These Moovweb Platform Subscription Terms of Service (hereinafter, this “Agreement”) are entered into by and between Moov Corporation (“Moovweb”) and the entity or person placing an order or accessing the Services (“Customer”). The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access or use of the Services through any online provisioning, registration or order process (including through any Reseller); or (b) the effective date of the first Order Form (or, if applicable, Reseller Order Form (as defined in Exhibit E)) referencing this Agreement.
This Agreement permits Customer to purchase a subscription to the Moovweb Service and Professional Services (collectively, the “Services”) from Moovweb. This Agreement sets forth the terms and conditions under which those Services will be delivered and governs the provision of all Services by Moovweb, whether purchased directly from Moovweb or through an authorized Moovweb reseller (“Reseller”); provided, however, that the terms of Exhibit E shall apply for any purchase through a Reseller. Customer may purchase a subscription pursuant to order forms (which may consist of an online registration or order form) (“Order Form(s)”) and Statements of Work (“SOW(s)”) which reference this Agreement or pursuant to Reseller Order Forms (as applicable). This Agreement shall govern Customer’s initial purchase as well as any future purchases made by Customer which reference this Agreement. This Agreement includes any and all attachments, Order Forms, SOWs and Reseller Order Forms (as applicable).
From time to time, Moovweb may modify this Agreement. Unless otherwise specified by Moovweb, changes become effective for existing subscription Customers upon renewal of the then-current Subscription Term. Moovweb will use reasonable efforts to notify Customer of the changes through communications through email or other means. Customer may be required to click to accept the modified Agreement before using the Services in a renewal Subscription Term, and in any event continued use of the Services during the renewal Subscription Term will constitute Customer’s acceptance of the version of the Agreement in effect at the time the renewal Subscription Term begins.
BY INDICATING THAT CUSTOMER HAS READ THIS AGREEMENT AND CLICKING ON THE “SIGN UP” BUTTON, EXECUTING AN ORDER FORM WHICH LINKS TO AND REFERENCES THIS AGREEMENT OR USING ALL OR ANY PORTION OF THE SERVICES, CUSTOMER IS ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. CUSTOMER AGREES THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY CUSTOMER.
IF THE PERSON AGREEING TO THIS AGREEMENT WISHES TO USE THE SERVICES AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN SUCH PERSON MUST BE AUTHORIZED TO SIGN FOR AND BIND SUCH 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.
IF CUSTOMER HAS ENTERED INTO A SEPARATE WRITTEN SUBSCRIPTION AGREEMENT WITH MOOVWEB FOR PROVISION OF THE SERVICES, THE TERMS AND CONDITIONS OF SUCH OTHER AGREEMENT SHALL PREVAIL OVER ANY CONFLICTING TERMS OR CONDITIONS IN THIS AGREEMENT.
The Moovweb Service is designed to enable customers to transform the visual elements of Customer Websites for viewing on specified Endpoints and/or to deploy variations of Projects in order to test and optimize traffic to Customer Websites. Moovweb also provides related Professional Services. A customer may use the Moovweb SDK to implement and maintain a Project itself, or may purchase Professional Services from Moovweb to implement and maintain a Project. 1. DEFINITIONS
1.1.“Customer Website(s)” means Customer’s existing desktop, mobile, tablet or responsive website(s) specified in the applicable Order Form.
1.2. “Endpoint” means the particular operating system or device on which a mobile-optimized Project is designed to be viewed, such as a smartphone browser, tablet browser or hybrid application.
1.3. “Moovweb Adapt” means Moovweb’s software-as-a-service product designed to transform a Customer Website and deploy the resulting Project for viewing on specified Endpoints.
1.4. “Moovweb Optimize” means Moovweb’s software-as-a-service product designed to deploy different variations of Projects to test and optimize traffic to a Customer Website.
1.5. “Moovweb SDK” means Moovweb’s software development kit of tools, files and libraries for enabling customers to self-implement Projects.
1.6. “Moovweb Service” means Moovweb Adapt, Moovweb Optimize or any other Moovweb proprietary software-as-a-service product identified on the applicable Order Form. The Moovweb Service includes the Moovweb SDK to the extent made available by Moovweb to Customer.
1.7. “Project” means the transformed version of a Customer Website deployed on the Moovweb Service.
1.8. “Service Description” means the technical specification documentation relating to the applicable Moovweb Service as made generally available to Moovweb customers and users through the Moovweb developer portal or otherwise published on the Moovweb website.
2. MOOVWEB SERVICE
2.1. Provision of Moovweb Service. Moovweb shall provide the Moovweb Service specified in the applicable Order Form and as described in the then-current Service Description. The Moovweb Service is provided on a subscription basis commencing on the date specified on the applicable Order Form for the set term designated therein (each, a “Subscription Term”).
2.2. Project Implementation and Deployment. Each Project will be implemented either by Customer (itself or by a third party service provider on its behalf) using the Moovweb SDK or by Moovweb using Professional Services, as specified in the applicable Order Form and/or SOW. Once implementation is complete, the Project will be hosted and deployed on the Moovweb Service and made available to End Users (defined below). Use of the Moovweb Service is typically charged based on, or limited to, specified usage metrics such as Endpoints and transformed pages delivered. The applicable usage limits and metrics for a Project shall be specified in the applicable Order Form.
2.3. Access to Moovweb Service. Subject to all the terms and conditions of this Agreement, during the Subscription Term, Customer may access and use the Moovweb Service solely for its own benefit and in accordance with any scope of use restrictions designated in the applicable Order Form.
2.4. Permitted Users. Customer may permit its or its Affiliates’ (defined below) employees and independent contractors and consultants who are not Competitors of Moovweb (collectively, “Permitted Users”) to use and access the Moovweb Service, provided that (a) Customer remains responsible for compliance by each such Permitted User with all of the terms and conditions of this Agreement, and (b) any such use of the Moovweb Service is for the sole benefit of Customer or its Affiliates. “Competitor” means another entity which provides mobile website design, mobile website hosting, mobile website enablement or similar services. Use of the Moovweb Service by Permitted Users in the aggregate must be within the restrictions in the applicable Order Form. “Affiliate” means any entity controlling, controlled by or under common control with Customer where “control” means ownership of or the right to control greater than fifty percent (50%) of the voting securities or assets of such entity.
