MoovCheckout Terms of Service
VERSION EFFECTIVE DATE: Nov 21, 2016
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ALL OR ANY PORTION OF MOOVCHECKOUT, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE MOOVCHECKOUT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU.
IF YOU ARE USING MOOVCHECKOUT AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
These Moovweb MoovCheckout Terms of Service (“Agreement”) are entered into by and between Moov Corporation (“Moovweb”) and the entity or person placing an order for or accessing MoovCheckout (“Customer” or “you”). The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to MoovCheckout (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form (as defined below) referencing this Agreement. This Agreement consists of the terms and conditions set forth below, any attachments or exhibits identified below and any Order Forms that reference this Agreement.
This Agreement permits you to purchase a subscription to MoovCheckout and related Professional Services from Moovweb pursuant to a Moovweb or Reseller (as defined below) purchase authorization, order form or online registration referencing this Agreement (“Order Form(s)”) and sets forth the basic terms and conditions under which MoovCheckout and related Professional Services will be delivered. This Agreement shall govern your initial purchase on the Effective Date as well as any future purchases made by you that reference this Agreement.
Purchase from Reseller: If you purchase MoovCheckout from an authorized reseller of Moovweb (“Reseller”), your use of MoovCheckout shall be governed by this Agreement, subject to Section 15.13 (Purchase from Reseller) below.
Modifications to this Agreement: From time to time, Moovweb may modify this Agreement. Unless otherwise specified by Moovweb, changes become effective upon renewal of your then-current Subscription Term (as defined below). Moovweb will use reasonable efforts to notify you of the changes through communications through your Moovweb account, email or other means. You may be required to click to accept or otherwise agree to the modified Agreement before using MoovCheckout in a renewal Subscription Term, and in any event continued use of MoovCheckout during the renewal Subscription Term will constitute your acceptance of the version of the Agreement in effect at the time the renewal Subscription Term begins.
MoovCheckout is designed to help Customers transform their online checkout experience through user experience enhancements and analytics for testing, iterating and refining the shopping cart experience they provide to Visitors of Customer Properties. As an additional feature of MoovCheckout, Moovweb may also offer industry best practice reports and recommendations on increasing conversions and otherwise optimizing the online checkout process. The reporting, analytics and recommendations features of MoovCheckout work by collecting and analyzing Checkout Data from Moovweb Tags which Customer implements on its Customer Properties.
1.1. “Business Manager” means the web‐based user dashboard of MoovCheckout for Customer to manage its account, review analytics and configure variations of the user checkout experience on Customer Properties.
1.2. “Checkout Data” means the data collected via Moovweb Tags concerning the characteristics and activities of Visitors interacting with the Customer Properties.
1.3. “Customer Properties” means Customer’s owned‐andoperated properties specified in the applicable Order Form. “Customer Properties” may include Customer’s web domains or websites, mobile applications or any other types of platforms or properties as may be supported by Moovweb.
1.4. “Documentation” means Moovweb’s technical specification documentation relating to MoovCheckout as made generally available to Moovweb customers and users.
1.5. “MoovCheckout” means Moovweb’s proprietary software-as‐a‐service e‐commerce optimization and analytics product identified on the Order Form. MoovCheckout includes any related Moovweb Tags, Documentation or other code or features made available to Customer.
1.7. “Reports” means the industry benchmark or best practice guidance, recommendations or similar reports, if any, identified on the applicable Order Form to be provided by Moovweb to Customer as part of MoovCheckout.
1.8. “Visitor” means any visitor to a Customer Property with which Customer is using MoovCheckout.
2.1. Provision of MoovCheckout. MoovCheckout is provided on a subscription basis for a set term designated on the Order Form (each, a “Subscription Term”). Moovweb may also offer Professional Services (as defined in Section 10) related to MoovCheckout. Customer shall purchase and Moovweb shall provide MoovCheckout and related Professional Services (if any) as specified in the applicable Order Form.
