Terms of Service

MASTER SERVICE AGREEMENT

1. General

This Master Services Agreement is entered into by and between Mosh JD Inc (“Mosh JD”)., and the Customer, as defined below. The terms and conditions herein are common to all Schedules, and to any Order Forms and/or SOWs entered into by and between the Parties hereunder. In the event of any conflict or inconsistency among this Agreement and any Order Form or Statement of Work (“SOW”), the following order of precedence shall apply unless a document expressly states that it supersedes another:

(1) the Order Form will control over this Agreement;

(2) any SOW will control only with respect to the services described in that SOW; and

(3) the terms of this Agreement will apply in all other cases

2. Definitions

Key Definitions.

“Agreement” means this Master Services Agreement and all Schedules, Order Forms, SOWs, and Addenda specifically referenced or incorporated herein.

“Customer” means the specific legal entity identified in the Order Form that executes this Agreement. Customer’s affiliates may be added as additional customers only through separate Order Forms.

“Customer Data” all electronic data and information input by the Customer or Users into the Mosh JD Software.

“Derivative Works” means any suggestions, contributions, enhancements, improvements, additions, modifications, or statutorily defined derivative works to the referenced software or other materials.

“Effective Date” means, with respect to this Agreement the date on which the Agreement commences, which shall be the last date set forth on the signature page below.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection in any part of the world.

“Marks” means service marks, trademarks, trade names, logos, and any modifications to the foregoing.

“Mosh JD Software” means the internet-based Mosh JD software technology provided by Mosh JD, and that is accessible to the Customer and its Users via a web browser through the internet.

“Order Form(s)” means the ordering document executed by the parties specifying the Service(s), fees, term, and commercial terms.

“Party /Parties” each of Mosh JD and the Customer are sometimes referred to herein, individually and collectively.

“Service” means the Mosh JD cloud-based job description management platform, applications that allow the functionalities, advanced architecture capabilities, integration between third-party systems, the software services, and related services as described in the Order Form or at www.moshjd.com.

“Sites” means www.moshjd.com and related websites owned or operated by Mosh JD.

“SOW” means a document executed by the parties describing specific services, deliverables, and timelines.

“Users” means administrators, end users, and guests who access the Service under Customer’s account.

3. The Service

3.1. Description.

During the Term (defined below in section 13.1), and as set forth in one or more Order Forms, Mosh JD will provide the Customer and its Users with remote access to the Mosh JD platform. During the Term, and subject to compliance with this Agreement, Mosh JD grants to the Customer a worldwide, non-exclusive, non-transferable, non-assignable (except as provided herein, and limited right and license to allow End Users to remotely access the Mosh JD software that is located on the Mosh JD server, in accordance with the terms of this Agreement.

3.2. Modifications.

Mosh JD reserves the right, in its sole discretion, to make any changes or updates to the Services and to the Mosh JD Software that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Mosh JD Services, (ii) the competitive strength of or market for Mosh JD Services, or (iii) the Services’ cost efficiency or performance; or (b) comply with applicable law; provided that no such changes have the effect of materially degrading the functionality of the Services. Customer acknowledges and agrees that the Services will be upgraded to the most current version of the software in accordance with notices provided by Mosh JD.

3.3. Maintenance.

The Customer acknowledges that certain maintenance activities regarding the Mosh JD Service may be necessary or appropriate, from time to time, including bug fixes, software updates, feature updates, and the addition of functions and capabilities. In most instances, the Mosh JD infrastructure is designed to support updates without the need to interrupt the Mosh JD Service. Mosh JD will provide notice to the Customer regarding such maintenance activities that will interrupt the Services at least twenty-four (24) hours in advance. If Mosh JD reasonably determines that maintenance activities will require an unavailability or outage of the Mosh JD Software in excess of ten (10) consecutive minutes, then Mosh JD will give the Customer reasonable advance written notice of the same. Mosh JD will use commercially reasonable efforts to perform routine scheduled maintenance during non-Business Hours (“Maintenance Windows”).

3.4 No Future Functionality.

Your purchase is not contingent on delivery of any future functionality, features, or public comments regarding future capabilities.

3.5 Technical Support / Service Level Agreement.

Mosh JD will provide customer care and support services to the Customer in accordance with the support services set forth in the applicable Order Form and/or SOW and as further described via the following link: www.moshjd.com/sla. Mosh JD shall not be responsible for any customer support services outside of the terms stated or incorporated herein.

