Master Subscription Agreement
The mmojo team has worked hard to minimize restrictions and make mmojo as usable a product as we possibly can. We believe mmojo has fewer restrictions than almost any other product in the market. Of course, there are some restrictions and we summarize the key ones here. The full legal terms of our agreement with you are contained after this summary and those terms take precedence over any conflict with this summary.
Internal Use Only – it is OK for other employees, consultants, contractors, or agents of your Company / Organization to use mmojo and the data Exported from mmojo, but it must be SOLELY on behalf of your Company / Organization.
No Reselling or Distribution of Data to Third Parties – you many not Export and pay for data once and then distribute that data to multiple parties. If you are a Service Provider to other companies, you should have each of those Companies subscribe to mmojo and not share data between those Companies. Each Company must pay for the data they use. Contact us at email@example.com if you have questions or need special terms.
No Use to Compete – you cannot use mmojo to build a competitive product and may not try to reverse engineer the technology within mmojo.
No Scraping or Circumvention – you are not allowed to try to avoid paying for data or bypass normal mmojo use by screen scraping, manual copying, trying to access APIs or any other means.
Subscription Limitations – Each Account is limited to a Master List Size of 250,000 unique companies and 250,000 Master List company deletions over the life of the Account. Contact us for a custom quote if you need more capacity.
No Unlawful or Intentional Misuse
This Master Subscription Agreement, including (a) this Introduction, (b) all Subscription Orders including the attached Subscription Order #1, (c) the attached Terms and Conditions, and (d) all other Orders incorporated into this Master Subscription Agreement by the parties (collectively, the "Agreement"), is between Customer ("Customer") and Skyrock Partners, LLC doing business as mmojo.com (“mmojo.com”) and sets forth the terms and conditions under which mmojo.com will make available certain services and Customer will be permitted to use those services including any free services. If there is a conflict between the attached Terms and Conditions and the terms of an Order, the terms of the Order will take precedence. Customer transaction documents or purchase orders may not override the terms of this Agreement or an Order.
By accepting this Agreement, either by clicking a box indicating Customer’s acceptance or by executing an order form that references this Agreement, Customer agrees to the terms of this Agreement. If Customer is a company or other legal entity, the person accepting this Agreement represents that they have the authority to bind such entity and its affiliates to this Agreement. If the person accepting this Agreement on behalf of an entity does not have such authority, or if the Customer does not agree with these terms and conditions, Customer must not accept this agreement and may not use the Services.
Customer may not access or use the Services i) if the Customer is a direct competitor of mmojo.com or ii) for benchmarking or competitive purposes.
This Agreement was last updated on December 12, 2018. It is effective between Customer and mmojo.com as of the date of Customer acceptance of this Agreement (the "Effective Date").
TABLE OF CONTENTS
Subscription Order #1
Terms and Conditions
Standard Support Services
SUBSCRIPTION ORDER #1
This Subscription Order is effective on the Effective Date and forms part of the Master Subscription Agreement (“MSA”) by and between Customer and mmojo.com. This is an online order the details of which are described below.
1. Services Provided: One login (“Account”) to the mmojo Service over the Subscription Term.
2. Subscription Term & Renewal: One-month Subscription Term. Unless terminated per the terms of this agreement, this Subscription Order will be automatically renewed at the end of each Subscription Term. Customer authorizes mmojo.com to automatically charge the Customer provided payment method for the full renewal amount.
3. Subscription Changes: Customer may cancel this Subscription Order to be effective at the end of the Subscription Term (at renewal). There are no refunds or credits for cancellations. Customer Data may be deleted by mmojo.com upon cancellation.
4. Subscription Limitations: Each Account is limited to a Master List Size of 250,000 unique companies (based on the ExC Code) and 250,000 Master List company deletions over the life of the Account.
5. mmojo Service Access: Users must be an employee, consultant, contractor, or agent of the Customer who are using mmojo solely on the Customer’s behalf. mmojo API access is not allowed under this Subscription Order.
