IMPORTANT, READ CAREFULLY: YOUR USE OF AND ACCESS TO THE WEBSITE AND PRODUCTS AND SERVICES AND ASSOCIATED SOFTWARE (COLLECTIVELY, THE “PRODUCTS”) OF MOXTRA, INC. (“MOXTRA”) IS CONDITIONED UPON YOUR COMPLIANCE AND ACCEPTANCE OF THESE TERMS.
BY CLICKING/CHECKING THE “I AGREE” BUTTON/BOX, ACCESSING THE MOXTRA WEBSITE OR BY UTILIZING THE MOXTRA PRODUCTS YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. THE MOXTRA PRODUCTS ARE NOT AVAILABLE TO PERSONS WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THESE TERMS OF SERVICE.
This is a legal agreement (“Agreement”) between You and Moxtra for use of the Products which You selected or initiated. “You” refers to the individual who is using or accessing the Products or is registered and/or has provided his or her credit card or other payment mechanism for the Products either directly with Moxtra or through a third party or, if an individual is purchasing the Products on behalf of an entity and is authorized to purchase the Products on behalf of such entity, then “You” refers to such entity. If You do not agree with the terms of this Agreement, do not use or access the Products or, when applicable, click the “Cancel” button and do not purchase the Products.
Moxtra reserves the right to modify these Terms of Service by posting new Terms of Service on its website. Your continued use of the Products after the new Terms of Service are posted will constitute your acceptance of the new Terms of Service. Any software associated with the Products and website is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
PRODUCTS: Moxtra will provide the Products in accordance with this Agreement. In order to use certain Products You may be required to download content, software, and/or required to agree to additional terms and conditions. Unless otherwise expressly set forth in any such additional terms and conditions applicable to the specific Products which You choose to use, those additional terms are hereby incorporated into this Agreement in relation to Your use of that Product. Moxtra may at its sole discretion, discontinue the Products or modify the features of the Products from time to time without prior notice. Use of the Products 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 Products involves hardware, software, and Internet access, Your ability to use such Products 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.
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 Products. 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 Moxtra, you understand that we may send you communications or data regarding Products, including but not limited to (a) notices about your use of the Products, including any notices concerning violations of use, (b) updates, and (c) promotional information and materials regarding Products, 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 Moxtra to send certain electronic mail in order to deliver the Products 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 Products.
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 Products, 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 Products.
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 Moxtra and its contractors the right, to use, modify, adapt, reproduce, distribute, display and disclose Content posted on the Products solely to the extent necessary to provide the Products or as otherwise permitted by this Agreement. By publishing Content to any Moxtra Facebook page or other Moxtra social network page or by sending Content over Twitter and including #Moxtra #MyMoxtra @MyMoxtra @MoxtraHQ or any other Moxtra social media handle, you agree that Moxtra has the right to use, distribute, publish, display and disclose such Content in connection with Moxtra 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 Products 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. Moxtra 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 Moxtra in writing of any unauthorized use of any (a) Content (b) Your account, or (c) the Products 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 Moxtra with such cooperation and assistance related to any such unauthorized use as Moxtra may reasonably request.
Moxtra Business Edition is for use by businesses, organizations and other groups of users (“Groups”) and allows the administrator for the Group to have access to all accounts associated with that Group, including the right to view, edit, add and delete Content. If you have a free account and you are invited to join a Group, you can keep your free account separate by using a different email address for your free account from the email address you use for the Group account. There can be only one account for each email address. If you have a free account and you accept an invitation to join a Group account using the same email address, your free account will be converted into a Group account. Your existing binders and Content will be moved over to the Group account, but they will then be accessible by the Group administrator. To prevent this, make sure you use different email addresses for your free account and Group account.
You agree that You will not use the Products to send unsolicited commercial e-mail in violation of applicable law. You further agree not to use the Products 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 Products in any way or which does or is intended to harm or extract information or data from other hardware, software or networks of Moxtra or other users of Products. 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. Moxtra reserves the right to investigate and take appropriate action against anyone who, in Moxtra’s sole discretion, is suspected of violating this provision, including without limitation, reporting You to law enforcement authorities. Use of the Products is void where prohibited. Although Moxtra is not responsible for any Content in violation of this provision, Moxtra may delete any such Content of which Moxtra 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 Products. You understand and agree that by displaying, exchanging or uploading Content to a Moxtra website transmitting Content using the Products or otherwise providing Content to Moxtra, You automatically grant (and warrant and represent You have a right to grant) to Moxtra a world-wide, royalty-free, sublicensable (so Moxtra affiliates, contractors, resellers and partners can deliver the Products) perpetual, irrevocable license to use, modify, publicly perform, publicly display, reproduce and distribute the Content in the course of offering the Products.
RESPONSIBILITY FOR CONTENT OF OTHERS: It is possible that other users of the Products (“Users”) may violate one or more of the above prohibitions. Moxtra assumes no responsibility or liability for such violation. If You become aware of any violation of this Agreement in connection with use of the Products by any person, please contact Moxtra at firstname.lastname@example.org. Moxtra 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, Moxtra also reserves the right not to take any action. Under no circumstances will Moxtra be liable in any way for any data or other content viewed while using the Products, 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 Products, Your sole remedy is to cease using the Products.
ELIGIBILITY: You affirm that You are of legal age and are otherwise fully 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 Products are not intended for use by persons under the age of 13.
