Platform Terms and Conditions
Modyo and ModyoDX™ “Modyo” Platform Services Subscription Agreement
USE OF SERVICES FROM MODYO BV ("MODYO" OR "USER") IS OPERATED VIA SUB-LICENSE FROM MODYO LTD AND YOUR USE IS ONLY UNDER SUBSCRIPTION FROM MODYO OR AN AUTHORIZED PARTNER OR RESELLER OF MODYO SERVICES ("MODYO PARTNER"). BY USING ANY MODYO SERVICES (S), THE INDIVIDUAL OR ENTITY USING THE SERVICE (S) ("USER" or "YOU") IS CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT. IF USER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE USER MUST NOT ACCESS OR USE THE SERVICE.
a. Modyo.com Platform Evaluation Use. The terms of this Section 1(a) are applicable to you if you have registered as an Evaluation user. Subject to the terms of this Agreement, MODYO grants to you a non-exclusive, non-transferable, access to use the evaluation version of the Platform solely for Evaluation Use. This use begins upon accessing the Platform through the Modyo.com domain, API or Modyo.com’s Cloud environment, and ends thirty (30) days thereafter (the "Evaluation Period") unless otherwise specified in writing by MODYO or a MODYO Partner. MODYO is under no obligation to provide User with Updates, Upgrades or Support Services during the Evaluation Period. When the access expires you must stop using the Platform. All rights not specifically granted to you herein are retained by MODYO.
b.ModyoDX™ Developer Platform Services. The terms of this Section 1(b) are applicable to you if you have registered as a Development Use partner. Subject to the terms of this Agreement, MODYO grants to you a non-exclusive, non-transferable, fee-bearing access to use the Platform for the Development of solutions or applications for the number of Admins, Developers and/or Sites, as specified in Modyo.com's platform as a service distribution method and monthly invoice. All rights not specifically granted to you herein are retained by MODYO.
c. ModyoDX™ Enterprise Platform Services. The terms of this Section 1(c) are applicable to you if you have registered or contracted Modyo.com as an enterprise Use customer “ModyoDX™ Platform”. Subject to the terms of this Agreement, MODYO grants to you non-exclusive, non-transferable, fee-bearing access to use the Platform for enterprise solution development, as specified on MODYO's monthly invoice or through an order form or contract. If you integrate the Platform into an application and intend to resell the resulting integrated applications you must contact MODYO to obtain the appropriate certification of platform service usage. All rights not specifically granted to you herein are retained by MODYO.
d. Restrictions on Use. You may not reverse engineer, decompile, disassemble or otherwise attempt to determine source code or protocols from the Platform or disclose the results of Platform performance benchmarks to any third party without MODYO's prior written consent. You may not redistribute, lease, rent, resell, encumber, sell, or transfer the Platform to any third party, or otherwise use it except as permitted in this Agreement. You may not remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Platform or in the output of the Platform. You agree to protect the Platform with the reasonable measure you customarily utilize to protect your own confidential information. You may not publish any results of benchmark tests run on the Platform or make any representations or claims about MODYO or the Platform except as contained in MODYO’s promotional literature or on the MODYO website to a third party without MODYO's prior written consent.
e. Ownership Rights. You shall not create or attempt to create any derivative works from the Platform (“Derivative Works”). Derivative works are solutions or services that are intended to compete with Modyo’s platform. For the purposes of this agreement, custom digital solutions built and distributed with Modyo.com are not considered derivative works provided they comply with the terms of this agreement and comply with a Modyo.com approved monthly subscription. Title, ownership rights and all intellectual property rights in and associated to the Platform shall remain the sole and exclusive property of MODYO.
f. Number of Users. The terms of this Section 1(f) are applicable to you if you are a Development Use customer or Enterprise Use customer. Modyo retains the right to monitor the number of users in the database, as well as any usage information so as to apply the appropriate usage fee monthly in addition to the monthly subscription fees.
g. Territory. The license grants hereunder are distributed from Modyo BV for use globally and applied to the geographical territory into which you access and use the Platform or indicate acceptance of this Agreement or as specified on MODYO’s invoice.
h. Compliance Audit. MODYO may, at any time via its servers conduct an audit to determine and verify that you are in compliance with these terms and conditions. The Audit will be conducted in a manner not intended to unreasonably disrupt your business and will be restricted in scope, manner and duration to that reasonably necessary to achieve its purpose.
2. USAGE FEES.
a. Payment and Taxes. In consideration of the applicable license(s) granted pursuant to Sections 1(a), 1(b) or 1(c), you agree to pay MODYO the total non-refundable and non-cancellable usage fee(s) monthly via credit card or wire transfer upon receipt of MODYO's invoice. You will pay all sales, use, VAT and other consumption taxes, personal property taxes and other taxes (other than those based on MODYO’s net income) unless you furnish MODYO with written proof of exemption.
b.Foreign Taxes. If you use the Platform outside of your home country you agree that the amounts to be remitted to MODYO are to be the actual amounts due without withholding taxes or other assessments by authorities. This is your sole responsibility. You will promptly furnish MODYO with certificates evidencing payment of such amounts in the even a foreign tax authority requests proof of compliance.