3.6 Subcontractors.

Mosh JD may from time to time, in its discretion, engage third parties to perform Services (“Subcontractor”) provided that Mosh JD (a) remains responsible for performance of its obligations under the Agreement; (b) be responsible and liable for the the acts and omissions of each Subcontractor in the scope of its performing any Services to the same extent as if such acts or omissions were by Mosh JD or its employees; and (c) be responsible for all fees and expenses payable to any Subcontractor including, if applicable, withholding of income taxes and the insurance payments, employer health tax, and disability benefits in any such event. For greater certainty, Sub-processors, as defined in the DPA, shall not be considered Subcontractors for the purposes of this Agreement.

3.7 Professional Services.

(a) If the Customer requests and Mosh JD agrees, Mosh JD may provide additional Professional Services to the Customer pursuant to the terms of this Agreement and as further described in an Order Form or SOW. Each such Order Form or SOW will include, at a minimum, (i) a description of the Professional Services; (ii) the then estimated project completion dates; (iii) the fees, costs, and expenses payable to Mosh JD; (iv) the payment schedule; and (v) a signature by each Party’s respective authorized representatives.

(b) In the event that Customer needs to temporarily suspend any Professional Services engagement with Mosh JD during the course of their delivery of such Professional Services, Customer must provide written notice, in accordance with this Agreement, no less than two (2) weeks prior to the date they wish to commence such temporary suspension. In this written notice Customer must provide the following:

(i) Customer’s reasons for temporary suspension;

(ii) date Customer requests the suspension status begin; and

(iii) date Customer anticipates suspension status to end.

(c ) Mosh JD will review and determine, in its sole and reasonable discretion, to accept such requests. In the event Customer requests to restart the Professional Service earlier or later than the originally requested date, Customer must provide at least two (2) weeks’ notice of such change and Mosh JD will use commercially reasonable efforts to accommodate such request. Additionally, depending on the requested length of such suspension, Mosh JD will work with Customer to set a mutually agreeable re-start date based on the availability of the original resources assigned to the Customer and other resources that may be assigned to the Customer. Customer may only go into such suspension status once per Professional Service engagement.

(d) All timelines for delivery of any Professional Services as detailed in any applicable Order Form or SOW are estimates for delivery of the Services indicated and such timelines are not additive and some Professional Services may be delivered in tandem. Mosh JD will work with Customer to establish mutually agreed timelines at the onset of any Professional Services engagement.

3.8 Beta Releases.

Mosh JD at its sole discretion, may invite Customer and make certain services available to the Customer on a test basis which will be clearly designated as beta, pilot, limited release, non-production or by similar description (“Beta Release”). Notwithstanding anything to the contrary in the Agreement, Customer acknowledges and agrees that Beta Release is provided on an “as is” and “as available” basis without any liability and indemnity obligations, warranty, support, maintenance, or service level obligations of any kind. Mosh JD does not guarantee that future versions of Beta Release will be released or that if such Beta Release is made generally available, it will be substantially similar to the current Beta Release. Mosh JD may terminate Customer’s right to use Beta Release at any time for any reason. If Mosh JD publicly releases Beta Release, Customer may execute a separate Order Form to procure the relevant Software Services (being the publicly available version of the Beta Release) at then-current applicable fees.

4. Customer Data: Ownership and Use

4.1 Ownership.

Customer retains all rights in Customer Data. All title, ownership rights, and Intellectual Property Rights in Customer Data that the Customer owns or has licensed, and that the Customer or its Users upload to the Services, will remain owned exclusively by the Customer, or other third-party(ies), as the case may be. Customer will be solely responsible for (i) the accuracy, quality, content, legality and use of Customer Data, including the means by which Customer Data is acquired and transferred by Customer or its Users, (ii) obtaining any licenses, permissions or authorizations required for any use of the Customer Data, and (iii) complying with all applicable terms and conditions of any third-party website related to Customer Data obtained from such third-party website or its use in connection with the Services. Customer grants to Mosh JD worldwide, royalty-free, non-exclusive, perpetual, irrevocable license to: (i) use or transfer any feedback Customer gives Mosh JD in relation to the Software or Software Services for any purpose; and (ii) use, copy, store and display Customer Data on an aggregated and anonymous basis only for the purposes of improving or developing enhancements to the Software or Software Services and to offer new products and services that may relate to the Customer Data.

4.2 Prohibited Data.

You shall not submit: (a) special categories of data under GDPR Article 9(1) or similar laws; (b) protected personal information including social security numbers; (c ) or health information subject to HIPAA; or (d) payment card data subject to PCI DSS. Mosh JD reserves the right to immediately suspend Service and delete Prohibited Data upon discovery. Customer shall indemnify Mosh JD for any claims arising from Customer’s submission of Prohibited Data.

5. FEES AND PAYMENT

5.1 Order Form.

Order Forms may be completed online, in-product, or offline via email or other delivery method. Order Forms specify the Service, subscription plan, term, and fees.