2.2. Access to MoovCheckout. Customer may access and use MoovCheckout solely for its own benefit and in accordance with the terms and conditions of this Agreement, the Documentation and any scope of use restrictions designated in the applicable Order Form. Subject to the terms and conditions of this Agreement and as further described in the Documentation, this includes the right for Customer to implement the Moovweb Tags on Customer Properties and to use Reports for its internal business purposes only. Use of and access to MoovCheckout is permitted only by employees of Customer (“Permitted Users”). If Customer is given passwords to access MoovCheckout on Moovweb’s systems, Customer shall require that all Permitted Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. Customer shall be responsible for any and all actions taken using Customer’s accounts and passwords, and shall immediately notify Moovweb if any Permitted User who has access to a user ID is no longer an employee of Customer.
2.3. Contractors and Affiliates. Customer may permit its independent contractors and consultants who are not competitors of Moovweb (“Contractors”) and Affiliates (as defined below) to serve as Permitted Users, provided Customer remains responsible for compliance by each such Contractor or Affiliate with all of the terms and conditions of this Agreement and any such use of MoovCheckout by such Contractor or Affiliate is for the sole benefit of Customer. Use of MoovCheckout by Affiliates, Contractors and Customer in the aggregate must be within the restrictions in the applicable Order Form. “Affiliate” means any entity under the control of Customer where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity. The Affiliate rights granted in this section shall not apply to any “enterprise wide” licenses unless Affiliate usage is designated in the applicable Order Form.
2.4. Configuration Requirements. Customer must implement Moovweb Tags within the Customer Properties in order to enable the features of MoovCheckout as well as the collection of data from Visitors’ interactions with the Customer Properties for analytics and reporting by Moovweb. Customer shall: (a) implement the Moovweb Tags in strict accordance with written instructions provided by Moovweb; (b) coordinate with Moovweb following such implementation to address any service or technical issues; (c) not modify or alter the Moovweb Tags except as expressly authorized by Moovweb; and (d) otherwise cooperate with Moovweb as reasonably requested to set up and configure MoovCheckout, including by meeting any requirements set forth in a separate customer requirements document, guidelines or other documentation provided by Moovweb from time to time.
2.5. Changes to Customer Properties. Customer acknowledges that any changes made to the Customer Properties after initial implementation of the Moovweb Tags may cause MoovCheckout to cease working or function improperly and that Moovweb will have no responsibility for the impact of any such Customer changes. Customer will notify Moovweb in advance of any changes Customer intends to make to the underlying code or design of the Customer Properties and cooperate with Moovweb to implement any new widgets or changes to Moovweb Tags as required for continued operation of MoovCheckout. If material assistance is required from Moovweb to implement such changes, Customer acknowledges that Moovweb may, with advance notice, charge its standard Professional Services rates for such assistance.
2.6. Use of Cookie IDs. Moovweb Tags cause a unique cookie ID to be associated with each Visitor to the Customer Properties which enables Moovweb to provide MoovCheckout.
2.7. General Restrictions. Customer shall not (and shall not permit any third party to): (a) rent, lease, provide access to or sublicense MoovCheckout to a third party; (b) use MoovCheckout to provide, or incorporate MoovCheckout into, any product or service provided to a third party, except for the Customer Properties; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non‐public APIs to MoovCheckout, except to the extent expressly permitted by applicable law (and then only upon advance notice to Moovweb); (d) copy or modify MoovCheckout (including any Moovweb Tags or any Documentation), or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in MoovCheckout (including any reports or data printed from MoovCheckout); or (f) publicly disseminate information regarding the performance of MoovCheckout.
2.8. Special Provision Regarding Beta Releases. As part of Moovweb’s effort to extend the functionality of MoovCheckout, certain Moovweb Tags or features of MoovCheckout may be made available by Moovweb to customers on a “beta” or “evaluation” basis (“Beta Releases”). Use of Beta Releases may require payment of additional fees. If Customer chooses to use a Beta Release, Customer acknowledges that the Beta Release may not be complete or fully functional and may contain bugs, errors, omissions and other problems. Furthermore, while Moovweb may use good faith efforts to assist Customer with use of a Beta Release, Moovweb provides all Beta Releases “AS IS” without any support, warranty, maintenance, error correction or other obligation of any kind. Moovweb may revoke Customer’s right to use any Beta Release at any time without liability and does not guarantee that future versions of a Beta Release will be made available under the same commercial or other terms. This Section 2.8 shall apply to all Beta Releases notwithstanding anything to the contrary herein.
3. CHECKOUT DATA
3.1. Rights in Checkout Data.
(a) Customer Rights. As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Checkout Data.
