PLEASE READ THESE TERMS OF SERVICE (“AGREEMENT”) CAREFULLY BEFORE SIGNING UP FOR ANY MOONTOAST PRODUCTS.
Moontoast owns and has the right to license those products demonstrated on http://www.moontoast.com as are designated in the Sales Order described below, constituting a social activation engine platform that includes rich media social engagement applications, rich media social commerce applications, and/or analytics products (“Moontoast Products”) to customers as a subscription based Software as a Service (SaaS).
You (“Customer”) represent that you are either an Advertising Agency (“Agency”) and desire to use, as described in this Agreement, the Moontoast Products for the benefit of a Client for whom you are providing services in connection with advertising campaigns that may utilize the Moontoast Products, or that you are the direct user of the Moontoast Products for your own brand or an affiliate brand as may be described in the Sales Order, to do marketing campaigns using the Moontoast Products as selected in the Sales Order.
Upon your execution and Moontoast’s acceptance through countersignature of a Sales Order (“SO”) there shall be a legally binding contract between Customer and Moontoast, LLC (the “Agreement”) consisting of the completed Sales Order, the Terms of Service (found at http://www.moontoast.com/legal/terms-of-service), the Security and Privacy Statement (found at http://www.moontoast.com/legal/privacypolicy), and the Service Level Agreement (found at http://www.moontoast.com/legal/SLA). By using the Moontoast Products, Customer agrees to be bound by the Terms of this Agreement as the Terms were posted on http://www.moontoast.com/legal/terms-of-service immediately prior to your use of such Products. By using such Products, you represent that you have reviewed the current draft of this Agreement including the Terms of Service as found at http://www.moontoast.com/legal/terms-of-service, the Privacy Statement and the Service Level Agreement.
1. SUBSCRIPTION AND LICENSE
Moontoast grants to Customer, and Customer accepts, a non-transferable, non-sublicensable, non-exclusive subscription and license and right to access and create social commerce and social engagement applications for use on Social Media Web-sites (such as Facebook) as is provided by the Moontoast Products via the Internet,
For any Customer that is an Agency and/or the clients for which Customer provides Advertising Agency Services specified in the SO and subject to the other terms and conditions of this Agreement. Moontoast will provide Customer with access to Moontoast Products for Customer and/the clients specified on the SO for which Customer provides Advertising Agency Services. Customer for itself and its client(s) shall execute a separate SO for each brand belonging to the client for which Customer wishes to use the Moontoast Products. Any Clients of Customer’s Advertising Agency Services that use the Moontoast Products shall be subject to and Customer shall be responsible for the clients agreement and compliance with the terms and conditions of this Agreement. No rights, licenses, or other intellectual property is to be conveyed to Customer’s clients and Customer shall be obligated to maintain and support the Moontoast Products on behalf of their clients unless otherwise contemplated within the SO.
For all non-Agency users of the Moontoast Products, subject to the other terms and conditions of this Agreement, Moontoast will provide Customer with access to the Moontoast Products for those products of Customer specified in the SO and Customer shall execute a separate SO for each brand belonging to Customer for which Customer wishes to use the Moontoast Products. No rights, licenses, or other intellectual property is to be conveyed to Customer and Customer shall be obligated to maintain and support the Moontoast Products on behalf of their brands unless otherwise contemplated within the SO.
Customer further acknowledges that its access and use of the Moontoast Products will be limited to only the access available on Moontoast’s Web Site.
2. CUSTOMER SUPPORT
Moontoast will provide Customer with technical support for Customer’s designated representatives by phone or email during Moontoast’s regular business hours (Monday through Friday, 9:00 a.m. to 5:00 p.m. (Central Time), except for holidays as observed in the State of Tennessee). As long as Customer is current in its obligations to Moontoast in the SO and under the terms of this Agreement, Moontoast shall provide Customer with the services described in the Service Level Agreement (SLA) described at http://www.moontoast.com/legal/SLA.
