1. Limited Right to Use.
This Site is owned and operated by Modyo. Unless otherwise specified, all Materials on this Site are the property of Modyo and are protected by the copyright laws of the United States and throughout the world. You may use, view, print, and/or download the Materials from this Site solely for your personal, informational use within your organization, provided that you must keep intact all copyright and other proprietary notices. You may not copy or distribute any Materials published by Modyo on this Site or any portion of those Materials beyond your organization without Modyo's prior written permission (or permission of Modyo's third-party provider if the Material is owned by that provider). This includes any copying, reproduction, modification, republication, uploading, posting or directly or indirectly sending any Materials (or portions of Materials) in any form or by any means. However, this does not restrict you from linking to publicly available Materials, excluding any Materials available in a part of the Site that requires a password to enter or is otherwise restricted ("Publicly Available Materials"), using any sharing methods Modyo provides on this Site for sharing Publicly Available Materials, or referencing or citing Publicly Available Materials, provided that, in all of these instances, you must properly identify Modyo as the source of the Publicly Available Materials. Materials available in a part of the Site that requires a password to enter or is otherwise restricted must be treated as Confidential Information unless otherwise marked and may not be not used or disclosed except as expressly permitted in a written agreement with Modyo.
This Site is not offered to any person under the age of 13. If you are over the age of 13 but under the age of 18, you must either: (i) be an emancipated minor, or (ii) have obtained the legal consent of your parent or legal guardian to use this Site and enter into these Terms.
3. Links and Frames.
Links to other sites may be provided on this Site for your convenience. By providing these links, Modyo is not endorsing, sponsoring or recommending such sites or the materials disseminated by or services provided by them, and are not responsible for the materials, services or other situations at or related to or from any other site, and make no representations concerning the content of sites listed in any part of this Site. Consequently, Modyo cannot be held responsible for the accuracy, relevancy, copyright compliance, legality or decency of material contained in sites listed in any search results or otherwise linked to this Site. For example, if you "click" on a banner advertisement or a search result, your "click" may take you off this Site. This may include links from advertisers, sponsors, and content partners that may use Modyo's logo(s) as part of a co-branding agreement. These other sites may send their own cookies to users, collect data, solicit personal information, or contain information that you may find inappropriate or offensive. In addition, advertisers may send cookies to users that Modyo does not control. Modyo reserves the right to disable links from any third-party sites to this Site.
5. Password and Security.
If you are issued or create any password or other credentials to access this Site or any parts of functionalities that are part of this Site, you agree not to give or make available your password or credentials to any unauthorized individuals, and you agree to be responsible for all actions taken by anyone to whom you have provided such credentials. If you believe that your credentials have been lost or stolen or that someone may attempt to use them to access this Site without your consent, you must notify Modyo at once at the address specified below.
6. Interactive Features.
This Site may include opportunities for you to access, view and provide content for this Site, such as blogs, comment sections, discussion forums and other similar interactive features ("Interactive Features"). If you have any questions specifically regarding the Interactive Features (or the related portions of this Site), please contact Modyo at [email protected]. You alone are responsible for your use of any Interactive Features and you use them at your own risk. Any content questions, comments, suggestions, information, ideas, concepts, photographs, graphics or other materials, whether oral, written or electronic (collectively, "Content") which you submit through an Interactive Feature must pertain to the designated topic or theme of the applicable Interactive Feature. You may not use this Site or any Interactive Features in any way that (as determined by Modyo) impairs, restricts or inhibits anyone else from enjoying or using this Site or the Interactive Features. More specifically, you represent, warrant and otherwise confirm the following:
7. Interference and Malicious Code.
You may not use this Site, including uploading, posting or otherwise transmitting any Content, that could in any way transmit, directly or indirectly, any form of malicious or unwanted code or program to this Site or any websites, servers, networks, systems or equipment of Modyo or any third party, or would otherwise interfere with or disrupt this Site or any websites, servers, networks, systems or equipment of Modyo or any third party. You must at all times abide by all policies, procedures and other requirements established by any networks connected to this Site. You also may not employ any spiders, robots or other similar data mining programs or techniques on any Materials or otherwise in connection with your use of this Site.
You agree that Modyo has the right, but not the obligation, to monitor your use of this Site as well as any Content posted or uploaded to this Site. Modyo performs this monitoring for purposes of ensuring compliance with these Terms, compliance with any applicable laws or regulations, and understanding users' use of this Site and the Interactive Features, but this monitoring may be for any purpose permitted or authorized by applicable law, regulation or government or industry agent. Modyo may (although is not obligated to), screen, disable, remove or otherwise edit any Content you or any other user posts, uploads or references to or in connection with this Site. You agree that Modyo is not required to notify you (or any other user) of any such screening or editing. Furthermore, you agree that you have no expectation that Modyo will return that Content or otherwise make such Content available to you or any other user after it is edited or deleted (including any expectation that Modyo will create or maintain any backup or archival copies of such Content for any period of time), and Modyo has no responsibility to do so or liability if it does not do so.
