PLEASE READ THIS UNIVERSAL TERMS OF SERVICE AGREEMENT (THIS “AGREEMENT”)
CAREFULLY, AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND
REMEDIES. YOU ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT BY ACKNOWLEDGING SUCH
ACCEPTANCE DURING THE REGISTRATION PROCESS AND ALSO BY CONTINUING TO USE THE SERVICES
(DEFINED BELOW). IF YOU DO NOT AGREE TO ABIDE BY THIS AGREEMENT, OR TO MODIFICATIONS
THAT COMPANY MAY MAKE TO THIS AGREEMENT IN THE FUTURE, DO NOT USE OR ACCESS OR CONTINUE
TO USE OR ACCESS THE SERVICES OR OUR WEBSITE.
This Universal Terms of Service Agreement (this “Agreement”) is entered into by and between
mximo Inc. (“mximo”), a Delaware corporation, and you, and is made effective as of the date
of electronic acceptance. This Agreement sets forth the general terms and conditions of your
use of this website (this “Site”) and the products and services (collectively, the “Services”)
found at this Site, and is in addition to (not in lieu of) any specific terms and conditions that
apply to the particular Services you purchase or access through this Site.
b. Your electronic acceptance of this Agreement signifies that you have read, understand, acknowledge
and agree to be bound by this Agreement.
c. The terms “we”, “us” or “our” shall refer to mximo. The terms “you”, “your” shall refer to any
individual or entity who accepts this Agreement. Nothing in this Agreement shall be deemed to confer
any third-party rights or benefits.
d. mximo in its sole and absolute discretion, may change or modify this Agreement at any time, and
such changes or modifications shall be effective immediately upon the earlier of (i) our email notification
to you advising you of such changes or modifications or (ii) your electronic acceptance of this Agreement
after such changes or modifications have been made to this Agreement as indicated by the “Last Revised”
date at the top of this Agreement.
2. Non-Exclusive License to Distribute User Content.
mximo has developed an application for mobile devices (the “Application”) that will allow end users
(the “Users”) to access your product catalogues (the “Content”), receive promotional updates from you
and utilize other related features. The Services allow you to create an instance of the Application for
your Content in accordance with the terms and conditions set forth herein.
You hereby grant to mximo, and to its Affiliates (which are defined, for purposes of this Agreement,
as all entities, directly or indirectly, controlled by, controlling, or under common control with mximo),
a non-exclusive license to store, reproduce, display, perform, market and deliver the Content to Users
electronically by means of the Application. mximo may also perform formatting modifications to the Content
necessary for delivery of the Content by means of the Application. Portions of your Content may also be
used in conjunction with references to your Application on the mximo website or in electronic or hard
copy materials. Appropriate service elements may be subcontracted by mximo to service providers as
necessary for performance of the Services contemplated in this Agreement. The Content shall be transmitted
by you to mximo in the format and manner instructed by mximo from time to time.
3. User’s Trademarks.
You grant to mximo the non-exclusive right to
use your trademarks (“Trademarks”) solely in connection with the performance of this Agreement.
mximo may use your Trademarks on the mximo webite and in other materials (written or electronic)
when associated with your Application. mximo shall use the Trademarks in accordance with trademark
usage guidelines provided by you to mximo. mximo agrees to cooperate with you in facilitating
your monitoring and control of the nature and quality of the trademark usage authorized hereunder
and to supply you with specimens of use of the Trademarks upon request, and to comply with any
instructions you provide in relation to Trademark use. mximo acknowledges the validity of your
Trademarks and your sole ownership of your Trademarks. mximo shall not contest the validity of
your Trademarks or your exclusive ownership of such Trademarks. mximo shall not adopt, use, or
register, whether as a corporate name, trademark, service mark or other indication of origin,
any of your Trademarks, or any word or mark confusingly similar to any of your Trademarks in
4. Representations and Warranties.
(a)Each party represents and warrants to the other party that: (i) it has the full corporate right,
power, and authority to enter into this Agreement and to perform its obligations hereunder, (ii)
its execution of this Agreement and performance hereunder does not and will not violate any agreement
to which it is a party or by which it is bound, and (iii) when executed and delivered, this Agreement
will constitute the legal, valid and binding obligation of such party, enforceable against it in
accordance with its terms.