6. mmojo.com Data: External sharing or use of mmojo.com Data is prohibited with the exception that the ExC Code may be shared without restriction. Customer has the right to internally use mmojo.com Data per the Agreement with the following exception. If the Customer has exported Technology Attribute data, Customer must delete all copies of Technology Attribute data that are in Customer’s possession or control within one year of the initial download of the Company Record containing such data and upon mmojo.com’s request, certify in writing to such deletion.
7. Delivery Model: Account access to Multi-tenant Public Cloud.
8. Support and Setup Services: Standard Support Services per Attachment 3. No Setup Services are provided.
9. Data Credits: Customer may purchase Data Credits on a one time or subscription basis. Unused Data Credits will rollover upon Subscription renewals for 24 months after initial purchase. There are no refunds for unused Data Credits. Cancellation of this Subscription Order will result in forfeiture of unused Data Credits.
10. Fees: Fees are specified on the mmojo.com website and within the mmojo Service at the time of purchase and evidenced in electronic receipts and statements. The pricing for a renewal term will be at mmojo.com’s applicable list price in effect at the time of the renewal. Customer will be given at least 10 days’ notice prior to the renewal date of price increases of 10% or more. Notice will be made to the email address on file with the account.
11. Payment Terms: Payment for the full term is required at the time of Order and upon each Renewal. If mmojo.com is unable to collect payment for any reason, mmojo.com may cancel this Subscription Order without notice.
12. Free Trials & Free Usage: Free Trials and Free Usage are subject to this Agreement. Certain operations may be limited or disabled in Free Trial and Free Usage versions. mmojo.com may terminate Free Usage versions at any time without notice. Customer Data may be deleted by mmojo.com upon expiration of a Free Trial or termination of a Free Usage account.
TERMS AND CONDITIONS
"Customer Data" means data owned by the Customer that is used with the mmojo Service.
“Data Credits” means units purchased within the mmojo Service that are used to pay for the right to export certain mmojo.com Data.
"Documentation" means user documentation that describes the principles of the operation or functionality of the mmojo Service including documentation embedded with the mmojo Service (e.g., on-line help files).
“ExC Code” means the code assigned to records matched with a Reference Dataset. ExC Codes are mmojo.com Data.
"Exported Lists" means Lists exported by Users from mmojo.
“List” means a dataset of records managed within mmojo. Lists may include both Customer Data and mmojo.com Data.
“Matched Record” means a Record within a List which has been matched to a Reference Dataset and to which an ExC Code has been assigned.
“mmojo Service” or “mmojo” means mmojo.com’s Marketing Data Management software service, Documentation, mmojo Datasets, support services and Professional Services deliverables.
“mmojo Datasets” means mmojo.com owned or licensed data including Reference Datasets used by mmojo.
“mmojo.com Data” means data owned or licensed by mmojo.com.
“Order” means an ordering document under this Agreement that is entered into between Customer and mmojo.com from time to time including Subscription Orders and Orders for support and Professional Services.
“Professional Services” means all implementation, training, configuration, data migration, consulting, and professional services performed by or on behalf of mmojo.com for Customer pursuant to this Agreement.
“Record” means a row of data within a List.
“Reference Datasets” means certain mmojo Datasets to which matches are performed to enable mmojo cross referencing, enrichment and management of Customer Data. “Subscription Limitations” means the limitations on Customer’s use of mmojo specified in a Subscription Order.
“Seed Records” means data within an Unmatched Record used by mmojo.com to improve the mmojo Service. Seed Records are restricted to the fields in the Reference Dataset to which it applies.
“Sensitive Data” means data subject to special controls due to information security and privacy laws within any relevant jurisdiction (US, EU, Canada, etc.) including, but not limited to PII, PIFI, PHI, HIPAA, FERPA and GDPR.
“Services” means mmojo, Support Services, and Professional Services, collectively.
“Statement of Work” or “SOW” means the description within an Order of the scope, schedule and terms of any Professional Services to be performed by mmojo.com.
“Subscription Orders” means an Order for the purchase of a subscription for mmojo.