3. CUSTOMER CONTENT
As used herein, “Customer Content” means any text, book excerpts, promotional materials, files, images, photos, video, sounds, musical works, works of authorship, applications, trademarks, logos, imprint names or any other material that is posted, displayed or transmitted by or on behalf of Customer [if Customer is marketing a product] or their client [if Customer is an Advertising Agency] on the Moontoast Products. Moontoast may use Customer Content only as necessary to provide the Services and shall otherwise obtain no right in or to any Customer Content, including any intellectual property rights which subsist therein. Customer is responsible for maintaining copies, duplicates or back-ups of any Customer Content. Moontoast may not alter, revise, modify, abridge, edit, or otherwise change any such materials, except as necessary to format such materials for display on a Moontoast Products. Customer Content may not be used to create derivative works nor combined with other materials to create combined content without Customer’s prior written consent. Moontoast may not remove any copyright or trademark notice or any other notices included in or with any Customer Content.
4. CUSTOMER RESPONSIBILITIES
5. TRADEMARKS AND MARKETING
Customer agrees that , during the term of this Agreement, Moontoast may use the Customer’s trademarks, service marks, trade names, image, character, logos, domain names and other distinctive brand features or identification (“Trademarks”) in connection with its performance hereunder. Any other proposed use of a party’s (or party’s clients’) Trademarks shall be subject to Customer’s prior written approval in each instance except that Moontoast may list Customer as a client on Moontoast’s website. Neither party will portray the other in a false, misleading, or derogatory manner. The parties further agree to prepare press releases, marketing inquires, and case studies and all such join marketing activities shall be mutually agreed upon prior to publication.
6. INTELLECTUAL PROPERTY RIGHTS
Except for Customer Content, Customer and [if Customer is an Advertising Agency] Customer’s clients do not have and will not acquire any right, title and interest in and to the Moontoast Products or any intellectual property rights which subsist therein (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Nothing created under this Agreement is a joint work. For the sake of clarification this provision shall include any customization of the Moontoast Products.
7. DATA OWNERSHIP
Moontoast will be free to implement, use, modify or otherwise exploit, Customer’s ideas, suggestions or materials (or any part thereof) related to the Moontoast Products without any payment or other obligation to Customer, and Customer agrees never to assert against Moontoast any claim based on any proprietary rights therein. Customer acknowledges that Moontoast may modify, update or otherwise change the Moontoast Products from time to time. If Customer determines that any such changes have resulted in diminished functionality, Customer may terminate this Agreement without any penalty for exercising such right under the termination provisions in Section 11 of this Agreement.
9. FEES AND PAYMENTS
The fees payable to Moontoast hereunder are set forth in the SO. All payments shall be due upon receipt of invoice and shall be payable within 30 days of the date of the invoice unless otherwise noted in the SO. A late fee may be charged on overdue amounts at the rate of eighteen percent per annum (18%), or the maximum permitted by law, and late fees shall be applied monthly on all outstanding balances commencing with the date payment was due. All costs incurred for collection of amounts due (including, but not limited to, attorneys fees) and any bank charges shall be paid by Customer.
If Customer wishes to use Moontoast’s commerce applications and standard payment processing services, Customer shall first make arrangements with Moontoast for Customer to pay the Merchant Account fee (Currently. $29.95 per month per account plus a payment transaction processing fee) which are the actual transaction processing fees as charged to Moontoast by the credit card processor. The Merchant Account fee is subject to change upon 30 days written notice, based upon actual fee changes by the payment gateway provider.
The fees and all other amounts due under this Agreement are net amounts, exclusive of all taxes, duties, and assessments, including without limitation all sales, withholding, VAT, excise, ad valorem, and use taxes (collectively, the “Taxes”) and are not subject to offset or reduction because of any taxes incurred by Customer or otherwise due as a result of this Agreement. Customer shall be responsible for and shall pay directly, any and all taxes relating to its use of the Moontoast Products. With respect to Moontoast Products where Customers or clients make payment or order processing services to Moontoast, Moontoast shall transmit to Customer any applicable taxes that Moontoast collects from Customer through the Moontoast Products and it is Customer’s responsibility to remit such taxes to the appropriate taxing authority. In all other cases, Customer will be responsible for collecting applicable taxes on the sale of Customer’s products and remitting payments to the appropriate taxing authority. Customer will indemnify, defend and hold Moontoast harmless from and against any applicable taxes arising from transactions executed on the Moontoast Products except for those taxes based on Moontoast’s income.
