MODATA INC.
Terms Of Service

Last Updated: October 1st , 2018

IMPORTANT – CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THIS MO-DATA SUBSCRIPTION AGREEMENT (THIS “AGREEMENT”). BY SUBMITTING AN ORDER FOR THE MO-DATA SERVICES, CLICKING “I ACCEPT”, OR PROCEEDING WITH THE USE OF THE MO-DATA SERVICES, OR USING THE SERVICES AS AN AUTHORIZED REPRESENTATIVE OF YOUR COMPANY ON WHOSE BEHALF YOU HAD ORDERED THE SERVICES (“CUSTOMER”), YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND ACCEPT THIS AGREEMENT WITH MO-DATA, INC. (“MO-DATA”), AND THAT YOU AGREE TO BE BOUND BY ITS TERMS. IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, DO NOT USE OR ACCESS THE SERVICES. THE EFFECTIVE DATE OF THIS AGREEMENT SHALL BE THE DATE THAT CUSTOMER ACCEPTS THIS AGREEMENT.

1. Definitions; License Grant & Restrictions

1.1 Definitions

As used in this Agreement and in any Order(s) associated herewith:

Content means the information, documents, software, products and services contained in or made available via the Service(s), other than Customer Data
Customer Data means any data, information or material that Customer or Customer’s Users, subscribers may disclose or submit to Mo-data or the Service(s) in the course of using the Service(s)
Order Effective Date means the date identified in the applicable Order as the date on which such Order shall be effective
Intellectual Property Rights means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world
Order means an order placed by Customer through Mo-data’s electronic order page for subscriptions to the details the Service(s) Order, specifying (as applicable), among other things, the Order Effective Date and/or other services contracted for, the applicable fees, and billing period
Mo-data Technology means all of Mo-data's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by Mo-data in providing the Service(s) and updates and upgrades thereto that are generally provided free of charge to paying Customers
Service(s) means Mo-data's Insight portal and data analysis and reporting services as described by Mo-data on https://www.mo-data.com, developed, operated, and maintained by Mo-data or its third party hosting provider and accessible via a designated web site or IP address, including the Mo-data Technology and the Content
User(s) means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Service(s) and have been supplied user identifications and passwords by Customer (or by Mo-data at Customer’s request)

1.2 License

Subject to the terms and conditions of this Agreement, Mo-data hereby grants Customer a non-exclusive, non-transferable, non-assignable worldwide right to access and use the Service(s) provided hereunder solely for Customer’s own internal business purposes and only for the amount of Customer Data, number of sources of Customer Data, number of times new Customer Data may be added and/or number of Users, as applicable and as set forth in the applicable Order. All rights not expressly granted to Customer are reserved by Mo-data and its licensors. Mo-data reserves the right to make changes, modifications and enhancements to the Service(s) from time to time.

1.3 Free Trial Periods

If an Order is for a free trial, Mo-data will make the current version of the Service(s) available to Customer on a trial basis free of charge for a period of thirty (30) days from the Order Effective Date. Unless Customer has provided written notice of cancellation at least five (5) days prior to expiration of the applicable free trial, the free trial shall convert into a paid subscription for a period of one (1) year, and shall thereafter renew as set forth in Section 9.1 below.

1.4 Free Tier

If an Order is for a “free tier", Mo-data will make the LIMITED version of the Service(s) available to Customer free of charge for a period solely at the discretion by Mo-Data.


ANY CUSTOMER DATA THAT CUSTOMER ENTERS INTO THE SERVICES OR PROVIDES TO MO-DATA DURING A FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL BEFORE THE END OF THE TRIAL PERIOD. NOTWITHSTANDING SECTION 11 (REPRESENTATIONS AND WARRANTIES), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AS SET FORTH IN SECTION 12.