“Support Services” means ongoing monitoring, maintenance and technical support services for mmojo, as further described in this Agreement.
“Technology” means the technology, knowledge, techniques, procedures, routines, methods, tooling, content, models, analytics, applications, user interface, datasets, and other materials owned by a Person that have been developed or acquired by that Person, together with all derivative works, improvements or modifications to any of the foregoing, and all intellectual property rights and other rights associated with the foregoing.
“Person” means any means any individual, partnership (whether general or limited), limited liability company, corporation, or other entity.
“Unmatched Records” means a record of Customer Data that does not match a record in a Reference Dataset or that a User has flagged the accuracy of a match as being suspect or questionable.
“Users” means individuals who are authorized by Customer to use the mmojo Service. Unless otherwise specified in a Subscription Order, Users must be an employee, consultant, contractor, or agent of the Customer who are using mmojo solely on the Customer’s behalf.
1. USE OF THE mmojo SERVICE
2.1 Usage Rights and Subscription Orders. Subject to the terms and conditions of this Agreement, mmojo.com grants to Customer a limited, worldwide, non-exclusive, non-sublicensable, non-transferable (except as permitted in Section 13.2) right to use the mmojo Service solely as described in each Subscription Order.
2.2 Subscription Orders. Customer’s right to use the mmojo Service including Subscription Limitations and the Subscription Term are described in one or more Subscription Orders.
2.3 mmojo.com Data. Customer has the right to internally use mmojo.com Data embedded within Exported Lists during the term of the applicable Subscription Order and as specified in Section 6.5. External sharing or use of mmojo.com Data is prohibited with the exception that the ExC Code may be shared without restriction.
2.4 Use of the Documentation. Customer may use a reasonable number of copies of the Documentation solely in connection with use of the mmojo Service in accordance with this Agreement.
2.5 Usage Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize third parties to a) make the Services available to anyone other than Users; b) use the mmojo Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; c) use the mmojo Service to store or transmit malicious code; d) interfere with or disrupt the integrity or performance of the mmojo Service; e) attempt to gain unauthorized access to the mmojo Service or its related systems or networks; f) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the mmojo Service or mmojo Datasets in any form or media or by any means (including screen scraping); g) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the mmojo Service; h) access all or any part of the mmojo Service or Documentation in order to build a product or service that competes with the mmojo Service; i) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise make the mmojo Service, mmojo.com Data or Documentation available to any third party; or j) circumvent or disable any security or other technological features of the mmojo Service.
2.6 Compliance. mmojo.com has the right to disable access to or otherwise remove any content that is in violation of this Agreement or that is the subject of a claim by a third party that may be in violation of this Agreement, including claims that the content includes copyrighted or otherwise protected or confidential information or that the content includes defamatory, libelous or other actionable content.
3. CUSTOMER’S RESPONSIBILITIES
3.1 Account Credentials. Customer is responsible for all User Accounts including maintaining the confidentiality of the user identifications, passwords and account information.
3.2 Compliance with Laws. Customer is responsible to use the mmojo Service, mmojo.com Data and Documentation in compliance with all applicable laws and regulations including, but not limited to, laws related to privacy (whether applicable within the United States, the European Union, or otherwise), intellectual property, consumer and child protection, obscenity, libel and defamation.
3.3 Protection against Unauthorized Use. Customer is responsible to use reasonable efforts to prevent any unauthorized use of the mmojo Service or mmojo.com Data and immediately notify mmojo.com in writing of any unauthorized use that comes to Customer’s attention. If there is unauthorized use by anyone who obtained access to the mmojo Service or mmojo.com Data directly or indirectly through Customer, Customer will take all steps reasonably necessary to terminate the unauthorized use. Customer will cooperate and assist with any actions taken by mmojo.com to prevent or terminate unauthorized use of the mmojo Service or mmojo.com Data.
3.4 Customer Data. Customer is responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which Customer acquired Customer Data. Unless otherwise agreed to by mmojo.com in a Subscription Order, Customer is responsible to ensure Customer Data does not include Sensitive Data.
