Terms and Conditions
Terms & Conditions (Last updated: October 18, 2017)
Hello and welcome to Moso Software Terms & Conditions!
While we're not your lawyers, we do want to say: Please read this Agreement carefully! It includes important information about your legal rights, and covers areas such as automatic subscription renewals, warranty disclaimers, limitations of liability, resolution of disputes by arbitration and a class action waiver.
We've tried to make this Agreement fair and straightforward, but feel free to contact us if you have any questions or suggestions.
1. Creating an Account
Make sure your account information is accurate, and you keep your account safe. You're responsible for your account and any activity on it. Also, you need to be at least 13 years old to use Moso Software.
- 1.1 Signing Up. To use the Services, you must first create an account (“Account”). You agree to provide us with accurate, complete and updated information for your Account. We may need to use this information to contact you.
- 1.2. Staying Safe. Please safeguard your Account and make sure others don't have access to your Account or password. You must immediately notify us of any actual or suspected loss, theft or unauthorized use of your Account or password. You're solely responsible for any activity on your Account. We're not liable for any acts or omissions by you in connection with your Account.
- 1.3. Thirteen And Older. The Services are not intended for and may not be used by children under the age of 13. By using the Services, you represent that you're at least 13. Also, if you're under the age of 18, you must have your parent or guardian's consent to this Agreement, and they may need to enter into this Agreement on your behalf (depending on where you live).
2. Your Content
- 2.1 Your User Content Stays Yours. Users of the Services may provide us with content, including without limitation text, photos, images, audio, video, code and any other materials (“User Content"). Your User Content stays yours. These Terms don't give us any rights to User Content, except for the limited rights that enable us to provide, improve, promote and protect the Services as described herein.
- 2.2. Your License To Us. When you provide User Content via the Services, you grant Moso Software a non-exclusive, worldwide, perpetual, royalty-free, sublicensable, transferable right and license to use, host, store, reproduce, modify, create derivative works of (such as those resulting from translations, adaptations or other changes we make so that User Content works better with the Services), communicate, publish, publicly display, publicly perform and distribute User Content for the limited purposes of allowing us to provide, improve, promoteand protect the Services.
- 2.3. Featuring Your Site. We may use in perpetuity, worldwide and free of charge, any version of Your Sites (as defined below), or any portion thereof, for the limited purpose of Moso Software marketing and promotional activities. For example, we may feature Your Sites on our Templates page, or on our social media accounts. This can result in improved traffic to Your Sites. You waive any claims against us relating to any moral rights, artists' rights or any other similar rights worldwide that you may have in or to Your Sites, and any right of inspection or approval of any such use of Your Sites. If you don't want Your Sites featured, you can opt out at anytime via the Services or by contacting us.
3. Your Responsibilities
- 3.1. Only Use Content You're Allowed To Use. You represent that you own all rights to your User Content or otherwise have (and will continue to have) all rights and permissions to legally use, share, display, transfer and license your User Content via the Services. If we use your User Content in the ways contemplated in this Agreement, you represent that such use will not infringe or violate the rights of any third party, including without limitation any copyrights, trademarks, privacy rights, publicity rights, contract rights or any other intellectual property or proprietary rights. Content on the Services may be protected by others' intellectual property or other rights, so please don't copy, upload, download or share content unless you have the right to do so.
- 3.2. Follow Our Rules. You're responsible for your conduct and User Content, and you must comply with our Acceptable Use Policy. We may review your conduct and User Content for compliance with these Terms and our Acceptable Use Policy. With that said, we have no obligation to do so. We're not responsible for User Content.
- 3.3. Follow The Law. You represent that your use of the Services is not contrary to law, including without limitation applicable US export controls, regulations and sanctions.
- 3.4. Share Responsibly. The Services let you share User Content with others, including without limitation on social media and the open web, so please think carefully about what you share. We're not responsible for what you share via the Services.
4. Third Party Services And Sites, User Content
- 4.1. Third Party Services. The Services are integrated with various third party services, applications and sites (collectively, “Third Party Services”) that may make available to you their content and products, such as domain and email services, or marketplaces to connect customers and vendors. These Third Party Services may have their own terms and policies, and your use of them will be governed by those terms and policies. We don't control Third Party Services, and we're not liable for Third Party Services or for any transaction you may enter into with them. Your security when using Third Party Services is your responsibility.You also agree that we may, at any time and in our sole discretion, and without any notice to you, suspend, disable access to or remove any Third Party Services. We're not liable to you for any such suspension, disabling or removal, including without limitation for any loss of profits, revenue, data, goodwill or other intangible losses you may experience as a result thereof (except where prohibited by law).