3. SUPPORT SERVICES.
You may purchase additional Support Services from MODYO as described in detail at our customer and partner web site (http://www.Modyo.com) in the event such support services are offered by Modyo.
a. Support Services. Support Services means that MODYO will provide, subject to its then- current policies: (i) Training Services (ii) Additional Assistance with respect to the Platform, including (a) Clarification of functions and features for specific solutions; (b) Clarification of documentation; (c) Guidance in the configuration and operation of the Platform.
b.Your Responsibilities. You agree to provide MODYO with reasonable access to your personnel and equipment, if necessary, during normal business hours in order to provide Support Services. You agree to document and provide to MODYO relevant information for which you require Support Services. You agree to pay the Support Services fees when due, and if you do not do so within forty five (45) days after any such amount becomes due, MODYO may suspend performance of its Support Services obligations by providing written notice to the paying subscriber or partner.
c. If any terms of this Platform Services Subscription Agreement conflict with the terms of the Maintenance and Support Services Agreement, the terms of the Maintenance and Support Services Agreement shall govern with respect to the Support Services.
4. SERVICE LEVEL AGREEMENT
A. UPTIME Modyo commits to provide a minimum uptime of 99.9% of the Platform, excluding down time caused by acts or omissions of clients or partners, general Internet failures or force majeure.
B. SECURITY AND COMPLIANCY Modyo takes measures to provide a secure environment housed in Amazon’s cloud and Modyo’s Platform runs from Amazon Web Services (AWS), which have SAS70 Type II2\ certification, which guarantees adequate control, and operational efficiency of the data center infrastructure. All data is stored redundantly in multiple physical locations, guaranteeing high availability. Modyo Platform and corresponding infrastructure follows Amazon approved configurations to protectagainst security threats on data networks, including the following types of attacks: DDoS (Distributed Denial Of Service), MITM (Man In the Middle), IP Spoofing, and Port Scanning. Modyo at its sole discretion may transfer its platform and technologies to other secure cloud locations.
5. LIMITED WARRANTY
a. Limited Warranty. With respect to the Platform for Development Use or Production Use, MODYO warrants that the Platform will conform in accordance with the Documentation. MODYO does not warrant that operation of the Platform will be uninterrupted or "bug" free. If MODYO breaches the foregoing warranty and you promptly notify MODYO of the nature of the breach, MODYO may elect to repair or replace the non-conforming Platform services, without charge.
b.Pre-release Code. Portions of the Platform may be identified as pre-release code (“Pre- release Code” or "Beta Code"). Such Pre-release Code is not at the level of performance and compatibility of the final, generally available product offering. The Pre-release Code may not operate correctly and may be substantially modified prior to first commercial use. MODYO is not obligated to make this or any later version of the Pre-release Code commercially available. The grant of license to use Pre-release Code expires upon availability of a commercial release of the Pre-release Code from MODYO.
c. Disclaimer. THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INLCUDING WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6. LIMITATION OF LIABILITY
a. Platform Use. Use of the Platform is provided as is, therefore, MODYO and its suppliers shall not be liable for any direct, indirect, incidental, special, punitive or consequential damages under any theory of liability whether in tort, contract, strict liability or otherwise even if advised of the possibility of such damages.
7. PLATFORM CHANGES.
MODYO reserves the right at any time to alter features, specifications, capabilities, functions, usage terms, release dates, general availability or other characteriffstics of the Platform. MODYO will act responsibly so as to minimize disruption of any services provided to developers, partners or clients.
8. INTELLECTUAL PROPERTY INDEMNIFICATION.
If a third party claims that your use of the Platform infringes any copyright or other intellectual property right, you must promptly notify MODYO in writing. MODYO will assess the required course of legal action to minimize disruption of Modyo services.
9. TERM AND TERMINATION.
a. Acceptance of Agreement; Termination. This Agreement takes effect upon the earlier of (i) your electronic indication of your selection of acceptance of this Agreement during the Modyo registration process (ii) your accessing the Platform, (iii) your use of the Platform, or (iv) receipt by MODYO of a valid, binding purchase order, Agreement or other ordering document for the Platform, and will remain in force until terminated in accordance with this Agreement (v) your signature of acceptance associated with this agreement. This Agreement may be terminated by you upon thirty (30) days' prior written notice to MODYO; MODYO may, by written notice to you, terminate this Agreement immediately if any of the following events occur: (a) you fail to pay any amount due to MODYO within forty-five (30) days after MODYO gives you written notice via email of such non-payment unless charges or service levels are under dispute; (c) you declare bankruptcy or make an assignment to or for the benefit of creditors.