5.2 Subscription Fees

Customer shall pay all Subscription Fees specified in the Order Form (in USD unless otherwise stated). Customer authorizes us to charge the selected payment method on each due date. Subscription Fees are non-cancelable and non-refundable except as expressly stated herein (Section 6.1).

5.3 Taxes.

Customer shall, in addition to the other amounts payable under this Agreement, pay all applicable customs, duties, sales, use, value added or other taxes, federal, state, provincial or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement, excluding only taxes based on Mosh JD’s net income.

5.4 Excessive Usage.

If we reasonably believe usage is excessive compared to standard use, we may adjust pricing or impose additional restrictions.

5.5 Fees.

Fees payable for Services received under this Agreement shall be in the amounts and payable on the terms set forth on the applicable Order Form or SOW, and as otherwise set forth in section 5.2 above. Except as otherwise may be set forth in an applicable Order Form or SOW, all payments for fees shall be due within thirty (30) days from the date of invoice and shall not be subject to any setoff, recoupment, counterclaim, deduction, debit or withholding, for any reason (other than any deduction or withholding of tax, as may be required by applicable law). All fees paid, and expenses reimbursed under this Agreement will be in the currency specified in the applicable Order Form or SOW. Except as otherwise specified in the applicable Order Form or SOW, payment must be made by credit card, wire transfer, cheque or automated clearing house (ACH).

5.6 Late Payments.

The Customer will pay a late fee of up to one and one-half percent (1.5%) per month (not to exceed the maximum allowed under applicable law) on all balances not paid when due on account of all invoices which are not reasonably in dispute. Mosh JD may, at its option, upon notice and a reasonable opportunity to cure, suspend the Services, in whole or in part, if Mosh JD does not receive all amounts which are due and owing, and not reasonably in dispute, under the Agreement when due, provided that it shall restore the Services promptly upon the clearance of any such disputed amounts. The Customer will reimburse Mosh JD for all reasonable costs incurred by Mosh JD in collecting any late payment or interest, including attorneys’ fees, in an amount not to exceed fifteen percent (15.0%) of the outstanding amount owed, court costs and collection agency fees.

6. REFUNDS AND CHARGEBACKS

6.1 Refund Policy.

If dissatisfied with an initial Service purchase, Customer may terminate within 30 days of first ordering for a pro rata refund of unused, unexpired prepaid Subscription Fees. Refunds apply only to initial purchases, not renewals or upgrades. After 30 days, Subscription Fees are non-refundable. We may reject bad faith refund requests.

6.2 Non-Refundable Services.

Services identified as non-refundable are not eligible for refunds.

6.3 Chargebacks.

Chargebacks constitute breach of payment obligations and may result in Service termination. Customers must pay all chargeback fees and expenses before Service resumes.

7. General Party Obligations

7.1 Use of Mosh JD Software and Services

(a) The Software and Services may be used only for Customer’s own lawful business purposes. The Customer represents and warrants that it shall not knowingly, and shall not knowingly permit others, in using the Services to: (i) defame, abuse, harass, stalk, threaten or otherwise violate or infringe the legal rights (such as rights of privacy, publicity and intellectual property) of others or Mosh JD, or interfere with another party’s use of the Services, or use the Services to invade another’s privacy, or input material into the Services that are vulgar, defamatory, false, intentionally misleading, or that promote racism, bigotry, hatred, or physical harm of any kind against any group or individual, or promotes illegal activities or contributes to the creation of weapons, illegal materials, or is otherwise objectionable or illegal in any way or constitutes unsolicited or unauthorized advertising, promotional materials, junk mail, spam, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (ii) publish, upload, ship, distribute or disseminate any harmful, infringing, fraudulent, tortious, or unlawful material or information (including any unsolicited commercial communications); (iii) misrepresent, or in any other way falsely identify, the Customer’s identity or affiliation, including through impersonation or altering any technical information in communications using the Services; (iv) transmit or upload any Material through the Services containing viruses, trojan horses, worms, time bombs, cancelbots, or any other programs with the intent or effect of damaging, destroying, disrupting or otherwise impairing Mosh JD’s, or any other person’s or entity’s, network, computer system, or other equipment; (v) upload any Sensitive Data (as defined in the DPA) into the Services (vi) interfere with or disrupt the Services, networks or servers connected to the Mosh JD Systems or violate the regulations, policies or procedures of such networks or servers, including unlawful or unauthorized altering of any of the information submitted through the Services; (vii) attempt to gain unauthorized access to the Services, other Mosh JD customers’ computer systems or networks using the Services through any means; (viii) copy, modify or create Derivative Works or improvements of the Services or the Mosh JD Software; (ix) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Mosh JD Software, in whole or in part; (x) bypass or breach any security device or protection used by the Services or Mosh JD Software or access or use the Services or Mosh JD Software other than through the use of then valid access credentials; (xi) remove, delete, alter or obscure any trademarks, documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property rights notices from any Services or the Mosh JD Software; (xii) access or use the Services or the Mosh JD Software for purposes of the development, provision, or use of a competing software service or product; (xiii) sell, resell, assign, pledge, transfer, license, sublicense, distribute, rent or lease the Services or Mosh JD Software, or (xiv) use the Software and/or the Services to promote any political agenda including but not limited to endorsing any political party, policy, candidate, or elected official.