- 4.2. Third Party Sites. The Services may contain links to third party sites. When you access third party sites, you do so at your own risk. We don't control and aren't liable for those sites.
- 4.3. User Content. We haven't reviewed and can't review all of the User Content made available via the Services. The Services may contain User Content: (a) that is offensive or objectionable; (b) that contains errors; (c) that violates intellectual property, privacy, publicity or other rights of third parties; (d) that is harmful to your computer or network; or (e) the downloading, copying or use of which is subject to additional terms and policies. By operating the Services, we don't represent or imply that we endorse User Content provided therein, or that we believe such User Content to be accurate, useful or non-harmful. We're not a publisher of, and we're not liable for, any User Content uploaded, posted, published or otherwise made available via the Services. You're responsible for taking precautions to protect yourself, and your computer or network, from User Content accessed via the Services.
5. Our Intellectual Property
- 5.1. Moso Software Owns Moso Software. The Services are protected by copyright, trademark and other US and foreign laws. These Terms don't grant you any right, title or interest in the Services, our trademarks, logos or other brand features or intellectual property, or others' content in the Services. You agree not to change, translate or otherwise create derivative works of the Services.
- 5.2. We Can Use Your Feedback For Free. We welcome your feedback, ideas or suggestions (“Feedback”), but you agree that we may use your Feedback without any restriction or obligation to you, even after this Agreement is terminated.
- 5.3. Our Demo Content Is For Private Use Only. We may provide templates or other products featuring demo content including without limitation text, photos, images, graphics, audio, video and other materials (“Demo Content”), to provide you with ideas or inspiration. However, Demo Content is for private use only (unless we tell you otherwise). You agree that you will not distribute, publicly display, publicly perform or otherwise publish any Demo Content (or any portion thereof).
- 5.4. Our Betas Are Still In Beta. We may release products and features that we're still testing and evaluating. Those Services have been marked as beta, preview or early access (or a similar phrasing), and may not be as reliable as our other services, so please keep that in mind.
- 5.5. We Use Open Source Software. Open source software is important to us. Some of the software used in the Services may be offered under an open source license that we may make available to you. There may be provisions in the open source license that override some of these Terms.
6. Our Rights
- 6.1. Important Things We Can Do. We reserve these rights, which we may exercise at any time and in our sole discretion, and without liability or notice to you (except where prohibited by law): (a) we may change the Services and their functionality; (b) we may restrict access to or use of parts or all of the Services; (c) we may suspend or discontinue parts or all of the Services; (d) we may terminate, suspend or restrict your access to or use of parts or all of the Services; (e) we may terminate, suspend or restrict access to your Account or Your Sites; and (f) we may change our eligibility criteria to use the Services (and if such eligibility criteria changes are prohibited by law where you live, we may revoke your right to use the Services in that jurisdiction).
- 6.2. How We Handle Ownership Disputes. Sometimes, ownership of an Account or site is disputed between one or more parties, such as a business and its employee, or a web designer and their client. We try not to get involved in these disputes. However, we reserve the right, at any time and in our sole discretion, and without notice to you, to determine rightful Account or site ownership and to transfer an Account or site to the rightful owner. If we can't reasonably determine the rightful owner, we reserve the right to suspend an Account or site until the disputing parties reach a resolution. We also may request documentation, such as a government-issued photo ID, a credit card invoice or a business license, to help determine the rightful owner.
- 6.3. HTTPS Encryption. We may offer HTTPS encryption for Your Sites. By registering a custom domain via the Services, or pointing a custom domain to the Services, you authorize us to create and maintain a certificate for the limited purpose of providing HTTPS for Your Sites.
We respect the intellectual property of others and ask that you do too. We respond to notices of alleged copyright infringement if they comply with the law, and such notices should be reported via the process described in our Copyright Policy, which is incorporated by reference into this Agreement. We reserve the right to delete or disable content alleged to be infringing, and to terminate Accounts of repeat infringers without any refunds.
9. Paid Services And Fees
- 9.1. Fees. You can access certain portions of the Services by submitting a fee payment (such additional services, “Paid Services”). For example, to publish Your Sites publicly, you'll need to pay a subscription fee. Paid Services will remain in effect until cancelled or terminated in accordance with this Agreement. We'll tell you about fees for Paid Services before charging you. You may cancel Paid Services at any time by contacting us. If you don't pay for Paid Services on time, we reserve the right to suspend or cancel your access to the Paid Services. Transaction fees and additional fees may also apply to certain portions of the Services, and we'll tell you about those fees before charging you. Our fees will appear on an invoice that we provide via the Services, unless otherwise indicated.
