Terms and Conditions
THESE TERMS AND CONDITIONS OF SERVICE (“TERMS”) CONSTITUTE A CONTRACT BETWEEN YOU AND MOSIO AND GOVERN USE OF AND ACCESS TO THE SERVICE (DEFINED BELOW) AND SITE BY YOU AND YOUR AGENTS AND END USERS, WHETHER IN CONNECTION WITH A PAID SUBSCRIPTION TO THE SERVICE, A FREE TRIAL OF THE SERVICE OR ANY ACCESS TO THE SERVICES OFFERED BY MOSIO, TO YOU OR THE ORGANIZATION/LEGAL ENTITY YOU REPRESENT.
The Services described below, are made available by Mosio, Inc., a California corporation, (“Mosio” or “We” or “Party”), and, you, as a user and purchaser of our subscription services (described below) (“Customer” or “Client” or “Subscriber” or “You” or “Party”). The Services are made available via our website at https://www.mosio.com (the “Website”), or any accompanying web based, device based, or mobile based application containing the Service (which are included in the definition of the Website herein), OR as otherwise agreed between Mosio and a Customer in writing.
By accessing and purchasing the Services you hereby agree to be bound to all the terms and conditions contained herein, as a binding condition of using and accessing the Service, on behalf of yourself and any legal entity you represent, and which are as follows:
When used in these Terms with the initial letters capitalized, in addition to terms defined elsewhere in these Terms, the following terms have the following meanings:
Account means all Mosio accounts or instances created by or on behalf of Subscriber or its Agents within the Service.
Agent or Account Login means an individual authorized to use the Service through Your Account as an agent and/or administrator as identified through a unique login.
Data Subjects mean the individuals who interact with You through the use of our Services.
End User / User means any person or entity other than Subscriber or Agents with whom Subscriber or its Agents interact using the Service.
Form means any Mosio generated service order form executed or approved by You with respect to Your subscription to the Service, which form may provide details under Your subscription to the Service and the Service Plan applicable to Your subscription to the Service.
Protected Health Information / PHI means any information which may identify a Data Subject and/or relate to their past, present or future physical or mental health condition or any related health care services received by such Data Subjects, and which is received by You through the use of the Services, and which is subject to the requirements of the Health Information Portability and Accountability Act (“HIPAA”).
Mosio means Mosio, Inc., a California Corporation or any of its successors or assignees. In these Terms, Mosio may also be referred to through the use of “We” or “Our.”
Service(s) mean(s) the Mosio service consisting of mobile request features, online and mobile messaging and information aggregation and delivery services that make available information, data, text, messages and other materials from Subscribers, or any other similar service(s) made available to the Customer in writing via the Website or direct communication. Any new or modified features added to or augmenting the Service or updates or enhancements to the Service are also subject to these Terms, and We reserve the right to deploy such features, updates or enhancements at any time.
Service Plan means the service plan and the functionality and services associated therewith (as detailed on the Site and/or in a Form) for which You subscribe with respect to each Agent.
Site or Website means www.mosio.com and all other websites owned or operated by Mosio or its subsidiaries, and any accompanying web-based, device-based, or mobile-based application containing the Service (which are included in the definition of the Website/Site herein)
Software as a Services/SaaS services means the subscription services made available to Customers via the Site, which are available on a continuous/recurring basis to individual customers, through a subscription which auto-bills the Customer’s credit card.
Subscription Term means the period during which You have agreed to subscribe to the Service with respect to any individual Agent.
Your Data means all electronic data, text, messages or other materials submitted to the Service by You, Agents and End Users in connection with Your use of the Service.
- General Conditions of Service Use
a) Opting into the Services and General Billing for SaaS Services. The Customer can sign up for Software as a Service (“SaaS”) services via our Website, as described therein, and subject to the terms described therein as well. In doing so, You agree to pay the subscription service payments described therein (the “Fees”), on a monthly basis, in exchange for access to the Service. Payments are due in advance at the beginning of each month. The Customer must also provide a debit or credit card to Mosio in order to allow Mosio to auto-bill the Customer every month. The Services will not start until the payment is received. Services will be terminated if payments are not received on time via direct billing of the Customer’s credit or debit card provided, after the Customer is served with seven (7) days’ written notice via email in the event of failed payment, without any liability or responsibility for Mosio for any loss of Client data or intellectual property resulting from such termination of access to the Service.