3.5 Usage. Customer is responsible to use the mmojo Service solely through the mmojo user interface and in accordance with the terms of this Agreement. mmojo Application Programming Interface (API) usage is not allowed unless specifically authorized in a Subscription Order.
3.6 Audit. Customer is responsible to permit mmojo.com to audit Customer’s use of the mmojo Service. An audit may be conducted no more than twice per year with reasonable prior notice. If an audit reveals that Customer has underpaid any fees due to mmojo.com, Customer will pay to mmojo.com all underpaid fees within 10 business days of receiving written notice of such underpayment.
4. mmojo.com RESPONSIBILITIES
4.1 Provision of Purchased Services. mmojo.com will (a) make the mmojo Service available to Customer pursuant to this Agreement and the applicable Subscription Orders (b) provide Support Services specified in Attachment 3 at no additional charge, and/or upgraded support if purchased and specified in an Order, and (c) provide Professional Services in a professional manner in accordance with applicable Orders.
4.2 Protection of Customer Data. mmojo.com is responsible to maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by mmojo.com personnel except (a) to provide the services per this Agreement and prevent or address service or technical problems, (b) as compelled by law, or (c) as Customer expressly permits in writing.
5. FEES AND PAYMENT
5.1 Fees. Customer will pay mmojo.com the fees specified in this Agreement, plus any applicable sales, use, excise, or other taxes in United States dollars. Unless otherwise specified in a Subscription Order (i) fees are based on subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
5.2 Payment Terms. Unless otherwise specified in the applicable Order, Customer will pay all amounts due as part of executing the Order.
5.3 Credit Card Payments. If Customer is paying using a Credit Card, Customer will provide mmojo.com with valid and updated credit card information and Customer authorizes mmojo.com to charge such credit card for all Services purchased.
5.4 Cancellation and Suspension of Service. If any amount is overdue (such as a renewal payment or failed payment), mmojo.com may, without limiting mmojo.com’s other rights and remedies, cancel or suspend the Services.
5.5 Payment Disputes. mmojo.com will not exercise mmojo.com’s rights under Section 5.4 (Suspension of Service and Acceleration) above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
5.6 Taxes. Other than net income taxes imposed on mmojo.com, Customer will bear all taxes, duties, and other governmental charges (collectively, “Taxes”) resulting from this Agreement. Customer will pay any additional Taxes as are necessary to ensure that the net amounts received by mmojo.com after all those Taxes are paid are equal to the amounts that mmojo.com would have been entitled to in accordance with this Agreement as if the Taxes did not exist.
6. TERM AND TERMINATION
6.1 Agreement Term. The term (“Term”) of this Agreement will commence upon the Effective Date and continue until the later of i) 3 years or ii) 6 months after all Orders hereunder have expired or have been terminated.
6.2 Subscription Order Term and Renewals. The term for each Subscription Order will commence on the effective date of the applicable Subscription Order. Unless otherwise specified in the Subscription Order, the term will be for one year and automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. Unless expressly provided in the Subscription Order, the pricing for a renewal term will be at mmojo.com’s applicable list price in effect at the time of the applicable renewal.
6.3 Termination for Material Breach. Either party may terminate this Agreement or an Order if the other party does not cure its material breach of this Agreement or Order within 30 days of receiving written notice of the material breach from the non-breaching party. At the non-breaching party’s election, that termination may apply only to the applicable Order and related Services and not to other Orders governed by this Agreement. Termination of this Agreement will terminate any then-outstanding Orders. Termination in accordance with this Section 6.3 will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period.
6.4 Post-Termination Refunds and Payments. If an Order is terminated by Customer in accordance with Section 6.3, mmojo.com will refund Customer any prepaid fees covering the remainder of the term of all Orders after the effective date of termination. If this Agreement is terminated by mmojo.com in accordance with Section 6.3, Customer will pay any unpaid fees covering the remainder of the term of all Orders. In no event will termination relieve Customer of Customer’s obligation to pay any fees payable to mmojo.com for the period prior to the effective date of termination.