(b) Moovweb Use of Checkout Data. Subject to the terms of this Agreement, Customer hereby grants to Moovweb a non‐exclusive, worldwide, royalty‐free right to use, copy, store, transmit, modify, and create derivative works of the Checkout Data: (a) to provide MoovCheckout and display Checkout Data to Customer and (b) internally to operate and improve MoovCheckout. Moovweb may also aggregate Checkout Data with other data so that the results are anonymized and non‐personally identifiable with respect to Customer (“Aggregate/Anonymous Data”). Notwithstanding anything to the contrary herein, Moovweb may use such Aggregate/Anonymous Data for any business purpose, including to create Reports for distribution to and consumption by Customer and other Moovweb customers. For clarity, this Section 3.1(b) does not give Moovweb the right to identify Customer as the source of any Aggregate/Anonymous Data included in Reports or shared with other Moovweb customers.
3.2. Storage of Checkout Data. Moovweb does not provide an archiving service. Moovweb agrees only that it shall not intentionally delete any Checkout Data from MoovCheckout prior to termination of Customer’s applicable Subscription Term. Moovweb expressly disclaims all other obligations with respect to storage.
3.4. Indemnification by Customer. Customer shall indemnify, defend and hold harmless Moovweb from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to (a) breach or alleged breach by Customer of Section 3.3 (Customer Obligations), (b) any unauthorized modification or configuration of Moovweb Tags by Customer or any third party acting on Customer’s behalf, or (c) any service or product offered by Customer in connection with or related to MoovCheckout. This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of Moovweb at Customer’s expense.
4.1. Moovweb Technology. This is a subscription agreement for access to and use of MoovCheckout. Customer acknowledges that it is obtaining only a limited right to MoovCheckout and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that Moovweb or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to MoovCheckout, Reports, Professional Services deliverables and any and all related and underlying technology and documentation; and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, “Moovweb Technology”). Except as expressly set forth in this Agreement, no rights in any Moovweb Technology are granted to Customer. Further, Customer acknowledges that MoovCheckout is offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of MoovCheckout.
4.2. Feedback. Customer, from time to time, may submit comments, questions, suggestions or other feedback relating to any Moovweb product or service to Moovweb (“Feedback”). Moovweb may freely use or exploit Feedback in connection with any of its products or services.
5. SUBSCRIPTION TERM, FEES & PAYMENT
5.1. Subscription Term and Renewals. Unless otherwise specified on the applicable Order Form, each Subscription Term shall automatically renew for additional twelve month periods unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term.
5.2. Fees and Payment. All fees are as set forth in the applicable Order Form or SOW and shall be paid by Customer (in U.S. dollars)
within thirty (30) days of invoice, unless otherwise specified in the applicable Order Form. Except as expressly set forth in Section 7 (Limited Warranty), Section 8 (Availability and Service Credits) and Section 12 (Indemnification), all fees are non-refundable. The rates in the Order Form are valid for the initial Subscription Term and thereafter Moovweb may revise its fees upon thirty (30) days’ prior written notice to Customer. Customer is required to pay any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Moovweb. Any late payments shall be subject to a service MoovCheckout Terms of Service 2016 11 07.docx Page 3 of 6 charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
5.3. If Customer’s account is fifteen (15) days or more overdue, in addition to any of its other rights or
remedies (including but not limited to any termination rights set forth herein), Moovweb reserves the right to suspend Customer’s access to MoovCheckout (and any related services) without liability to Customer until such amounts are paid in full.
6. TERM AND TERMINATION
6.1. Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.
6.2. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms and SOWs) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
6.3. Effect of Termination. Upon any expiration or termination of this Agreement, Customer shall immediately: (a) cease any and all use of and access to MoovCheckout (including any and all related Moovweb Technology), (b) delete (or, at Moovweb’s request, return) any and all copies of the Documentation, any Moovweb passwords or access codes and any other Moovweb Confidential Information in its possession, and (c) pay any outstanding amounts due for MoovCheckout and any Professional Services provided through the termination date or otherwise contractually committed. Provided this Agreement was not terminated for Customer’s breach, Customer may retain and use internally copies of all Reports exported from MoovCheckout prior to termination. Customer acknowledges that following termination it shall have no further access to any Checkout Data input into MoovCheckout, and that Moovweb may delete any such data as may have been stored by Moovweb at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
6.4. Survival. The following Sections shall survive any expiration or termination of this Agreement: 2.7 (General Restrictions), 3.1(b) (Moovweb Use of Checkout Data), 3.2 (Storage of Checkout Data), 3.4 (Indemnification by Customer), 4 (Ownership), 5.2 (Fees and Payment), 6 (Term and Termination), 7.2 (Warranty Disclaimer), 11 (Limitation of Remedies and Damages), 12 (Indemnification), 13 (Confidential Information) and 15 (General Terms).
