Last Updated: 05/21/2018
Welcome to MAZ, operated by MAZ Systems Inc. Please read the Terms of Service carefully, as they are a contract between you and MAZ Systems Inc. They apply to your use of our website at mazsystems.com, all corresponding web pages associated with that URL, and/or any features, functionality and services offered by us.
Below is a list of frequently used words and phrases that are used throughout these Terms of Service and their definition. Other words/phrases may be defined within the Terms of Service:
1. Definitions. Capitalized terms not otherwise defined in this Agreement are defined herein:
“Business Day” shall mean Monday through Friday, 9am-6pm EST, excluding MAZ holidays.
“Company”, “Service Provider”, “we”, “us”, “our”, “MAZ” = MAZ Systems Inc.
“Data” shall mean all data, content, information or material entered by, or transmitted on behalf of, Partner, its Affiliates or any User into the Service.
“Developed Software” shall mean any app, website or other software on any specific Platform built using the Services (for example, the Partner iPhone app).
“End User” shall mean any consumer of any Developed Software or other Output
“Fee” shall mean any Implementation Fee(s) and/or Service Fee(s), which Partner shall pay to Service Provider in consideration for access to the Service.
“Including” shall mean including without limitation.
“Materials” shall mean any text, photos, graphics, images, audio/visual content, trademarks, logos, materials, feeds, multimedia, and information uploaded or provided by Partner via the Services for use in connection with the creation, distribution, promotion and/or sale of Developed Software and other Outputs, and with any other features and functionality available on or in connection with the Site.
“Operator” shall mean the third party owner/operator of any Output platform (for example, Apple, Google).
“Output” shall mean any Platform where Materials may be distributed to via the MAZ services including both app and non-app distribution Platforms and third parties.
“Platform” shall mean iOS App Store, iTunes, Google Play, and /or any other third party owned and/or operated point of distribution, app store, storefront and/or platform.
“Service” shall mean the web-based service provided by Service Provider, including the associated tangible components provided by Service Provider to Partner hereunder, such as training materials, as further described in the Services Overview and Pricing Schedule.
“User” shall mean Partner’s employees, agents or contractors who are authorized by Partner to use the Service, for whom Partner has purchased subscriptions to the Service hereunder, and who have been supplied user identifications and passwords.
“You”, “your,” “Partner” = You, the company or entity you work for, and/or any company, person, or entity that you are using the Services on behalf of.
- Service Provider will implement and host the Services for use by Partner subject to the terms of this Agreement. The Service is a web-based software-as-a-service that enables Partner to build and maintain mobile, web or OTT applications (i.e. apps) for purposes of distributing and making the apps available for download via any Platform. The Services may also allow Partner to distribute Materials directly via the web or other non-app Platforms such as social media, smart home devices, or aggregator Platforms. The Services may also include hosting, distribution, sales, maintenance, support, or other related services.
- Delivery. Service Provider shall promptly provide the necessary access to the Services on the initial use of the Site and/or Services (“Effective Date”). In the event Partner fails to accept the Services due to any reason aside from material breach of this contract by MAZ, Partner will remain responsible for full payment for the then-current term.
- Grant of Rights. Service Provider grants Partner and its Affiliates, during the Term, a worldwide, non-exclusive right to access and use the Services during the Term and in accordance with the terms of this Agreement.
3. Term and Termination.
3.1 Term. The term of this Agreement shall commence on the Effective Date and shall expire twelve (12) months after. After the initial year, this Agreement will automatically renew for additional twelve (12) month terms at the end of the Initial Term (each, a “Renewal Term”) unless written notice is given to Service Provider at least ninety (90) days prior to the end of the then-current term that it does not intend to renew the Agreement at the end of the then-current term. All cancellation requests must be submitted in writing to email@example.com. Cancellation requests given by phone, physical mail or other means, or sent to any other Company email address or electronic contact will not be honored. The Initial Term together with any Renewal Terms are collectively, the “Term”.
3.2 Termination. This Agreement or any additional agreements hereunder shall terminate upon prior written notice:
- By Partner with at least 30 days prior written notice to Service Provider, with the understanding that Partner will remain responsible for full payment for the then-current term.
- By Service Provider by giving notice in writing to Partner (provided that the effective date of termination shall not be less than ninety (90) days from the date of such notice) if: (i) Partner fails to pay properly invoiced and undisputed Fees when due; and (ii) Partner has failed to cure any such failure to pay within sixty (60) days after receiving notice from Service Provider that such payment is overdue. If Service Provider terminates this Agreement pursuant to this clause then it shall only be obliged to provide the Services during the ninety (90) day period following the termination notice;
- By either party, if the other party becomes insolvent, files a petition of bankruptcy, makes an assignment for the benefit of its creditors, or becomes the subject of proceedings under any law relating to bankruptcy or the relief of debtors; or
- With written consent of both parties at any time.
