MOCO development company, LLC TERMS OF USE

Transcription

1 MOCO development company, LLC TERMS OF USE These Terms of Use ( Terms ) govern your use of the MOCO Website(s), MOCO Software, and MOCO Services (together, the "MOCO Services"): BY CLICKING THE "AGREE" BUTTON/DOWNLOADING/INSTALLING/USING THE MOCO SERVICES, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS; (B) REPRESENT THAT YOU ARE AT OR ABOVE THE AGE OF 13; AND (C) ACCEPT THESE TERMS AND AGREE THAT YOU ARE LEGALLY BOUND BY THEM. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD/ INSTALL/USE THE MOCO SERVICES AND DELETE THEM FROM YOUR DEVICE. THESE TERMS MAY BE UPDATED AT ANY TIME AND YOU SHOULD REVIEW THE TERMS AS THEY ARE UPDATED. ARBITRATION NOTICE: EXCEPT IF YOU OPT-OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND MOCO WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS- WIDE ARBITRATION. Limited License. Subject to these Terms, MOCO grants you a limited, non-exclusive, nontransferrable, revocable license to download, install and use the MOCO Services on device(s) owned or otherwise controlled by you (the "Device") for your personal, non-commercial purposes, strictly in accordance with the MOCO Services documentation and these Terms. Restrictions on Use. You may not, directly or indirectly: (i) reverse engineer, decompile, decode, decrypt, disassemble, or otherwise attempt to derive or gain access to the source code of the MOCO Services or any part thereof; (ii) modify, translate, adapt, alter, or create derivative works from the MOCO Services or improvements thereto; (iii) copy, distribute, publicly display, transmit, sell, rent, lease or otherwise exploit the MOCO Services (including any and all of its user and customer content and information); (iv) distribute, sublicense, rent, lease, sell, assign, publish, transfer, loan (or grant any third party access to or use of) the MOCO Services or otherwise make available the MOCO Services or any features or functionality of the MOCO Services, to any third party for any reason, including by making the MOCO Services available on a network where it is capable of being accessed by more than one device at any time; (v) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the MOCO Services, including any copy thereof; or (vi) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting

2 the MOCO Services. Ownership. You acknowledge and agree that the MOCO Services are provided under license, and not sold, to you. You do not acquire any ownership interest in the MOCO Services under these Terms, or any other rights thereto other than to use the MOCO Services in accordance with the license granted, and subject to all terms, conditions and restrictions, hereunder. MOCO reserves and shall retain its entire right, title and interest in and to the MOCO Services, including all copyrights, trademarks and other intellectual property rights therein or relating thereto. Content and Services. The MOCO Services may provide you with access to MOCO's website located at (or any of its affiliate sites: and ) (the "Website") and products and services accessible thereon, and certain features, functionality and content accessible on or through the MOCO Services may be hosted on the Website (collectively, "Content and Services"). Your access to and use of such Content and Services are governed by these Terms and the Privacy Policy located at which are incorporated herein by this reference. Your access to and use of such Content and Services may require you to acknowledge your acceptance of these Terms and Privacy Policy and/or to register with the Website and your failure to do so may restrict you from accessing or using certain of the MOCO Services' features and functionality. The Content and Services are based in the state of Colorado in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Content and Services from outside the United States, you are responsible for compliance with local laws. Internet Use. Use of the MOCO Services requires internet use. You understand that by accessing the internet to use the MOCO Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the MOCO Services at your sole risk and that MOCO shall not have any liability to you for content that may be found to be offensive, indecent, or objectionable. Usage of Services. Although it is MOCO's intention for the Services to be available as much as possible, there will be occasions when the Services may be interrupted, including, without limitation, for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment. Also, MOCO reserves the right to remove any Content from the Services for any reason, without prior notice. Content removed from the Services may continue to be stored by MOCO, including, without limitation, in order to comply with certain legal obligations, but may not be retrievable without a valid court order. You also

3 acknowledge that the Internet may be subject to breaches of security and that the submission of Content or other information may not be secure. Third Party Materials. The MOCO Services may display, include or make available content, data, information, applications or materials from third parties or provide links to certain third party web sites ( Third Party Materials ). By using the MOCO Services, you acknowledge and agree that MOCO is not responsible for Third Party Materials, including, without limitation, examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials. MOCO does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any Third Party Materials, or for any other materials, products, or services of third parties. Third Party Materials and links are provided solely as a convenience to you and use them at entirely at your own risk and subject to such third parties' terms and conditions. Location data provided by the MOCO Services is for limited navigational purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither MOCO, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of stock information or location data displayed by the MOCO Services. Collection and Use of Your Information. You acknowledge that when you download, install or use the MOCO Services, MOCO may use automatic means (including, for example, cookies and web beacons) to collect information about your Device and about your use of the MOCO Services. You also may be required to provide certain information about yourself as a condition to downloading, installing or using the MOCO Services or certain of its features or functionality, and the MOCO Services may provide you with controllable opportunities to share information about yourself with others. All information we collect through or in connection with the MOCO Services is subject to our Privacy Policy ( By downloading, installing, using and providing information to or through the MOCO Services, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy. Further, you represent that all information you provide or provided to MOCO upon registration and at all other times will be true, accurate, current and complete and you agree to update your information as necessary to maintain its truth and accuracy. You are also responsible for keeping your username and password secret and secure. MOCO has the right to refuse any particular username or password in its sole discretion. Updates. MOCO may from time to time in its sole discretion develop and provide MOCO Services updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that MOCO has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Device settings, when your Device is connected to the internet either: (a) the MOCO Services will automatically download and install all available Updates; or (b) you may receive notice of or be prompted to download and install available