2.5. General Restrictions. Customer shall not (and shall not permit any third party to): (a) rent, lease, provide access to, sublicense, sell, resell, assign or transfer the Moovweb Service (or any part thereof) to a third party except as expressly permitted hereunder; (b) incorporate the Moovweb Service (or any part thereof) into another product or service or otherwise use the Moovweb Service (or any part thereof) to provide any product or service to a third party, except as expressly permitted hereunder; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Moovweb Service, except to the extent expressly permitted by applicable law (and then only upon advance notice to Moovweb); (d) copy, modify the Moovweb Service or any Service Description, or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Service Descriptions or the Moovweb Service (including any reports or data printed from the Moovweb Service); (f) publicly disseminate information regarding the performance of the Moovweb Service; (g) use the Moovweb Service in violation of Moovweb’s Acceptable Use Policy as described in Section 3.2 (Acceptable Use Policy); or (h) use the Moovweb SDK to develop Projects for use off of the Moovweb Service.
3. CUSTOMER OBLIGATIONS
3.1. Project Content.
3.1.1. Definition. “Project Content” means all information and audio and visual materials provided or made available by Customer to Moovweb in connection with implementation of a Project or deploying a Project on the Moovweb Service, including without limitation, any images, graphics, photos, digital media, brand features, logos, trademarks, service marks, written text, copy or similar materials.
3.1.2. Project Content and Third Party Rights. Customer shall be responsible for (a) handling and processing notices of alleged infringement by Project Content and requests to take down infringing content in accordance with the Digital Millennium Copyright Act (“DMCA”) and shall promptly notify Moovweb if it becomes aware of any such notices or takedown requests and (b) addressing all other incidents of alleged infringement or violation of third party rights by Project Content (including without limitation as set forth in Section 11 (Indemnification) below). Notwithstanding the foregoing, without limiting Moovweb’s other rights and remedies hereunder, Moovweb reserves the right to (i) respond to any DMCA notices it receives and take down allegedly infringing Project Content in accordance with its DMCA notice and takedown policies and (ii) to suspend or terminate access to the Moovweb Service or applicable Projects for repeat infringers.
3.2. Acceptable Use Policy. Customer shall ensure that Project Content, Customer-implemented Projects and Customer’s use of the Moovweb Service comply at all times with Moovweb’s Acceptable Use Policy, currently located at http://console.moovweb.com/legal/aup and incorporated by reference hereto, which may be updated from time to time.
3.3. Configuration Requirements. Customer shall: (a) make the Customer Website and Project Content available for access by the Moovweb Service and maintain backup copies of all Project Content; (b) provide Moovweb appropriate and timely authorization to use the applicable domain name(s) for a Project; (c) create Secure Socket Layer certificates as requested by Moovweb; (d) insert redirection code onto Customer’s website servers as requested by Moovweb; and (e) otherwise cooperate with Moovweb as reasonably requested to set up and configure any Project or Customer’s use of the Moovweb Service, including by meeting any requirements set forth in a separate customer requirements document or other documentation provided by Moovweb from time to time. Customer acknowledges and agrees that proper implementation and display of Projects is dependent upon the availability of the Customer Website (and all related Project Content). NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, MOOVWEB SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER: (A) WITH RESPECT TO THE AVAILABILITY OR UPTIME OF THE CUSTOMER WEBSITE OR RELATED PROJECT CONTENT; (B) FOR ANY INABILITY TO IMPLEMENT OR DISPLAY A PROJECT IF THE CUSTOMER WEBSITE OR ANY PROJECT CONTENT BECOMES UNAVAILABLE OR INACCESSIBLE TO THE MOOVWEB SERVICE; OR (C) FOR MAINTAINING BACKUP COPIES OF THE PROJECT CONTENT.
3.5. Customer Data.
3.5.1. Generally. “Customer Data” means the Collected Information (defined below) and Service Data. “Service Data” means any business information or other data of any type which is input by or on behalf of Customer into the Moovweb Service. Customer is solely responsible for the accuracy, content and legality of all Customer Data.
3.5.2. Collected Information. The Customer Website and Projects may include functionality which allows Customer to collect personally identifiable information and other information from End Users (the “Collected Information”). Moovweb transmits the Collected Information to Customer solely for the purpose of providing the Moovweb Service and does not use the Collected Information for any other purpose. Moovweb does not store or cache any Collected Information. Moovweb expressly disclaims all obligations with respect to storage or caching Collected Information.
3.6.1. In General. Customer shall ensure that Customer’s use of the Moovweb Service, Customer’s use and collection of Collected Information and all Customer Data provided to Moovweb hereunder are at all times compliant with Customer’s privacy policies and all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy, international communications, and the exportation of technical or personal data. As between Customer and Moovweb, Customer shall be responsible for obtaining the necessary clearances, consents and approvals from End Users under all applicable laws or regulations. Customer agrees that Moovweb is acting solely as a passive conduit for Customer Data. Further, Customer acknowledges that Moovweb is only acting as a data processor on behalf of Customer, and that Customer is the “data controller” pursuant to EU Directive 95/46 and applicable data protection laws, as may be amended from time to time.
3.6.2. Health Information. In addition, Customer specifically agrees not to submit to the Moovweb Service any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations (“Health Information”) and acknowledges that Moovweb is not a Business Associate or subcontractor (as those terms are defined in HIPAA) and that the Moovweb Service is not HIPAA compliant. “HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented. Moovweb shall have no liability under this Agreement for Health Information, notwithstanding anything to the contrary herein.