11. TERM AND TERMINATION
This Agreement commences on the Services Commencement Date of the first Sales Order between the parties (“the Effective Date”) and shall continue in effect thereafter, unless superseded or otherwise terminated in accordance with this Section 11 or by written agreement of the parties. Each SO shall become effective upon its Services Commencement Date and shall continue in effect through the date of termination specified in the applicable SO. For the avoidance of doubt, unless otherwise agreed between the Parties in writing this Agreement shall not terminate until the termination of the final SO between the parties, each SO being terminable in accordance with its own provisions, as well as the provisions of this Agreement.
Either party may terminate this Agreement upon thirty (30) days’ written notice if the other party materially breaches any of the terms of this Agreement and the breaching party fails to cure such breach within such thirty (30) day period. Termination of this Agreement shall terminate all Sales Orders between the parties.
If either party shall be adjudicated a bankrupt, institute voluntary proceedings for Chapter 7 Bankruptcy protection, make an general assignment for the benefit of its creditors, apply for or consent to the appointment of a receiver for it or its property, or admit in writing its inability to pay its debts as they become due, the other party may terminate this Agreement by written notice. Any such termination shall not relieve either party from any accrued obligations hereunder.
Upon termination or expiration of this Agreement, Moontoast shall return to Customer all Customer Content and destroy copies of all such Customer Content and shall delete all such Customer Content from any computers, networks or software system under its control and shall certify to Customer its compliance with the requirements of this provision.
Accrued payment obligations, this section 12 and sections 3, 5, 6, 8, 10, 11, 13, 15, 16, and 17 will survive any expiration or termination of this Agreement. Upon expiration or termination of this Agreement, Moontoast may delete the Customer Content permanently from Moontoast’s servers.
“Confidential Information” means any and all proprietary information and includes the terms of this Agreement. Except as permitted by this Agreement, neither party will (a) make any use of the other party’s Confidential Information; (b) acquire any right in the other party’s Confidential Information; (c) disclose any of the other party’s Confidential Information to a third party; or (d) refuse to promptly return or destroy the other party’s Confidential Information upon request. Notwithstanding the foregoing, this section will not apply to any information that the receiving party can demonstrate: (a) is or becomes a part of the public domain through no fault of its own; or (b) was in the possession of the receiving party at the time of its disclosure by the disclosing party as evidenced by files existing at the time of disclosure. Further, either party may disclose the other party’s Confidential Information to the extent required by law or by order of a court or governmental agency after providing notice to the other party, and providing such party with the opportunity to seek a protective order. The parties shall issue mutually approved press releases announcing the consummation of this Agreement and future launches of additional Platform Components and the parties may disclose the existence of this Agreement and the parties’ relationship in their respective marketing materials, financial reports, presentations, website materials, customer lists and other media but Customer shall submit any such disclosure to Moontoast for approval prior to any disclosure and in no event may either party disclose the financial or other terms of this Agreement. The covenants set forth in this section (a) will apply upon commencement of this Agreement to any Confidential Information disclosed to the receiving party, including Confidential Information disclosed during the course of negotiation of this Agreement; and (b) will continue after termination of this Agreement.
14. REPRESENTATIONS AND WARRANTIES
In addition to the representations and warranties contained elsewhere herein:
Customer represents and warrants that: (a) it has the full power and authority necessary to enter into this Agreement and to perform its obligations under this Agreement; (b) this Agreement is a valid and binding obligation; (c) it will perform its obligations under this Agreement in compliance with all applicable laws, rules and regulations; (d) its performance of its obligations under this Agreement will not violate any provision of any agreement to which it is a party or by which it is bound; (e) it has all rights, licenses and permits necessary to perform its obligations under this Agreement; (f) it owns the Customer Content, or otherwise has the right to use the Customer Content in connection with the Moontoast Products and that such use will not violate any rights of any person; and (g) it has the right to sell any products that it sells through the Moontoast Products.
15. INDEMNIFICATION, DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
The parties (each an “Indemnifying Party”) will indemnify and hold each other and each of their respective affiliates, officers, directors, employees, agents and representatives (each an “Indemnified Party”) harmless from and against all damages, costs, expenses, and liabilities, including without limitation, reasonable attorneys’ fees and expenses, from any third party claim of any kind against any Indemnified Party arising from the Indemnifying Party’s (i) negligence or willful misconduct arising in whole or in part under this Agreement, or (ii) its breach or alleged breach of its representations and warranties herein.