3.3 Consequences of Termination.
- Except as otherwise provided in this Agreement, upon any termination of this Agreement, the rights and obligations of the parties shall cease except that Sections 1, 3, 16, 20, 21, and 23 shall survive termination and continue in full force and effect.
- Upon receipt of any termination request in accordance with this Agreement, MAZ will terminate and deactivate your account within a reasonable time (i.e., within a period of about 30 days), which will include the permanent removal of all Developed Software(s) from the Services and any Platforms (collectively, “User Content”), subject to Operator requirements, terms and conditions, third party response and performance times, legal requirements and the advice of legal counsel. Upon any cancellation or termination of your User Account, whether by MAZ or you, no refunds, reimbursements or credits of any kind will be provided as described in Section 6.4 herein.
4. Modifications. We may modify this Agreement from time to time and at any time in our sole discretion. We will post or display notices of material changes on the Services and/or notify you via email. Once we post or make them available on the Services, these changes become effective immediately and if you use the Services after they become effective it will signify your agreement to be bound by the changes. We recommend that you check back and review this Agreement frequently so you are aware of the most current rights and obligations that apply to you.
5. Authority; Authorization. If you are using the Services, in whole or in part, on behalf of any business, publisher, organization or other third party (each an “Obligor”), then you represent and warrant that (a) you have the full right, and authority to enter into this Agreement on behalf of the Obligor and to create a legal, valid and binding obligation enforceable against Obligor in accordance to these terms; (b) all corporate, organizational and other proceedings required by Obligor to authorize your agreement to, and performance under, this Agreement have been taken and all necessary licenses, authorizations, permits, consents and approvals required have been obtained; and (c) your use of the Services on behalf of the Obligor does not and shall not violate any applicable law, rule or regulation or require any additional consent or other action by any other person or entity. In the event you are using these services on behalf of an Obligor, the terms “you” and “your” as used in this agreement shall mean, collectively, you and the Obligor, and this agreement will be jointly enforceable against you and the Obligor for all purposes hereunder.
6. Fees and Payment Terms
- Requirements. Partner shall pay the fees for the Service as specified on the Pricing Schedule and in accordance with the payment terms set forth herein and Partner agrees to pay the full prices and fees for any additional purchases that are made using its User Account(s) via a payment method acceptable to MAZ, in its sole discretion, at the time of purchase. All fees shall be due at the receipt of any invoice. Prices will not change during the Term, but are subject to increase at the commencement of each additional Term in the sole discretion of Company.
- Recurring Billing. Unless otherwise agreed upon, you understand and agree that we will automatically invoice or charge you via the payment card on file in your User Account and you agree to pay the all fees as set forth in the Pricing Schedule until this Agreement is terminated.
- Late Payments. If payment of any fees is not made when due and payable, a late fee shall accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest legal rate permitted by law and Partner will pay all reasonable expenses of collection. Company may also suspend access to the Services or suspend all Developed Software from the Operator platforms until all outstanding payments are paid in full. If applicable, Company reserves the right to withhold distribution of Publisher Net (as defined herein) indefinitely until all outstanding payments are paid in full..
- No Refunds or Credits. Except as specifically set forth herein and as determined by MAZ in its sole discretion, all fees, and charges paid for, in connection with the Services are nonrefundable and MAZ shall in no event provide any refunds, reimbursements or credits of any kind for any reason. You specifically acknowledge and agree that you are responsible for all payments due during the Term regardless of whether you terminate this Agreement, other than a termination by you due to material breach by MAZ of this Agreement.
- Electronic Signature and Contracts. Your use of the Services includes the ability to enter into agreements and/or to make purchases electronically. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by such agreements and to promptly pay for all such purchases. Your agreement and intent to be bound by electronic submissions applies to all records relating to all transactions you enter into on the Service, including, without limitation and to the full extent allowed by law, notices of cancellation, policies, contracts, amendments and otherwise
7. Taxes. You are responsible for any taxes imposed on any fee-based transactions conducted in connection with the Services. Any applicable taxes may be added to the amount charged for the applicable transaction on the Site. Partner shall reimburse Service Provider for any sales, excise or use tax or taxes in lieu thereof, including any interest and penalties (except taxes based upon income earned by Service Provider pursuant to this Agreement) imposed by any governmental authority upon use by Partner of the Service. No users of the Services are eligible for tax exemptions for transactions made on the Site.