10. PROPRIETARY RIGHTS.
a. Title, ownership rights, and intellectual property rights in the Platform shall remain in MODYO and/or its suppliers. User acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with MODYO and/or its suppliers' ownership of or rights with respect to the Platform. The Platform is protected by copyright and other intellectual property laws and by international treaties. User agrees, at its expense, to defend and hold MODYO and its affiliates harmless from any and all costs, damages and reasonable attorneys' fees resulting from any claim that User's use of the Platform has injured or otherwise violated any right of any third party or violates any law.
b.Restrictions. You shall not (i) permit any third party to access the Platform except as permitted herein or in an Order Form, (ii) create derivate works based on the Platform except as authorized herein, (iii) copy, frame or mirror any part or content of the Platform, (iv) reverse engineer the Platform, or (v) access the Platform in order to (a) build a competitive service offering, or (b) copy any features, functions or graphics of the Platform.
c. Your Applications and Code. If You, a third party acting on Your behalf, or a User creates applications or program code using the Platform, You authorize Us to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Us to provide the Platform in accordance with this Agreement. Subject to the above, we acquire no right, title or interest from You or the party acting on your behalf under this Agreement in or to such applications or program code.
d. Your Data. Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You or the party acting on your behalf under this Agreement in or to Your Data, including any intellectual property rights therein.
e. Suggestions. We shall have a royalty-free, worldwide, irrevocable, perpetual right to use and incorporate into the Platform any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation and Platform services.
a. Force Majeure. Neither party shall be liable for any delay or failure in performance due to causes beyond its reasonable control.
b.Export Compliance. You may not use or otherwise provide access to the Platform or any underlying information or technology except in full compliance with all Dutch and European Union applicable laws and regulations. In particular, but without limitation, none of the Platform or underlying information or technology may be downloaded or otherwise exported or re-exported (a) into (or to a national or resident of a country forbidden for trade. By using the Platform as a service, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under control of, or a national or resident of any such country forbidden for trade.
c. Assignment. Neither of the Parties may assign this Agreement without the other's prior written consent, which will not be unreasonably withheld.
d. Severability. If any part of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other parts of the Agreement.
e. Waiver. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
f. Notices. All notices permitted or required under this Agreement shall be in writing and shall be delivered by email, or in person by overnight courier service, mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified as accepting these terms and conditions upon completion and ACCEPTANCE of this Agreement during the Modyo registration or sign up process.
g. Governing Law and Venue. Notwithstanding the Territory, this Agreement will be governed by both the substantive and procedural laws of the country of Holland.
h. Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior or contemporaneous oral or written agreements regarding the subject matter hereof. No terms, provisions or conditions of any purchase order, acknowledgment or other business form that you may use in connection with the usage of the Platform will have any effect on the rights, duties or obligations of the parties hereunder or otherwise modify this Agreement, regardless of any failure of MODYO to object to such terms, provisions or conditions.
Acceptance. The earlier of your (i) electronic indication of your selection of acceptance of this Agreement by following the Modyo registration process and proceeding, (ii) accessing the Platform via the Modyo.com domain or the Modyo API, (iii) use of the Platform or (iv) receipt by MODYO of a valid, binding purchase order, Agreement or other ordering document for the Platform, constitutes an acceptance of the terms of this Agreement (v) your signature of acceptance associated with this agreement. If you do not agree to be bound by these provisions, you are required to stop usage of the platform immediately.
a. “Admins” means the number administrators by which the MODYO Platform is accessed.
b."Development Use" means use of the Platform by a Development Use customer to design, develop and/or test new web sites, solutions or applications for Production Use.
c. "Documentation" means MODYO's current user manuals, videos, operating instructions and guides generally provided with the Platform to its Users.
d. "Error" means a failure of the Platform to conform to the specifications as set forth in the Documentation, resulting in the inability to use the Platform or a material restriction in use of the Platform.
e. "Evaluation Use" means use of the Platform solely for evaluation and trial of the Platform and applications you create for non-commercial purposes only. Non-commercial purposes can include the development of prototype web sites, mobile solutions, applications or performance testing, but explicitly excludes the use of such applications in normal business practices including, but not limited to, use in marketing, external demonstration, or any revenue-related use.
f. "Production Use" means using the Platform in your application for business purposes, which may include third party customers' access to or use of such applications. Production Use does not include the right to reproduce the Platform for resale, or distribution, including without limitation, operation on a time-sharing or service bureau basis or distributing the Platform as part of an ASP, distributor or reseller arrangement unless otherwise specified in MODYO’s invoice or a separate agreement between MODYO and User.
g. "Platform" means the object code, databases, applications, extracts and/or Derivative Works electronically accessed and utilized from MODYO’s website or via the Modyo API upon acceptance of this Agreement, and the related solutions and Documentation provided pursuant to the standard Support Services Terms and Conditions.
h. "Support Services" means technical configuration, training and service support for the Platform under MODYO’s then current policies.
i. "Territory" means the geographical territory into which you access the Platform or indicate acceptance of this Agreement or as specified on MODYO’s invoice.
j. "Update" means either a Platform modification or addition that, when made or added to the Platform, corrects the Error, or a procedure or routine that, when observed in the regular operation of the Platform, eliminates the practical adverse effect of the Error.
k. "Upgrade" means a revision of the Platform released by MODYO to its customers generally, during the Support Services Term, to add new and different functions or to increase the capacity of the Platform. Upgrade does not include the release of a new product or added features for which there may be a separate or additional charge. If a question arises as to whether a new product offering is an Upgrade or a new product or feature, MODYO’s opinion will prevail, provided that MODYO treats the product offering as a new product or feature for its customers generally.
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