3.7. Customer Warranties. Customer hereby represents and warrants that: (a) Customer has sufficient rights in the Customer Data and Project Content to grant the rights granted to Moovweb herein without the consent of any third party; (b) Customer Data and Project Content and Moovweb’s exercise of any of the licenses granted hereunder will not infringe or misappropriate any intellectual property, publicity, privacy or other rights of any third party; and (c) there are no pending or threatened claims pertaining to the Project Content or Customer Website or that would prevent Customer or Moovweb from fulfilling their obligations under the Agreement (and Customer will promptly notify Moovweb in event of such a claim).
4. PROPRIETARY RIGHTS
4.1. Project Content. Except for the limited license rights granted to Moovweb herein, as between Customer and Moovweb, Customer retains all right, title and interest in and to the Project Content and nothing in this Agreement will be deemed to assign to Moovweb any intellectual property rights in any Project Content or any modifications or derivative works thereof. Customer hereby grants Moovweb a non-exclusive, non-transferable (except as permitted hereunder), worldwide, royalty-free right and license to reproduce, adapt, modify, translate, publicly perform and display, distribute and create derivative works of any Project Content provided to Moovweb solely for purposes of providing the Services to Customer as permitted hereunder (including deploying any Customer-implemented Project on the Moovweb Service).
4.2. Customer Data. As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data. Subject to the terms of this Agreement, Customer hereby grants to Moovweb a non-exclusive, worldwide, royalty-free right to use, copy, transmit and publicly perform and display the Customer Data solely to the extent necessary to provide the Moovweb Service to Customer.
4.3. Moovweb Technology. This is a subscription agreement for access to and use of the Moovweb Service and not an agreement for sale. Customer acknowledges that it is obtaining only a limited right to use the Moovweb Service and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights to the Moovweb Service 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: the Moovweb Service; Service Descriptions; methodologies, techniques, know-how and processes that are generally applicable to the Services; any and all related and underlying software code, deliverables, technology and documentation; and any derivative works, modifications or improvements of any of the foregoing, including without limitation 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 the Moovweb Service is offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of any underlying code or element of the Moovweb Service itself, except for sample code which may be provided under this Agreement in connection with the Moovweb SDK.
4.4. Feedback. Customer, from time to time, may submit comments, questions, suggestions or other feedback relating to Moovweb’s products or services to Moovweb (“Feedback”). Moovweb may freely use or exploit Feedback in connection with any of its products or services.
4.5. Aggregated Anonymous Data. Notwithstanding anything to the contrary herein, Customer agrees that Moovweb may obtain and aggregate website measurement information and other data about Customer’s use of the Moovweb Service and Projects that is non-personally identifiable with respect to Customer or any End Users (“Aggregated Anonymous Data”), and Moovweb may use the Aggregated Anonymous Data to improve, support and operate the Moovweb Service and otherwise for any business purpose during and after the term of this Agreement. For clarity, this Section
4.5 does not give Moovweb the right to identify Customer as the source of any Aggregated Anonymous Data.
5. PROFESSIONAL SERVICES
5.1. Scope and Fees. Moovweb shall provide the Professional Services purchased under the applicable Order Form, which may include, without limitation, implementation services or maintenance and support for a Project, or Analytics Services or other premium strategic services, as applicable. The scope of Professional Services shall be set forth in a separate SOW 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. Unless Professional Services are provided on a fixed-fee basis, Customer shall pay Moovweb at the rates set forth in the applicable SOW or Order Form (or, if not specified, Moovweb’s then-standard rates) for the applicable services. Customer will reimburse Moovweb for reasonable travel and lodging expenses as incurred. Customer may use anything delivered as part of Professional Services in support of the authorized use of the Moovweb Service and subject to the terms regarding Customer’s rights to use the Moovweb Service set forth in Section 2 (Moovweb Service) 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).
5.2. Moovweb Technology Deliverables. To the extent Professional Services consist of implementation of Projects on or configuration of the Moovweb Service, Customer’s right to use and access related deliverables shall be subject to the same rights and restrictions as the Moovweb Service set forth in Section 2 (Moovweb Service) above.
5.3. Analytics Services. If Customer’s subscription to the Moovweb Service includes access to third-party analytics platforms (“Analytics Services”) or other premium strategic services that utilize Analytics Services (as specified in the applicable Order Form or SOW), the following terms shall apply:
5.3.1. Implementation. Customer acknowledges that the Analytics Services require implementation of third-party analytics tags within a Project.
5.3.2. Third Party Terms and Conditions. Customer acknowledges that Moovweb’s use of Analytics Services may be subject to terms and conditions imposed by Analytics Services providers, which may be modified by such providers from time to time. Customer agrees that Moovweb may, notwithstanding Section 14.14 (Amendments; Waivers), modify the terms and conditions of this Section 5.3 as deemed reasonably necessary by Moovweb to maintain consistency with the applicable Analytics Services terms and conditions. Any such modifications shall only be upon written notice to and written acceptance by Customer of such modifications. Customer acknowledges that it may not, and Moovweb may not on behalf of Customer, be permitted to use the Analytics Services unless Customer accepts the modifications. In connection with Moovweb’s use of Analytics Services on behalf of Customer, Customer authorizes Moovweb to act as its agent for the limited purpose of binding Customer to the terms and conditions of the applicable Analytics Services. As of the Effective Date, the applicable Analytics Services are Google Analytics and the applicable terms of service are available at http://www.google.com/analytics/terms/us.html.
5.3.3. Aggregated Anonymous Data. Moovweb may collect and use third party analytics data from the Project to provide the services described above to Customer and may aggregate such data in an anonymous fashion with other data (which collectively shall constitute Aggregated Anonymous Data).
5.3.4. Reports. Moovweb shall provide periodic analytics reports to Customer in a mutually agreed form and at mutually agreed intervals.