8. Developed Software and Software Content Sales
- Platform Sales. In the event you elect to offer for sale any Developed Software and/or any content within any Developed Software, the revenue generated by the sale(s) (“Operator Gross“) will be subject to deduction by the applicable Operator, including, without limitation, commissions, taxes and/or other deductions (“Operator Deductions“). If you have registered an account with an Operator directly (“Operator Account“) and choose to publish your Developed Software(s) using your own Operator Account, following the application of the Operator Deductions, the remaining Operator Gross shall be remitted to you (“Operator Net“) by the Operator pursuant to the applicable terms and conditions, including, without limitation, any applicable accounting procedures and schedules for the payment thereof. If your Developed Software(s) is published using MAZ’s Operator Account, which is registered between the Operator and the Company, the Operator Net shall be remitted to the Company by the Operator, and then remitted to you by the Company on a quarterly schedule, with payment remitted within 60 days after the conclusion of the applicable calendar quarter, pursuant to the applicable Operator’s standard terms and conditions.
- End User Download Fee Deductions. If you are publishing Developed Software(s) using the Company’s Operator Account, upon Company’s receipt of the Operator Net and corresponding reporting information, Company may deduct Download Fees from the Operator Net, as more fully described on the Pricing Schedule (“Download Fee Deductions“), and the remaining revenue (“Publisher Net“) may be credited against service fees owed to MAZ. If at the conclusion of any calendar quarter, you have accrued a Publisher Net balance equal to or greater than your account balance on the Site, we may remit the Publisher Net to you via check, direct deposit or any other means, at the Company’s sole discretion, within 60 days after the conclusion of the applicable calendar quarter, including a corresponding earnings report regarding the calculation of the Publisher Net. If your Publisher Net is negative at the end of the quarter due to Download Fees being greater than the Operator Net, you will be required to pay the balance upon the next billing cycle. Notwithstanding anything contained herein to the contrary, following the termination of this Agreement at the expiration of the Term or by you for any reason other than the breach of this Agreement by MAZ, no portion of the Publisher Net shall be remitted to you. In the event of an early termination of this Agreement by you due to the breach of the Agreement by MAZ, we will remit the Publisher Net, if any, to you, through the natural expiration of the Term. You understand, acknowledge and agree that following termination of this Agreement for any reason, except as specifically set forth herein, Company may continue to receive the Operator Net, of which the Publisher Net may not be remitted to you.
- Paid Subscriptions. In the event you offer a paid subscription to End Users, and any number of End Users have prepaid for a subscription, you agree that until the last paid subscription has been fulfilled, you will provide and maintain content relating to such subscriptions no less frequently than the expected interval, regardless of whether this Agreement has been terminated and irrespective of the reason for termination.
9. Advertising Revenue. In the event you elect to serve dynamic video, display or other types of advertisements in your Developed Software or through any other Output, using a third-party advertising network managed by MAZ, including but not limited to DFP for display ads or SpotX for video ads, any revenue generated through these advertisements will be remitted to Company pursuant to the applicable terms and conditions of the advertising network, including, without limitation, any applicable accounting procedures and schedules for the payment thereof. Upon receipt of any revenue, Company will remit the revenues to you on a quarterly basis, pursuant to any rev shares or deductions agreed upon in the Pricing Schedule.
10. Proprietary Rights; License Grant; Representation and Warranties.
- Company owns, solely and exclusively, all right, title and interest in and to the Services and all content, information and materials contained and/or made available through or in connection with the Services (“Company Content“), and all such Company Content is protected, without limitation, under U.S. Federal and State law, as well as applicable foreign laws, rules, regulations and treaties. The term “Company Content” includes, without limitation, all audio/visual content, artwork, photographs, illustrations, graphics, logos, copy, text, computer code, application and other software, music (including the musical compositions therein), data, user interfaces, visual interfaces, information, materials, and all copyrightable or otherwise legally protectable elements of the Services, including, without limitation, the design, selection, sequence, look and feel, and arrangement of the Services, and any copyrights, trademarks, service marks, trade names, trade dress, patent rights, database rights and/or other intellectual property and/or proprietary rights therein (including with respect to any content contained and/or made available in any advertisements or information presented to you via the Services). Unless the context clearly requires otherwise or we explicitly set forth in writing, the term “Services” includes “Company Content” as well. Partner agrees not to reverse engineer or disassemble the Service into components without Service Provider’s prior written consent, except to the extent required to obtain interoperability with other software or as otherwise permitted by law.
- Limited Use; Restrictions. The Services are to be used solely for your non-exclusive, non-assignable, non-transferable and limited use and for no other purposes. You must not alter, delete or conceal any copyright, trademark, service mark or other notices contained on the Services, including, without limitation, notices on any Company Content you transmit, download, display, print, stream or reproduce from the Services. Except as expressly authorized by Company and set forth in Additional Terms, you shall not, nor shall you allow any third party (whether or not for your benefit or otherwise) to, reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate to any third party (including, without limitation, on or via a third party website or platform), or otherwise use, any Company Content without the express, prior written consent of Company or its owner if Company is not the owner. Moreover, the framing or scraping of or in-line linking to the Services or any Company Content contained thereon and/or the use of webcrawler, spidering or other automated means to access, copy, index, process and/or store any Company Content made available on or through the Services other than as expressly authorized by us is prohibited. You further agree to abide by exclusionary protocols (e.g., Robot.txt, Automated Content Access Protocol (ACAP), etc.) used in connection with the Services. Any unauthorized or prohibited use of any Company Content may subject you to civil liability, criminal prosecution, or both, under applicable federal, state, local laws, or applicable foreign laws, rules, regulations and treaties. We require users to respect our copyrights, trademarks, and other intellectual property rights and shall enforce same. We likewise respect the intellectual property of others. If you believe that the Services contain elements that infringe your copyrights in your work, please follow the procedures set forth in Article 15.