7. LIMITED WARRANTY
7.3. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
8. AVAILABILITY AND SERVICE CREDITS. MoovCheckout is subject to Moovweb’s Service Level Agreement located at https://help.dev-moovweb.pantheonsite.io/hc/en-us/articles/217933928-Service-Level-Agreement.
9. SUPPORT. During each Subscription Term, Moovweb shall provide end user support in accordance with the terms of its Customer Support Policy located at https://help.dev-moovweb.pantheonsite.io/hc/en-us/articles/218443447- Customer-Support-Policy.
10. PROFESSIONAL SERVICES. Moovweb shall provide the professional consulting services (“Professional Services”) purchased in the applicable Order Form. The scope of Professional Services shall be as set forth in a Statement of Work referencing this Agreement and executed by both parties describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information (“SOW”). Unless Professional Services are provided on a fixed-fee basis, Customer shall pay Moovweb at the per-hour rates set forth in the Order Form (or, if not specified, at Moovweb’s then-standard rates) for any excess services. Customer will reimburse Moovweb for reasonable travel and lodging expenses as incurred. Customer may use anything delivered as part of the Professional Services in support of authorized use of MoovCheckout and subject to the terms regarding Customer’s rights to use MoovCheckout set forth in Section 2 (MoovCheckout) and the applicable SOW, but Moovweb shall retain all right, title and interest in and to any such work product, code or deliverables and any derivative, enhancement or modification thereof created by Moovweb (or its agents).
11. LIMITATION OF REMEDIES AND DAMAGES
11.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY NOR ITS SUPPLIERS SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
11.2. Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, MOOVWEB’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO MOOVWEB DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT.
11.3. Excluded Claims. “Excluded Claims” means any claim arising (a) from Customer’s breach of Section 2.7 (General Restrictions); (b) from a party’s breach of its obligations in Section 13 (Confidential Information) (but excluding claims arising from operation or non-operation of MoovCheckout); or (c) amounts payable to third parties pursuant to a party’s indemnification obligations.
11.4. Failure of Essential Purpose. The parties agree that the limitations specified in this Section 11 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
12. INDEMNIFICATION. Moovweb shall defend Customer from and against any claim by a third party alleging that MoovCheckout when used as authorized under this Agreement infringes a U.S. patent, U.S. copyright, or U.S. trademark and shall indemnify and hold harmless Customer from and against any damages and costs awarded against Customer or agreed in settlement by Moovweb (including reasonable attorneys’ fees) resulting from such claim, provided that Moovweb shall have received from Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for Moovweb to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. If Customer’s use of MoovCheckout is (or in Moovweb’s opinion is likely to be) enjoined, if required by settlement or if Moovweb determines such actions are reasonably necessary to avoid material liability, Moovweb may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using MoovCheckout; or if (a) and (b) are not commercially reasonable, (c) terminate the Agreement and refund to Customer the fees paid by Customer for the portion of the Subscription Term that was paid by Customer but not rendered by Moovweb. The foregoing indemnification obligation of Moovweb shall not apply: (1) if MoovCheckout is modified by any party other than Moovweb, but solely to the extent the alleged infringement is caused by such modification; (2) if MoovCheckout is combined with other non-Moovweb products or processes not authorized by Moovweb, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of MoovCheckout; or (4) if Customer settles or makes any admissions with respect to a claim without Moovweb’s prior written consent. THIS SECTION 12 SETS FORTH MOOVWEB’S AND ITS SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
13. CONFIDENTIAL INFORMATION. Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Moovweb Technology, performance information relating to MoovCheckout, and the terms and conditions of this Agreement shall be deemed Confidential Information of Moovweb without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Moovweb, the subcontractors referenced in Section 15.9), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 13 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 13. The Receiving Party’s confidentiality obligations shall not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
14. PUBLICITY; BRANDING. At Moovweb’s request, Customer agrees to the following marketing activities: (a) the issuance of a joint press release on a mutually agreed upon date or the ninetieth (90th) day from the Effective Date, whichever is earlier, provided that each party will have the right to approve such press release in advance; (b) Moovweb’s use of Customer’s name and logo on Moovweb’s web site and in Moovweb marketing materials; (c) participation in other reasonable co-marketing activities, such as creating a case study, collaborating on white papers, or developing a joint marketing plan. Any such comarketing activities shall be subject to mutual agreement and review and approval over any marketing materials developed in connection with such co-marketing activities prior to distribution. Customer agrees that Moovweb may disclose Customer as a customer of Moovweb. Customer further acknowledges that a “Powered by MoovCheckout” footer will appear on each checkout page of the Customer Properties utilizing MoovCheckout.