6.5 Post-Termination Obligations and Rights. If an Order is terminated for any reason, mmojo.com may disable access to and Customer will cease all use of the mmojo Service pursuant to the applicable Order. mmojo.com will delete all Customer Data pursuant to the applicable Order within 30 days of termination. Except for termination for breach by Customer or if specified otherwise in a Subscription Order, Customer will have the right to retain and use mmojo.com Data embedded in Exported Lists provided that Customer remains in full compliance with this Agreement. Any such retention of mmojo.com Data by Customer does not entitle Customer to any updates, refreshes, or other Services, or entitle Customer to distribute or resell such mmojo.com Data. mmojo.com may revoke the right to retain and use mmojo.com Data, upon notice to Customer, if Customer is in breach of its obligations under this Agreement. If the Customer’s right to retain and use mmojo.com Data embedded in Exported Lists is terminated for any reason, Customer will provide mmojo.com with a written certification signed by an authorized Customer representative within 30 days of such termination certifying that Customer has deleted all mmojo.com Data pursuant to the applicable Order.
6.6 Survival. Sections 2.5, 3.3, 3.6, 5, 6, 7, 8, 9.2, 10, 11 and 13 will survive the termination of this Agreement.
7. PROPRIETARY RIGHTS
7.1 Reservation of Rights. Customer will not have any rights to the mmojo Service, mmojo.com Data or any Technology of mmojo.com except as expressly granted in this Agreement. mmojo.com reserves to itself all rights to the mmojo Service, mmojo.com Data and Technology of mmojo.com not expressly granted to Customer in accordance with this Agreement.
7.2 Customer Data. All rights, title, and interest in and to Customer Data are and will remain the property of Customer. Customer grants to mmojo.com a worldwide, limited-term license to host, copy, transmit, display and analyze Customer Data solely as necessary to provide and improve the Services in accordance with this Agreement.
7.3 License to mmojo.com. Customer grants to mmojo.com a worldwide, perpetual, irrevocable, royalty-free license to use, sublicense and incorporate into mmojo.com products and services i) any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to this Agreement and ii) Seed Records.
8.1 Definition. “Confidential Information” means all confidential information disclosed by or otherwise obtained from a party (“Disclosing Party”) to or by the other party (“Receiving Party”), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s “Confidential Information” includes Customer Data; mmojo.com’s “Confidential Information” includes the Services; and Confidential Information of each party includes the terms and conditions of this Agreement, all Orders (including pricing), business and marketing plans, technology, technical information, product plans, product designs, and business processes disclosed by or on behalf of the applicable party. However, “Confidential Information” does not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
8.2 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party will: (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (b) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors, and agents who need access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those in this Section 8.
8.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, so long as the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
9. WARRANTIES AND DISCLAIMER
9.1 Mutual Warranties. Each party represents and warrants to the other that this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against that party in accordance with its terms.
9.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY 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. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
10.1 Indemnification by mmojo.com. mmojo.com will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by mmojo.com in writing of a Claim Against Customer, provided Customer (a) promptly gives mmojo.com written notice of the Claim Against Customer, (b) gives mmojo.com sole control of the defense and settlement of the Claim Against Customer (except that mmojo.com may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives mmojo.com all reasonable assistance, at mmojo.com’s expense. If mmojo.com receives information about an infringement or misappropriation claim related to a Service, mmojo.com may in mmojo.com’s sole discretion and at no cost to Customer (i) modify the Service so that it is no longer claimed to infringe or misappropriate, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against Customer arises from Customer’s use of the Services in violation of this Agreement, the Documentation or the applicable Order.