4 Updates. You shall promptly download and install all Updates and acknowledge and agree that the MOCO Services or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the MOCO Services and be subject to all terms and conditions herein. Term and Termination. You are bound to these Terms at the moment when you download/install/use the MOCO Services/acknowledge your acceptance and will continue in effect until terminated by you or MOCO as set forth in this paragraph. You may terminate your duties under these Terms only by deleting the MOCO Services and all copies thereof from your Device. MOCO may terminate your account and this agreement at any time without notice for any reason or if it ceases to support the MOCO Services, which MOCO may do in its sole discretion. In addition, this agreement will terminate immediately and automatically without any notice if you violate any of the Terms. Upon termination: (i) all rights granted to you under these Terms will also terminate; and (ii) you must cease all use of the MOCO Services and delete all copies of the MOCO Services from your Device and account. Termination will not limit any of MOCO's rights or remedies at law or in equity. No Warranty. THE MOCO SERVICES ARE PROVIDED TO YOU "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, MOCO, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE MOCO SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, MOCO PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE MOCO SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MOCO OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE MOCO SERVICES OR THE CONTENT AND SERVICES FOR: (i) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES; (ii) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE MOCO SERVICES. THE FOREGOING LIMITATIONS WILL APPLY WHETHER

5 SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR MOCO WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. Third Party Claims. MOCO shall not be obligated to indemnify or defend you with respect to any third party claim arising out of or relating to the MOCO Services, including but not limited to improper use of educational or institutional information gained from the use of the MOCO Services. Indemnification. You agree to indemnify, defend and hold harmless MOCO and its officers, directors, employees, agents, affiliates, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees, arising from or relating to your use or misuse of the MOCO Services or your breach of this Agreement. Furthermore, you agree that MOCO assumes no responsibility for the content you submit or make available through the MOCO Services. U.S. Legal Compliance. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. Export Regulation. The MOCO Services may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the MOCO Services to, or make the MOCO Services accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the MOCO Services available outside the US. Arbitration. Except if you opt-out or for disputes relating to: (1) your or MOCO's intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights and patents) or (2) violations of the relevant criminal code, you agree that all disputes between you and MOCO (whether or not such dispute involves a third party) with regard to your relationship with MOCO, including without limitation disputes related to these Terms, your use of the MOCO Services, and/or rights of privacy and/or publicity, will be resolved by binding, individual arbitration under the American Arbitration Association's rules for arbitration of consumerrelated disputes and you and MOCO hereby expressly waive trial by jury. Neither you nor MOCO will participate in a class action or class-wide arbitration for any claims covered by this agreement. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if MOCO is a party to the proceeding. This dispute resolution provision will be governed by the Federal

6 Arbitration Act. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either MOCO or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms. You may opt out of this agreement to arbitrate. If you do so, neither you nor MOCO can require the other to participate in an arbitration proceeding. To opt out, you must notify MOCO in writing within 30 days of the date that you first became subject to this arbitration provision. You must use this address to opt out: MOCO development company ATTN: Arbitration Opt-out 3455 West F. St., Greeley, CO You must include your name and residence address, the address you used to register for your account, and a clear statement that you want to opt out of this arbitration agreement. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration section will be null and void. This arbitration agreement will survive the termination of your relationship with MOCO. Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of Colorado, without regard to its conflict of laws rules, AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. If you opted-out of the Arbitration Clause herein, then any legal suit, action or proceeding arising out of or related to these Terms or the MOCO Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of Colorado in each case located in Greeley, Colorado and Weld County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE MOCO SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED. Entire Agreement. These Terms, MOCO s Privacy Policy and, where applicable, MOCO s End User License Agreement constitute the entire agreement between you and MOCO with respect to the MOCO Services and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the MOCO Services.

7 Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between these Terms and any applicable purchase or other terms, the terms herein shall govern. Third-party Beneficiaries. The parties do not confer any rights or remedies upon any person or entity other than the parties subject to these Terms and their respective successors and permitted assigns. Severability. If any provision of these Terms is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of these Terms will continue in full force and effect. Contact Information. Should you have any questions, complaints, or claims relating to the MOCO Services, please contact us at support@mocodevco.com.