(b) Mosh JD has no obligation to monitor the Customer’s use of the Services and the Mosh JD Software; however, Mosh JD reserves the right, upon being made aware of material non-compliance with the terms of the Agreement, to monitor such use, and to review, retain and disclose any information as necessary to ensure compliance with the terms of the Agreement and to satisfy or cooperate with any applicable law or regulation, or duly served legal process or governmental request.

7.2 Compliance with Law

(a) Both Parties will observe and comply with all applicable laws in connection with their performance under this Agreement. Each Party will notify the other, promptly and without any undue delay, of any discovered unauthorized use of the Services related to the Customer’s receipt of such Services hereunder; provided that such Party is legally able to give such notice. To the extent any End User is under the age of 18, Customer represents and warrants that it is responsible for obtaining any additional consents as required by applicable law.

(b) Mosh JD may suspend the Services, upon notice and a reasonable opportunity to cure, in the event of a material violation by the Customer of any obligation contained in this section 7, until such violation ceases and Mosh JD receives reasonable assurances that such violation will not continue. If Mosh JD believes, in its sole reasonable discretion, that the software, computing equipment, API or network systems owned or controlled by Mosh JD (collectively, “Mosh JD Systems”) are being currently used for criminal activity, in a manner that violates the legal rights of Mosh JD, Mosh JD’s customers (including the Customer), any user of the Mosh JD Software or other third-party, or is experiencing an actual data loss or data misappropriation, or that the continued operation of the Mosh JD Systems places the Mosh JD Systems in potential danger of data loss, data breach, or catastrophic failure, then such suspension may occur prior to the giving of such notice to the Customer.

(c) Without in any way limiting the foregoing, the Customer specifically represents and warrants that neither it, nor any of its affiliates or contractors are (i) currently identified on the Specially Designated Nationals and Blocked Persons List maintained by the US Office of Foreign Assets Control, Department of the Treasury (“OFAC”) or any other similar list maintained by OFAC pursuant to any authorizing statute, executive order or regulation (collectively, the “List”); and (ii) a person or entity with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or Executive Order of the President of the United States. Further, the Customer must comply with all relevant laws and ordinances pertaining to corruption, including the U.S. Foreign Corrupt Practices Act (“FCPA”) and, if applicable, the U.K. Bribery Act 2010, with respect to any activities undertaken relating to this Agreement. The Customer must not pay, promise to pay, authorize a payment, give, promise to give, or authorize the giving of anything of value to any government official for purposes of (a) influencing any act or decision of any government official in his, her or their official capacity; (b) inducing any government official to do or omit to do any act in violation of the lawful duty of any official; (c) securing any improper advantage; or (d) inducing any government official to use his, her or their influence with the government or instrumentality of government to affect or influence any act or decision of the government or instrumentality with respect to any activities undertaken relating to this Agreement.

(d) Mosh JD commits to conduct itself in accordance with the operating procedures regarding the secure handling of payment card data in accordance with the Payment Card Industry Data Security Standard (PCI DSS) and will ensure that the provisions of PCI DSS are followed by its employees, as well as any Subcontractors.

7.3 Application Programming Interface Provisions

(a) In connection with its use of the Mosh JD Software, the Customer will be provided with access to an ‘instance’ or ‘deployment environment’ of the Mosh JD Software (a “Mosh JD Instance”). The Mosh JD Instance may be accessible through an Application Program Interface (API) requiring login and API credentials (the “Mosh JD Credentials”). Mosh JD allows the Customer to control, track, and monitor Users with access to the Mosh JD Credentials.

(b) Mosh JD provides documentation disclosing certain protocols and aspects of its Mosh JD Software functionality for building and integrating Third Party Applications (the “API Protocols”), which may be updated from time to time provided however such change will not result in a material degradation of the Customer’s ability to use the Services. Mosh JD expressly disclaims and shall have no liability with respect to how the API Protocols are used. Further, unless otherwise specified by the Parties, in writing in an applicable Order Form or SOW, Mosh JD takes no ownership interest in or rights to any third-party software code that incorporates the API Protocols.