b) Opting into the Services via a Service Plan. Mosio also provide customized/specialized or other Services to Customers, as communicated in writing, or described in any quotation/Form provided to the end Customer, with respect to such Services. All such Services shall be subject to these Terms. During the Subscription Term and subject to compliance by You, Agents and End Users with these Terms, You have the limited right to access and use the Service consistent with the Service Plan You are subscribed to for Your internal business purposes. You agree not to license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than authorized Agents and End Users in furtherance of Your internal business purposes as expressly permitted by these Terms, and not to use the Service on behalf of any third party other than Agents or End Users.
c) Compliance with Terms. You are responsible for compliance with the provisions of these Terms by Agents and End Users and for any and all activities that occur under Your Account, as well as for all Your Data. Without limiting the foregoing, You are solely responsible for ensuring that use of the Service to store and transmit Your Data is compliant with all applicable laws and regulations. You also maintain all responsibility for determining whether the Service or the information generated thereby is accurate or sufficient for Your purposes. Subject to any limitation on the number of individual Agents available under the Service Plan for which You subscribed, access to and use of the Service is restricted to the specified number of individual Agents permitted under Your subscription to the Service. You agree and acknowledge that each Agent will be identified by a unique username and password (“Login”) and that an Agent Login may only be used by one (1) individual.
d) Acceptable Use. The Customer is solely responsible for the content of any postings, data, communications, or transmissions they make using the Services, or any other use of the Services by Customer or by any person or entity Customer permits to access the Services. All information, data, text, software, music, audio, photos, graphics, video, messages, tags, links or other materials transmitted using the Service (“Content”) posted by a Subscriber or any of their End Users or Agents, is the sole responsibility of the Subscriber from whom such Content originated. As a Subscriber, You are responsible for the Content that You, Your Agents, End Users or any third party You permit to access the Service sends, uploads, posts, transmits or otherwise makes available using the Service via short message service (SMS) text message, medium message service (MMS), voice, live conversations, web-based chat, telephony, the Mosio website, the Internet or any other medium. Except for compliance requirements by the mobile carriers for foul language, Mosio does not control the Content posted via the Service and, as such, does not guarantee the quality or accuracy of such Content. Under no circumstances will Mosio be liable in any way for any Content. The Customer represents and warrants that they will:
(1) not use the Services in a manner that:
(i) is prohibited by any law or regulation, or facilitates the violation of any law or regulation; or
(ii) will disrupt a third parties’ similar use of the Services;
(2) not violate or tamper with the security of any Mosio computer equipment or programs. If Mosio has reasonable grounds to believe that Customer is utilizing the Services for any such illegal or unpermitted purpose, Mosio may suspend the Services immediately with written notice to Customer. Mosio may terminate the Agreement as contemplated in this Section 2, if Customer fails to adhere to the above acceptable use standards in Mosio’s sole reasonable discretion. Such termination will be without any liability on the part of Mosio for any loss of Customer data or intellectual property.
e) Restricted Content.
i. You agree that You, and to the extent you exercise control over such parties, your Agents and End Users, and any third parties whom you grant access to the Service, will not use the Service to send, post, upload, transmit or otherwise make available any Content:
– That is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
– That is fraudulent, deceptive, or illegal;
– That contains nudity, violence, profanity, or offensive subject matter, or contains a link to a website containing the mentioned;
– That bullies, harasses, advocates or encourages harassment of another person;
– That You do not have legal rights to make available under any law or under contractual or fiduciary relationships;
– That infringes any trademark, copyright trade secret, non-disclosure agreement,. or proprietary rights of any party;
– That contains spam, non-permitted, unsolicited or unauthorized advertising, promotional materials, chain letters, pyramid schemes, gambling, or any other form of solicitation;
– That promotes any criminal activity or enterprise, or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, illegal drugs, privacy violations, threats, extortion, or creating and/or distributing software viruses; or
– That contains or links to software viruses, trojan horses, worms, DDoS attacks, or any other computer code, files, or programs designed to interrupt, limit, or destroy the functionality of any computer, hardware, or telecommunications equipment.
ii. You agree that You, and to the extent you exercise control over such parties, your Agents and End Users, and any third parties whom you grant access to the Service, will not use the Service to:
– Harm, scare, or threaten anyone in any way;
– Impersonate any person or entity; or
– Falsely state or otherwise misrepresent Your affiliation with a person or entity;
– Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
– Interfere with, attempt to or actually disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected with the Service;
– Violate applicable local, state, national, or international laws, and any regulations or self-regulatory scheme having the force of law; or
– Provide support, information, or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a terrorist organization pursuant to section 219 of the Immigration and Nationality Act.