11. User Registration. In order to access and use the Services, we require that Partner register on the Site with a unique username and password combination (“User Credentials”) and provide certain additional information, which may include, but is not limited to, your email address, legal name, date of birth, country of residence, zip code, your physical address, telephone number(s), applicable payment data and related information (collectively, a “User Account”). You represent that all registration and account information you submit is truthful and accurate, and you are responsible for maintaining and updating the accuracy of such information. Further, you are responsible for maintaining the confidentiality of your User Credentials, and you are responsible and liable for any access or use of the Services by you or any person or entity using your User Credentials, whether or not such access has been authorized by you or on your behalf, and whether or not such person or entity is your employee or agent. You agree to immediately notify us of any unauthorized use of your User Credentials or User Account, or any other breach of security. It is your sole responsibility to (a) control the dissemination and use of your User Credentials and User Account, (b) update, maintain and control access to your User Credentials and User Account, and (c) cancel your User Account on the Services. We reserve the right to deny access, use and registration privileges to any user of the Services for any reason, including, without limitation, if we believe there is a question about the identity of the person trying to access any account or element of the Services. We shall not be responsible or liable for any loss or damage arising from your failure to comply with this.
13. Developed Software (App) Outputs
- Submission to Operators; Agent Designation. All Developed Software submitted through the Services will be subject to review and approval by the applicable Operator prior to being made available for distribution and/or sale. The approval process may include, without limitation, review of the content, features, functionality, and other aspects of the Developed Software. We will submit your Developed Software to the applicable Operator within a reasonable time following your submission and approval via the Services. You acknowledge and agree that, upon your submission of a Developed Software, the relationship between you and the Company shall be that of principal and agent, or principal and commissionaire, respectively, and that you, as principal, are solely responsible for any claims and liabilities relating to the Developed Software and any incorporated Materials. Further, you acknowledge and agree that your appointment of Company as your agent or commissionaire, as the case may be, is non-exclusive.
- Rejection. In the event that a Developed Software is rejected by an Operator, we will notify you and provide you with relevant information (if any) received regarding the reason(s) for rejection. If the reason for rejection is due to technical or other reasons at the fault of the Company, we will make any and all necessary modifications and will resubmit. If the reason for rejection is due to the Materials, you will have the opportunity to make any modifications for purposes of obtaining Operator approval and we will resubmit your Developed Software to any applicable Operator. In the event your Developed Software is rejected for a second time by the same Operator, we will notify you and provide you with relevant information (if any) received regarding the reason(s) for rejection. If after the second rejection, we decide, for any reason, that your app may not be approved by the applicable Operator, we may choose not resubmit your Developed Software.
- No Guarantee. You acknowledge and agree that the Operator review and approval process remains entirely outside the control of the MAZ, and we make no representations, warranties or guarantees regarding (a) the applicable review, approval or response times; the design, development or functional parameters; or any other requirements or criteria required by Operators in connection with the review and approval process; (b) that any Developed Software will be approved or made available by any Operator on any Platform or (c) that any Developed Software previously approved will not be subsequently disapproved, rejected and/or otherwise removed from the applicable Platform.
- Updates. From time to time, we may make updates, and/or add additional functionality available in connection with Developed Software, whether as part of the Site and corresponding Services, or via software download made available via the applicable Platform or Operator (each an “Update”). Some Updates may occur automatically without the need for any act on your part but may require the end user of your Developed Software to manually download an Update via the applicable Platform. Certain functions of the Developed Software may be modified or discontinued as a result of any such Updates, or may not be available to the applicable end user if such individual has not downloaded the required Updates. MAZ reserves the right to update, supplement, limit, modify, or discontinue, any or all functionality contained within any Developed Software at any time without notice or other obligation to you or any third party and shall not be liable to you or any third party should it exercise such rights.
- Company Branding. Company reserves the right, in its sole discretion, to include within each Developed Software certain “Powered by MAZ” or reasonably similar branding and/or promotional materials and/or links related to Company and the Services.
