MODX Terms of Service Agreement (TOS)
PLEASE READ CAREFULLY: THIS AGREEMENT is between MODX Systems LLC, a Texas Limited Liability Company its affiliates and wholly owned subsidiaries (“MODX”) and the individual or entity (collectively, “you” or “your” or “Customer”) for certain services provided by MODX as more fully described and updated from time to time at MODXcloud.com as ordered, subscribed to or accepted pursuant to the Terms of Service (“Services”). The Customer’s use of and access to Services is governed by the Terms of Services (“TOS”), Service Level Agreement, Privacy Agreement, MODX Acceptable Use Policy, any other documents referenced herein (collectively, the “Agreement”).
BY CLICKING OR CHECKING THE BOX PRESENTED WITH THE AGREEMENT OR INSTALLING OR USING ANY OF THE SERVICES, THE CUSTOMER AGREES THAT (1) CUSTOMER HAS ACCEPTED THIS AGREEMENT IN ITS ENTIRETY, (2) AGREES TO BE BOUND BY THE AGREEMENT (AS AMENDED FROM TIME TO TIME AS PROVIDED IN THE AGREEMENT ), (3) IF THE CUSTOMER IS AN INDIVIDUAL, THEN THE INDIVIDUAL REPRESENTS AND WARRANTS THAT HE HAS THE LEGAL RIGHT TO ENTER INTO THE AGREEMENT AND IF THE CUSTOMER IS AN ENTITY, THEN THE INDIVIDUAL WHO AGREES TO THE AGREEMENT REPRESENTS AND WARRANTS THAT HE OR SHE HAS THE AUTHORITY TO BIND SUCH ENTITY AND (4) THIS AGREEMENT CONSTITUTES A BINDING AND ENFORCEABLE OBLIGATION BETWEEN MODX AND CUSTOMER. IF THE CUSTOMER DOES NOT AGREE WITH ALL THE TERMS OF THIS AGREEMENT AND DOES NOT AGREE TO BE BOUND BY THIS AGREEMENT, PLEASE DO NOT CLICK OR CHECK THE BOX PRESENTED WITH THE AGREEMENT OR INSTALL OR USE THE SERVICES.
“Account Information” means billing information, contact information, payment information and such other information defined as “Account Information” in the MODX Cloud Dashboard.
“Affiliate(s)" means any legal entity that a party controls, that controls a party, or that is under common control with a party. For purposes of this definition, “control” shall mean beneficial ownership of the securities entitled to vote in the election of directors (or, in the case of an entity that is not a corporation, of the election of the corresponding management authority) in the entity of (i) more than fifty percent (50%) of the securities or (ii) such lesser percentage of securities as is the maximum ownership permitted in the country where the entity exists.
“Anniversary Billing Date" means the date of the month of the Effective Date except as provided in this definition. For example, if the Effective Date is May 20, 2012, then the Anniversary Billing Date is the twentieth of the calendar month. If the Anniversary Billing Date is a date in a calendar month which does not exist in each calendar month, then the Anniversary Billing Date shall be the last date of such month. For example, if the Anniversary Billing Date is the 30th, in February the Anniversary Billing Date will be either February 28 or 29, depending on the year.
“Acceptable Use Policy” or “AUP” means the MODX Acceptable Use Policy, posted at http://MODXCloud.com, as such policy may be amended from time to time by MODX.
“Beta Services” means pre-production versions of services that are offered by MODX to certain customers for the sole purpose of testing and evaluating such services.
“Confidential Information” means all confidential and proprietary information of a party disclosed either before or after the effective date of this Agreement and marked as such (if such information is capable of being so marked) regarding such party’s products and business that are disclosed by such party (the “Disclosing Party”) to the other party (the “Non-Disclosing Party”) under this Agreement including, but not limited to, the Disclosing Party’s intellectual property. Confidential Information also includes (a) the unpublished prices and other terms of service, audit and security reports, data center designs and other proprietary technology and (b) all information transmitted to or from, stored on, or otherwise processed by the servers or other devices used in the provision of the Services. Confidential Information does not include information: (i) in the public domain at the time of delivery, (ii) subsequently published or otherwise made part of the public domain through no fault of the Non-Disclosing Party or its representatives, (iii) in the Non-Disclosing Party’s possession at the time of disclosure and not acquired by the Non-Disclosing party directly or indirectly from Disclosing Party or its representatives on a confidential basis, (iv) which becomes available to the Non-Disclosing Party on a non-confidential basis from a source not under an obligation of confidentiality to the Disclosing Party, or (v) information that is independently developed without reference to the Confidential Information, as evidenced by written records maintained in the ordinary course of business.
