute the Content in the course of offering the Product, to persons authorized by You to access such Content.
3. RESPONSIBILITY FOR CONTENT OF OTHERS. It is possible that other users of the Product (“Users”) may violate one or more of the above prohibitions. Moxo assumes no responsibility or liability for such violation. If You become aware of any violation of this Agreement in connection with use of the Product by any person, please contact Moxo at copyright@Moxo.com. Moxo may investigate any complaints and violations that come to it’s attention and may take any action that it believes is appropriate, including, but not limited to issuing warnings, removing the content or terminating accounts and/or User profiles. However, because situations and interpretations vary, Moxo also reserves the right not to take any action. Under no circumstances will Moxo be liable in any way for any data or other content viewed while using the Product, including, but not limited to, any errors or omissions in any such data or content, or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any data or content. If at any time You are not happy with the Product, Your sole remedy is to cease using the Product.
4. ELIGIBILITY.You affirm that You are of legal age and are otherwisefully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement (or Your parent or guardian has agreed to this Agreement on Your behalf), and to abide by and comply with this Agreement. The Product is not intended for use by persons under the age of 13.
5. LIMITATIONS ON USE. The Product may be used for internal business or consumer purposes only. You will not reproduce, resell, or distribute the Product or any reports or data generated by the Product for any purpose unless You have been specifically permitted to do so under a separate agreement with Moxo. You will not offer or enable any third parties to use the Product obtained by You, display on any website or otherwise publish the Product or any Content obtained from a Product (other than Content created by You) or otherwise generate income from the Product or use the Product for the development, production or marketing of a service or product substantially similar to the Product. You shall not engage in any activity or use the Product in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Product, or any servers or networks connected to the Product or Moxo’s security systems.
6. PROPRIETARY RIGHTS. Moxo and/or its suppliers, as applicable, retain ownership of all proprietary rights in the Product and Moxo and/or its licensees, as applicable, retain ownership in all trade names, trademarks, service marks, logos, and domain names (“Marks”) associated or displayed with the Product. You may not frame or utilize framing techniques to enclose any Marks, or other proprietary information (including images, text, page layout, or form) of without express written consent. You may not use any meta tags or any other “hidden text” utilizing Marks without Moxo’s or the trademark owner’s express written consent.
8. TERMINATION. You may terminate this Agreement by providing thirty (30) days prior written notice via email to Moxo at privacy@Moxo.com. If you have purchased a Product for a specific term, such termination will be effective on the last day of the then-current term, subject to thirty (30) days prior notice.If You fail to comply with any provision of this Agreement, Moxo may terminate this Agreement immediately without notice. Sections 2 through 15, inclusive, shall survive any termination of this Agreement. Upon any termination of this Agreement, You must cease any further use of the Product and destroy any copies of associated software within Your possession and control. You will not destroy or attempt to harm any Product or associated software on Moxo’s servers or Moxo’s network.
9. EXPORT RESTRICTIONS. You acknowledge that the Product, or portion thereof may be subject to the export control laws of the United States. You will not export, re-export, divert, transfer or disclose any portion of the Product or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation. You acknowledge that you are not located in any country that is subject to a U.S. government embargo or that has been designated as a “terrorist supporting” country and that you are not listed on any U.S. government list of prohibited or restricted persons.
10. INJUNCTIVE RELIEF. You acknowledge that any use of the Product contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Product, may cause irreparable injury to Moxo, its affiliates, suppliers and any other party authorized by Moxo to resell, distribute, or promote the Product (“Resellers”), and under such circumstances Moxo, its affiliates, suppliers and Resellers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.