- 9.2. Taxes. All fees are exclusive of applicable federal, state, local or other taxes (“Taxes”). You're responsible for all applicable Taxes, and we'll charge Taxes in addition to the fees for the Services when required to do so. If you're exempt from Taxes, you must provide us with a valid tax exemption certificate (we reserve the right to determine whether a certificate is valid). Tax exemption will only apply from and after the date we receive such certificate.
- 9.3. Automatic Subscription Renewals. To ensure uninterrupted service, we'll automatically bill you for certain Paid Services from the date you submit your initial payment and on each renewal period thereafter until cancellation. Your renewal period will be equal in time to the renewal period of your current subscription. For example, if you're on a monthly subscription plan, each billable renewal period will be for one month. We'll automatically charge you the applicable amount using the payment method you have on file with us. We'll let you know in advance if you're purchasing a Paid Service that includes auto-renewal payments. You can disable auto-renewal at any time by contacting us.
- 9.4. Refunds. While you may cancel any Paid Services at any time, you won't be issued a refund except in our sole discretion, or if legally required.
- 9.5. Fee Changes. We may change our fees at any time. When applicable, we'll give you advance notice of these fee changes via the Services. New fees will not apply retroactively. If you don't agree with the fee changes, you have the right to reject the change by cancelling the applicable Paid Service before your next payment date.
- 9.6. Chargebacks. If you contact your bank or credit card company to decline, chargeback or otherwise reverse the charge of any payable fees to us (“Chargeback”), we may automatically terminate your Account. If you have questions about a payment made to us, we encourage you to contact us before filing a Chargeback. We reserve our right to dispute any Chargeback.
- 9.8. Fees For Third Party Services. Third Party Services purchased via the Services may be subject to different refund policies that those Third Party Services determine, and they may be non-refundable. The purchase terms and conditions for such Third Party Services will be displayed during the purchase process, such as through a link to the purchase terms and conditions. It's your responsibility to verify your ability to purchase, cancel or obtain a refund for a Third Party Service. We don't offer refunds for purchases of Third Party Services.
10. Your eCommerce On Moso Software
- 10.1. eCommerce Responsibilities.The Services include features that enable you to provide or sell products and services to,
or otherwise collect payments from, your End Users (such activities, “Your eCommerce”). We're not a party to, and we aren't liable for,
Your eCommerce. You're solely responsible for Your eCommerce, and compliance with any laws or regulations related thereto,
including without limitation the following:
- 10.1.1. Taxes. You're solely responsible for: (a) all Taxes and fees associated with Your eCommerce, including without limitation any Taxes related to the purchase or sale of products or services in connection therewith; (b) collecting, reporting and remitting required Taxes to relevant government authorities; and (c) informing your End Users of required Taxes, and providing them with invoices as required by law. You also agree that any tax estimates, reporting or related materials that we may provide via the Services are for illustration purposes only, and you may not rely on them to comply with your tax obligations.
- 10.1.2. Fulfillment And Delivery. You're solely responsible for fulfilling and delivering your products and services to your End Users.
- 10.1.3. Claims and Warranties. You're solely responsible for any claims or warranties you make in connection with Your eCommerce.
- 10.1.4. Customer Service. You're solely responsible for handling any comments or complaints related to Your eCommerce, including without limitation any issues related to payments, promotions, refunds or chargebacks. You agree to provide accurate and complete contact information on Your Sites so that your End Users can submitcomments or complaints to you.
- 10.2. eCommerce Restrictions. You may not offer or sell any products or services which, in our sole discretion: (a) may be deemed hazardous, counterfeit, stolen, fraudulent, offensive or abusive; (b) are prohibited for sale, distribution or use; or (c) otherwise fail to comply with any applicable laws or regulations, including without limitation with respect to intellectual property, privacy or publicity rights, consumer protection, product safety or trade regulations, or export controls, regulations or sanctions.
- 10.3. eCommerce Suspensions. While we'd prefer not to, we may, at any time and in our sole discretion, and without any notice to you, suspend, disable access to or remove your Account, Your Sites or Your eCommerce, without any liability to you or to any End Users, including without limitation for any loss of profits, revenue, data, goodwill or other intangible losses (except where prohibited by law). For example, we may suspend Your eCommerce if you're violating this Agreement.