“Customer” or “You” or “Your”, collectively means the individual or entity who agrees to the terms of the Agreement by clicking or checking the box presented with the Agreement, installing and/or using the Services.
“Customer Content” means all data, software and information, including, without limitation, data text, software, scripts, video, sound, music, graphics and images that are created, uploaded or transferred in connection with the Services by Customer or its Affiliates.
“Customer End User” means a Third Party which is an end user of a Customer Offering.
“Customer Offering” means services created by Customer based in whole or in part on the Services which are used by Third Parties.
“Effective Date” means the date on which the Customer accepts the Agreement by clicking or checking the box presented with the Agreement, installing and/or using the Services.
“Feedback” means any and all suggestion, comments, improvements, or other feedback about the Services that Customer or any Affiliate provides to MODX either directly or indirectly via a MODX-controlled web site.
“Fees” means the setup fees, recurring fees and non-Recurring fees for Services including but not limited to those specified on the Order.
“Hourly Services” means the Services that MODX offers on an hourly basis.“Initial Term” means that period of time commencing upon the Service Commencement Date until the next Anniversary Billing Date, unless terminated pursuant to this Agreement.
“MODX” has the meaning set forth in the recitals.
“MODX Cloud Dashboard” means the dashboard at http://dashboard.modxcloud.com/ (or such other location as MODX may designate from time to time).
“Order” means an order for a Service which may include a new order for a Service or an upgrade or a downgrade of a Service. The Order must be placed through the MODX Cloud Dashboard or such other method designated by MODX from time to time. Orders do not apply to Third Party Services.
“Privacy Agreement” means the terms governing the use of private information which is located at www.MODXCloud.com (or such other location as MODX may designate from time to time).
“Renewal Term” means the period commencing after the last day of the Initial Term or the Renewal Term and extending until the next Anniversary Billing Date unless terminated as provided in Section 9.
“Services” has the meaning set forth in the recitals.
“Service Level Agreement” has the meaning set forth in Section 17 herein.
“Service Commencement Date” means that date upon which you are given access by MODX to begin using the Services ordered.
“Setup Fees” mean those fees set forth on the Order that are due upon the Service Commencement Date and represent the initial fees necessary to initially set up and configure the Services, if any.
“Site” means www.MODXcloud.com (or such other location as MODX may designate from time to time).
“SLA Credits” mean the credits for applicable qualifying service downtime as described in the Service Level Agreement in Section 17 herein.
“Support” means the telephone and online technical support provided by MODX in connection with the Services.
“Term” means the term as set forth in Section 8.
“Third Party” means an individual or an entity which is not a Customer, MODX, an Affiliate of MODX or an Affiliate of Customer.
“Third Party Services” mean services which are provided by Third Parties directly to Customer. The definition of Services does not include Third Party Services.
“TOS” means the terms of service for the Services.
“TPS Agreements” mean Agreements for Third Party Services which are directly between the Customer and the provider of the Third Party Services. These Agreements are separate and independent from the TOS and MODX is not a party to these Agreements.“User” means you or any other person or entity that you permit to access or otherwise use the Services.
2. MODX Obligations
2.1 MODX will not begin providing the Services and Support until you have satisfied MODX’s order approval criteria. Subject to your compliance with all of the terms and conditions of this Agreement, MODX shall use reasonable commercial efforts to provide the Services and Support to you during the term of this Agreement in accordance with the commitments made in the Service Level Agreement and with applicable law. In the event of a failure by MODX to meet the obligations of this Section 2, your sole and exclusive remedy and MODX's sole obligation are the issuance of SLA Credits as set forth in the Service Level Agreement.
2.2 MODX retains the right to reject the request for Services by any individual or entity in its sole discretion. MODX may change, discontinue, add, modify, re-price or remove features or functionality from the Services upon notice to Customer provided through the MODX Cloud Dashboard. It is the Customer’s responsibility to review the MODX Cloud Dashboard for such notices on a frequent basis. If Customer continues to use the Services following any such modification, such use will be deemed acceptance of such modification by Customer. The Third Party Services are provided by the relevant Third Parties and MODX is not responsible for the provision of Third Party Services.
3. Customer Obligations
3.1 You are solely responsible for the content of any postings, data or transmissions using Services, or any other use of the Services by a User. You are responsible for keeping your account permissions, billing, and other account information up to date using the MODX Cloud Dashboard, and you must use reasonable security precautions in connection with your use of the Services. You agree to fully comply with all of the obligations and restrictions set forth in the Acceptable Use Policy.
3.2 You agree to comply with all of the terms and conditions of this Agreement, make all payments of Fees when due and comply with any and all laws applicable to your use of the Services. You shall immediately notify MODX of any unauthorized use of your account or any other breach of security and cooperate with MODX’s investigation of service outages, security issues or any suspected breach of the terms and conditions of this Agreement.