6. SLA, SUPPORT AND SECURITY. During the Subscription Term, (a) the Moovweb Service shall be subject to the Service Level Agreement (“SLA”) attached hereto as Exhibit A; and (b) Moovweb shall provide Customer support in accordance with the terms set forth on Exhibit B (Moovweb Customer Support Policy) (“Support Policy”) based upon the level of Support Services set forth in the applicable Order Form. In addition, Moovweb agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of the Moovweb Service or Customer Data, as further described in Exhibit C (Security and Disaster Recovery) (“Security Policy”). However, Moovweb shall have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond Moovweb’s control. The SLA, Support Policy, and Security Policy may be modified by Moovweb from time to time to reflect process improvements or changing practices (but the modifications will not materially decrease Moovweb’s obligations as compared to those reflected in each document as of the Effective Date).
7. FEES & 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 the date of applicable invoice. Except as expressly set forth in Section 9 (Representations and Warranties), Section 11 (Indemnification) or Exhibit A (with respect to SLA credits), all fees are non-refundable. The Moovweb Service fees 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 charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
8. TERM, TERMINATION AND SUSPENSION
8.1. Term and Renewals. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms and SOWs. Unless otherwise specified on the applicable Order Form, each Subscription Term shall automatically renew for additional twelve (12) month periods unless either party gives the other written notice of non-renewal at least ninety (90) days prior to the expiration of the then-current Subscription Term.
8.2. 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). Moovweb may terminate this Agreement at any time without notice to Customer if the Moovweb Service has been suspended under Section 8.3 (Suspension of Service) and when Customer is responsible, the precipitating event is not cured by Customer to Moovweb’s satisfaction within fifteen (15) days of notice thereof.
8.3. Suspension of Service. 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 provision of the Moovweb Service (and any related services) with respect to any or all Projects without liability to Customer (a) if Customer’s account is fifteen (15) days or more overdue; (b) if Moovweb is notified of any claim regarding a Project or reasonably believes such a claim to be likely; (c) if Moovweb reasonably determines suspension is necessary to avoid material harm to Moovweb or its business, including if the Moovweb Service is experiencing denial of service attacks, mail flooding, or other attacks or disruptions outside of Moovweb’s control; (d) for suspected or actual fraud; (e) in response to a violation or suspected violation of the Acceptable Use Policy; or (f) as required by law or at the request of governmental entities having authority to suspend the Moovweb Service or a Project. Customer shall remain responsible for all fees and charges Customer has incurred through the date of suspension. If Moovweb thereafter restores Customer’s access to the Moovweb Service, Customer shall resume accruing and paying fees pursuant to Section 7 (Fees and Payment).
8.4. Effect of Termination. Upon any expiration or termination of this Agreement, Customer shall immediately: (a) cease any and all use of and access to the Moovweb Service (including any and all related Moovweb Technology), (b) delete (or, at Moovweb’s request, return) any and all copies of the Service Descriptions, any Moovweb passwords or access codes and any other Moovweb Confidential Information in its possession, and (c) pay any outstanding amounts due for Services provided through the termination date or otherwise contractually committed. All Order Forms and SOWs terminate upon termination of this Agreement. Customer acknowledges following termination it shall have no further access to any Projects on the Moovweb Service, and that Moovweb may delete any such Projects as may have been deployed on the Moovweb Service at any time. Except for any exclusive remedies specified in this Agreement, 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.
8.5. Survival. The following Sections shall survive any expiration or termination of this Agreement: 2.5 (General Restrictions), 4 (Proprietary Rights), 7 (Fees and Payment), 8.4 (Effect of Termination), 9.4 (Warranty Disclaimer), 10 (Limitation of Remedies and Damages), 11 (Indemnification), 12 (Confidential Information), 14 (General Terms) and this Section 8.5.
9. REPRESENTATIONS AND WARRANTIES
9.1. Moovweb Service Warranty. Moovweb warrants that the Moovweb Service will operate in substantial conformity with the applicable Service Descriptions. In the event of a breach of the foregoing warranty, Moovweb shall use commercially reasonable efforts to correct the reported non-conformity.
9.2. Professional Services Warranty. Moovweb warrants that Moovweb will perform the Professional Services in a professional and workmanlike manner and in substantial conformity with the Specifications set forth in the applicable SOW. In the event of a breach of the foregoing warranty, Moovweb shall re-perform the non-conforming Professional Services.
9.3. Limited Warranty Remedy. If, in its sole discretion, Moovweb determines the remedies set forth in Sections 9.1 or 9.2 to be impracticable, either party may terminate the applicable Order Form or SOW and Customer shall receive as its sole remedy a refund for the terminated Services as follows: (A) for the Moovweb Service, a refund in the amount of any fees Customer has pre-paid for use of the Moovweb Service for the terminated portion of the applicable Subscription Term and (B) for Professional Services, a refund in the amount of the portion of fees paid which are attributable to such non-conforming Professional Services. The limited warranties set forth in this Section 9 shall not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services or (iii) to use provided on a no-charge or evaluation basis. Notwithstanding anything to the contrary in this Agreement, Moovweb’s sole liability (and Customer’s sole and exclusive remedy) for any breach of the warranties in Sections 9.1 and 9.2 shall be the remedies set forth in such sections and this Section 9.3.
9.4. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE MOOVWEB SERVICE, SUPPORT SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS”. EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY NOR THEIR SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. MOOVWEB MAKES NO REPRESENTATIONS OR WARRANTIES THAT CUSTOMER’S USE OF THE MOOVWEB SERVICE WILL ACTUALLY INCREASE TRAFFIC OR CONVERSIONS ON CUSTOMER WEBSITES (OR, IF ACHIEVED, THAT SUCH INCREASE WILL BE SUSTAINABLE). MOOVWEB SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE OR SECURITY FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF MOOVWEB, INCLUDING BUT NOT LIMITED TO THE UPTIME OR AVAILABILITY OF THE CUSTOMER WEBSITE. MOOVWEB DOES NOT WARRANT THAT CUSTOMER’S USE OF THE MOOVWEB SERVICE OR THAT ACCESS TO OR DISPLAY OF PROJECTS WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES MOOVWEB WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS. FURTHERMORE, MOOVWEB MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE SUITABILITY OF ANY ANALYTICS OR OTHER RESULTS OF ANALYTICS SERVICES (WHICH ARE PROVIDED BY A THIRD PARTY) FOR ANY USE, INCLUDING WITHOUT LIMITATION TO MAKE BUSINESS, ECONOMIC, DESIGN, OR PROMOTIONAL DECISIONS. IT IS CUSTOMER’S SOLE RESPONSIBILITY TO DETERMINE THE SUITABILITY OF THE ANALYTICS SERVICES FOR ALL USES. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
10. LIMITATION OF REMEDIES AND DAMAGES
10.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS, NEITHER PARTY (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
10.2. Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO THE OTHER PARTY ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID (OR WITH RESPECT TO FEES DUE, PAYABLE) BY CUSTOMER TO MOOVWEB DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT.