2. Limitations on Use

Except as otherwise expressly permitted hereunder, Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service(s) or the Content in any way; (ii) modify or make derivative works based upon the Service(s) or the Content; (iii) create Internet "links" to the Service(s) or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service(s) in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service(s), or (c) copy any ideas, features, functions or graphics of the Service(s). Notwithstanding the foregoing, Customer may copy, license, sell and distribute tangible copies of reports generated through Customer’s use of the Service(s) to third parties, on the condition that Customer disclaims all warranties and liabilities on behalf of Mo-data (as long as such reports do not identifiy Mo-data, then not necessarily by name, but by role such as licensor or supplier). Additionally, Customer shall not use the Service(s) to: (i) store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (ii) store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iii) interfere with or disrupt the integrity or performance of the Service(s) or the data contained therein; or (iv) attempt to gain unauthorized access to the Service(s) or its related systems or networks.


3. Order Process

Each Order submitted by Customer and accepted by Mo-data shall become incorporated herein by reference (if there is any any conflict between the terms of this Agreement and the terms of any Order, the terms of this Agreement shall prevail). Additionally, terms, provisions or conditions on any purchase order, acknowledgement, or other business form or writing that Customer may use in connection with the provision of Service(s) (or any software) by Mo-data are hereby rejected and will have no effect on the rights, duties or obligations of the parties hereunder, regardless of any failure of Mo-data to object to such terms, provisions or conditions.


4. Customer’s Responsibilities and Mutual Indemnities

4.1 Customer Responsibilities

Customer is responsible for all activity occurring under Customer’s User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service(s), including those related to data privacy, international communications and the transmission of technical or personal data. Customer shall: (i) notify Mo-data immediately of any unauthorized use of any password or account or any other known or suspected breach of security with respect to the Service(s); (ii) report to Mo-data immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by Customer or Customer’s Users; and (iii) not impersonate another Mo-data user or provide false identity information to gain access to or use the Service(s). Customer agrees that Customer will comply with all applicable laws and regulations in connection with Customer’s use of the Service(s), including but not limited to, all applicable privacy and export control laws and regulations.

4.2 Customer Indemnity

Customer shall indemnify and hold Mo-data, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) to the extent arising out of or in connection with:

(i) a claim alleging that use of the Customer Data or Customer Materials infringes a copyright, patent, or a trademark of, or has caused harm to the rights of, a third party;
(ii) a claim, which if true, would constitute a violation by Customer of Customer’s representations and warranties under this Agreement;
(iii) a claim arising from the breach by Customer or Customer’s Users of this Agreement;
(iv) any claim arising out of Customer’s license, sale and/or distribution of tangible copies of reports generated through Customer’s use of the Service(s) to third parties, provided in any such case that Mo-data
(a) promptly gives notice of the claim to Customer;
(b) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle such claim unless such settlement unconditionally releases Mo-data of all liability and does not adversely affect Mo-data's business or Service(s));
(c) provides to Customer all available information and reasonable assistance;
(d) has not compromised or settled such third-party claim.

4.3 Mo-data Indemnity

Mo-data shall indemnify and hold Customer, its subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) to the extent arising out of or in connection with a third party claim alleging that the Mo-data Technology infringes a copyright, patent, or a trademark of, or has caused harm to the rights of, a third party, provided in any such case that Customer:

(a) promptly gives notice of the claim to Mo-data;
(b) gives Mo-data sole control of the defense and settlement of the claim (provided that Mo-data may not settle such claim unless such settlement unconditionally releases Customer of all liability and does not adversely affect Customer's business);
(c) provides to Mo-data all available information and reasonable assistance;
(d) has not compromised or settled such third-party claim. If the Mo-data Technology becomes, or in Mo-data’s opinion is likely to become, the subject of an infringement claim, Mo-data may, at its option and expense, either:
(a) procure for Customer the right to continue using the Mo-data Technology,
(b) replace or modify the Mo-data Technology so that it becomes non-infringing, or
(c) accept termination of the licenses granted hereunder and give Customer a refund for the fees paid by Customer less a reasonable allowance for the period of time Customer has used the Mo-data Technology. Notwithstanding the foregoing, Mo-data will have no obligation under this Section 4.3 or otherwise with respect to any infringement claim based upon:
(i) any use of the Mo-data Technology not in accordance with this Agreement or for purposes not intended by Mo-data,
(ii) any use of the Mo-data Technology in combination with other products, equipment, software, or data not supplied by Mo-data,
(iii) any use of any release of the Mo-data Technology other than the most current release made available to Customer,
(iv) any modification of the Mo-data Technology by any person other than Mo-data or its authorized agents or subcontractors