3.3 Certain Services are designed to help you comply with regulatory guidelines that may be applicable to you. You are responsible for understanding the regulatory requirements applicable to your business and for selecting and using MODX Services in a manner that satisfies the requirements. Additionally, if payment card information, health care related information, or personally identifiable information will be transmitted to or from or stored on equipment in conjunction with the Services, you shall disclose to MODX such fact prior to any such transmission and/or storage.
3.5 You are responsible for the use of the Services by Customer and Customer End Users and any other person to whom Customer has given access to the Customer Offering, to comply with the TPS Agreements and where the Customer provides Customer Offering as permitted under this Agreement, Customer must enter into an Agreement with Customer’s End User which shall include the relevant terms of this Agreement and release MODX from any and all liability for damages or losses Customer’s End Users may incur as a result of using the Customer Offering.
3.6 Subject to the terms and conditions of this Agreement (including the Term), MODX grants Customer a non-exclusive, non- transferable, non-sublicenseable (except to the extent required to exercise rights under Section (b)), revocable right in the Services solely to: (a) use and access the Services for internal purposes; and (b) use the Services to create, offer and provide the Customer Offerings.
3.7 To the extent Customer orders Third Party Services under TPS Agreements, MODX is not responsible for such Third Party Services and the provider of the Third Party Service is solely responsible for providing such Third Party Services. However, the Customer also agrees that the following terms of the TOS apply to such Third Party Services: Sections 7, 8, 9, 12, 13 and 14.
3.8 Customer may order Services and all upgrades to such Services through the MODX Cloud Dashboard or as otherwise designated by MODX. MODX may accept such Orders in its discretion and shall give notice to Customer of acceptance of such Order through the MODX Cloud Dashboard. For downgrades or cancellation of Services, MODX requires a written cancellation notice by cancellation ticket in accordance with the procedures in the MODX Cloud Dashboard and through the MODX Cloud Dashboard prior to 00:00:01 CST (GMT-6) on the Anniversary Billing Date for downgrades or discontinuance of Services. The failure to provide the required written notice will result in the downgrade or discontinuance of Services being effective on the following Anniversary Billing Date and Customer will be charged for the Services during the relevant Renewal Term. Any Services cancelled prior to such 5 day period will remain accessible to Customer until the automated process reclaims the server on the Anniversary Billing Date.
4.1 All fees for the provision of Services (except as provided below for Additional Service Fees, Hourly Service Fees and One Time Fees) are due in advance of the first day of the relevant term. For example, the fees for such Services during the Initial Term shall be due on the Effective Date or before the provision of Services. The fees for the Services for Renewal Term would be due on or prior to the Anniversary Billing Date for such Renewal Term. The amount due may be adjusted by addition of Services, upgrade of Services, discontinuance of Services or downgrade of Services and through the use of SLA Credits. The fees for additional or upgraded Services for which the Order is accepted on the Anniversary Billing Date will be due on the Anniversary Billing Date. The fees for additional or upgraded Services for which the Order is accepted after an Anniversary Billing Date will be pro-rated on a calendar day basis to the next Anniversary Billing Date and billed as a one-time pro-rata charge on the day said Services are ordered. Such fees will be due for the following Renewal Terms until cancelled as provided in Section 3.8.
4.2 Fees for additional services or hourly service fees shall be due at the time they are ordered. For Orders for Hourly Services, Customer shall specify the period of time for which the Hourly Services are requested in minimum increments of one hour and payment shall be due on the placing of the Order. One time fees, such as setup fees, administrative fees and late fees, are due and payable when invoiced, and/or as agreed by MODX through the MODX Cloud Dashboard.
4.3 Payment shall be made by the credit or debit card maintained on file with MODX, or such other method as approved by MODX. For methods such as credit card, the payment of fees shall be automatic on the due date.
4.4 All prices and fees specified in or referred to in this Agreement are stated exclusive of any tax, including withholding tax, sales, use, value added, levies, import and custom duties, excise or other similar or equivalent taxes imposed on the supply of Services. Any sales, use, levies, excise, withholding taxes or similar charges, direct or indirect, applicable or to become applicable, which are levied as a result of the supply of the Services shall be paid by the Customer. Neither party shall be liable for the other party’s taxes based on income. If withholding tax applies to any payments for Services made under this Agreement the Customer may deduct such taxes and shall pay such taxes to the appropriate tax authority; provided that Customer shall provide MODX with an official receipt for any such taxes withheld and must notify MODX prior to payment that withholding tax is required to be paid and Customer shall pay to MODX any additional amount to ensure that MODX receives the full amount of the invoice. If MODX has the legal obligation to pay or collect taxes for which Customer is responsible under this paragraph, the appropriate amount shall be charged to and paid by Customer in addition to the amount of the invoice, unless Customer provides MODX with a valid tax exemption certificate authorized by the appropriate taxing authority. The parties undertake to cooperate, where possible, to minimize the amount of withholding tax due by making advance clearance applications under the relevant double taxation treaties (where applicable) to the relevant tax authority to reduce the rate of withholding tax or exempt entirely this amount if applicable. In any event, the Customer undertakes to account for any tax withheld to the tax authorities on a timely basis.