14. Non-app Outputs and other Third Party Services. MAZ provides tools and services that allow you to export Materials to third party services including, but not limited to Facebook, LinkedIn, YouTube, Slack, and Twitter by linking your User Account to your third party account. By linking your account to any of these third party services, you agree that MAZ may transfer your Materials to those Operators. All Materials submitted through the MAZ will be subject to the terms and conditions of the applicable third party Operator prior to being made available for distribution and/or sale.
- Anonymous Usage Data. Any and all data and information related to the use of Developed Software or other Outputs by End Users with the exception of Personally Identifiable Information (defined herein), including, without limitation, usage statistics, device information (e.g., model, screen size, operating system, etc.), anonymized geographic location data, and all other related information together with all communications and transactions associated with End Users shall be the property of both you and Company, notwithstanding the fact that it may be collected by or otherwise in the possession of any Operator or any other party, and nothing shall be construed in this Agreement to restrict, impair, share, transfer, assign, license, convey or otherwise alter or deprive you or Company of any rights or proprietary interests therein or to grant any rights, license or other interest therein (“Anonymous Usage Data”).
- End User Personally Identifiable Information. Any and all data and information related to the use of any of your Output by End Users that can be used on its own or with other information to identify, contact, or locate a single person including, without limitation, End User names, email addresses, registration data, individual geographic location data, account and personal information, and all other related information together with all communications and transactions associated with End Users of your Outputs shall be your exclusive property, notwithstanding the fact that it may be collected by or otherwise in the possession of any Operator or any other party, and nothing shall be construed in this Agreement to restrict, impair, share, transfer, assign, license, convey or otherwise alter or deprive you of any rights or proprietary interests therein or to grant any rights, license or other interest therein (“Personally Identifiable Information”, or “PII”). You grant Company a worldwide, non-exclusive, sublicensable, fully paid-up and royalty-free right and license to use PII for the exclusive purpose of providing the Services for the duration of the Term.
- General. The Services will provide you with the opportunity to submit, upload, transmit, display or otherwise make available text, photos, graphics, images, audio/visual content, trademarks, logos, materials, feeds, multimedia, and information via the Services for use in connection with the creation, distribution, promotion and/or sale of Developed Applications, and any other features and functionality available on or in connection with the Site (collectively, “Your Materials“). When you submit Materials you may also be asked to provide information about your submission, which may include, without limitation, such things as your User Credentials, descriptive information about the Materials, and/or similar information. By submitting the Materials, you acknowledge and agree that the term “Materials” also includes, without limitation, and refers to all of the information you submit or we may receive that is related to the Materials.
- Unauthorized Material. You may not submit, upload, transmit, display or otherwise make available, in any manner, any Materials that we deem to be Unauthorized Material (as defined herein). We have the right, but not the obligation, to review any Materials and to delete, remove, move, edit or reject, without notice to you, for any reason or for no reason whatsoever, any Materials, including, without limitation, any Unauthorized Materials; provided, however, that Company shall have no obligation or liability to you or any third party for failure to do so or for doing so in any particular manner. As used herein, the term “Unauthorized Material” means any Materials that (a) is or may be construed as violating this Agreement, (b) is deemed to be unacceptable to Company, as determined in Company’s sole discretion, or (c) violates the terms of Article 11.
- Retention of Rights; Representations and Warranties. COMPANY DOES NOT ACQUIRE ANY TITLE OR OWNERSHIP RIGHTS IN THE MATERIALS THAT YOU SUBMIT AND/OR MAKE AVAILABLE VIA SERVICES. After you submit, upload, transmit, display or otherwise make available any Materials, you continue to retain any such rights that you may have in the Materials, subject to the rights, licenses and privileges granted herein. You also represent, warrant and covenant that (a) you own the Materials or otherwise have the right to grant the rights, licenses and privileges described in this Agreement and to perform and comply with all of the requirements set forth herein; (b) your submission, uploading, transmission, display and/or making available of any Materials does not violate this Agreement, any rights of any other party or entity, any of your obligations, any law, rule or regulation or violate any intellectual property, proprietary, privacy, moral, publicity or other rights of any party or entity; (c) you have the legal right and capability to enter into this Agreement and perform and comply with all of its terms; and (d) you hold and shall continue to hold all the ownership, license, proprietary and other rights necessary to enter into, authorize, grant rights and perform your obligations under this Agreement and shall pay for all royalties, fees, and any other monies owing to any person or entity by reason of the Materials.
- License Grant. In connection with all Materials you submit, upload, transmit, display or otherwise make available on, through or in connection with the Services (including any trademarks, service marks, trade names and/or logos related thereto), you grant to Company a worldwide, non-exclusive, perpetual, sublicensable, fully paid-up and royalty-free right and license to host, cache, store, maintain, use, reproduce, distribute, display, exhibit, perform, publish, broadcast, transmit, modify, prepare derivative works of, adapt, reformat, translate, promote and otherwise exploit all or any portion of the Materials for purposes of and in connection with (a) the provision of the Services, including, without limitation, serving as your agent in connection with the distribution, promotion and sale of Developed Softwares (including any content contained or made available therein), and (b) displaying, exhibiting, marketing and featuring same in connection with the promotion of Company, the Services and any other Company products and services (in each instance, without notification or other obligation to you or any third party).