(c) In order to enable the functionality provided by the API Protocols, a requesting party must serve licensed Mosh JD Credentials to the Mosh JD Instance. The Customer expressly understands that Mosh JD does not go beyond a verification of proper Mosh JD Credentials to validate whether or not access to or use of a customer’s Mosh JD Instance is authorized. Accordingly, an unauthorized party may use misappropriated, although valid, Mosh JD Credentials to gain access to and employ the functionality of an otherwise properly licensed Mosh JD Instance. Once the Mosh JD Credentials are validated by the Mosh JD Instance, any software code that is written in accordance with the API Protocols will function with the Mosh JD Instance as designed. Thus, any unauthorized dissemination and distribution of the Mosh JD Credentials may lead to an unauthorized use of a Mosh JD Instance. Mosh JD expressly disclaims and shall have no liability to the Customer, or any third-party, for any loss or damages resulting from how the API Protocols are used, unless and to the extent that the same may be solely and directly attributable to Mosh JD’s actions.

8. Confidentiality

8.1 Confidential Information.

“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) that is of value to its owner and is treated as confidential (including all information which is subject to treatment as a ‘trade secret’ under applicable law) or should otherwise be reasonably understood to be confidential, in light of the context in which it is disclosed. Customer Data shall expressly be considered as Confidential Information hereunder. Mosh JD Software, documentation, and the terms and conditions of this Agreement (including pricing) shall expressly be considered as Confidential Information. For purposes of this Agreement, Confidential Information does not include any information that: (i) the Receiving Party establishes was publicly known at the time of the Receiving Party’s receipt or has become publicly known other than by a breach of this Agreement; (ii) prior to disclosure hereunder, it was already in the Receiving Party’s possession without restriction as evidenced by appropriate documentation; (iii) subsequent to any disclosure hereunder, the information is obtained by the Receiving Party on a non-confidential basis from a third-party who has the right to disclose such information; or (iv) was developed by the Receiving Party without any use of any of the Confidential Information as evidenced by appropriate documentation. For greater certainty, the Parties agree that Customer Personal Data is Confidential Information but is governed by section 9 of this Agreement.

8.2 Disclosure.

The Parties agree that, during the Term of this Agreement, each Party may disclose to the other Party certain Confidential Information of such Party or of such Party’s associated companies, distributors, licensors, suppliers, or customers.

8.3 Requirement of Confidentiality.

(a) Each Receiving Party agrees to hold all Confidential Information disclosed to such Receiving Party by the Disclosing Party in confidence and not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Confidential Information disclosed by the Disclosing Party to any third-party, or utilize the Confidential Information disclosed by the Disclosing Party for any purpose whatsoever other than as expressly contemplated by the Agreement.

(b) With regard to all Confidential Information, the obligations in this section 7 shall continue for the Term of the Agreement and for a period of three (3) years thereafter; provided, however, that, with respect to any Confidential Information which is a trade secret under applicable law, the obligations shall continue in perpetuity for so long as such information is considered a trade secret.

(c) Notwithstanding anything to the contrary herein, if the Receiving Party is ordered by an administrative agency or other governmental body of competent jurisdiction to disclose the Confidential Information, then the Receiving Party may disclose the requested Confidential Information; provided however, that, the Receiving Party shall first notify the Disclosing Party prior to disclosure, if allowed by law, in order to give the Disclosing Party a reasonable opportunity to seek an appropriate protective order or waive compliance with the terms of this Agreement and shall disclose only that part of the Confidential Information which the Receiving Party is required to disclose.

8.4 Return Of Materials.

Upon the request of the Disclosing Party or upon the expiration or termination of the Agreement, the Receiving Party shall promptly destroy or deliver to the Disclosing Party all of the Disclosing Party’s Confidential Information and any notes, extracts, or other reproductions in whole or in part relating thereto, without retaining any copy thereof. Notwithstanding the foregoing, the Receiving Party shall be permitted to retain such copies of Confidential Information as may be reasonably necessary for legal or recordkeeping purposes, including such copies as are embedded in the automated backup of electronic data processing systems.

9. Data Protection

9.1 Processing of Personal Data.

To the extent that Mosh JD processes Customer Personal Data, it shall do so only in accordance with the Data Processing Addendum available at: https://www.moshjd.com/data-processing-addendum (the “DPA”) and the Security Standards attached to the DPA as Annex A, which is incorporated by reference into this Agreement. As used herein, “Customer Personal Data” shall be as defined in the DPA

9.2 Security Matters.

Mosh JD has implemented and will maintain, throughout the Term in accordance with industry best practices, appropriate technical and organizational safeguards described in the DPA Annex A: Security Standards, in order to support the security, confidentiality and integrity of Customer Data and other proprietary information. Mosh JD shall only use Customer Data as permitted under this Agreement and in accordance with the DPA, including as necessary or appropriate to prevent technical problems (e.g., to resolve issues related to technical support).