4.5 SLA Credits, if issued to Customer’s account, shall be used only to offset future charges for certain Services as provided in the Service Level Agreement. SLA Credits may not be sold, converted to cash or transferred to Third Parties or Affiliates. SLA Credits shall expire on the termination or expiration of the Agreement.
4.6 The Customer’s failure to pay any fees on the due date shall result in incurring a late fee of $20. If MODX has suspended the Customer’s access to the Services over as provided in Section 7, the Customer shall incur a $50 reconnection fee. Such fees shall be due upon receipt, and MODX will not reconnect any Services to the Customer until full payment of such fees. Additionally any amount not paid when due will bear late payment interest at the rate of the lesser of 1.5% per month or the highest rate permitted by law from the due date until paid.
4.7 All fees paid for Services to MODX are non-refundable. If the Customer believes that the bills are in error, the Customer’s sole and exclusive remedy is to seek a credit to their account through the MODX Cloud Dashboard by opening a ticket to give notice to MODX within 15 days of the receipt of the disputed bill. Any invoice not disputed by Customer in accordance with Section 4.7 within 15 days of receipt of the invoice shall be conclusively accepted by Customer as correct. Customer shall not chargeback any credit card payments to MODX and any such chargeback will result in an additional payment to MODX of up to $500 which is a reasonable estimate of MODX’s additional administrative costs. Customer is responsible for any fees and costs (including, but not limited to, reasonable attorneys’ fees, court costs and collection agency fees) incurred by MODX in enforcing collection of fees.
5. Ownership of Site
5.1 Customer hereby acknowledges and agrees that MODX (or its licensors) own all legal right, title and interest in and to the Site and the Services provided by MODX, including, without limitation, any intellectual property or other proprietary rights which subsist in the Site and Services (whether such rights are registered or unregistered, and wherever in the world those rights may exist). As between Customer and MODX, all materials on the Site, including, but not limited to, graphics, user and visual interfaces, images, software, applications, and text, as well as the design, structure, selection, coordination, expression, “look and feel”, and arrangement of the Site and its content (except for any Customer Content), and the domain names, trademarks, service marks, proprietary logos and other distinctive brand features found on the Site, are all owned by MODX or its licensors.
6.1 MODX agrees to maintain reasonable and appropriate measures related to physical security to protect Customer Content. Other than responsibility for physical security, Customer shall be solely responsible for data maintenance, integrity, retention, security, and backup of the Customer Content. If Customer transfers or is otherwise involved in the transfer of any Customer Content (whether in connection with its business or otherwise), then Customer is solely responsible for compliance with any applicable laws, rules and regulations in any and all applicable regions or countries regarding the security, privacy, legality and/or safe handling of such Customer Content.
7. Suspension of Services
7.1 Customer acknowledges and agree that MODX may suspend providing the Services, in whole or in part, without liability if (i) you fail to pay the Fees due MODX for a period of five (5) days after the date of the invoice, (ii) you are in violation of the Acceptable Use Policy, (iii) you fail to reasonably cooperate with MODX’s investigation of any suspected breaches of this Agreement, (iv) MODX reasonably believes that the servers hosting the Services have been accessed or manipulated by a Third Party without your or MODX’s consent, (v) MODX reasonably believes that suspension of the Services is necessary to protect the MODX environment generally, or (vi) MODX is obligated to suspend Services via subpoena, court order or otherwise as required by law. MODX may restrict access to your data stored on MODX’s servers during any suspension. MODX will give Customer reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension are based, unless MODX determines, in MODX’s reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect MODX or its other customers from operational, security, or other risk or the suspension is ordered by a court or other judicial body. If MODX suspends the Customers right to access or use any portion or all of the Service:
A. In the event of any suspension of Services pursuant to section 7.1 subsections (i), (ii) or (iii), you shall pay MODX a reconnection fee of $150.00 as a condition of reactivation of the Services, in addition to full payment of the balance due on the account, including late payment interest and fees, if any;
B. Customer remains responsible for all fees and charges Customer has incurred through the date of suspension;
C. Customer remains responsible for any applicable fees and charges for any Services to which Customer has continued to have access, as well as applicable fees and charges, and fees and charges for in-process tasks completed after the date of suspension;
D. Customer will not be entitled to any SLA Credits under the Service Level Agreement for any period of suspension; and
E. At MODX’s sole discretion, MODX may terminate Customer’s access to Customer Content stored in the Services during a suspension, and MODX shall not be liable to Customer for any damages or losses Customer may incur as a result of such suspension.
