Please read these Terms closely before using Mozenda.com (the “Website”). Mozenda may at any time modify these Terms, and your continued use of this Website and the Services (defined below) will be conditioned upon the terms and conditions in force at the time of your use. Your registration for, or use of, the Services shall be deemed to be your approval and execution of this Agreement including your covenant to abide by the Terms including those related to any materials available on the Website. For reference, a Definitions section is included at the end of these Terms. Capitalized terms not otherwise defined herein have the meaning set forth in that section.
1. Uses.
You agree that your use of the technologies, tools, applications, and products made available from time to time on the Website (as further defined in these Terms and the Website, the “Services”) are used solely in conjunction with the extraction of data from publicly accessible websites (including sites which may require a user login). In all cases where copyrighted and or confidential data may be included as part or all of the extracted data, you agree to comply with all copyright laws and rules covering such data including (but not limited to) the reproduction and resale of such data. You agree that Mozenda will not be held responsible for legal liabilities incurred through the use or misuse of data obtained through the Services.
You are responsible for all activity occurring under your user account(s) and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Services, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Mozenda immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Mozenda immediately and use reasonable efforts to stop immediately any copying or distribution of Content or infringement of Mozenda Technology that is known or suspected by you or your Users; and (iii) not impersonate another Mozenda user or provide false identity information to gain access to or use the Services.
2. Services.
You acknowledge and agree that in order for Mozenda to (among other things) maintain the integrity and dynamic nature of the Services, your use of the Services is subject to these Terms, which may be modified by Mozenda at any time and for any reason.
3. License Grant and Restrictions.
Mozenda hereby grants you a non-exclusive, non-transferable, worldwide right and license to use the Services, solely for your own internal purposes, subject to the Terms of this Agreement. All rights not expressly granted to you are reserved by Mozenda and its licensors.
You may not access the Services if you are a direct competitor of Mozenda, except with Mozenda’s prior written consent. In addition, you may not access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. Any action of this kind is likely to result in serious harm to Mozenda for which you agree that Mozenda will be entitled to immediate injunctive relief together with other legal and equitable remedies.
You shall not (i) license, sublicense, sell, resell, transfer, assign or distribute the Services in any way other than as permitted in writing by Mozenda; (ii) modify or make derivative works based upon the Services; (iii) create Internet “links” to the Services or “frame” or “mirror” any content of the Website or the Services on any other server or wireless or Internet-based device; or (iv) modify, reverse engineer, decompile, disassemble or access any computer code relating to the Services in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Services, or (c) copy any ideas, features, functions or graphics of the Services.
4. Targets; Your Target Website(s).
As a service provider, in the event that you have a dispute with a targeted data source (i.e. website or web application) in relation to the use (or misuse) of any of the Services, you release the Website (and Mozenda, Inc. and our officers, directors, agents, subsidiaries, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
5. User Content.
The Website allows you and other users to import, post, publish, create new applications based on, and otherwise extract and use data from publicly available websites and other data sources found on the web. This data is referred to herein as “User Content.”
You are solely responsible for User Content and the consequences of Mozenda or any third party importing, posting, publishing, creating new applications based on, and otherwise using such User Content. In connection with any such User Content, you affirm, represent, and/or warrant that you own or have the necessary licenses, rights, consents, and permissions related to the User Content and its use by you, Mozenda, and any other third party
In connection with User Content, you further agree that you will not: (i) extract and publish data that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant Mozenda all of the rights and licenses granted herein; (ii) publish falsehoods or misrepresentations that could damage Mozenda or any third party; (iii) extract and publish material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (v) impersonate another person. Mozenda does not endorse any User Content or any data, opinion, recommendation, or advice expressed therein, and it expressly disclaims any and all liability in connection with any User Content. Mozenda does not permit copyright infringing activities or infringement of intellectual property rights on the Website, and will remove all Content and User Content if properly notified that such Content or User Content infringes on another’s intellectual property rights. Mozenda may remove or choose not to publish any Content or User Content without prior notice. Mozenda may also terminate your access to the Website, if you are determined to be a repeat infringer. A repeat infringer is anyone who has been notified of infringing activity more than once and/or has had any User Content removed from the Website more than once. Mozenda also reserves the right to decide whether Content or User Content is appropriate and complies with this Agreement for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to, pornography, obscene or defamatory material. Mozenda may remove or choose not to publish any such User Content and/or terminate your access for uploading such material in violation of this Agreement at any time, without prior notice and at its sole discretion.
6. Legal Disclaimer and Warning.
It is up to you to determine the legality of the way you use our Services. Mozenda will never knowingly build or host any data extraction or data import agent that is obviously illegal. Mozenda assumes that the agent you build will be used legally and ethically and that you have obtained permission, if necessary to use it on the targeted data source. Mozenda reserves the right to refuse service to anyone wishing to use the Services in an illegal manner.