10.3. Excluded Claims. “Excluded Claims” means (a) any claim arising from Customer’s breach of Section 2.3 (Access to Moovweb Service) or Section 2.5 (General Restrictions), (b) any claim arising from a party’s breach of its confidentiality obligations (but excluding claims arising from operation or non-operation of the Moovweb Service) or (c) amounts payable to third parties pursuant to a party’s indemnification obligations.
10.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 10 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
11.1. Indemnification by Moovweb. Moovweb shall defend Customer from and against any claim by a third party alleging that the Moovweb Service 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. If Customer’s use of the Moovweb Service 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 the Moovweb Service; 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 which was paid by Customer but not rendered by Moovweb. The foregoing obligations of Moovweb shall not apply: (1) if the Moovweb Service is modified by any party other than Moovweb, but solely to the extent the alleged infringement is caused by such modification; (2) if the Moovweb Service 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 the Moovweb Service; (4) to any action arising as a result of Customer Data, Project Content, any Customer Website or any third-party deliverables or components contained within the Moovweb Service; (5) to any action arising as a result of any customizations or modifications to the Moovweb Service by Moovweb or any third party which are based on Customer’s specifications; or (6) if Customer settles or makes any admissions with respect to a claim without Moovweb’s prior written consent. In addition, Moovweb’s indemnification obligation will not apply to any claim or liability covered by Customers obligations in Section 11.2 (Indemnification by Customer). THIS SECTION 11.1 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.
11.2. Indemnification by Customer. Customer shall defend Moovweb from and against any claim by a third party arising from or relating to (a) any Customer Data, Project Content, Customer Website or Customer-implemented Project (including, but not limited to, any infringement of the intellectual property rights of a third party), (b) End User access to and use of Projects (including, but not limited to, collection of Collected Information), or (c) any breach of Section 3.6 (Compliance), and shall indemnify and hold harmless Moovweb from and against any damages and costs awarded against Moovweb or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such claim.
11.3. Indemnification Process. The obligations of each indemnifying party are conditioned upon receiving from the party seeking indemnification: (a) prompt written notice of such claim (but in any event notice in sufficient time for the indemnifying party to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (c) all reasonable necessary cooperation of the indemnified party. The indemnified party may participate in the defense of such claim using its own counsel at its own expense. The indemnifying party may not settle any claim without the indemnified party’s prior written consent unless such settlement unconditionally releases the indemnified party from all liability and does not require the indemnified party to take or refrain from taking any action (except with respect to use or non-use of the Moovweb Technology or use of other material licensed by one party to the other hereunder).
12. 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 and performance information relating to the Moovweb Service shall be deemed Confidential Information of Moovweb without any marking or further designation. The terms and conditions of this Agreement shall be deemed Confidential Information of both parties without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (a) hold in confidence and not disclose any Confidential Information to third parties and (b) not use Confidential Information for any purpose other than fulfilling its obligations end 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 14.5), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 12 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 12. The Receiving Party’s confidentiality obligation 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.
13. PUBLICITY. 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 co-marketing 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.
14. GENERAL TERMS
14.1. 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 prior written consent of the other party, except that either party may assign this Agreement without such consent to an affiliate or any entity in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. No assignment shall be valid unless the permitted assignee agrees in writing to be bound by the terms of this Agreement. The assigning party shall remain liable for its obligations incurred prior to such assignment. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 14.1 will be null and void.
14.2. 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 federal courts located in San Francisco, California and both parties hereby submit to the personal jurisdiction of such courts.
14.3. 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.
14.4. 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 (a) if given by hand, immediately upon receipt; (b) if given by overnight courier service, the first business day following dispatch, (c) 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, or (d) if given by e-mail, by receipt of reply e-mail acknowledging receipt or by electronic logs.
14.5. Independent Contractors. The parties to this Agreement are independent contractors. Except as expressly set forth in Section 5.3 (Analytics Services) (if applicable), there is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties and 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.
14.6. Subcontractors. Moovweb may use the services of subcontractors and permit them to exercise the rights granted to Moovweb in order to provide the Services under this Agreement, provided that Moovweb remains responsible for (a) compliance of any such subcontractor with the terms of this Agreement and (b) for the overall performance of the Services as required under this Agreement.
14.7. Subpoenas. Nothing in this Agreement prevents Moovweb from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but Moovweb will use commercially reasonable efforts to notify Customer where permitted to do so.
14.8. Insurance. During the term of this Agreement, Moovweb shall, at its own cost and expense, maintain in full force and effect the insurance policies listed in Exhibit D (Insurance).
14.9. No Third-Party Beneficiaries. No third party will be deemed to be an intended or unintended third party beneficiary of this Agreement.
14.10. 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 which occur after the signing of this Agreement and which 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.
14.11. Government Users. Elements of the Moovweb Service are commercial computer software. If the user or licensee of the Moovweb Service is an agency, department or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure or transfer of the Moovweb Service, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Moovweb Service was developed fully at private expense. All other use is prohibited.
14.12. Export Control. In its use of the Moovweb Service, 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 the Moovweb Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer shall not submit to the Moovweb Service any information that is controlled under the U.S. International Traffic in Arms Regulations.