7.2 IN THE EVENT MODX TAKES ANY ACTION PURSUANT TO THIS SECTION, IT SHALL HAVE NO LIABILITY TO YOU OR ANYONE CLAIMING BY OR THROUGH YOU. Nothing herein shall preclude MODX from pursuing other remedies available by statute or otherwise permitted by law.
8.1 The term of this Agreement shall be the Initial Term and any Renewal Terms. This Agreement will automatically renew for successive Renewal Terms at the end of the Initial Term or any Renewal Term until terminated as provided below in Section 9
9.1 Customer may terminate the Agreement for convenience at any time as provided in Section 3.8 through the MODX Cloud Dashboard. If Customer terminates this Agreement for convenience, Customer shall pay MODX all amounts that would be due within 5 days after such termination. MODX may terminate the Agreement for convenience upon providing Customer with notice of non-renewal at least 10 days prior to the expiration of the Initial Term or any Renewal Term.
9.2 MODX may terminate the Agreement immediately upon notice provided through the MODX Cloud Dashboard if: (i) MODX discovers that the information Customer provided to MODX about Customer’s proposed use of the Services or Account Information was inaccurate or incomplete; (ii) if Customer is an individual, Customer was not at least 18 years old or otherwise did not have the legal capacity to enter into the Agreement, install, or accept Services at the time Customer submitted the Order, or if Customer is an entity, the individual submitting the Order for Customer did not have the legal right or authority to enter into the Agreement, install or accept Services on behalf of the person represented to be the Customer; (iii) Customer payment of any invoiced amount is overdue, and Customer does not pay the undisputed overdue amount within 5 days of the due date; (iv) Customer use of the Services or Customer End Users use of the Customer Offering in violation of this Agreement and fails to remedy any violation within 5 days of MODX ’s written notice; (v) Customer or Customer End User violates the AUP; (vi) Customer’s account has been suspended for 30 days or more; (vii) Customer has multiple violations of the Agreement; or (viii) Customer fails to comply with any other provision of this Agreement and does not remedy the failure within 30 days of MODX notice to Customer describing the failure. MODX will give Customer written notice of termination under this paragraph unless MODX determines, in MODX ’s reasonable commercial judgment, that a termination on shorter or contemporaneous notice is necessary to protect MODX or its other customers from operational, security, or other risks
9.3 The deletion of Customer Content is automatic upon termination or expiration of the Agreement. Consequently, unless MODX determines otherwise, Customer will not have access to Customer Content, and MODX may immediately erase or delete Customer Content from its computer infrastructure after the effective date of termination or expiration of this Agreement
9.4 Upon expiration or termination of the Agreement, Customer must discontinue use of the Services and relinquish use of the IP addresses assigned to Customer by MODX and any other materials provided to Customer by MODX in connection with the Services, including pointing the DNS for Customer domain name(s) away from the Services. MODX will have no obligation to provide any transition services or access to data except as expressly stated in Section 9.3 above.
9.5 If the Services are canceled before the end of the then-current term of this Agreement, there will be no credits or refunds issued. Additionally, if the Initial Term or Renewal Term is other than monthly and the Services are canceled before the end of the then-current term of this Agreement, you shall pay an early termination fee equal to the monthly Fee (s) times the number of full or partial months remaining in the term of this Agreement. The parties hereby agree and acknowledge that such Early Termination Fees are reasonable. Early Termination Fees will be due and payable upon receipt of invoice.
10. Maintenance & Support
10.1 MODX may from time to time conduct routine tests, maintenance, upgrade or repair on any part of the network, and MODX shall use commercially reasonable efforts to give you prior notice thereof. You acknowledge that there may be instances where it is not practicable for MODX to give advance notice of a disruption, for example, in the event of an emergency, and MODX shall be entitled to disrupt the Services to conduct restoration and remedial works without prior notice.
10.2 MODX may from time to time need access to your instances running in MODX Cloud, to create Snapshots of instances, or to otherwise access, examine and interact with the data and filesystem, whether at your request or in the normal course of proactive maintenance activities. In order to help troubleshoot and/or resolve issues, to optimize MODX Cloud performance and resources, and to provide support in general, you explicitly grant MODX permission to take such actions without prior notice.