- DISCLAIMERS. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY AND ENTIRELY RESPONSIBLE FOR THE CONSEQUENCES OF ALL MATERIALS THAT YOU SUBMIT, UPLOAD, DISPLAY, TRANSMIT OR OTHERWISE MAKE AVAILABLE. UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE IN ANY WAY FOR THE MATERIALS, INCLUDING, WITHOUT LIMITATION, ERRORS OR OMISSIONS IN ANY MATERIALS (OR THE USE THEREOF), OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF ANY MATERIALS SUBMITTED, UPLOADED, DISPLAYED, TRANSMITTED OR OTHERWISE MADE AVAILABLE, INCLUDING, WITHOUT LIMITATION, THE ACCURACY, INTEGRITY, QUALITY OR CONTENT OF SAME. YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL MATERIALS MADE BY MEANS OF OR IN CONNECTION WITH ANY PORTION OF THE SERVICES SHALL BE MADE PUBLICLY AVAILABLE VIA THE SITE, THE SERVICES OR OTHER PLATFORM OR STOREFRONT AND THAT YOU HAVE NO EXPECTATION OF PRIVACY IN ANY OF THE MATERIALS. FURTHER, MATERIALS DO NOT REFLECT THE VIEWS OF COMPANY OR ITS AFFILIATES, AND YOU UNDERSTAND THAT BY USING THE SERVICES, YOU MAY BE EXPOSED TO OTHER PEOPLE’S MATERIALS THAT COULD BE OFFENSIVE, INDECENT OR OBJECTIONABLE AND, AS SUCH, COMPANY DOES NOT GUARANTEE THE ACCURACY, INTEGRITY, QUALITY OR CONTENT OF ANY MATERIALS.
17. Unauthorized User Content. The use of the Services for unlawful or harmful activities is not allowed and you are solely responsible for your conduct in connection with the Services. You represent, warrant and agree that, while using the Services, you shall not:
- engage in or encourage conduct that would violate any applicable law, rule, regulation, judicial or government order or give rise to civil liability or violate or infringe upon any intellectual property, proprietary, privacy, moral, publicity or other rights of ours or of any other person or entity;
- submit, upload, transmit, display or otherwise make available through the Services any Materials or take any action that is or is likely to be unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy or publicity rights, harassing, profane, obscene, vulgar or that contains explicit or graphic imagery, descriptions or accounts of excessive violence or sexual acts (including, without limitation, sexual language of a violent or threatening nature directed at another individual or group of individuals), contains a link to an adult website or is patently offensive, promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
- submit, upload, transmit, display or otherwise make available through the Services any Materials that you do not have a right to make available under any law, rule or regulation or under contractual or fiduciary relationships (such as inside information, proprietary or confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements), or otherwise creates a security or privacy risk for any other person or entity;
- engage in or encourage conduct that affects adversely or reflect negatively on Company, its affiliates, the Services, our goodwill, name or reputation or causes duress, distress or discomfort to us or anyone else, or discourage any person or entity from using all or any portion, features or functions of the Services, or from advertising or becoming a supplier to us in connection with the Services;
- submit, upload, transmit, display or otherwise make available through the Services any material that contains a software virus, worm, spyware, Trojan horse or other computer code, file or program designed to interrupt, impair, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- modify, disrupt, impair, alter or interfere with the use, features, function, operation or maintenance of the Services or the rights or use or enjoyment of the Services by any other user;
- impersonate any person or entity or falsely state or otherwise represent your affiliation with a person or entity;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted on, through or in connection with the Services;
- solicit passwords or personal identifying information for unlawful purposes from other users or engage in spamming, flooding, harvesting of email addresses or other personal information, “spidering”, “screen scraping”, “phishing”, “database scraping”, or any other activity with the purposes of obtaining lists of other users or other information; or
- modify, reverse engineer, decompile or disassemble any part of the Services, whether in whole or in part, or create any derivative works from any part of the Services, or encourage, assist or authorize any other person to do so.
Company assumes no responsibility for monitoring the Services for inappropriate content or conduct. If at any time Company chooses in its sole discretion to monitor the Services, Company nonetheless assumes no responsibility for any Materials, assumes no obligation to modify or remove any Materials, and no responsibility for the conduct of any user. Company reserves the right to investigate and take appropriate legal action against anyone who, in Company’s sole discretion, violates, or is suspected of violating, this Article 12, including, without limitation, reporting you to law enforcement authorities. Further, you acknowledge, consent and agree that Company may access, preserve and disclose your account and registration information and any other content or information if required to do so by law or if based on a good faith belief that such access, preservation or disclosure is reasonably necessary to (a) comply with the legal process; (b) enforce this Agreement; (c) respond to claims that any content or information violates the rights of any third party; (d) respond to your requests for customer or technical service; or (e) protect the rights, property or personal safety of Company, users or any third parties.