THIS SECTION 4.3 STATES MO-DATA’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.


5. Account Information and Data and Confidentiality

5.1 Customer Data

Mo-data does not own any Customer Data. Customer, not Mo-data, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use all Customer Data, and Mo-data shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Customer hereby grants Mo-data a perpetual, non-exclusive, royalty-free license to use the Customer Data:

(a) as necessary to provide the Service(s) to Customer under this Agreement;
(b) for statistical, analytical and other aggregate non-personally identifiable use alone and/or together with other data;
(c) as necessary to monitor and improve the Service(s).

Without limiting the foregoing, Mo-data may provide statistical information related to the usage of the Service(s), such as usage or traffic patterns or results obtained through the Service(s), in aggregate form to third parties, but such information will not include identifiable information of Customer or personally identifying information of Customer’s employees or authorized contractors. Customer is responsible for uploading the Customer Data to the Service(s) or otherwise providing Mo-data with access to the Customer Data to enable Mo-data to provide the Service(s).


5.2 Confidential Information

“Confidential Information” means any non public information that relates to the actual or anticipated business, research, or development of Customer or Mo-data and any proprietary information, trade secrets, and know how of Customer or Mo-data that are disclosed to either party or its agents, directly or indirectly, in writing, orally, or by inspection or observation of tangible items. Confidential Information includes information that is defined as “Confidential Information” under any Order between the parties. Confidential Information also includes the confidential information of third parties that has been provided to Customer or Mo-data. Each party’s Confidential Information is the sole property of that party.


5.3 Exceptions

Confidential Information does not include any information that either party can demonstrate:

(a) was publicly known and made generally available in the public domain before the other party disclosed the information,
(b) became publicly known and made generally available, after disclosure by either party, through no wrongful action or inaction of either party or others who were under confidentiality obligations,
(c) was in either party’s possession, without confidentiality restrictions, at the time of disclosure by either party, as shown by that party’s files and records, or (d) was independently developed without use of or reference to the Confidential Information.


5.4 Nondisclosure and Nonuse

Each party will not, during and after the term of this Agreement, disclose the Confidential Information to any third party or use the Confidential Information for any purpose other than the performance of the professional services. Each party will take all reasonable precautions to prevent any unauthorized disclosure of the Confidential Information including, but not limited to, requiring each employee and independent contractor with access to Confidential Information to execute a nondisclosure agreement containing terms that are substantially similar to the terms contained in this Agreement. Neither party will, during and after the term of this Agreement, reverse engineer the Confidential Information.


5.5 Existing Obligations

The obligations in this Section 5 are in addition to, and supplement, each party’s obligations of confidentiality and nondisclosure under the terms of any confidentiality or nondisclosure agreement between the parties (referred to herein, collectively, as the “NDA”).


6. Professional Service(s)

If professional services are included in any Order, any developments or deliverables (excluding Customer Data) will be licensed to Customer on the same terms as set forth in this Agreement, unless otherwise provided in the applicable Order. Customer acknowledges and agrees that Customer may be required to pay additional fees to ensure compatibility between the developments or deliverables and updates or upgrades to the Service(s).


7. Intellectual Property Ownership

Mo-data alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Mo-data Technology, the Content and the Service(s) and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Service(s). This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service(s), the Mo-data Technology or the Intellectual Property Rights owned by Mo-data. The Mo-data name, the Mo-data logo, and the product names associated with the Service(s) are trademarks of Mo-data or third parties, and no right or license is granted to use them.