Mozenda may immediately suspend your use of the Services if it is contacted by your targeted data extraction source, website, or repository and asked to cease all extraction activity. If such an event occurs, Mozenda will not disclose your information without a court order mandating it to do so unless Mozenda in its best judgment determines that there would be an adverse consequence if it does not. If however Mozenda receives a court order demanding the release of your information to a third party, it will comply. If such action becomes necessary, you agree to indemnify and hold Mozenda and (as applicable) its parent(s), subsidiaries, affiliates, officers, directors, agents, contractors and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party arising from any complaint, suit, disagreement or other repercussions resulting from your use of the Services.
7. Prohibited Uses.
Mozenda strictly prohibits using any Mozenda Services or products: (i) to generate fraudulent impressions of or fraudulent clicks on your ad(s) or third-party ad(s) through any automated, deceptive, fraudulent or other invalid means, including but not limited to through repeated manual clicks, the use of robots, agents or other automated query tools and/or computer generated search requests, and/or the unauthorized use of other search engine optimization services and/or software; (ii) to extract data that are illegal in any state or country where you reside; (iii) to engage in any other illegal or fraudulent business practice under the laws of any state or country where you reside; (iv) to extract data from adult or pornographic websites, gambling or casino-related websites, hate-related websites, websites that promote violence, or drug-related websites;(v) which violates the terms and conditions of any website or web application; or (v) engage in any action or practice that reflects poorly on Mozenda or otherwise disparages or devalues Mozenda’s reputation or goodwill. Violation of these policies may result in immediate termination of your use of the Services and the Website without notice, and may subject you to state and federal penalties and other legal consequences.
8. Account Information and Data.
Mozenda does not claim ownership of any data, information or material that you submit to the Services in the course of using the Services (“Customer Data”) and may not use or disclose Customer Data other than (a) to comply with law or comply with legal process, (b) to protect and defend Mozenda’s rights or the rights of Mozenda’s Customers and third parties, or (c) to avoid liability or the liability of Mozenda Customer’s or third parties. Mozenda may gather and use any information describing the habits, usage patterns or demographics relating to any Customer Data for internal purposes. You, not Mozenda, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Mozenda shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data.
9. Intellectual Property Ownership.
Mozenda alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Mozenda Technology and the Services in addition to any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Services. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Services, the Mozenda Technology or the Intellectual Property Rights owned by Mozenda, except as expressly set forth herein. The Mozenda name, the Mozenda logo, and the product names associated with the Services are trademarks of Mozenda or third parties, and no right or license is granted to use them.
10. Termination; Cancellation.
You may cancel your subscription at any time but shall remain liable and be immediately charged for your use of the Services up to the date of cancellation or through the term of the license contract. Un-cancelled accounts will NOT receive a refund for lack of use. It’s your responsibility to cancel your account before the bill date if you do not want to be charged automatically. No refunds will be given for un-used page credits or remaining monthly page downloads at time of cancellation. Mozenda may at any time terminate your use of the Services or cancel any subscription(s) or your use of any subscription or license for cause, which includes the issuance of chargeback for amounts rightfully owed by an account holder. Except as set forth above or unless Mozenda has previously canceled or terminated your use of the Services (in which case subsequent notice by Mozenda shall not be required), Mozenda will notify you via email of any such termination or cancellation, which shall be effective immediately. Upon cancellation of any subscription or termination or expiration of this Agreement for any reason, (i) you shall remain liable for any amount due for subscriptions already delivered through the date such cancellation or termination takes effect, and (ii) the “Prohibited Uses” and each section of these Terms thereafter shall survive expiration or termination.
11. Confidentiality.
During the term of your use of the Services and for a period of two (2) years following the termination or expiration of your subscription, each party agrees not to disclose Confidential Information of the other party to any third party without prior written consent except as provided herein. “Confidential Information” includes (i) subscription account data, including agent definitions, Customer Data, and User Content, (ii) except as provided in subsection (i) above, any other Services information or access to technology prior to public disclosure provided by Mozenda to you and identified at the time of disclosure in writing as “Confidential.” Confidential Information does not include information that has become publicly known through no breach by a party, or has been (i) independently developed without access to the other party’s Confidential Information; (ii) rightfully received from a third party; or (iii) required to be disclosed by law or by a governmental authority. Nothing in these Terms shall prohibit or limit either party’s use or disclosure of the U.S. Federal income tax treatment and U.S. Federal income tax structure of any transaction contemplated by these Terms and all materials of any kind (including opinions or other tax analyses) that are provided to it relating to such tax treatment or tax structure, except where confidentiality is necessary to comply with applicable federal or state securities laws.