11. NO WARRANTIES. YOU UNDERSTAND AND AGREE THAT THE PRODUCT IS PROVIDED “AS IS” AND Moxo, ITS AFFILIATES, SUPPLIERS AND RESELLERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Moxo, ITS AFFILIATES, SUPPLIERS AND RESELLERS MAKE NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PRODUCT, REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE PRODUCT OR THAT THE PRODUCT WILL MEET ANY USER’S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF THE PRODUCT IS AT YOUR SOLE RISK. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PRODUCT IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU RESULTING FROM THE USE OF THE PRODUCT. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE PRODUCT REMAINS WITH YOU. Moxo DOES NOT ASSUME ANY RESPONSIBILITY FOR RETENTION OF ANY USER INFORMATION OR COMMUNICATIONS BETWEEN USERS.Moxo CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE PRODUCT. USE IS AT YOUR OWN RISK. You agree to indemnify, defend and hold harmless Moxo, its affiliates, officers, directors, employees, consultants, agents, suppliers and Resellers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys’ fees) arising from Your use of the Product, Your violation of this Agreement or the infringement or violation by You or any other user of Your account, of any intellectual property or other right of any person or entity. Without limiting the foregoing, the Product is not designed or licensed for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems. Without limiting the generality of the foregoing, Moxo, its affiliates, suppliers and Resellers specifically disclaim any express or implied warranty of fitness for such purposes.
13. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL Moxo OR ITS AFFILIATES, SUPPLIERS OR RESELLERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS OR DAMAGE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT SERVICES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE) CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF Moxo, ITS AFFILIATES, SUPPLIERS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, Moxo’S, ITS AFFILIATES’, SUPPLIERS’ AND RESELLERS’ MAXIMUM CUMULATIVE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE PRODUCT (IF ANY) IN THE TWELVE (12) MONTHS PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH CLAIMS. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to You.
14. APPLE USER NOTICE. If you are using a version of the Product designed for an Apple operating system (including MacOS and iOS) the following provisions apply to you: (a) You and we acknowledge that this EULA is between us and not with Apple and we are solely responsible for the Product; (b) your license to use the Product is limited to Apple-branded hardware products that you own or control; (c) you and we acknowledge that Apple has no responsibility for maintenance and support of the Product; (d) Apple provides no warranty for the Product, but if the Product fails to conform to any applicable warranty, you may notify Apple and they will refund your purchase price for the Product, if any. Apple has no other warranty obligation whatsoever; (e) we, and not Apple, are responsible for any claim related to this Product; (f) we, and not Apple, are responsible for any intellectual property claim with respect to the Product; (g) Apple and its subsidiaries are third party beneficiaries of this Agreement and will have the right to enforce it against you. Our responsibilities as stated in this Section 14 are limited by the other terms of this Agreement.
15.1 Choice of Law and Forum. This Agreement shall be governed by and construed under the laws of the State of California, U.S.A., as applied to agreements entered into and to be performed in California by California residents. The parties consent to the exclusive jurisdiction and venue of the state courts located in and serving Santa Clara County, California and the federal courts in the Northern District of California.
15.2 Waiver and Severability. Failure by either party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. 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.
15.3 General Provisions. This Agreement embodies the entire understanding and agreement between the parties respecting the subject matter of this Agreement and supersedes any and all prior understandings and agreements between the parties respecting such subject matter, except that if You or Your company have executed a separate written agreement or you have signed an order form referencing a separate agreement governing your use of the Product, then such agreement shall control to the extent that any provision of this Agreement conflicts with the terms of such agreement. Moxo may elect to change or supplement the terms of this Agreement from time to time at its sole discretion. These changes will be effective upon posting on Moxo’s website. If You do not agree with the changes, You should discontinue using the Product. If You continue using the Product after such changes are effective, You will be deemed to have accepted the changes to the terms of this Agreement. This Agreement has been prepared in the English Language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes. All notices or other correspondence to Moxo under this Agreement must be provided to the email address set forth in Section 8 above, or other contact information as provided by Moxo for such purpose. Any and all rights and remedies of Moxo upon Your breach or other default under this Agreement will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity on Moxo, and the exercise of any one remedy will not preclude the exercise of any other. The captions and headings appearing in this Agreement are for reference only and will not be considered in construing this Agreement.