8. Charges and Payment of Fees

Customer shall pay all fees or charges as specified on each Order. Each Order will specify if Customer or Mo-data is responsible for securing and paying the applicable third party hosting provider hardware and other fees. All payment obligations are non-cancelable and all amounts paid are nonrefundable. Mo-data reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least thirty (30) days prior notice to Customer, effective upon Customer’s next subscription period in accordance with Section 9, below. If Customer does not cancel as described in 9 below, such changes shall become effective at the commencement of the next subscription term. Neither party will disclose any pricing terms or other terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except:

(a) as required by law,
(b) pursuant to a mutually agreeable press release

Customer will pay all invoices net thirty (30) days from the invoice data or as otherwise described in the applicable Order. Mo-data's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Mo-data's income. Customer will be billed, and payments will be made, in U.S. dollars. If Customer believes Customer’s bill is incorrect, Customer must contact Mo-data in writing within thirty (30) days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.

Customer agrees to provide Mo-data with accurate billing and contact information, including Customer’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact. Customer agrees to update this information within thirty (30) days of any change to it. If the contact information Customer has provided is false or fraudulent, Mo-data reserves the right to terminate Customer’s access to the Service(s) in addition to any other legal remedies.


9. Term, Renewal and Termination

9.1 Term and Renewal

The term of this Agreement shall begin on the Effective Date and continue until terminated as set forth hereunder. Service(s) shall commence on the applicable Order Effective Date and continue for the subscription period as set forth in such Order and shall automatically renew for successive one (1) periods, unless a party notifies the other party in writing of its intent not to renew at least thirty (30) days in advance of the end of Customer’s then-curren subscription period. If an Order contains services, Users, additional Customer Data or other metrics added to an existing subscription, such added Service(s) shall be coterminous with Customer’s applicable then-current subscription period and shall be billed from the applicable Order Effective Date.


9.2 Termination for Cause

Either party may terminate this Agreement (and any Order(s) then in effect) if the other party breaches any material term of this Agreement which, in the case of Customer, will include any breach of Customer’s payment obligations or unauthorized use by Customer of the Mo-data Technology or Service(s), if the other party fails to cure such breach within ten (10) business days after notice of such breach.


9.3 Survival

Тermination or expiration of this Agreement shall not relieve either party of obligations that by their nature or term survive termination or expiration; such as, by way of example and without limitation, the obligation to make all payments that have or will become due under this Agreement, Sections 1.1 (Definitions), 2 (Limitations on Use), 4 (Customer’s Responsibilities and Mutual Indemnities), 5 (Account Information and Data and Confidentiality), 7 (Intellectual Property Ownership), 9.3 (Survival), 9.4 (Effect of Termination), 12 (Disclaimer of Warranties), 13 (Limitation of Liability), 17 (General).


9.4 Effect of Termination

Upon termination or expiration of this Agreement: each of the parties shall deliver or destroy all Confidential Information of the other party which is in its possession, care or control and Customer will no longer have access to the Service(s). Customer agrees and acknowledges that Mo-data is not obligated to retain Customer Data for longer than thirty (30) days after termination and if Customer requests within such thirty (30) day period, subject to Customer’s payment of the applicable fees, Mo-data will provide Customer with the Customer Data. Thereafter, Mo-data has no obligation to retain Customer Data, and may delete Customer Data from the Mo-data Service(s).


10. Non-Payment and Suspension

In addition to any other rights granted to Mo-data herein, Mo-data reserves the right to suspend or terminate this Agreement and Customer’s access to the Service(s) if Customer’s account becomes delinquent and is uncured for a period of thirty (30) days. Delinquent invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, from the date due, plus all expenses involved in the debt’s collection. Customer will continue to be charged for License fees during any period of Service(s) suspension. If Mo-data initiates termination of this Agreement for cause, as further described in Section 9, Customer will be obligated to pay the balance due on any Order(s) then in effect computed in accordance with this Section, provided, however, that any such Order shall expire at the end of the applicable subscription period under such Order.