15. GENERAL TERMS
15.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 15.1 will be null and void.
15.2. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
15.3. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in San Francisco, California and both parties hereby submit to the personal jurisdiction of such courts.
15.4. Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
15.5. Notice. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.
15.6. Amendments; Waivers. Except as otherwise provided herein, no supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
15.7. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that MoovCheckout is an on-line, subscription-based product, and that in order to provide improved customer experience Moovweb may make changes to MoovCheckout, and Moovweb will update the Documentation accordingly. The support and service level availability terms described in Section 8 (Availability and Service Credits) and Section 9 (Support), respectively, may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices (but the modifications will not materially decrease Moovweb’s obligations as compared to those reflected in such terms as of the Effective Date).
15.8. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
15.9. Subcontractors.“Moovweb may use the services of subcontractors and permit them to exercise the rights granted to Moovweb in order to provide MoovCheckout and Professional Services under this Agreement, provided that Moovweb remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of MoovCheckout as required under this Agreement.
15.10. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
15.11. Export Control. In its use of MoovCheckout, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) 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, (ii) Customer shall not (and shall not permit any of its users to) access or use MoovCheckout in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer shall not submit to MoovCheckout any information that is controlled under the U.S. International Traffic in Arms Regulations.
15.12. Government End-Users. Elements of MoovCheckout are commercial computer software. If the user or licensee of MoovCheckout is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of MoovCheckout, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. MoovCheckout was developed fully at private expense. All other use is prohibited.
15.13. Purchase from Reseller. Notwithstanding anything to the contrary in this Agreement, if Customer purchased MoovCheckout through a Reseller, the following terms are applicable and shall prevail in event of any conflict with any other provisions of this Agreement.
a) The terms of this Agreement constitute the only terms applicable to provision of MoovCheckout to Customer and no terms between Customer and Reseller shall apply to use or access of MoovCheckout.
b) Reseller has no authority to make any statements, representations, warranties or commitments on Moovweb’s behalf and any such statements, representations, warranties or commitments are null and void.
c) Customer may place orders for MoovCheckout by executing an Order Form with Reseller and paying Reseller fees as specified therein.
d) In the event Customer is entitled to a refund under this Agreement, Customer must request such refund through Reseller. Any request sent directly to Moovweb may be redirected to Reseller. Moovweb will refund any applicable fees to Reseller and Reseller shall be solely responsible for refunding such fees to Customer. Moovweb shall have no further liability to Customer in the event Reseller fails to refund such fees to Customer.
e) If Reseller fails to pay Moovweb applicable fees for MoovCheckout, Moovweb reserves the right to suspend provision of MoovCheckout in accordance with Section 5.3 (Suspension of Service).
f) Customer may purchase renewal subscriptions or Professional Services under this Agreement directly from Moovweb pursuant to an Order Form and SOW (if applicable).
g) Customer shall receive end user support directly from Moovweb during the applicable Subscription Term in accordance with the terms of this Agreement.
h) If Reseller is providing Customer with consulting or other professional services related to MoovCheckout, such services shall be provided under the terms of a separate agreement between Reseller and Customer. For clarity, the provisions regarding Professional Services in this Agreement apply solely to services provided by Moovweb.
i) This Agreement shall survive any termination of Customer’s agreement with Reseller so long as Moovweb has received payment for Customer’s current Subscription Term.