10. Limited Warranty And Disclaimer

(a) Mosh JD represents and warrants to the Customer that: (i) it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) it has all rights, licenses, consents and authorizations necessary to grant the rights and licenses granted in this Agreement; (iii) the Services delivered under the Agreement will operate substantially in conformity with its documentation; and (iv) the documentation accurately and completely reflects all material features and functions of the Services.

(b) The above warranty will not apply to non-conformities, errors or problems caused by acts within the control of the Customer or its Users or arising from Customer’s negligence or improper use of the Services from unauthorized modifications or use of Services in an unsupported operating environment or manner, or any issues that arise from integrations made with third-party software at Customer’s election.

(c) OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER MOSH JD, ITS AFFILIATES, LICENSORS OR SUPPLIERS, NOR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES MAKES ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS OF ANY NATURE OR KIND WHATSOEVER TO THE CUSTOMER, OR ANY OTHER PERSON OR ENTITY WITH RESPECT TO THE SERVICES OR OTHERWISE REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY, AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED TO THE CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND ARE FOR COMMERCIAL USE ONLY.

(d) WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. NO WARRANTY IS MADE THAT USE OF THE SERVICES WILL BE TIMELY, ERROR FREE OR UNINTERRUPTED, THAT ANY NON-MATERIAL ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED, THAT THE SERVICES WILL OPERATE IN COMBINATION WITH HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED OR RECOMMENDED BY MOSH JD, OR THAT THE SERVICES FUNCTIONALITY WILL MEET THE CUSTOMER’S REQUIREMENTS.

11. Limitations of Liability

11.1 Exclusions of Liability.

Except in connection with and to the extent of any breach of section 8 (Confidentiality), in no event shall either Party, its affiliates, licensors or suppliers, or any of their respective officers, directors, employees, shareholders, agents or representatives be liable to the other Party, or any other person or entity for any indirect, special, incidental, exemplary or consequential damages or any loss of goodwill under or in any way relating to this Agreement or resulting from the use of or inability to use the deliverables or the performance or non-performance of any Services, including the failure of essential purpose, even if such Party has been notified of the possibility or likelihood of such damages occurring, and whether such liability is based on any legal or equitable theory, including, but not limited to, contract, tort, negligence, strict liability, products liability or otherwise.

11.2 Maximum Liability.

Except for claims arising in connection with and to the extent of (a) any breach of section 8 (Confidentiality), (b) section 12 (Indemnification) or (c) in connection with contractual payment obligations hereunder, in no event shall either Party’s liability for any damages to the other Party, or to any other person or entity, regardless of the form of action, whether based on contract, tort, negligence, strict liability, products liability or otherwise, exceed an aggregate amount equal to the total fees paid by Customer in the twelve (12) months immediately preceding the event that gave rise to the claim.

12. Indemnification

12.1 Mosh JD Indemnification

(a) Mosh JD shall indemnify and defend the Customer and its officers, directors, employees and affiliates and Users against any and all third-party claims, actions or proceedings arising out of or in connection with, and to the extent caused by, (i) any infringement by the Mosh JD Software or Mosh JD Data against any patent, copyright, or trademark, or the misappropriation of any trade secret (except for claims which are specifically excluded under the terms of section 12.1(b)) or (ii) any violation by Mosh JD of its obligations in section 8 (Confidentiality). If any Services (including the Mosh JD Software) becomes, or, in Mosh JD’s opinion, is likely to become, the subject of any claim of infringement, Mosh JD may, at its sole option, (x) obtain for the Customer the right to continue using the Services; (y) replace or modify the affected Services so that it becomes non-infringing while providing substantially equivalent functionality; or (z) if such remedies are not available on commercially reasonable terms, as determined by Mosh JD, terminate the license to use the Services for the affected portion and promptly refund any pre-paid subscription fees for the affected portion thereof.

(b) Notwithstanding any terms contained in Section 12.1(a), Mosh JD shall have no liability for infringement claims if the alleged infringement is based on or arises from; (I) (i) the combination or use of the Services with software or other materials not provided or recommended for use by Mosh JD, (ii) the modification of the Services by anyone other than Mosh JD, or at Mosh JD’s direction, or (iii) the use of the Services not in accordance with the documentation or this Agreement; and (II) any Software Services in which the indemnification has been excluded or limited in the applicable Services Addendum.

12.2 Customer Indemnification.

The Customer will indemnify and defend, Mosh JD, and its officers, directors, employees and affiliates against all third-party claims, actions or proceedings arising out of or in connection with, and to the extent caused by, (i) Customer Data; (ii) any infringement or misappropriation of any Intellectual Property Rights of Mosh JD or any third parties; or (iii) any violation by the Customer of its obligations in section 8 (Confidentiality).

