PLEASE READ DIGITAL MOSES’S TERMS OF SERVICE (“AGREEMENT”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY DIGITAL MOSES, INC. (“DIGITAL MOSES”). BY CLICKING THE “AGREE”, “START MY FREE TRIAL” OR “SUBMIT” (OR SIMILAR) BUTTON ON AN ONLINE ORDER FORM OR OTHER ONLINE PURCHASE FORM ON THE SERVICES (AN “ORDER FORM”) OR BY USING THE SERVICES IN ANY MANNER, YOU (THE “CUSTOMER”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND A PARTY TO THESE TERMS OF SERVICE TO THE EXCLUSION OF ALL OTHER TERMS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT; IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR ENTITY, REFERENCES TO “CUSTOMER” AND “YOU” IN THIS AGREEMENT, EXCEPT THIS SENTENCE, REFER TO THAT ORGANIZATION OR ENTITY. IF A SEPARATE SIGNED WRITTEN AGREEMENT WITH RESPECT TO THE SERVICES EXISTS BETWEEN CUSTOMER AND DIGITAL MOSES, THE TERMS OF THAT SIGNED WRITTEN AGREEMENT (EXCLUDING THE PRE-PRINTED TERMS OF ANY PURCHASE ORDER, CONFIRMATION OR SIMILAR DOCUMENT, WHICH WILL HAVE NO EFFECT AND WILL NOT BE CONSIDERED AGREED TO BY DIGITAL MOSES) SHALL TAKE PRECEDENCE OVER THESE TERMS OF SERVICE, AND YOU ACKNOWLEDGE THAT CUSTOMER IS BOUND BY THE TERMS OF THAT SIGNED WRITTEN SERVICES AGREEMENT. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
- Order Forms; Access to the Service
Upon submission by Customer, each Order Form shall be incorporated into and form a part of the Agreement. Subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form) DIGITAL MOSES grants Customer the right and license to access and use the software-as-a-service platform and products specified in each Order Form (collectively, the “Service,” or “Services”) during the applicable Order Form Term (as defined below) for the internal business purposes of Customer, only as provided herein.
- Fees; Payment
- Paid Services. Certain DIGITAL MOSES Services may be subject to payments now or in the future (the “Paid Services”). Please see DIGITAL MOSES’s pricing page for a description of the current Paid Services. Any payment terms presented to Customer in the process of using or signing up for a Paid Service are deemed part of this Agreement.
- Billing. DIGITAL MOSES uses third-party payment processors (each a, “Payment Processor”) to bill Customer through a payment account linked to Customer’s account on the Services (the “Billing Account”) for use of the Paid Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. DIGITAL MOSES is not responsible for error by the Payment Processor. By choosing to use Paid Services, Customer agrees to pay DIGITAL MOSES, through the Payment Processor, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms and Customer authorizes DIGITAL MOSES, through the Payment Processor, to charge Customer’s chosen payment provider (the “Payment Method”). Customer agrees to make payment using that selected Payment Method. DIGITAL MOSES reserves the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment. Notwithstanding anything to the contrary, DIGITAL MOSES, in its sole discretion, may make available to Customer alternative billing and payment methods (including, without limitation, invoices through current or another service provider and the payment options made available therewith, wire transfers, etc.), and if Customer selects such option, then Customer agrees to comply with any additional terms, conditions and privacy policies of such alternative billing and payment methods in addition to this Agreement and to make payment of all due Fees using such payment options.
iii. Payment Method. The terms of Customer’s payment will be based on its Payment Method and may be determined by agreements between Customer and the financial institution, credit card issuer or other provider of its chosen Payment Method. If DIGITAL MOSES, through the Payment Processor, does not receive payment from Customer, Customer agrees to pay all amounts due on its Billing Account upon demand.
- Auto-Renewal for Paid Services. Any Paid Services Customer has signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. If Customer terminates a Paid Service, Customer may use its subscription until the end of its then-current term and its subscription will not be renewed after its then-current term expires. However, Customer will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. If Customer does not want to continue to be charged on a recurring monthly basis, Customer must cancel the applicable Paid Service through its account settings or terminate Customer’s DIGITAL MOSES account before the end of the recurring term.