EXCEPT AS OTHERWISE PROVIDED HEREIN, THE MOONTOAST PRODUCTS MADE AVAILABLE HEREUNDER ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS HEREIN, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR (A) ANY LOST PROFITS, cost of procurement of substitute goods or services, OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT, OR INCIDENTAL DAMAGES, EVEN IF A PARTY HAS ADVISED THE OTHER IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES AND SUCH DAMAGES ARE FORESEEABLE OR (B) ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) the amounts received BY MOONTOAST under this Agreement IN the preceding 12 months; provided, however, that such limitation shall not apply in the case of a party’s gross negligence or willful misconduct.
The party seeking indemnification (the “Indemnified Party”), will notify the other party (the “Indemnifying Party”) promptly in writing of any claim covered by the foregoing indemnifications. The parties agree to cooperate fully during such proceedings. The Indemnifying Party will have the right to defend any such claim with attorneys that are reasonably acceptable to the Indemnified Party, and will have control over the litigation, negotiation, and settlement of, any claim. The Indemnified Party may be represented by separate counsel at its own expense. Neither party will make any settlement that materially affects the rights of the other party, nor will either party be responsible for indemnifying the other party for any settlement made without the indemnifying party’s consent, which will not be unreasonably withheld or delayed.
Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to Customer’s use of the Moontoast Products or this Agreement (“Claim”) must be filed within one year after such Claim arose or be forever barred. Any Claims must be resolved in accordance with one of the subsections below or as the parties otherwise agree in writing.
The formation, construction and interpretation of this Agreement is controlled by the laws of the Commonwealth of Massachusetts excluding any rule or principle that would refer to and apply the substantive law of any other state or jurisdiction.
For any Claim (excluding Claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, either party to the Claim may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration (and if such election is made, the Claim must be arbitrated as provided herein). In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
This Agreement, consisting of the Sales Order, the Terms of Service (found at http://www.moontoast.com/legal/terms-of-service), the Security and Privacy Statement (found at http://www.moontoast.com/legal/privacypolicy), and the Service Level Agreement (found at http://www.moontoast.com/legal/SLA) together with exhibits and any amendments entered into by the parties (if any), constitutes the entire agreement between the parties and supersedes any prior or contemporaneous communications, representations or agreements between the parties, whether oral or written, regarding the subject matter of this Agreement. If any provision of this Agreement is found to be void, invalid or unenforceable: (a) the same will be conformed to the extent necessary to comply with applicable law or stricken if not so conformable, so as not to affect the validity of this Agreement; and (b) the remaining provisions will remain in effect. No amendment of this Agreement or any exhibit is binding unless in writing and executed by each of the parties. Any waiver or consent is valid only if in a signed writing and only in the specific instance in which it is given, and such waiver or consent is not to be construed as a waiver of any subsequent breach of any other provision or as a consent with respect to any similar instance or circumstance. This Agreement does not confer any third party beneficiary rights and does not create a joint venture, partnership or employment relationship between the parties. Except as expressly provided herein, neither party has the right, power or authority to create any obligation or duty, express or implied, on behalf of the other. This Agreement inures to the benefit of and is binding upon the parties and their respective legal representatives, successors, and assigns. Customer may not directly or indirectly, including by assignment, operation of law or change of control, transfer or assign this Agreement without Moontoast’s prior written consent. In the event a party incurs legal expenses to enforce this Agreement, the prevailing party, as determined by a court of competent jurisdiction, will be entitled to recover such legal expenses, including, without limitation, reasonable attorneys’ fees, costs, and necessary disbursements, in addition to any other relief to which such party is entitled. This Agreement may be executed in counterparts, each of which will be an original, and all of which together will be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission will have the same legal effect as delivery of an original signed copy of this Agreement. The headings of this Agreement are provided for convenience only and are not intended to affect its construction or interpretation. Any notice required or permitted under this Agreement must be in writing and sent to the address and the attention of the person set forth on the signature page to this Agreement, unless a party changes such information by notice given pursuant to this section. If an act of God, government, war, terrorism, fire, flood, or other causes beyond the reasonable control of a party prevent[s] such party from performing its obligations, such nonperformance will be excused and will not be a breach for so long as such conditions prevail.
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