14.13. 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. Notwithstanding the foregoing, if Customer is asked to accept an online version of this Agreement and the parties have already signed a written version, the signed written version will control. No provision of any purchase order or other business form employed by Customer shall supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and have no legal effect. Customer acknowledges that the Moovweb Service is an online, subscription-based product, and that in order to provide improved customer experience Moovweb may make changes to the Moovweb Service, and Moovweb will update the Service Descriptions accordingly.
14.14. Amendments; Waivers. Except as may be otherwise expressly set forth 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.
14.15. 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.
14.16. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.
SERVICE LEVEL AGREEMENT
Moovweb agrees to the following Service Level Agreement for customers who are purchasing “Enterprise” level subscriptions only (or similar designations or service tiers of Moovweb). For clarity, “Developer” level customers (or similar designation or service tier of Moovweb) are not entitled to any of the rights granted in this Service Level Agreement.
A. Service Level Commitment. Moovweb will use commercially reasonable efforts to make the Moovweb Service available to Customer with a Monthly Uptime Percentage (defined below) of 99.95% unless otherwise specified in the Order Form as the “Service Level Commitment” during the term of this Agreement. If Moovweb does not meet the Service Level Commitment, Customer will be eligible, as its sole remedy, to receive Service Credits as provided immediately below.
B. Service Credits Definitions.
i. “Scheduled Service Uptime” is calculated by taking 100% of the number of minutes of a Service Month time period and subtracting the number of minutes of Scheduled Maintenance (defined in Section F.i. below).
ii. Service Credit” is a monetary credit, calculated as provided below, that Moovweb may credit back to a Customer’s account.
iii. “Service Month” is equivalent to the preceding monthly billing period for the Moovweb Service.
iv. “Monthly Uptime Percentage” is calculated by (1) taking 100% of the number of minutes of a Service Month time period and subtracting the number of minutes during the Service Month in which Service was unavailable for any reason other than an exclusion listed in Section E below (a “SLA Exclusion”) and (2) dividing such difference by the total number of minutes in a Service Month time period and multiplying the resulting quotient by 100 to establish the percentage. For avoidance of ambiguity, Monthly Uptime Percentage measurements exclude downtime resulting directly from a SLA Exclusion. Any downtime occurring prior to a successful Service Credit claim cannot be used for future claims.
C. Service Credits
i. If the Monthly Uptime Percentage for Customer drops by more than 0.1% below the Service Level Commitment for a Service Month, Customer shall be eligible to receive a Service Credit equivalent to the total minutes of unscheduled service downtime in excess of 0.1%, divided by the total minutes of Scheduled Service Uptime for that month, and multiplied by the total recurring fee for that Service Month for the affected Moovweb Service payable by Customer.
ii. Service Credits will be applied as a credit to Customer from Moovweb against the payment amount due immediately following the affected Service Month. A Service Credit may not be transferred or applied to any other Moovweb account. Customer’s sole and exclusive remedy for any failure to meet the Service Level Commitment is the receipt of aiii. Service Credit in accordance with the terms of this Agreement. The maximum cumulative credit for any and all applicable Service Credits in a month is 50% of the total recurring fee for that month for the affected Moovweb Service payable by Customer.
D. Process for Requesting Credits. To receive a Service Credit, Customer must submit a written request to Moovweb by sending an e-mail to Customer’s Moovweb Account Manager. The request for a Service Credit must: (i) include the dates and times of each incident of Moovweb Service unavailability that Customer claims to have experienced, including website URLs that were unavailable at the time of each incident; (ii) include related support and proof of each such incident; and (iii) be received by Moovweb within thirty (30) business days of the last reported incident in the SLA claim. Moovweb will verify the claim against its own systems and monitoring data. In the event of a conflict between Customer’s proof and Moovweb’s data, the parties will work together in good faith to confirm the extent of Moovweb Service unavailability and applicable amount of Service Credits
E. Service Level Availability Exclusions. The Service Level Commitment does not apply to any unavailability, suspension or termination of the Moovweb Service attributable to, resulting from, or caused by: (i) authorized suspensions or terminations of the Moovweb Service under the Agreement (e.g. due to a breach of the Customer or as otherwise prohibited); (ii) factors outside of the reasonable control of Moovweb, including any force majeure event or Internet access or related problems beyond the demarcation point of Moovweb; (iii) any actions or inactions of Customer or any third party acting on behalf of Customer not under Moovweb’s control; (iv) denial of service attacks, mail flooding, or other attacks or disruptions directed towards Moovweb’s and/or Customer’s networks or servers; (v) any failure of Customer’s websites, hardware, equipment, software or other technology under the control of Customer other than Moovweb Technology; (vi) the Customer Website or other non-Moovweb equipment, software or technology (other than third party equipment within Moovweb’s direct control); (vii) any changes to Customer-implemented Projects deployed by Customer or any third party acting on behalf of Customer; or (viii) Scheduled Maintenance by Moovweb.
F. Scheduled and Unscheduled Maintenance
i. Moovweb performs system maintenance on the Moovweb Service on a regular basis to ensure the high quality of the Moovweb Service and Moovweb will use commercially reasonable efforts to perform all maintenance during its pre-scheduled maintenance windows (“Scheduled Maintenance”). Moovweb will undertake to provide advance notice of Scheduled Maintenance through email, or as otherwise provided by Moovweb in its discretion.
ii. Under certain conditions, Moovweb may need to perform urgent or emergency preventative maintenance (“Unscheduled Maintenance”), such as installing security patches. Moovweb may not be able to provide Customer advance notice in cases of Unscheduled Maintenance.
CUSTOMER SUPPORT POLICY
This Moovweb Customer Support Policy describes the policies and procedures under which Moovweb provides support services (“Support Services”) to its customers. Support Services are provided pursuant to the Platform Subscription Agreement between Moovweb and Customer (“Subscription Agreement”) and are subject to such Subscription Agreement and this policy. Support Services are provided for the Subscription Term and at the support level(s) specified in the applicable Order Form. Capitalized terms not otherwise defined in this policy have the meanings given in the Subscription Agreement.