- Change in Amount Authorized. DIGITAL MOSES reserves the right to change the amount it charges for the Services. If the amount to be charged to Customer’s Billing Account varies from the amount Customer preauthorized (other than due to the imposition or change in the amount of state sales taxes), Customer has the right to receive, and DIGITAL MOSES shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement Customer has with its payment provider will govern Customer’s use of its Payment Method. Customer agrees that DIGITAL MOSES may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
- Current Information Required. CUSTOMER MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR ITS BILLING ACCOUNT. CUSTOMER MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP ITS BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND CUSTOMER MUST PROMPTLY NOTIFY DIGITAL MOSES OR OUR PAYMENT PROCESSOR IF CUSTOMER’S PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF CUSTOMER BECOMES AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF CUSTOMER’S USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT ACCOUNT SETTINGS. IF CUSTOMER FAILS TO PROVIDE ANY OF THE FOREGOING INFORMATION, CUSTOMER AGREES THAT DIGITAL MOSES MAY CONTINUE CHARGING CUSTOMER FOR ANY USE OF PAID SERVICES UNDER ITS BILLING ACCOUNT UNLESS IT HAS TERMINATED ITS PAID SERVICES AS SET FORTH ABOVE.
vii. Reaffirmation of Authorization. Customer’s non-termination or continued use of a Paid Service reaffirms that DIGITAL MOSES is authorized to charge the Payment Method for that Paid Service. DIGITAL MOSES may submit those charges for payment and Customer will be responsible for such charges. This does not waive DIGITAL MOSES’s right to seek payment directly from Customer. Customer’s charges may be payable in advance, in arrears, per usage, or as otherwise described when Customer initially selected to use the Paid Service.
Free Trials and Other Promotions. Any free trial or other promotion that provides access to a Paid Service must be used within the specified time of the trial. Customer must stop using a Paid Service before the end of the trial period in order to avoid being charged for that Paid Service. If Customer cancels prior to the end of the trial period and are inadvertently charged for a Paid Service, please contact DIGITAL MOSES at [email protected]
- Support; Service Levels
DIGITAL MOSES will undertake commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week. Notwithstanding the foregoing, DIGITAL MOSES reserves the right to suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to DIGITAL MOSES. Subject to the terms hereof, DIGITAL MOSES will use commercially reasonable efforts to provide the support services applicable to the Services tier purchased by Customer, from Monday through Friday during DIGITAL MOSES’s normal business hours. Customer acknowledges and agrees that the Services operates on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). DIGITAL MOSES is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. DIGITAL MOSES does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.
- Service Updates
The Services are subject to modification (including, without limitation, to provide new features, implement new protocols, maintain compatibility with emerging standards or comply with regulatory requirements) from time to time at DIGITAL MOSES’s sole discretion, provided that such modifications do not result in a material degradation of the Services. For clarity, from time to time, DIGITAL MOSES may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement; provided that DIGITAL MOSES shall have no obligation under this Agreement or otherwise to provide any such Updates.
Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (vi) use the Service to build an application or product that is competitive with any DIGITAL MOSES product or service; (vii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (viii) bypass any measures DIGITAL MOSES may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service). Customer is responsible for all of Customer’s activity in connection with the Service, including but not limited to uploading Customer Data (as defined below) onto the Service. Customer (i) shall use the Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (ii) shall not use the Service in a manner that violates any third party intellectual property, contractual or other proprietary rights. Notwithstanding anything to the contrary, if DIGITAL MOSES reasonably believes that Customer is responsible for violating a third party’s copyright on the Services, DIGITAL MOSES may delete or disable such Customer content.
- Ownership; Feedback
As between the parties, DIGITAL MOSES retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by DIGITAL MOSES for the purposes of this Agreement, including any copies and derivative works of the foregoing. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer may from time to time provide suggestions, comments or other feedback to DIGITAL MOSES with respect to the Service (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for DIGITAL MOSES notwithstanding anything else. Customer shall, and hereby does, grant to DIGITAL MOSES a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair DIGITAL MOSES’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.