- 10.4. eCommerce Payment Processor. To accept payments from your End Users in connection with Your eCommerce, you may integrate Your Sites with third party payment processors (“eCommerce Payment Processors”). Your relationship with such eCommerce Payment Processors is governed by those eCommerce Payment Processors' terms and policies. We don't control and aren't liable for any eCommerce Payment Processors, or for any transaction you may enter into with or through any eCommerce Payment Processors. eCommerce Payment Processors are Third Party Services, as defined in Section 4.1. While we will try to provide advance notice, you agree that we may, at any time and in our sole discretion, and without any notice to you, suspend, disable access to, or remove from the Services, any eCommerce Payment Processors, without any liability to you or to any End Users, including without limitation for any loss of profits, revenue, data, goodwill or other intangible losses (except where prohibited by law). Your eCommerce Payment Processors may provide invoices for any transaction fees associated with your eCommerce transactions.
11. Term And Termination
This Agreement will remain in effect until terminated by either you or us. To terminate this Agreement, you may contact us or simply stop using the Services at any time. We reserve the right to suspend or terminate the Services at any time at our sole discretion and without notice. For example, we may suspend or terminate your use of the Services if you're violating these Terms or our Acceptable Use Policy. All sections of this Agreement that by their nature should survive termination shall survive termination, including without limitation Your Content, Our Intellectual Property, Warranty Disclaimers, Limitation Of Liability, Indemnification, Dispute Resolution and Additional Terms.
12. Warranty Disclaimers
To the fullest extent permitted by law, Moso Software makes no warranties, either express or implied, about the Services. The Services are provided “as is.” Moso Software also disclaims any warranties of merchantability, fitness for a particular purpose and non-infringement. No advice or information, whether oral or written, obtained by you from Moso Software shall create any warranty. Moso Software makes no warranty or representation that the Services will: (a) be timely, uninterrupted or error-free; (b) meet your requirements or expectations; or (c) be free from viruses or other harmful components. Some places don't allow the disclaimers in this paragraph, so they may not apply to you.
13. Limitation Of Liability
To the fullest extent permitted by law, in no event will Moso Software be liable with respect to any claims arising out of or related to the Services or this Agreement for: (a) any indirect, special, incidental, exemplary, punitive or consequential damages; (b) any loss of profits, revenue, data, goodwill or other intangible losses; (c) any damages related to your access to, use of or inability to access or use the Services or any portion thereof, including without limitation interruption of use or cessation or modification of any aspect of the Services; (d) any damages related to loss or corruption of any content or data, including without limitation User Content and eCommerce data; (e) any User Content or other conduct or content of any user or third party using the Services, including without limitation defamatory, offensive or unlawful conduct or content; or (f) any Third Party Services or third party sites accessed via the Services. These limitations apply to any theory of liability, whether based on warranty, contract, tort, negligence, strict liability or any other legal theory, whether or not Moso Software has been informed of the possibility of such damage, and even if a remedy set forth herein is found to have failed its essential purpose. To the fullest extent permitted by law, in no event shall the aggregate liability of Moso Software for all claims arising out of or related to the Services and this Agreement exceed the greater of twenty dollars ($20) or the amounts paid by you to Moso Software in the twelve (12) months immediately preceding the event that gave rise to such claim. Some places don't allow the types of limitations in this paragraph,so they may not apply to you.
To the fullest extent permitted by law, you agree to indemnify and hold harmless Moso Software from and against all damages, losses and expenses of any kind (including without limitation reasonable attorneys' fees and costs) arising out of or related to: (a) your breach of this Agreement; (b) your User Content, Your Sites and Your eCommerce; (c) any claims from your End Users; and (d) your violation of any law or regulation or the rights of any third party.
15. Dispute Resolution
- 15.1. Informal Resolution. Before filing a claim against Moso Software, you agree to try to resolve the dispute by first emailing email@example.com with a description of your claim. We'll try to resolve the dispute informally by following up via email, phone or other methods. If we can't resolve the dispute within thirty (30) days of our receipt of your first email, you or Moso Software may then bring a formal proceeding.
- 15.2. Arbitration Agreement. You and Moso Software agree to resolve any claims arising from or relating to the Services or this Agreement through final and binding arbitration and you and Moso Software expressly waive trial by jury, except as set forth below. Discovery and rights to appeal in arbitration are generally more limited than in a lawsuit, and other rights that you and we would have in court may not be available in arbitration. There is no judge or jury in arbitration, and court review of an arbitration award is limited.