Moovweb shall provide support to Customer for technical issues with the Moovweb Service described in Section 5 below (“Production Support”) for no additional fee; however, response times and channels vary based on the Moovweb Service subscription package or tier specified on the applicable Order Form, as set forth in Section 6 below. Moovweb shall provide Customer developer support services described in Sections 8 and 9 below (“Developer Support”) in accordance with the level of Developer Support specified in the applicable Order Form.
- Customer’s Front Line Support of End Users. Customer, at its own expense, undertakes all front line responsibility for the technical support of all End Users. Accordingly, with respect to ongoing technical support, End Users will receive direct technical support from Customer and not from Moovweb and Moovweb will defer all such End User inquiries regarding the Project to the Customer.
- Moovweb’s Tier Two Support of Customer. If Customer cannot, after diligent good faith effort, resolve a support issue regarding the Project, Customer may escalate the issue to Moovweb in accordance with the technical support guidelines below. Moovweb has no obligation to provide support to Customer for issues arising out of any Customer Website. Support Services constitute technical issues with the Moovweb Service itself, such as, for example purposes only, errors, bugs, malfunctions, and network connectivity defects, which do not constitute Professional Services under the Agreement.
- Third-Party Devices and Software. For any third-party devices and software specified in the applicable Order Form or SOW, Moovweb supports the Projects on the versions of such third-party devices and software that the applicable third party has publicly announced it supports. If such third party stops supporting a particular device or software, then Moovweb will no longer support the Projects on that device or software.
- Submission of Support Requests. Prior to making a support request (a “Request”) to Moovweb, Customer shall use reasonable efforts to investigate and address a support issue (each and collectively, a “Defect”) without escalation to Moovweb. Thereafter, if Customer is unable to remedy the Defect, Customer may telephone Moovweb at 1-877- moovwe (877-666-8932) extension 9 for assistance, but must, in any case, submit a written Request to Moovweb for technical support through the online help center accessible at https://moovweb.atlassian.net or such other URL as Moovweb may provide.
a. When making a Request, Customer shall provide requested diagnostic information including but not limited to: (i) describing the problem, the configuration, and Customer’s network; (ii) providing relevant data; and (iii) communicating further via email or telephone to answer questions and assist Moovweb support personnel as appropriate.
b. Details regarding the process for handling Requests are available on Moovweb’s website https://moovweb.atlassian.net or such other URL as Moovweb may provide.
5. Production Support Issue Tiers. Along with the Request, Customer shall indicate the characterization of the Request according to the criteria below. If Moovweb believes in Moovweb’s discretion that a different characterization of the Request is more accurate, Moovweb shall update the characterization of the Request and notify Customer of such re-characterization and provide Support Services as set forth below.
6. Levels of Production Support. (based on Moovweb Service subscription package)
7. Hours of Availability. For these purposes, “Business Day” means any day other than a Saturday, Sunday or Qualified Holidays and “Business Hours” means 9:00 a.m. to 6:00 p.m. PST (Pacific Standard Time). “Qualified Holidays” are: New Year’s Day; Martin Luther King, Jr. Day; Memorial Day; Independence Day; Labor Day; Thanksgiving Day; Friday after Thanksgiving; Christmas Eve; Christmas Day; and New Year’s Eve.
8. Developer Support Types.
a. Documentation: Documentation includes access to all of Moovweb’s installation guides, user guides and getting started guides which Moovweb makes generally available to users of the Moovweb Service. These are made generally available to all users of the Moovweb Service 24x7, even if they do not have an account on the Control Center.
b. Tutorials and Sample Code: Moovweb provides a range of step by step tutorials, sample code and starter projects for beginner to advanced developers. A basic set of tutorials and samples are made generally available to anyone 24x7 with a Control Center account. Over time Moovweb may introduce some premium tutorials, samples and starter projects that are only available to enterprise customers.
d. Enterprise Developer Support: Enterprise developer support is an add-on offering available to Moovweb enterprise customers for a monthly subscription. It includes a mandatory initial kick-start training and a monthly allocation of incidents for ongoing developer support. Any developers who will utilize the monthly hours must participate in virtual classroom basic training. Support will cover Transformation Scripts, how best to structure projects/code, troubleshooting issues with code, and issues with developer tools.
9. Levels of Developer Support.
10. Disclaimers. Customer acknowledges and agrees that the Moovweb Service provided by Moovweb hereunder is not perfect or error-free. The customer also acknowledges that, despite Moovweb’s commercially reasonable efforts, Moovweb may not be able to provide answers to or resolve some or all Requests. Moovweb makes no promises, guarantees or assurances of any kind that it will be able to resolve all of Customer’s Requests. Further, Customer acknowledges that Production Support is only with respect to technical issues with the Moovweb Service itself and is not a commitment to provide any support or other Services with respect to Customer’s implementation of a Project. These support guidelines may be updated by Moovweb from time to time.
SECURITY AND DISASTER RECOVERY
A. Moovweb Secure Logging. The Moovweb Service is designed to support all types of secure transactions without storing any End User data as described below. The Moovweb Service stores no End User sensitive information (e.g., credit card and other personal information). The Moovweb Service also does not store or record End User cookies.
B. Secure Transaction Support. Secure Transaction Support is intended to enable Projects to transmit sensitive data to and from End Users using cryptographic protocols that provide communication security over the Internet. When designated in the Order Form, Moovweb will provide Secure Transaction Support for all identified secure domains in accordance with Payment Card Industry Data Security Standard (PCI-DSS) compliance standards.
C. PCI Compliance. Moovweb maintains PCI-DSS Level 1 compliance by undergoing annual audits from approved Visa and MasterCard auditors. Moovweb shall provide Customer a copy of the executed Attestation of Compliance (AOC) within a reasonable period after written request.