(b) You represent and warrant to mximo that (i) you have all necessary rights in the Content and Trademarks necessary for granting the licenses herein to mximo, (ii) you will use reasonable efforts to keep the Content current, accurate and complete, and correct any errors or omissions as soon as you become aware of such, and (iii) mximo’s use of the Content and Trademarks as authorized in this Agreement will not infringe upon the intellectual property rights, publicity rights or other rights of any third party, or violate any laws or regulations of any jurisdiction.
(c)mximo represents and warrants to you that (i) it will not store, redistribute, market or deliver
the Content for any other purpose or in any way other than to make the Content available to Users via
the Application, (ii) it will not sublicense, sell or otherwise dispose of the Content to any person
or entity except as set forth expressly herein, (iii) it will not change, alter or in any way modify
the Content provided by you for any purpose whatsoever except as set forth expressly herein, and (iv)
the Application (excluding the Content and Trademarks) will not infringe upon the intellectual property
rights of any third party. EXCEPT AS OTHERWISE STATED HEREIN, THE SERVICES AND APPLICATION ARE MADE
AVAILABLE UNDER THIS AGREEMENT “AS IS” AND (I) mximo MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED,
OR STATUTORY REGARDING OR RELATING TO THE SERVICES AND APPLICATION, (ii) mximo DOES NOT WARRANT THAT
THE SERVICES AND APPLICATION WILL OPERATE UNINTERRUPTED OR THAT THEY WILL BE FREE FROM DEFECTS OR THAT
THE SERVICES AND APPLICATION ARE DESIGNED TO MEET YOUR BUSINESS REQUIREMENTS, (iii) mximo AND ITS
SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS OBTAINED BY USING THE SERVICES AND
APPLICATION, AND (iv) mximo AND ITS SUPPLIERS MAKE NO IMPLIED WARRANTIES, CONDITIONS, REPRESENTATIONS,
OR TERMS (WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING WITHOUT
LIMITATION NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY, OR
FITNESS FOR ANY PARTICULAR PURPOSE. THE FOREGOING DISCLAIMERS, LIMITATIONS AND EXCLUSIONS APPLY TO THE
EXTENT PERMITTED BY APPLICABLE LAW IN THE APPLICABLE JURISDICTION.
As set out in our fee schedule or as otherwise agreed between us, you will pay set up fees upon executio
n of this Agreement. You will also pay monthly fees in accordance with a calculation agreed between us,
which may include any of the following: (i) based upon cumulative number of Users that have downloaded
your instance of the Application, (ii) fixed monthly hosting fees, (iii) percentage of sales, or (iv)
cost per click through to your website. Except where otherwise provided, payments are due thirty (30
days from invoice date. Fees are exclusive of all taxes. Taxes (excluding taxes imposed upon mximo’s
net income) shall be your sole responsibility, and where applicable, will be billed by mximo to you.
Late payments may bear interest at the lesser of one and one-half percent (1 ½ %) per month and the
highest rate allowable under applicable law.
6.Maintenance and Circumstances beyond the Parties’ Control.
Neither you nor mximo
will be deemed in default nor liable hereunder if, as a result of any cause or
circumstances beyond such party’s reasonable control or any repair work or routine
maintenance, there occurs a delay, interruption, or failure of (i) the transmission of
the Content to Users, or (ii) the delivery of the Content to any Users. So long as any
such failure continues, the party responsible for such service or transmission will use
its reasonable efforts, consistent with applicable industry standards, to eliminate such
conditions and will keep the other party fully informed at all times concerning the matters
causing such delay or default and the prospects for their termination.
7.Limitations of Liabilities.
In no event shall the parties be liable for any lost profits, lost data, punitive, incidental or consequential
damages and the total liability of one party to the other shall not exceed the amounts paid by you to mximo
during the period of six (6) months prior to a cause of action arising. Notwithstanding the foregoing, the
exclusion of damages and limitation of liability set forth in this Section shall not apply to amounts owing
under an indemnification.
(a) You are liable for and will defend, indemnify and hold harmless
mximo and its officers, directors, employees, agents and contractors from and against all loss, damage, cost
and/ or expense (including reasonable attorney’s fees and expenses) finally awarded to a third party arising out
of or in connection with mximo’s use of the Content and Trademarks as permitted under this Agreement, including
without limitation, all claims or proceedings that the Content or Trademarks infringe or violate any copyright,
trademark, patent, or other intellectual property rights, or other rights of any nature, of any third party.