12.3 Indemnification Obligations.

The indemnification provided in sections 12.1 and 12.2 is conditioned on: (i) the party to be indemnified (the “Indemnified Party”) giving the indemnifying party (the “Indemnifying Party”) prompt written notice of such claim; (ii) the Indemnified Party providing its full cooperation in the defense of such claim, if requested by the Indemnifying Party; and (iii) the Indemnified Party granting the Indemnifying Party the sole authority to defend or settle the claim.

12.4 Exclusive Remedy.

This section 12 states the Indemnifying Party’s sole liability to, and the Indemnified Party’s exclusive remedy against, the other Party for any type of claim described in this section.

13. Term And Termination

13.1 Term.

The term of this Agreement shall commence on the Effective Date and shall continue through until the expiration or termination of all Service Terms (the “Term”). A “Service Term” is defined as the period of time, as set out on each applicable Order Form or SOW, for each Service provided to Customer under this Agreement.

13.2 Automatic Renewal.

Except as otherwise specified in an Order Form or SOW, subscriptions will automatically renew for subsequent twelve (12) month periods (each, a “Renewal Term”), unless either Party gives written notice of non-renewal in accordance with this section 13.2. Upon each subsequent Renewal Term, the fees will be revised to reflect Mosh JD’s then-current fees, or a ten percent (10.0%) increase over the highest level of annual fees charged during the previous Term or Renewal Term, whichever is lower, for the applicable Services. Fees for any upcoming Renewal Term shall be set out in the Order Form sent to Customer, at least 45 days prior to the commencement of such Renewal Term. Unless otherwise specified in the Order Form, to prevent renewal of the Agreement, either Party must give written notice of non-renewal to the other Party at least thirty (30) days prior to the end of the then current Term.

13.3 Termination.

Without prejudice to any other rights or remedies of each Party hereunder, and in addition to any other termination rights herein, the Parties shall have the right to terminate the Agreement as provided below:

(a) By either Party if the other Party commits a material breach of this Agreement and such breach remains uncured thirty (30) days after written notice of such breach is delivered to such other Party;

(b) By either Party if the other Party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws, laws of debtor’s moratorium or similar laws;

(c) By Mosh JD if any amounts hereunder which are due and owing and not reasonably in dispute remain unpaid for more than fifteen (15) days following written notice of such unpaid amounts being delivered to the Customer;

(d) by Mosh JD if Customer is acting as a Reseller without Mosh JD’s express written consent; or

13.4 Effect; Transition

(a) Upon expiration or termination of this Agreement for any reason, all rights and licenses granted by Mosh JD hereunder to the Customer will immediately cease. Upon any expiration or termination of this Agreement, Mosh JD shall make the Customer’s materials available to it for a period of thirty (30) days. Upon any duly effected termination of this Agreement by the Customer pursuant to sections 13.3(a) or 13.3(b), Mosh JD will promptly refund any pre-paid fees for Services not yet received by the Customer.

(b) Upon any expiration or termination of this Agreement by the Customer pursuant to sections 13.3 13.3(a) or 13.3(b) of this Agreement, Mosh JD will continue, upon the Customer’s written request, to provide the Services to the Customer, as the Services were provided to the Customer during the most recently completed Term and under the same conditions and applicable fees, for a maximum period of six (6) months (“Transition Services”). The Customer may use the Transition Services to continue operations and for data retrieval and export purposes, and Mosh JD will provide reasonable migration tools that it generally makes available to its customers for the Customer to retrieve the Customer’s materials and content as a part of providing the Services. In any event where the Customer has elected to receive Transition Services, the Customer represents and warrants that it will work expeditiously and diligently to migrate itself onto an alternative solution.

No failure or delay by either party in exercising any right under these Terms will constitute a waiver of that right. No waiver under these Terms will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.

14. Miscellaneous

14.1 Authority.

Each Party represents and warrants that it has the legal power and authority to enter into this Agreement. When executed and delivered by both Parties, this Agreement will constitute the legal, valid and binding obligations of such Party, enforceable against such Party in accordance with its terms.

14.2 Governing Law.

These Terms are governed by Rhode Island law. Legal actions must be brought exclusively in state or federal courts in Providence County, Rhode Island, to which the parties consent.

14.3 Dispute Resolution; Waiver of Jury Trial

(a) In the event that any dispute arises between the Parties with respect to this Agreement, the Parties will first attempt to resolve the dispute, in good faith, through consultation. If consultation is not successful in resolving the entire dispute or is unavailable, any outstanding issues will be submitted to final and binding arbitration, before one (1) arbitrator in accordance with the then prevailing rules of commercial arbitration of JAMS. The arbitrator’s award (the “Award”) will be final, and judgment may be entered upon it by any court having jurisdiction over such matter. Every arbitrator engaged pursuant to this section 14.3, and all proposed arbitrators, must be at arm’s-length from both Parties and shall not have any interest in the dispute. Each arbitrator shall, subject to applicable rules, determine the procedure for hearing the dispute but shall be caused to give written reasons for material findings of fact and a written decision. Each arbitrator shall determine the liability among the Parties to the dispute for the cost of the dispute resolution process and for the payment of the arbitrator. The Parties shall maintain the confidential nature of the arbitration proceeding and the Award, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an Award or its enforcement, or unless otherwise required by applicable law.