10.2 Indemnification by Customer. Customer will defend mmojo.com against any claim, demand, suit or proceeding made or brought against mmojo.com by a third party alleging that any Customer Data infringes or misappropriates such third party’s intellectual property rights, or arising from Customer’s use of the Services in violation of the Agreement, the Documentation, Order or applicable law (each a “Claim Against mmojo.com”), and Customer will indemnify mmojo.com from any damages, attorney fees and costs finally awarded against mmojo.com as a result of, or for any amounts paid by mmojo.com under a settlement approved by Customer in writing of, a Claim Against mmojo.com, provided mmojo.com (a) promptly gives Customer written notice of the Claim Against mmojo.com, (b) gives Customer sole control of the defense and settlement of the Claim Against mmojo.com (except that Customer may not settle any Claim Against mmojo.com unless it unconditionally releases mmojo.com of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense.
10.3 Exclusive Remedy. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any claim described in this Section 10.
11. LIMITATIONS OF LIABILITY
11.1 Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 5 FEES AND PAYMENTS.
11.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
12. CUSTOMER LIST
Subject to Customer’s reasonable brand guidelines, mmojo.com may include Customer name and logo, in mmojo.com’s lists of other customers of the Services, in printed or web-based marketing materials (including its website) and in mmojo.com’s sales presentations.
13.1 Relationship. mmojo.com will be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of this Agreement.
13.2 Assignability. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Orders), without the other party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice.
13.3 Subcontractors. mmojo.com may utilize subcontractors or other third parties to perform its duties under this Agreement so long as mmojo.com remains responsible for all of its obligations under this Agreement.
13.4 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the Cover Page of this Agreement and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section 13.4. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
13.5 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
13.6 Mitigation. Each party must mitigate the impact of any damage arising out of or related to this Agreement.
13.7 Governing Law. The Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Texas, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in Austin, Texas in connection with any action arising out of or in connection with this Agreement.
13.8 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of that party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
13.9 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the mmojo Service or mmojo.com Data under this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the mmojo Service or mmojo.com Data will immediately terminate.
13.10 Counterparts. The Agreement may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. The Agreement may also be executed and delivered by facsimile and that execution and delivery will have the same force and effect of an original document with original signatures.
13.11 Entire Agreement. The Agreement, including all attachments and Orders, is the final and complete expression of the agreement between these parties regarding Customer’s use of the mmojo Service and mmojo.com Data. The Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed.
STANDARD SUPPORT SERVICES
Unless otherwise specified in a Subscription Order, the following Support Services will apply for each Subscription Order. mmojo.com may change the terms of its Standard Support Services from time to time at its sole discretion.
1. mmojo Availability. mmojo.com will use commercially reasonable efforts to make mmojo available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which mmojo.com shall give advance notice), and (ii) any unavailability caused by circumstances beyond mmojo.com’s reasonable control including but not limited to an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, or denial of service attack.
2. mmojo Support. Users must submit support cases electronically. A mmojo.com Support Representative will use commercially reasonable efforts to promptly resolve each case consistent with its Severity Level. Actual resolution time will depend on the nature of the case and the resolution. A resolution may consist of a fix, workaround or other solution in mmojo.com’s reasonable determination. All mmojo support is in English.
3. Excluded Items. The following are the responsibility of the User are not provided as part of Standard Support Services; i) assistance with password resets, ii) assistance with products or technologies other than mmojo, and iii) integration with other systems.
4. Reproducing Errors. mmojo.com must be able to reproduce errors to resolve them. Customer agrees to cooperate and work closely with mmojo.com to reproduce errors, including conducting diagnostic or troubleshooting activities as reasonably requested and appropriate.
5. Severity Levels. Issues will be generally categorized and handled according to an assigned severity level, as follows:
Severity Level Descriptions
Severity 1 – Critical. Critical production issue affecting all users, including system unavailability and data integrity issues with no workaround available.
Severity 2 – Urgent. Major functionality is impacted or significant performance degradation is experienced. Issue is persistent and affects many users and/or major functionality. No reasonable workaround available.
Severity 3 – High. System performance issue or bug affecting some but not all users. Workaround is available and / or users are still able to accomplish most tasks.
Severity 4 – Medium. Inquiry regarding a routine technical issue, information requested on mmojo capabilities or minor bug with no material impact on users. Workaround available or not required.