(b) mximo is liable for and will defend, indemnify and hold harmless you and your officers, directors, employees,
agents and contractors from and against all loss, damage, cost and/ or expense (including reasonable attorney’s
fees and expenses) finally awarded to a third party arising out of or in connection with all claims or
proceedings that the Application (excluding the Content and Trademarks), use or distribution thereof,
infringes or violates any copyright, trademark, patent, or other intellectual property rights, or other
rights of any nature, of any third party. If a claim of infringement arises,mximo , may at its option (i)
obtain rights to continue distributing the Application, (ii) modify the Application so as to make it
non-infringing, or (iii) terminate this Agreement and all distribution of the Application.
9. Advertising and Publicity.
Neither party may include the name of the other party in any advertising, marketing materials, information
material or publicity releases without the other party’s prior consent. mximo may, however, include a
reference to you and use your logo in any listing of customers and may include references to you and use
your logo in written proposals made to its potential customers. You will provide a rendition of your logo
suitable for display on mximo’s web site. Upon request of mximo, you agree to act as a reference for
prospective customers of mximo. mximo may display its name and logo as “powered by mximo” or similar
reference in the splash screen that displays while the User waits for the Application to load. If we agree
to remove such references, then mximo reserves that right to charge a fee for such removal.
(You and mximo agree that all technical or commercial information about the other party or its customers,
including but not limited to pricing, specifications, drawings, designs, know-how, software, product strategies,
product plans, and information, which is in tangible or visible form or is communicated orally and exchanged
between the Parties in connection with this Agreement, shall be treated as strictly confidential and shall
only be shared with third parties with the express consent of the other party; provided, however, that the
obligations of confidence referred to in this Section shall not extend to any information which: (a) is or
becomes generally available to the public otherwise than by reason of breach by the receiving party of this
Section ; (b) at or prior to the time of disclosure by the disclosing party was known to the receiving party
as evidenced in writing, except to the extent unlawfully appropriated; (c) is subsequently disclosed to the
receiving party without obligations of confidence by a third party owing no such obligations in respect of
it; (d) is developed by the receiving party independent of any confidential information it receives from the
disclosing party; and/or (e) is required to be disclosed by law, regulation, court order or request of any
government or regulatory authority, but only to the extent and for the purpose of such disclosure.
(a) This Agreement shall commence upon your electronic
acceptance of this Agreement and shall continue, unless terminated as permitted herein, for a period of one
(1) year. Thereafter, unless terminated upon no less than forty-five (45) days’ prior written notice, this
Agreement shall renew for subsequent periods of one (1) year each.
(b) Either party may terminate this
Agreement upon forty-five (45) days’ written notice if the other party commits a material breach and does
not cure such breach within such forty- five (45) day notice period.
(c) mximo may terminate this Agreement for convenience at any time upon prior written notice.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. Neither party shall assign this
Agreement or any right or obligation hereunder without the prior written consent of the other party;
provided, however, that either party may assign its rights and obligations pursuant to this Agreement
to any entity which acquires all, or substantially all, of its business unit responsible for the performance
of this Agreement.
All notices and other communications given or made pursuant hereto shall be in writing and shall be delivered
to the parties personally or sent by, standard post or overnight air express. Notice shall be effective upon
(a) Governing Law. This Agreement shall (irrespective of where it is executed, delivered and/or performed)
be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to
principles of conflicts of law thereof.
(b) Headings. The captions of the various sections of this Agreement have been inserted only for the purpose
of convenience; such captions are not a part of this Agreement and shall not be deemed, in any manner, to
modify, explain, enlarge or restrict any of the provisions of this Agreement.
(c) Severability. If any provision of this Agreement is held invalid or otherwise unenforceable,
the enforceability of the remaining provisions of this Agreement will not be impaired thereby.
(d) No Waiver. The failure by any party to exercise any right or remedy provided for herein will not be deemed
a waiver of any right or remedy hereunder.
(e) Survival. Any provisions of this Agreement that, in order to fulfill the purposes of such provisions,
need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long
as necessary to fulfill such purposes.(e) Survival. Any provisions of this Agreement that, in order to
fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement,
shall be deemed to survive for as long as necessary to fulfill such purposes.
(g) Complete Agreement. This Agreement sets forth the entire understanding of the parties as to the subject
matter herein described and it may not be modified except in a writing executed by both parties.