(b) EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, IRREVOCABLY WAIVES, RELINQUISHES AND FOREVER FORGOES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO THIS AGREEMENT.

14.4 International Conventions.

The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply in any respect to this Agreement or the Parties.

14.5 Communications; Notices.

All communications and notices which are required or otherwise provided under this Agreement shall be in writing and shall be deemed given when delivered (i) by hand, (ii) by registered or certified mail, postage prepaid, return receipt requested; (iii) by a nationally recognized overnight courier service; or (iv) by electronic mail (with read receipt or other tracking mechanism to confirm receipt), to the respective addresses set forth on the initial Order Form, with a copy which shall not constitute notice to info@moshjd.com.

14.6 Assignment.

Customer may not assign this Agreement without Mosh JD’s written consent, which consent shall not be unreasonably withheld or delayed, except that Customer may assign or transfer this Agreement in connection with a sale of all or substantially all of Customer’s assets (other than to a direct competitor of Mosh JD and provided that the assignee agrees in writing to be bound by all terms and conditions of this Agreement) by providing Mosh JD with prompt written notice of such assignment. Any assignment in violation of this Section 14.6 shall be void and of no effect. The Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns.

14.7 Severability.

In case any one or more of the provisions of this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.

14.8 Entire Agreement.

This Agreement constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes all previous oral or written communications, representations, understandings, agreements, or proposals with respect thereto. For the avoidance of doubt, any purchase order forms, or similar document, issued by the Customer to Mosh JD, outside of an Order Form or SOW will not be accepted and are expressly rejected by Mosh JD. All Order Forms, SOWs and Schedules attached to the Agreement or subsequently added hereto by mutual consent of the Parties are incorporated into this Agreement for all purposes.

14.9 Waiver.

o failure or delay by a Party to exercise any right or remedy provided under this Agreement, or by law, shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

14.10 Modifications.

No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to or modification of this Agreement and signed by an authorized representative of each Party.

14.11 Force Majeure.

Neither Party will be responsible for any delay or failure in performing any of its obligations hereunder due to causes of force majeure, which are the result of circumstances or events which are not reasonably foreseeable and are beyond such Party’s reasonable control, including, without limitation, acts of God, acts of government, flood, fires, earthquakes, civil unrest, acts of terror or war, strikes or other labor problems (excluding those involving a Party’s employees), computer or telecommunications failures or delays involving hardware or software not within a Party’s possession or reasonable control, and network intrusions or denial of service attacks (each a “Force Majeure Event”). The Party affected by a Force Majeure Event will advise the other Party in reasonable detail of the Force Majeure Event as promptly as practicable and keep the other Party reasonably apprised of progress in resolving the Force Majeure Event.

14.12 No Third-Party Beneficiaries.

The Agreement is personal to the Parties and no third parties shall be considered beneficiaries hereof, for any purposes.

14.13 Insurance

(a) At all relevant times during the performance of Services pursuant to the Agreement, Mosh JD shall have bound and maintained the following minimum insurance coverages (all amounts stated are in USD):

(i) Commercial General Liability – $1,000,000, per occurrence, $1,000,000, in the aggregate;
(ii) Cyber Liability / Technology Errors & Omissions/ Professional Liability – $1,000,000, in the aggregate.

(b) Upon reasonable request, Mosh JD will provide to the Customer customary proof of continuing insurance.

(c) For the avoidance of doubt, nothing contained in this section 14.13 shall, in any way, be interpreted as impacting any limitations of liability or indemnification provisions contained in the Agreement.

14.14 Additional Policy Compliance.

Each of the Parties hereby represents and warrants that they shall comply with all laws, regulations or other requirements relating to business ethics of any country in which Services are performed or received hereunder. Each Party represents and warrants that it has not taken any action prior to the date hereof that would subject the other to liability under any such laws that are aimed at preventing bribery or corruption and agrees and covenants not to take any action in the course of performing the Agreement that would subject the other Party to the same.

14.15 Publicity.

Customer hereby grants to Mosh JD the express right to use Customer’s company logo and/ or name in its press releases, and its website to identify Customer as a Mosh JD customer. Other than as expressly stated herein, neither Party shall use the other Party’s name and/or logos without the prior written permission of the other Party.