9. License to Content.
If you submit any Content in connection with this Site or your use of this Site, you directly and expressly agree that these submissions are not confidential. These submissions will not, in any way, create any confidential or other relationship between you and Modyo. By posting, uploading, referencing or otherwise submitting any Content to this Site or to Modyo directly, you grant Modyo and its affiliates a perpetual, irrevocable, non-exclusive, worldwide right and license to use, publish, reproduce, modify, adapt, edit, translate, create derivative works from, incorporate into other works, distribute, sublicense and otherwise exploit all such Content, in part or in whole, in any way and in any form, whether now known or otherwise developed hereafter. Further, you agree that you will not receive any royalty or any other payment or attribution or acknowledgement and that neither Modyo nor its affiliates shall owe you any other obligation. You agree that Modyo may take any and all legal action available to it against any person or entity if that person or entity violates your or Modyo's rights in your Content through a breach of these Terms. If you retain moral rights (including rights of attribution or integrity) in your Content, you hereby declare that: (a) you do not require that any personally identifying information be used in connection with the use of your Content, or any updates, improvements or derivative works made to or from your Content; (b) you do not object to any publication, modification, editing, deletion or other use of your Content by Modyo or any of its successors or assigns; (c) you fully and forever waive any right you have to claim or assert entitlement to any and all moral rights of an author regarding your Content; and (d) you fully and forever release Modyo and its directors, officers, employees, agents, licensees, successors and assigns from any claims that you could otherwise assert against Modyo by virtue of any such moral rights.
10. Third-Party Content.
Modyo receives some of the Materials on this Site from third parties, including other users. All statements, opinions, advice, criticisms, offers or other information stated or expressed by any such third parties reflect solely the opinion and belief of the respective third party making such statement, and not that of Modyo or any of its affiliates. Modyo makes no endorsement, guarantee or other statement, express or implied, about such third-party Materials, including that any such third-party Materials are accurate, complete, timely, corroborated or otherwise useful or appropriate for any use or circumstance. You must independently evaluate any such third-party Materials yourself if you intend to rely in any way on the information contained in or provided in connection with such third-party Materials, and you alone must engage any appropriate professionals necessary or prudent in making that evaluation (which Modyo recommends you do).
11. Copyright Notice.
Materials may be made available to you via this Site that come from third parties not within Modyo's control. In connection with the Digital Millennium Copyright Act (DMCA), while Modyo fully respects the copyright interest of all of Modyo's users and all such third parties, Modyo has no obligation to, and does not, scan Materials or any content uploaded, provided, posted or otherwise used in connection with this Site for the inclusion of illegal, infringing, improper, unauthorized or impermissible content. However, as a matter of policy, Modyo does not allow Materials it knows are infringing another person or entity's copyright to remain on this Site. To assist Modyo with this policy, you agree that, if you believe any Materials on this Site may infringe or otherwise violate your or any other person or entity's copyright, you will write to Modyo (at [email protected] ) as soon as you reasonably can specifying the Materials you believe are infringing and the reasons why. If you wish to send a formal notice of infringement of your copyright under the DMCA, your notice (to the email address listed above) must specify or provide, at least:
A physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; Identification of the material that is claimed to be infringing or to be the subject of infringing activity that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Modyo to locate the material; Information reasonably sufficient to permit Modyo to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted; A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of the exclusive right(s) that is allegedly infringed.
12. Required Technology.
Your access and use of this Site may require certain equipment, connectivity services and other technology (e.g., computers or other similar devices, internet connectivity, reading programs, etc.). It is your responsibility to obtain and maintain all of this required technology at your own expense. Although Modyo generally tries to make this Site compatible with available technology, Modyo does not imply or guarantee in any way that this Site will be compatible or otherwise accessible using any specific model, brand or type of technology.
Modyo reserves all rights, title and interest in all Materials posted to this Site, including without limitation all patents, copyrights, trademarks, trade names, service marks and logos of Modyo and its affiliates and licensors ("Intellectual Property"). Except expressly stated in Paragraph 1 above, you have no right to use any of this Intellectual Property, and nothing contained in this Site or these Terms shall imply or grant to you or any other third party any right to use any such Intellectual Property without the prior written permission of Modyo or the respective owner.
You are solely responsible for any unauthorized use of this Site. You agree to indemnify, defend, and hold Modyo harmless from and against any and all claims, liabilities, damages, losses, or expenses (including reasonable attorney's fees and costs) arising out of, based on, or in connection with your access and/or use of this Site.