- Term; Termination
This Agreement shall commence upon the effective date set forth in the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms. For each Order Form, the “Order Form Term” shall begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, (x) shall continue for the initial term specified on the Order Form (the “Initial Order Form Term”), and (y) following the Initial Order Form Term, shall automatically renew for additional successive periods of thirty (30) days (each, a “Renewal Order Form Term”) unless either party notifies the other party of such party’s intention not to renew no later than thirty (30) days prior to the expiration of the Initial Order Form Term or then-current Renewal Order Form Term, as applicable. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, DIGITAL MOSES may suspend or limit Customer’s access to or use of the Service if (i) Customer’s account is past due, or (ii) Customer’s use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with DIGITAL MOSES’s ability to provide access to the Service to other customers; provided that in the case of subsection (ii): (a) DIGITAL MOSES shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, DIGITAL MOSES shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (c) DIGITAL MOSES shall reinstate Customer’s use of or access to the Service, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
- Confidentiality; Customer Data; Publicity
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order.
For purposes of this Agreement, “Customer Data” shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Service in the course of using the Service. Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer, not DIGITAL MOSES, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data.
DIGITAL MOSES shall use commercially reasonable efforts to maintain the security and integrity of the Service and the Customer Data. DIGITAL MOSES is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Service unless such access is due to DIGITAL MOSES’s gross negligence or willful misconduct. Customer is responsible for the use of the Service by any person to whom Customer has given access to the Service, even if Customer did not authorize such use. Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent. For clarity, DIGITAL MOSES has no obligation to delete any Customer Data unless Customer requests such deletion, and if Customer requests deletion, then DIGITAL MOSES will use commercially reasonable efforts to destroy Customer Data then in its control. Notwithstanding anything to the contrary, Customer acknowledges and agrees that DIGITAL MOSES may (i) internally use and modify (but not disclose) Customer Data for the purposes of (A) providing the Services and any support or consultation services to Customer and (B) generating Aggregated De-Identified Data (as defined below), and (ii) freely use and make available Aggregated De-Identified Data for DIGITAL MOSES’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing DIGITAL MOSES’s products and services). “Aggregated De-Identified Data” means data submitted to, collected by, or generated by DIGITAL MOSES in connection with Customer’s use of the Service, but only in aggregate, de-identified form which is not linked specifically to Customer or any individual. Notwithstanding anything else, DIGITAL MOSES is permitted to disclose (including through display of Customer’s logo) that Customer is one of its customers (including in its publicity and marketing materials).
Customer will indemnify and hold harmless DIGITAL MOSES, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses from a third party claim arising from or relating to Customer’s access to the Services, Customer’s use of the Services, Customer’s violation of this Agreement, or the infringement by Customer or any third party using Customer’s account of any intellectual property or other right of any third party.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND IS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
- Limitation of Liability
IN NO EVENT SHALL DIGITAL MOSES, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO DIGITAL MOSES HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
This Agreement represents the entire agreement between Customer and DIGITAL MOSES with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and DIGITAL MOSES with respect thereto. The Agreement shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in New York, New York. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if sent by email to Customer’s registered email account (when DIGITAL MOSES is providing notice) or [email protected] (when Customer is providing notice). The parties may also provide notice by certified or registered mail, return receipt requested to the address most recently submitted to the Services by Customer (when DIGITAL MOSES is providing notice) or to DIGITAL MOSES’s address at 475 Kent Avenue, #805, Brooklyn, New York 11249. Notices to DIGITAL MOSES must be addressed to “Attn: Legal Notice”. Except as otherwise provided herein, this Agreement may be amended only by a writing executed by both parties (including, without limitation, Customer’s submission of an additional Order Form via the Services). Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes, lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business or assets relating to this Agreement, and (ii) DIGITAL MOSES may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.