18. Digital Millennium Copyright Act. If you are a copyright owner or an agent thereof and believe that any content on the Services infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA“) by providing our Designated Agent (as set forth below) with the following information in writing (see 17 U.S.C. 512(c)(3) for further details):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Services are covered by a single notification, a representative list of such works on the Services;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material;
- Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if applicable, e-mail address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Written notification of claimed infringement must be submitted to the following Designated Agent:
Name and Address of Designated Agent:
MAZ Systems Inc.
c/o Copyright Agent
127 W 26th St
New York, NY 10001
Email Address of Designated Agent: firstname.lastname@example.org
- Your Indemnity. You agree to indemnify, defend and hold Company, its affiliates, and its respective successors and assigns, directors, officers, employees, representatives, agents, and licensors, harmless from any and all claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising out of a third-party claim resulting from (a) your unauthorized use of the Services, (b) your breach or violation or alleged breach or violation of this Agreement or (c) Your Materials.
- Company Indemnity. Company will indemnify, defend and hold you, your affiliates, and their respective successors and assigns, directors, officers, employees, representatives, and agents harmless from any and all Losses arising out of a third-party claim (i) that the Services, the Company Content, the Site, the Developed Softwares (excluding Your Materials), other Outputs, or any Modifications developed by Company hereunder, violate any applicable law or infringe the rights of any third party, including any patent, copyright, trademark, trade secret or other intellectual property or proprietary right, or (ii) resulting from any breach or violation or alleged breach or violation of this Agreement.
20. Limitation of Liability; Warranty Disclaimer. THE SERVICES, AND ALL COMPANY CONTENT, PRODUCTS, SERVICES AND YOUR MATERIALS MADE AVAILABLE ON, THROUGH OR IN CONNECTION THEREWITH, INCLUDING IN CONNECTION WITH ANY PLATFORM, OPERATOR OR THIRD PARTY PROCESSORS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, OR ANY GUARANTY OR ASSURANCE THAT THE SERVICES WILL BE AVAILABLE FOR USE, OR THAT ANY PRODUCTS, FEATURES, FUNCTIONS, SERVICES OR OPERATIONS WILL BE AVAILABLE OR PERFORM AS DESCRIBED. ALL IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS RELATING TO THE SERVICES AND THE SITE, AND ALL COMPANY CONTENT, PRODUCTS, SERVICES AND YOUR MATERIALS ARE HEREBY DISCLAIMED. FURTHER, COMPANY ACCEPTS NO RESPONSIBILITY OR LIABILITY FOR ANY END USER CONDUCT IN CONNECTION WITH (A) THE DOWNLOAD, PURCHASE AND/OR USE OF ANY DEVELOPED SOFTWARES, INCLUDING, WITHOUT LIMITATION, ANY USER CONTENT MADE AVAILABLE ON, THROUGH OR IN CONNECTION THEREWITH, OR (B) ANY OTHER LOSS OR DAMAGE WHATSOEVER, IN EACH INSTANCE, RELATING TO OR IN CONNECTION WITH ANY END USER’S DOWNLOAD, PURCHASE AND/OR USE OF ANY DEVELOPED SOFTWARES, INCLUDING, WITHOUT LIMITATION, ANY USER CONTENT AND/OR ANY OTHER END USER OR THIRD PARTY CONDUCT. Without limiting the foregoing, we are not responsible or liable for any malicious code, delays, inaccuracies, errors, or omissions arising out of your use of the Services. You understand, acknowledge and agree that you are assuming the entire risk as to the quality, accuracy, performance, timeliness, adequacy, completeness, correctness, authenticity, security and validity of any and all features and functions of the Services, including, without limitation, Your Materials and Company Content associated with your use of the Services.
YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, Company, ITS AFFILIATES, AND ITS RESPECTIVE SUCCESSORS AND ASSIGNS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, OPERATORS, SERVICE PROVIDERS, ADVERTISERS AND SUPPLIERS, SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, OF ANY KIND, DIRECT OR INDIRECT, IN CONNECTION WITH OR ARISING FROM USE OF THE SERVICES OR FROM THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES.