D. Data Security.
i. Moovweb shall maintain software, hardware, systems, personnel and other resources designed to ascertain whether a penetration attempt is being made against any part of the network, server or other infrastructure / application or facilities used by Moovweb to process or transport Collected Information. Moovweb will inform Customer promptly upon verification of a security breach. Customer acknowledges that Moovweb cannot guarantee that unauthorized third parties will never be able to defeat the security measures described in this Exhibit and the Agreement.
ii. Moovweb shall conduct periodic security audits of its information systems including, but not limited to, network penetration tests and vulnerability scans.
iii. Moovweb shall encrypt using industry-standard strong encryption methods (based upon SSL certificates provided by Customer) Collected Information (to the extent encrypted by Customer) while in-transit from a Project to the Moovweb Cloud and from the Moovweb Cloud to the Customer Website.
iv. Moovweb shall establish and maintain least privileged based access controls for all Collected Information. Access controls include, but are not limited to, account provisioning / de-provisioning, authentication, authorization and accountability controls.
v. Notwithstanding anything to the contrary in this Exhibit or the Agreement, Customer acknowledges that the Moovweb Service will inherit and utilize in all cases the level of security and privacy established by the Customer Website for the transmission and protection of data and Customer agrees that Moovweb shall have no liability for any breach of security or privacy resulting from vulnerabilities inherent in the particular level of security or privacy utilized by the Customer Website.
E. Disaster Recovery / Business Continuity. Moovweb (a) has implemented business continuity and disaster recovery plans (hereafter referred to as the “Plan”) for the recovery of Moovweb business processes and systems and associated data, (b) will deliver a documented copy of such Plan to Customer within a reasonable period upon request, (c) will periodically update and test the operability of such Plan at least once during every twelve (12) month period, and (d) will implement the Plan upon the occurrence of a disaster. The Plan may be modified by Moovweb from time to time to reflect process improvements or changing practices (but the modifications will not materially decrease Moovweb’s obligations as compared to those set forth in the Plan as of the Effective Date).
A. Coverages. Moovweb will provide, pay for and maintain in full force and effect the following minimum insurance coverage:
- Commercial General Liability Insurance with limits of not less than One Million Dollars (USD$1,000,000) per occurrence and Two Million Dollars (USD$2,000,000) in the aggregate for bodily injury, personal injury and property damage. Coverages include the following: products and completed operations, personal and advertising injury.
- Professional Liability / Errors and Omissions with limits of not less than Five Million Dollars (USD$5,000,000) each claim and in the aggregate for claims resulting from errors and omissions arising out of the performance of the Services under the Agreement. Coverages include the following: cyber liability, privacy liability.
- Workers’ Compensation Insurance in compliance with applicable statutory limits and Employers’ Liability Insurance with limits of not less than One Million Dollars (USD$1,000,000) per accident, One Million Dollars (USD$1,000,000) per employee by disease and One Million Dollars (USD$1,000,0000) aggregate by disease.
- Commercial Automobile Liability Insurance with limits of not less than One Million Dollars (USD$1,000,000) per accident for bodily injury and property damage liability for non-owned and hired motor vehicles.
- Umbrella/Excess Liability Insurance with limits of not less than Four Million Dollars (USD$4,000,000) per occurrence and in the aggregate in excess of General Liability, Automobile Liability and Workers Compensation Insurance.
The amount of insurance to be carried by Moovweb beyond the minimums set forth in this Exhibit is to be determined in Moovweb’s discretion.
B. Evidence of Insurance; Changes. Upon Customer’s written request, Moovweb will furnish to Customer true and correct copies of the certificates of insurance maintained in compliance with this Exhibit as evidence that these policies are in full force and effect. Moovweb will provide notice to Customer of a material reduction in the coverages listed above within thirty (30) days of the effective date of such reduction.
C. Insurance Companies. All insurance will be written through responsible insurance companies having an A.M. Best’s rating of at least A VII or the reasonable equivalent by another reputable rating agency.
D. Non-Limitation of Insurance. All liability insurance maintained by Moovweb pursuant to this Exhibit will include the condition that it is primary. Any insurance maintained by Customer or any additional insured is excess and non-contributory. The required coverages referred to in this Exhibit will in no way affect, nor are they intended as a limitation of, Moovweb’s liability with respect to the performance of its obligations to Customer under the Agreement.
TERMS FOR PURCHASES BY A CUSTOMER THROUGH A RESELLER
Notwithstanding anything to the contrary in this Agreement, the terms of this Exhibit E apply to any purchase of Services by Customer through a Reseller and prevail in event of any conflict with the terms of the main body of this Agreement.
- The terms of this Agreement (including this Exhibit E) constitute the only terms applicable to Moovweb’s provision of the Services to Customer and no terms between Customer and Reseller shall apply to Moovweb’s provision of the Services hereunder.
- 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.
- Customer may place orders for the Services by executing an order form with Reseller (“Reseller Order Form”) and paying Reseller fees as specified therein. Customer’s use of the Services shall be subject to any scope of use specifications, usage limits and metrics for a Project specified in an applicable Reseller Order Form.
- In the event Customer is entitled to a refund or a Service Credit under this Agreement, Customer must request such refund or Service Credit through Reseller. Any request sent directly to Moovweb may be redirected to Reseller. Moovweb shall refund any applicable fees or pay any Service Credits to Reseller and Reseller shall be solely responsible for refunding such fees or paying such amounts to Customer. Moovweb shall have no further liability to Customer in the event Reseller fails to refund such fees or pay such amounts to Customer.
- If Reseller fails to pay Moovweb applicable fees under a Reseller Order Form, Moovweb reserves the right to suspend provision of the Services in accordance with Section 8.3 (Suspension of Service).
- Customer may purchase renewal subscriptions or other Services under this Agreement directly from Moovweb pursuant to an Order Form and SOW (if applicable). The second sentence of Section 8.1 (Term and Renewals) regarding automatic renewal shall not apply.
- Customer shall receive Support Services directly from Moovweb during the applicable Subscription Term in accordance with the terms of this Agreement, except that no Moovweb named account manager shall be assigned to Customer. Except as expressly set forth in this Exhibit E, Customer shall contact Reseller in event of any issues or inquiries with respect to the Services.
- If Reseller is providing Customer with consulting or other professional services related to Customer’s Project or the Moovweb Service, 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.
- 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.