11. Representations & Warranties

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Mo-data further represents and warrants that the Service(s) will perform substantially in accordance with the online Mo-data help documentation under normal use and circumstances for the first ninety (90) days of an Order. In the event of a breach of this warranty, Customer’s sole remedy and Mo-data’s sole obligation will be for Mo-data to make reasonable commercial efforts to correct the non-conformity or, if Mo-data is unable to correct the non-conformity within ninety (90) days after Customer’s written notice, for Customer to terminate the applicable Order. Customer further represents and warrants that Customer has not falsely identified itself nor provided any false information to gain access to the Service(s) and that Customer’s billing information is correct.


12. Disclaimer of Warranties

EXCEPT AS PROVIDED IN SECTION 11, MO-DATA AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. MO-DATA AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET REQUIREMENTS OR EXPECTATIONS, OR (C) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES AND ALL CONTENT IS PROVIDED TO CUSTOMER STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY MO-DATA AND ITS LICENSORS. CUSTOMER IS RESPONSIBLE FOR BACKING UP ITS OWN CUSTOMER DATA. MO-DATA'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. MO-DATA IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.


13. Limitation of Liability

EXCEPT FOR EACH PARTY’S INDEMNITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL MO-DATA’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.


14. Marketing

Customer grants Mo-data the right to use Customer’s name, mark and logo on Mo-data’s website, in Mo-data marketing materials, and to identify Customer as a Mo-data Customer.


15. Notice

All notices required to be provided under this Agreement must be delivered in writing by nationally recognized overnight delivery service, by electronic facsimile (fax), by electronic mail as described below, or by US mail to the other party. All notices shall be deemed to have been given upon receipt or, if earlier, two (2) business days after being deposited in the mail as required above. Either party may change its address by giving timely notice of the new address to the other party pursuant to this Section and identifying in such notice the date on which such change is effective.


16. Assignment

Neither party may assign this Agreement to any third party except upon prior written consent of the other party, such consent not to be unreasonably withheld, except either party may freely assign to (i) a parent or subsidiary of such party, (ii) an acquirer of all or substantially all of the assets of such party, or (iii) in connection with a reorganization or merger. Any purported assignment in violation of this section shall be void. Subject to the foregoing, this Agreement and each and all of the provisions hereof bind and benefit the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns.


17. General

Any use, duplication, or disclosure of the Software by the U.S government is subject to restrictions as set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable. This Agreement shall be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. Except for claims relating to confidential information, intellectual property or indemnification (which shall be resolved through judicial means), any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Santa Clara County, CA or any other location as the parties may mutually agree upon In writing, before one (1) mutually agreed arbitrator. Each party consents to the jurisdiction and venue of the applicable state and waives all jurisdictional rights and defenses to the contrary. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures or Streamlined Arbitration Rules and Procedures, as appropriate, in Santa Clara County, CA. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking injunctive relief from a court of appropriate jurisdiction. The arbitrator may, in the award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the prevailing party. If any provision of this Agreement is held by a court of competent jurisdiction or arbitrator to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. Neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, terrorism, riot, acts of God or governmental action. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Customer agrees to comply fully with all relevant export laws and regulations of the United States (“Export Laws”) to ensure that neither the Service(s), nor any direct product thereof are: (a) exported or re-exported directly or indirectly in violation of Export Laws; or (b) used for any purposes prohibited by the Export Laws, including but not limited to nuclear, chemical, or biological weapons proliferation. No joint venture, partnership, employment, or agency relationship exists between Customer and Mo-data as a result of this Agreement or use of the Service(s). The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. This Agreement, together with any applicable Orders, comprises the entire agreement between Customer and Mo-data regarding the subject matter contained herein and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter.


18. Questions

If Customer has questions regarding this Agreement, please send an e-mail to: info@mo-data.com