You further understand and acknowledge the capacity of the Services, in the aggregate and for each user, is limited. Consequently, some messages and transmissions, including, without limitation, User Content, may not be processed in a timely fashion or at all, and some features or functions, including, without limitation, Updates, may be restricted or delayed or become completely inoperable. As a result, you acknowledge and agree that Company assumes no liability, responsibility or obligation to transmit, process, store, receive or deliver transactions or User Content or for any failure or delay associated with any User Content and you are hereby expressly advised not to rely upon the timeliness or performance of the Services for any transactions or User Content. Some jurisdictions do not allow for the exclusion of certain warranties or certain limitations on damages and remedies, accordingly some of the exclusions and limitations described in this Agreement may not apply to you.
21. Assignment. The rights of the parties under this Agreement shall inure to the benefit of the parties and their successors and/or assigns. The terms, conditions and covenants of the parties under this Agreement shall be binding upon the parties and their successors and/or assigns. Without limiting the foregoing, you understand, acknowledge and agree that your successors and/or assigns, whether by merger, operation of law, acquisition of assets or otherwise, shall continue to perform your obligations under this Agreement and that you shall remain liable to Company for your successors’ and/or assigns’ performance hereunder. In the event you desire to assign any of your rights and/or obligations under this Agreement, you shall deliver to Company a notice of such assignment and Company shall be permitted to terminate this Agreement within thirty (30) days of its receipt of such notice.
22. Force Majeure. Company shall not be deemed to be in default of or to have breached any provision of this Agreement as a result of any delay, failure in performance or interruption in connection with any product or service offered by Company or any third party resulting directly or indirectly from any cause beyond the reasonable control of Company, including, without limitation, an act of war or terrorism, failure of electricity supply, systems or connections, service interruptions, natural disaster, acts of God, third party service provider failure or delay in performance, civil commotion, governmental action, labor dispute or other causes beyond the reasonable control of Company.
23. Notices. Any notice required or permitted hereunder shall be in writing and shall be sufficiently given if personally delivered or sent by facsimile (with voice confirmation) or by reputable overnight courier service, addressed to the following or such other address/person as a party designates by written notice hereunder:
If to Service Provider, to:
MAZ Systems Inc.
127 W 26th St.
New York, NY 10001
Any notice hereunder shall be deemed given at the time of receipt by the person to whom the notice is addressed.
24. Governing Law/Jurisdiction and Venue. This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the United States of America and the State of New York, without reference to the principles of conflicts of laws. Any action or proceeding based upon this Agreement shall be instituted in a federal or state court of competent jurisdiction in the State and County of New York. The parties hereby submit to the exclusive jurisdiction of such courts and waive any objection to the propriety or convenience of venue therein. Service of process with respect to any such action may be made upon the parties hereto by registered or certified mail, postage prepaid, to such party or the attorney for such party at its address as provided in Section 16. IN ANY ACTION OR PROCEEDING COMMENCED TO ENFORCE ANY RIGHT OR OBLIGATION OF THE PARTIES UNDER THIS AGREEMENT, YOUR USE OF THE SERVICES OR WITH RESPECT TO THE SUBJECT MATTER HEREOF, YOU HEREBY WAIVE ANY RIGHT YOU MAY NOW HAVE OR HEREAFTER POSSESS TO A TRIAL BY JURY.
- This Agreement contains the entire understanding and agreement between you and MAZ concerning the Services and supersedes any and all prior or inconsistent understandings relating to the Services and your use thereof. This Agreement cannot be changed orally. If any provision of this Agreement is held to be illegal, invalid or unenforceable, this shall not affect any other provisions and this Agreement shall be deemed amended to the extent necessary to make it legal, valid and enforceable. Any provision which must survive in order to allow us to enforce its meaning shall survive the termination of this Agreement; however, no action arising out of this Agreement or your use of the Services, regardless of form or the basis of the claim, may be brought by you more than one year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose). The failure of Company to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision.
- Company is based in the United States and the Services are controlled and hosted by Company from its offices in the United States. Company makes no representation or warranty that the Services or Company Content contained on or made available in connection therewith is legal, appropriate or available for use in other locations. Those who choose to access the Services from other locations do so at their own risk and are responsible for compliance with any and all local laws, rules and regulations, if and to the extent local laws, rules and regulations are applicable. No software made available in connection with the Services may be downloaded, exported or re-exported into (or to a national or resident of) any countries that are subject to U.S. export restrictions.
- Independent Parties. This Agreement shall not be deemed to create an agency, partnership, employment or joint-venture relationship between Service Provider and Partner. Nothing in this Agreement shall be construed as a grant of authority to either party to accept any order, waive any right, incur any obligation or liability, enter into any agreement, grant any release or otherwise purport to act in the name of the other party.
- Headings. The Section headings herein are for convenience of reference only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any provisions hereof.
- Severability. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect.
- Construction. The language used in this Agreement shall be deemed the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall be applied against either party. Whenever required by the context, any gender shall include any other gender, the singular shall include the plural and the plural shall include the singular.
- Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but both of which together shall constitute one and the same instrument.