USE OF THIS SITE AND ANY MATERIALS YOU ACCESS, DOWNLOAD OR OTHERWISE OBTAIN IN CONNECTION WITH YOUR USE OF THIS SITE ARE SOLELY AT YOUR OWN DISCRETION AND RISK. THIS SITE AND ALL MATERIALS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. Modyo HAS AND SHALL HAVE NO RESPONSIBILITY FOR ANY DAMAGE CAUSED TO YOU OR YOUR BELONGINGS (INCLUDING ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA) THAT RESULTS FROM YOUR USE OF THIS SITE OR ANY MATERIALS. Modyo EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THIS SITE AND ALL MATERIALS PROVIDED ON OR THROUGH THE SITE. SPECIFICALLY, Modyo MAKES NO WARRANTY OR STATEMENT THAT: (A) THIS SITE OR ANY MATERIALS WILL MEET YOUR REQUIREMENTS; (B) THIS SITE WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (C) THE MATERIALS THAT MAY BE OBTAINED FROM THE USE OF THIS SITE (OR ANY INFORMATION RELATED TO SUCH MATERIALS OR USE) WILL BE ACCURATE OR RELIABLE; (D) THIS SITE OR THE MATERIALS ON THIS SITE WILL BE MAINTAINED OR UPDATED; OR (E) ANY MATERIALS YOU ACCESS, VIEW, OBTAIN OR OTHERWISE CONSIDER WILL MEET ANY EXPECTATIONS YOU MAY HAVE.
16. Limitation of Liability.
IN NO EVENT SHALL MODYO OR ANY OF ITS AFFILIATES BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, ARISING FROM YOUR ACCESS TO, OR USE OF, THIS SITE OR ANY MATERIALS OR OTHER CONTENT PROVIDED ON OR THROUGH THIS SITE. FURTHERMORE, IN NO EVENT SHALL Modyo OR ANY OF ITS AFFILIATES BE LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF YOU, OTHER USERS OR ANY OTHER THIRD PARTIES. YOU ACKNOWLEDGE AND AGREE THAT THE RISK OF ANY INJURY RELATING THERETO RESTS SOLELY AND ENTIRELY WITH YOU.
17. Remedies for Breach.
If Modyo has reason to believe that you have engaged in any of the prohibited activities described in these Terms or have otherwise breached your obligations under these Terms, Modyo may terminate, suspend or limit your access to or use of this Site; notify law enforcement, regulatory authorities, impacted third parties, and others as we deem appropriate; refuse to provide access to this Site to you in the future; and/or take legal action against you. In addition, Modyo, in its sole discretion, reserves the right to terminate your access to this Site for any reason and at any time.
18. Waiver of Jury Trial.
Both parties agree to waive any right to have a jury participate in the resolution of any dispute or claim between the parties or any of their respective affiliates or employers or any other intended beneficiary arising under or relating to these Terms and the use of this Site.
19. Waiver of Class Action Claims.
Both parties agree to waive any right to assert any dispute or claim against the other party or any other intended beneficiary arising under or relating to these Terms or this Site as a class action.
20. No Waiver.
Modyo shall not be deemed to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by an authorized representative of Modyo. No delay or omission on the part of Modyo in exercising any rights or remedies shall operate as a waiver of such rights or remedies or any other rights or remedies. A waiver on any one occasion shall not be construed as a bar or waiver of any rights or remedies on future occasions.
21. Regional Information.
Information Modyo publishes on this Site may contain references or cross references to Modyo products and services that are not announced or available in your country or region of the world. Such references do not imply that Modyo intends to announce such products or services in your country. Please consult your local Modyo business contact for information regarding the products and services which may be available to you.
22. Site Modifications.
Modyo may, in its discretion, change, limit or remove all or portions of this Site. Modyo may also limit the availability of this Site temporarily or permanently.
23. Modifications to these Terms.
Modyo may add to or otherwise modify these Terms (in whole or in part) at any time. Such changes are at Modyo's discretion, and such additions or modifications shall be effective immediately upon posting to this Site. By using this Site after such additions or modifications are posted, you are agreeing to accept and comply with the Terms as modified.
24. Your Privacy.
25. Privacy of Others.
If you receive information about another person through this Site, you agree to keep the information confidential and only use it in connection with this Site.
26. Our Relationship With You.
Modyo is an independent contractor for all purposes with respect to this Site.
28. Other Modyo Sites.
These Terms are applicable to Modyo's Sites, as specified above. However, Modyo also hosts and provides access to other websites, including websites that provide services ("Other Modyo Sites"), and an Other Modyo Site may have its own terms and conditions posted. Those other terms and conditions shall apply to that Other Modyo Site and the use of any services, functionalities or other offerings made in connection with that Other Modyo Site, and these Terms shall not apply in such circumstances. Furthermore, these Terms shall not apply to any websites Modyo creates for any individual client, and such websites shall be subject to the terms and conditions set forth in the applicable agreement between Modyo and that client.
29. Contact and Inquiries.
If you have any questions regarding these Terms or use of this Site generally, please contact Modyo at [email protected]. If you have any questions specifically regarding the Interactive Features portions of this Site, please contact Modyo at [email protected].
30. Software Access.
This Site may provide access to other Software as a Service products and services from Modyo. In the event of such access you agree to subscribe to the following terms of the Modyo Platform Services Subscription Agreement detailed below or provided to you by your Modyo account executive or a certified partner of Modyo.
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.
32. 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.
33. 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.
34. 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 protect against 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.
35. 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.
36. 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.
37. 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.
38. 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.
39. 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.
40. 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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