11. Confidential Information
11.1 Each party will safeguard and keep confidential all Confidential Information of the other and will return the other’s Confidential Information upon request, except to the extent further retention of such Confidential Information is necessary for a party to perform any post-termination obligations or exercise any post-termination rights under this Agreement. Each party agrees to safeguard the other’s Confidential Information using measures that are equal to the standard of performance used by the Non-Disclosing party to safeguard its own Confidential Information of comparable value, but in no event less than reasonable care. Neither party will use any Confidential Information of the other party for any purpose except to implement its rights and obligations under this Agreement and as otherwise expressly contemplated by this Agreement; provided, however, that if any party or its representatives is requested or required to disclose any Confidential Information by a subpoena or court order, that party will promptly notify the other party (unless prohibited by such subpoena or order) of such request or requirement so that the other party may seek an appropriate protective order or other appropriate relief and/or waive compliance with provisions of this Agreement, and if, in the absence of such relief or waiver hereunder, any party or its representative are, in the opinion of its counsel, legally compelled to disclose Confidential Information, then that party may disclose so much of the Confidential Information to the person compelling disclosure as is, according to such opinion, required, without liability hereunder.
12. Limited Warranty
12.1 MODX represents that it shall provide the Services in compliance with its Service Level Agreement. EXCEPT FOR THIS WARRANTY, MODX AND ITS LICENSORS DISCLAIM ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. MODX SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. FURTHER, MODX MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, AND SHALL HAVE NO LIABILITY WHATSOEVER, WITH RESPECT TO THE ACCURACY, DEPENDABILITY, PRIVACY, SECURITY, AUTHENTICITY OR COMPLETENESS OF DATA TRANSMITTED OVER THE INTERNET, OR ANY INTRUSION, VIRUS, DISRUPTION, LOSS OF COMMUNICATION, LOSS OR CORRUPTION OF DATA, OR OTHER ERROR OR EVENT CAUSED OR PERMITTED BY OR INTRODUCED THROUGH THE INTERNET OR THE SERVERS UPON WHICH THE SERVICES ARE PROVIDED. YOU ARE SOLELY RESPONSIBLE FOR IMPLEMENTING ADEQUATE FIREWALL, PASSWORD AND OTHER SECURITY MEASURES TO PROTECT YOUR SYSTEMS, DATA AND APPLICATIONS FROM UNWANTED INTRUSION, WHETHER OVER THE INTERNET OR BY OTHER MEANS.
13. Limitation of Liability
13.1 EXCEPT FOR MODX’S GROSS NEGLIGENCE OR WILFUL MISCONDUCT, MODX’S AND ITS LICENSOR’S CUMULATIVE LIABILITY TO YOU AND ALL OTHER PARTIES FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF THE SERVICES OR ANY FAILURE OR DELAY IN DELIVERING THE SERVICES SHALL NOT EXCEED THE TOTAL FEES PAID BY YOU DURING THE PERIOD OF THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED OR THE PRORATA EQUIVALENT IF THE RECURRENCE PERIOD IS ANNUAL. EXCEPT TO THE EXTENT SET FORTH IN THE SERVICE LEVEL AGREEMENT, MODX SHALL HAVE NO LIABILITY SHOULD THERE BE ANY DELAY IN THE PROVISION OF THE SERVICE.
13.2 EXCEPT AS REQUIRED BY LAW IN NO EVENT WILL MODX BE LIABLE TO CUSTOMER, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, COMPENSATION, REIMBURSEMENT OR DAMAGES IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO, THE USE, OR LOSS OF USE OF, THE SERVICES, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF DATA OR CONTENT, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SUBSEQUENT OR OTHER COMMERCIAL LOSS, OR FOR ANY OTHER REASON OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EVEN IF MODX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14.1 MODX shall defend, indemnify and hold you, your affiliates or any of your or their respective employees, agents or suppliers, harmless from and against any and all costs, liabilities, judgments, actions, losses and expenses (including, but not limited to, reasonable attorneys’ fees and fees of experts) (collectively, “Losses”) arising out of any threatened or actual claim, suit, action, arbitration or proceeding (collectively, “Claims”) by any third party arising out of or relating to (i) MODX’s gross negligence or willful misconduct or (ii) a claim that the Services as provided by MODX under this Agreement infringe upon the United States patent or copyright of a third party; provided that (a) you give MODX prompt written notice of the claim, (b) you permit MODX sole control over the defense and settlement of the claim, and (c) you reasonably cooperate with MODX in the defense and/or settlement of the claim.