CHARGES: You agree that Moxtra may charge to Your credit card or other payment mechanism selected by You and approved by Moxtra (“Your Account”) all amounts due and owing for the Products, including Product fees, set up fees, subscription fees, or any other fee or charge associated with Your Account. Moxtra may change prices at any time without prior notice, including changing from a free service to a paid service and charging for Products that were previously offered free of charge. You agree that in the event Moxtra is unable to collect the fees owed to Moxtra for the Products through Your Account, Moxtra may take any other steps it deems necessary to collect such fees from You and that You will be responsible for all costs and expenses incurred by Moxtra in connection with such collection activity, including collection fees, court costs and attorneys’ fees. You further agree that Moxtra may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due.
LIMITATIONS ON USE: The Products may be used for internal business or consumer purposes only. You will not reproduce, resell, or distribute the Products or any reports or data generated by the Products for any purpose unless You have been specifically permitted to do so under a separate agreement with Moxtra. You will not offer or enable any third parties to use the Products purchased by You, display on any website or otherwise publish the Products or any Content obtained from a Product (other than Content created by You) or otherwise generate income from the Products or use the Products for the development, production or marketing of a service or product substantially similar to the Products. You shall not engage in any activity or use the Products in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Products, or any servers or networks connected to the Products or Moxtra’s security systems.
EDUCATION RECORDS: If you are a teacher, principal, professor, or other education professional (“Teacher”) using the Products in connection with your work, the following terms apply to you: (i) You represent and warrant that you have permission from your school, district, or other educational institution or authority, as applicable (“School”), to enter into this Agreement and to use the Products in connection with your work. If you are entering into this agreement on behalf of your School, you further represent and warrant that you have authority to bind your School to the terms of this Agreement. (ii) You acknowledge that the Family Educational Rights and Privacy Act (“FERPA”) may apply to your use of the Products. You acknowledge that certain Content that is uploaded or created in connection with your use of the Products may be considered education records under FERPA (“Education Records”), and you represent, warrant, and covenant that your School has obtained appropriate written permission from the parent or eligible student to the extent required by FERPA. You further represent, warrant, and covenant and agree you and the School will be solely responsible for maintaining backup copies of all Education Records and providing parents or eligible students access to Education Records for the purposes of inspecting, reviewing, and correcting any information in such records. (iii) You further understand and acknowledge that the Children’s Online Privacy and Protection Act (“COPPA”) prohibits online service providers from knowingly collecting personally identifiable information from children under 13 of age without verifiable parental consent, and you accordingly agree you will not, and you are prohibited from, inviting or authorizing children under the age of 13 to use the Products.
If you are a student accessing and using the Products in connection with your school work (a “Student”), You hereby authorize and consent to Moxtra storing or accessing Education Records, and to the extent that you are under eighteen years of age, you represent, warrant, and covenant that you have obtained permission from your parent, legal guardian, or other person authorized to provide such permission.
PROPRIETARY RIGHTS: Moxtra and/or its suppliers, as applicable, retain ownership of all proprietary rights in the Products and in all trade names, trademarks, service marks, logos, and domain names (“Moxtra Marks”) associated or displayed with the Products. You may not frame or utilize framing techniques to enclose any Moxtra Marks, or other proprietary information (including images, text, page layout, or form) of Moxtra without express written consent. You may not use any meta tags or any other “hidden text” utilizing Moxtra Marks without Moxtra’s express written consent.
TERMINATION: You may terminate this Agreement by providing thirty (30) days prior written notice via email to Moxtra at email@example.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, Moxtra 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 Products and destroy any copies of associated software within Your possession and control. You will not destroy or attempt to harm any Products or associated software on Moxtra’s servers or Moxtra’s network.
EXPORT RESTRICTIONS: You acknowledge that the Products, 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 Products or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.
INJUNCTIVE RELIEF: You acknowledge that any use of the Products contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Products, may cause irreparable injury to Moxtra, its affiliates, suppliers and any other party authorized by Moxtra to resell, distribute, or promote the Products (“Resellers”), and under such circumstances Moxtra, 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.
NO WARRANTIES: YOU UNDERSTAND AND AGREE THAT THE PRODUCTS ARE PROVIDED “AS IS” AND MOXTRA, 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. MOXTRA, ITS AFFILIATES, SUPPLIERS AND RESELLERS MAKE NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PRODUCTS, REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE PRODUCTS OR THAT THE PRODUCTS WILL MEET ANY USER’S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF THE PRODUCTS IS AT YOUR SOLE RISK. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PRODUCTS IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU RESULTING FROM THE USE OF THE PRODUCTS. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE PRODUCTS REMAINS WITH YOU. MOXTRA DOES NOT ASSUME ANY RESPONSIBILITY FOR RETENTION OF ANY USER INFORMATION OR COMMUNICATIONS BETWEEN USERS. MOXTRA CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE PRODUCTS. USE IS AT YOUR OWN RISK. You agree to indemnify, defend and hold harmless Moxtra, 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 Products, 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 Products are 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, Moxtra, its affiliates, suppliers and Resellers specifically disclaim any express or implied warranty of fitness for such purposes.
LIMITATION OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MOXTRA 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 PRODUCTS 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 MOXTRA, ITS AFFILIATES, SUPPLIERS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, MOXTRA’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 PRODUCTS (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.
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.
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.
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 Products, then such agreement shall control to the extent that any provision of this Agreement conflicts with the terms of such agreement. Moxtra 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 Moxtra’s website. If You do not agree with the changes, You should discontinue using the Products. If You continue using the Products after such changes are effective, You will be deemed to have accepted the changes to the terms of this Agreement. In order to participate in certain Products, You may be notified that You are required to download software and/or agree to additional terms and conditions. Unless expressly set forth in such additional terms and conditions, those additional terms are hereby incorporated into 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 Moxtra under this Agreement must be provided to the email address set forth in Section 10 above, or other contact information as provided by Moxtra for such purpose. Any and all rights and remedies of Moxtra 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 Moxtra, 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.