12. Your Marks.
You hereby grant Mozenda the limited right to use your trademarks, service marks and other information identifiable to you for the purpose of representing to third parties that you use or have used the Website and/or Services.
13. No Guarantee.
Mozenda makes no guarantee regarding the extraction, importation, publishing, storage, or delivery timeliness of data defined within the scope of a subscription.
14. Warranty.
MOZENDA MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY CONTENT. MOZENDA DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICES WILL BE COMPLETELY SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICES OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES AND ALL CONTENT IS PROVIDED TO YOU 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 MOZENDA.
15. Limitation of Liability; Force Majeure.
EXCEPT FOR ANY INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, (i) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THESE TERMS FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND (ii) MOZENDA’S AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE AMOUNT PAID TO MOZENDA BY YOU FOR THE SERVICES GIVING RISE TO THE CLAIM. Each party acknowledges that the other party has agreed to these Terms relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties. Without limiting the foregoing and except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action or acts of terrorism, earthquake or other acts of God, labor conditions, and power failures.
16. Internet Delays.
MOZENDA’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. MOZENDA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
17. Payment, Refunds.
You agree to pay all applicable charges under these Terms, including any applicable taxes or charges imposed by any government entity, and that Mozenda may change its pricing at any time. There are no refunds for payments made once service has been rendered. If you dispute any charge made for your use of the Services, you must notify Mozenda in writing within fifteen (15) days of any such charge; failure to so notify Mozenda shall result in the waiver by you of any claim relating to any such disputed charge. Charges shall be calculated solely based on invoicing records maintained by Mozenda for purposes of billing. No other measurements or statistics of any kind shall be accepted by Mozenda or have any effect under these Terms.
18. Representations and Warranties.
You represent and warrant that (a) all of the information provided by you to Mozenda to use the Services is correct and current and that that you have not falsely identified yourself nor provided any false information to gain access to the Services and that your billing information is correct.
19. Your Obligation to Indemnify.
You agree to indemnify, defend and hold Mozenda, its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (e.g., all relevant Partner(s), licensors, licensees, consultants and contractors) (“Indemnified Person(s)”) harmless from and against any third party claim, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Person(s), arising out of your use of the Services and/or your breach of any of these Terms. You acknowledge and agree that each Indemnified Person has the right to assert and enforce its rights under this Section directly on its own behalf as a third party beneficiary.
20. Miscellaneous.
You will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Mozenda in collecting unpaid amounts under these Terms. These Terms shall be governed by the laws of the State of Utah, except for its conflicts of laws principles. Any dispute or claim arising out of or in connection with these Terms shall be adjudicated in Utah County, Utah. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and any non-Mozenda purchase order, invoice or other document relating to the subject matter hereof and any additional terms contained therein shall be null and void. Each party hereto is duly authorized to enter into and agree to these Terms and perform its obligations hereunder. Any modifications to these Terms must be made in a writing approved by Mozenda and executed by both parties. Unless otherwise expressly set forth herein, any notices shall be sent to (a) in the case of Mozenda: c/o Mozenda, Inc. 4626 N. 300 W. STE 360, Provo, UT 84604, with a copy to the Mozenda Legal Department; and (b) in your case, to the address then on record with Mozenda for your account. Notice shall be given via (x) confirmed facsimile, with a copy sent via first class or air mail; or (y) overnight courier, and such notice shall be deemed given upon receipt. The waiver of any breach or default of these Terms will not constitute a waiver of any subsequent breach or default. If any provision herein is held unenforceable, then such provision will be modified to reflect the parties’ intention, and the remaining provisions of these Terms will remain in full force and effect. Customer may not resell, assign, or transfer any of its rights hereunder. Any such attempt may result in termination of these Terms, without liability to Mozenda. This Agreement shall be construed as if both parties jointly wrote it.
21. Definitions.
As used in this Agreement: “Agreement” means these online Terms and any materials available on the Mozenda website specifically incorporated by reference herein, as such materials, including the Terms of this Agreement, may be updated by Mozenda from time to time in its sole discretion; “Customer Data” means any data, information or material provided or submitted by you to the Services in the course of using the Services; “Effective Date” means the earlier of either the date this Agreement is accepted by selecting the “I Accept” option presented on the screen after this Agreement is displayed or the date you begin using the Services; “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; “Mozenda” means collectively Mozenda, Inc., a Utah corporation, having its principal place of business at 4626 N. 300 W. STE 360, Provo, UT 84604, USA; “Mozenda Technology” means all of Mozenda’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 you by Mozenda in providing the Services; “User(s)” means you or your representatives, consultants, contractors or agents who are authorized to use the Services and have been supplied user identifications and passwords by you (or by Mozenda at your request).