14.2 Customer shall defend, indemnify and hold MODX, its affiliates or any of its respective employees, agents or suppliers, harmless from and against any and all Losses arising out of or relating to (i) your gross negligence or willful misconduct or (ii) your violation of the Acceptable Use Policy or the law; provided that (a) MODX gives you prompt written notice of the claim, (b) MODX permits you sole control over the defense and settlement of the claim, and (c) MODX reasonably cooperates with you in the defense and/or settlement of the claim. Your obligation under this Section 13 include claims arising out of acts or omissions by your employees, Users and any other person who gains access to the Services as a result of your failure to use reasonable security measures.
15. Allocation of Liability
15.1 THE PARTIES ACKNOWLEDGE THAT THE DISCLAIMER OF WARRANTIES, DISCLAIMER OF CONSEQUENTIAL DAMAGES AND LIMITATIONS OF LIABILITY IN THE AGREEMENT AND IN THE OTHER PROVISIONS OF THIS AGREEMENT AND THE ALLOCATION OF RISK HEREIN ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH MODX WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. MODX ’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THESE LIMITATIONS
16. Ownership of Intellectual Property; Software; Hardware and IP Addresses
16.1 Each of us shall retain all right, title and interest in and to each party’s respective intellectual property rights, including without limitation, all patents, inventions, trademarks, copyrights and trade secrets. Any intellectual property used, developed or otherwise reduced to practice in providing the Services to you shall be the sole and exclusive property of MODX and/or its licensors, unless we specifically agree in writing otherwise.
You acknowledge and agree that you do not acquire any ownership interest in any of the servers or other hardware used to provide the Services hereunder. Similarly, we do not acquire any ownership interest in the content or data that you store on the servers or transmit via the Services.
16.2 You acknowledge and agree that third-party software and hardware are used in the provision of Services. Accordingly, you agree to abide by the terms and conditions of any end user licenses or other Agreements relating to the use of such hardware or software.
16.3 You acknowledge and agree that any IP addresses that MODX may assign to you in connection with the Services are registered to and owed by MODX and upon any expiration or termination of this Agreement, you agree to release and cease using any such IP addresses.
17. Service Level Agreement
17.1 This Service Level Agreement (“SLA”) between MODX and the Customer of MODX Services sets forth the service level terms and conditions and is an integral part of the Agreement. This SLA defines the terms of Customer’s responsibility with respect to the Services that MODX Cloud provides and Customer’s remedies in the event that MODX fails to meet these Service Commitments. This SLA and the SLA Credits set forth herein represent MODX’s sole obligation and Customer’s sole remedy for failure to meet such Service Commitments. This SLA does not apply to the availability of Third Party Services (TPS) which are subject to the TPS Agreements. The SLA is binding only on the Customer and MODX and does apply to any Third Parties, including Customer End Users. View the current SLA at https://modxcloud.com/service-level-agreement.html.
18. Beta Services
18.1 If you elect to participate in any evaluation or test of MODX Beta Services, then you acknowledge that such Beta Services are provided “AS IS, AS AVAILABLE” with no warranty whatsoever. To the extent permitted by applicable law, MODX disclaims any and all warranties with respect to the Beta Services, including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
18.2 You acknowledge that the Beta Services are a pre-release, pre-production version and may not work properly, and that your use of the Beta Services may expose you to unusual risks of operational failures. You should not use Beta Services in a live production environment, and you must not use the Beta Services in any hazardous environments, life support, or weapons systems.
18.3 You agree to provide prompt feedback regarding your experience with the Beta Services in a form reasonably requested by us, including information necessary to enable us to duplicate errors or problems you may experience. You agree that all information regarding your beta test, including your experience with and opinions regarding the Beta Services, are “Confidential Information” of MODX, as defined in these Terms of Service, and may not be disclosed to a third party or used for any purpose other than providing feedback to MODX.
18.4 You agree that we may use your feedback for any purpose whatsoever, including product development purposes. At our request you will provide us with comments that we may use publicly for press materials and marketing collateral. Any intellectual property inherent in your feedback or arising from your testing of the Beta Services shall be owned exclusively by MODX.
18.5 The commercially released version of the Beta Services may change substantially from the pre-release version, and programs that use or run with the pre-release version may not work with the commercial release or subsequent releases.
18.6 You are not entitled to any Service Credits under our Service Level Agreement for downtime or other problems that may result from your use of the Beta Services. Subject to the foregoing limitations, the maximum aggregate liability of MODX and any of its employees, agents, affiliates, or suppliers, under any theory of law (including breach of contract, tort, strict liability, and infringement) for harm to you arising from your use of the Beta Services shall be a payment of money not to exceed One Hundred Dollars ($100.00). We may terminate the Beta Services at any time, in our sole discretion.
19.1 Non-Solicitation. During the term of this Agreement and for a period of one (1) year thereafter, you shall not solicit or hire the services of any employee or subcontractor of MODX without the prior written consent of MODX.