- 15.3. Arbitration Opt-Out. You can decline this agreement to arbitrate by emailing us at firstname.lastname@example.org within thirty (30) days of the date that you first agree to this Agreement (“Opt-Out Period”). Your email must be sent from the email address you use for your Account, and must include your full name, residential address and a clear statement that you want to opt out of arbitration. If you opt out of arbitration pursuant to this Section 15.3, then Sections 15.2, 15.4, 15.5 and 15.6 of these Terms do not apply to you. This opt-out doesn't affect any other sections of the Terms, including without limitation Sections 15.8 (Judicial Forum For Disputes; Time For Filing), 15.9 (No Class Actions) and 16.2 (Controlling Law). If you have any questions about this process, please contact email@example.com.
- 15.4. Arbitration Time For Filing. Any arbitration must be commenced by filing a demand for arbitration within one year after the date the party asserting the claim first knows or reasonably should know of the act, omission or default giving rise to the claim. If applicable law prohibits a one year limitation period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law.
- 15.5. Arbitration Procedures. JAMS, Inc. (“JAMS”) will administer the arbitration in accordance with the JAMS Streamlined Arbitration Rules & Procedures (“JAMS Rules”) in effect at the time of the dispute. You and Moso Software agree that this Agreement affects interstate commerce, so the US Federal Arbitration Act and federal arbitration law apply and govern the interpretation and enforcement of these provisions (despite the choice of law provision below). Any arbitration hearings will take place at a location to be agreed upon in New York, New York, in English, and shall be settled by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the JAMS Rules. The arbitrator must follow this Agreement and can award the same damages and relief as a court (including without limitation reasonable attorneys' fees and costs), except that the arbitrator may not award declaratory or injunctive relief benefiting anyone but the parties to the arbitration. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
- 15.6. Arbitration Fees. The JAMS Rules will govern payment of all arbitration fees. We won't seek our attorneys' fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
- 15.7. Exceptions To Arbitration Agreement. Either you or Moso Software may assert claims, if they qualify, in small claims court in San Jose, California or any United States county where you live or work. Either you or Moso Software may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement or misappropriation (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute resolution process described above.
- 15.8. Judicial Forum For Disputes; Time For Filing. If our agreement to arbitrate is found not to apply to you or your claim, or if you opt out of arbitration pursuant to Section 15.3, you and Moso Software agree that any judicial proceeding (other than small claims actions) must be brought exclusively in the federal or state courts of San Jose, California and you and Moso Software consent to venue and personal jurisdiction in those courts. Any claim not subject to arbitration must be commenced within one year after the date the party asserting the claim first knows or reasonably should know of the act, omission or default giving rise to the claim. If applicable law prohibits a one year limitation period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law.
- 15.9. NO CLASS ACTIONS. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated or representative action. Class actions, class arbitrations, private attorney general actions and consolidation with other arbitrations aren't allowed.
17. Additional Terms
- 17.1. Entire Agreement. This Agreement constitutes the entire agreement between you and Moso Software regarding the subject matter of this Agreement, and supersedes and replaces any other prior or contemporaneous agreements, or terms and conditions applicable to the subject matter of this Agreement. This Agreement creates no third party beneficiary rights.
- 17.2. Controlling Law. This Agreement and the Services shall be governed in all respects by the laws of the State of New York, without regard to its conflict of law provisions.
- 17.3. Waiver, Severability And Assignment. Our failure to enforce any provision of this Agreement is not a waiver of our right to do so later. If any provision of this Agreement is found unenforceable, the remaining provisions will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not assign any of your rights under this Agreement, and any such attempt will be void. We may assign our rights under this Agreement to any of our affiliates or subsidiaries, or to any successor in interest of any business associated with the Services.
- 17.4. Modifications. We may modify this Agreement from time to time, and will always post the most current version on our site. If a modification meaningfully reduces your rights, we'll notify you (by, for example, sending you an email or displaying a prominent notice within the Services). The notice will designate a reasonable period after which the new terms will take effect. Modifications will never apply retroactively. By continuing to use or access the Services after any modifications come into effect, you agree to be bound by the modified Agreement. If you disagree with our changes, then you should stop using the Services.
- 17.5. Translation. This Agreement was originally written in English (US). We may translate this Agreement into other languages. In the event of a conflict between a translated version and the English version, the English version will control.