19.2 Trademarks. Customer hereby grants to MODX a non-exclusive, worldwide, royalty-free, fully paid-up license during the Term to use Customer’s trademarks, marks, logos or trade names in connection with MODX’s provision of Services (including support of Services) to Customer and to be listed as a customer of the Services by MODX or its designees. The license granted in this Section 17 will include the right of MODX to sublicense its Affiliates and any Third Parties providing all or part of the Services on behalf of MODX to achieve the foregoing.
19.2 Force Majeure. MODX shall not be deemed to be in breach of this Agreement and shall have no liability hereunder if its obligations are delayed or prevented by any reason of any act of God, war, terrorism, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, failure of any transportation or communication system, non-performance of any of your agents or your third-party providers (including, without limitation, the failure or performance of common carriers, interchange carriers, local exchange carriers, Internet service providers, suppliers, subcontractors) or any other cause beyond its reasonable control.
19.3 Notice of Claim and Filing of Suit. You must present any claim in writing to MODX within a reasonable time, and in no event longer than sixty (60) days after the event for which the claim is presented so as to permit the parties to attempt to resolve the claim. No action may be maintained against MODX under this Agreement, unless timely written claim has been given as provided above.
19.4 Notices. Except to the extent that notices may be sent by electronic mail as specifically set forth in this Agreement, notices under this Agreement will be sufficient only if (i) mailed by certified or registered mail, return receipt requested, (ii) sent by internationally recognized overnight carrier or (iii) personally delivered. Notices shall be deemed delivered upon receipt by the other party. Notices to you shall be sent to the mailing address set forth on the Account Information section in your MODX Cloud Dashboard. Notices to MODX shall be sent to MODX Systems LLC. 25 Highland Park Village #100-413, Dallas, TX 75205, Attn: Legal. Either party may change their notices address by written notice to the other party.
19.5 Survival. All provisions that by their nature are intended to survive expiration or termination of the Agreement shall survive expiration or termination of the Agreement.
19.6 Modification; Authority; Assignment. Without limiting MODX’s rights to modify the Acceptable Use Policy or Service Level Agreement as set forth therein, MODX may modify any aspect of this Agreement upon notice to Customer. Should you wish to terminate this Agreement as a result of such modification, you may do so by sending a notice of termination via a Ticket in the MODX Cloud Dashboard any time prior to the effective date of such modification and no Early Termination Fees will apply. Otherwise such modification will remain in effect for the remaining term of this Agreement.
19.7 Assignment. This Agreement may not be assigned by you without the prior written consent of MODX, which shall not be unreasonably withheld or delayed.
19.8 Governing Law; Jurisdiction. This Agreement is governed by the laws of the State of Texas, excluding its conflicts of laws principles. You hereby submit to the exclusive jurisdiction of the federal and state courts of the State of Texas; provided, however, that MODX shall have the right to institute judicial proceedings against you or anyone acting by, through or under you, in other jurisdictions in order to enforce MODX’s rights hereunder through reformation of contract, specific performance, injunction or similar equitable relief.
19.9 General. This Agreement, together with the Service Level Agreement, Acceptable Use Policy, any other documents referenced herein and any amendments signed between the parties, constitutes the entire understanding between MODX and you with respect to subject matter hereof. Terms and conditions as set forth in any purchase order which differ from, conflict with, or are not included in this Agreement, shall not become part of this Agreement unless specifically accepted by MODX in writing.
19.10 Severability. If any part of this Agreement is found unenforceable by a court or other tribunal, the rest of the Agreement will nonetheless continue in effect, and the parties agree that any court or other tribunal may reform the unenforceable part if it is possible to do so consistent with the material economic incentives of the parties resulting in this Agreement.
19.11 Language. The official language of the Agreement shall be the English language and no translation into any other language may be used in its interpretation. All services, support, notices, designations, specifications, and communications will be provided in the English language.
19.12 Feedback. MODX shall own all right, title and interest in and to Feedback. Upon providing the Feedback, Customer hereby irrevocably assigns to MODX all right, title, and interest in and to the intellectual property rights in the Feedback and agrees to provide MODX with any assistance MODX may require to document, perfect, and maintain MODX’s rights in the Feedback.
19.13 Relationship of the Parties. The parties’ relationship is that of independent contractors and not business partners. Neither of the parties is the agent for the other, and neither party has the right to bind the other on any Agreement with a Third Party.
19.14 No Waiver. MODX’s failure to exercise or delay in exercising any of its rights under this Agreement will not constitute a waiver, forfeiture, or modification of such rights. MODX’s waiver of any right under this Agreement will not constitute a waiver of any other right under this Agreement or of the same right on another occasion. MODX’s waiver of any right under this Agreement must be in writing.