f) End User Consent. Without limiting the foregoing:
(1) Subscriber acknowledges that certain statutes and regulations, including without limitation the Telephone Consumer Protection Act of 1991 and the regulations promulgated thereunder (the “TCPA”), may govern Subscriber’s use of the Service;
(2) Subscriber hereby represents, warrants, and covenants that
(i) Subscriber will obtain all required informed consent from each End User, including clear and conspicuous disclosure that each End User will receive Content,
(ii) Subscriber does not require that End Users receive Content through the Service and (iii) each End User will affirmatively designate the number at which to receive the Content (which shall not be pre- populated by Subscriber in an online form); and
(3) Subscriber will indemnify and hold Mosio and its affiliates harmless from and against any losses, costs, liabilities, and expenses, including attorneys’ fees, arising out of Subscriber’s failure to properly obtain such informed consent from each End User or to otherwise comply with the TCPA. Furthermore, the Subscriber shall be responsible for ensuring that all of their End Users and Agents are presented with and informed about these Terms with respect to the use of the Service, and shall be liable and responsible to Mosio for the same.
g) Content Filtering and Moderation for End Users. End Users acknowledge, understand and agree that Mosio, its designees and Subscribers shall have the right, but not obligation, in their sole discretion to moderate, filter, pre-screen, or refuse any Content that is available via the Service. We cannot guarantee that Content found in the Service will not include unintended or objectionable Content, and We assume no responsibility for the Content of any kind provided through the Service. You agree that You must examine, evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, truthfulness, or usefulness of such Content. In this regard, You acknowledge, understand, and agree that You may not rely on any Content created by Mosio or submitted to Mosio for quality or accuracy.
h) Screen Alerts. By participating in a Mosio text chat, text to screen or alerts program, each End User agrees that such End User is the primary owner of the phone number used. End Users may unsubscribe from the Service at any time by texting STOP to 66746. For additional help, End Users can text HELP to 66746, email support((@))mosio((.))comor call 877.667.4699. Although frequency varies by program, an End User should receive no more than 4-8 messages per month unless such End User is actively texting in (“inbound texting”) as part of the service. Mosio’s short code is 66746, supported by the following mobile carriers: Alltel, AT&T, Boost, Centennial Cellular, Cincinnati Bell, Cox Wireless, Cellular South, Centennial Wireless, Cricket Communications, Illinois Valley Cellular, Immix Wireless, Inland Cellular, MetroPCS, Nextel, Pioneer Cellular, Sprint, T-Mobile®, Unicel, U.S. Cellular, Virgin Mobile USA, and Verizon Wireless. T-Mobile is not liable for delayed or undelivered messages. The Service may not be compatible with all mobile devices. If an End User texted into or received a text message from one of Our virtual numbers, then such End User may unsubscribe at any time by texting STOP to that number.
i) Account Inactivity and Limits. You, Agents, and End Users agree that Mosio, in its sole discretion, may establish general practices and limits concerning use of the Service. You, Agents, and End Users agree that Mosio has no responsibility or liability for the deletion or failure to store any messages and other communications or other content maintained or transmitted by the Service. You, Agents, and End Users acknowledge that Mosio reserves the right to terminate accounts that are inactive for an extended period of time, which shall be determined in Mosio’ sole discretion.
j) Service Suspension. In addition to Our other rights set forth in these Terms, Mosio reserves the right, in Mosio’s reasonable discretion, to temporarily suspend Your access to and use of the Service:
(1) during planned downtime for upgrades and maintenance to the Service (of which Mosio will use commercially reasonable efforts to notify You in advance through a notice to both Your Account owner and Agents) (“Planned Downtime”);
(2) during any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to, Internet failures, computer equipment and software failures, hackers, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning; or
(3) if We suspect or detect any malicious software connected to Your Account or use of the Service by You, Agents, or End Users. We will use commercially reasonable efforts to schedule Planned Downtime for weekends (Pacific time zone) and other off-peak hours. Please visit www.status.mosio.com to subscribe to system status alerts.
- Use of Information
a) A Subscriber’s program may ask an End User to provide personally identifiable information to participate in that program. By providing that information such End User agrees that Mosio may store the information such End User provides and that the Subscriber may use the information for that program and for future programs hosted by that Subscriber. Mosio will not sell this personally identifiable information to other Subscriber or third parties. Mosio obtains information regarding each End User’s wireless services provider (“mobile carrier”) through the applicable mobile phone number.
b) Subscribers may ask End Users to submit information about themselves if they have specifically opted-in to receive communications from such Subscribers. If an End User chooses to submit information, then Subscribers may use this information and may share such information with third parties.
c) You acknowledge, understand, and agree that Mosio may access, store, and disclose Your Account information and Content if required to do so by law or in a good faith belief that such access, preservation, or disclosure is reasonably necessary to:
(1) comply with legal process;
(2) enforce the Terms;
(3) respond to claims that any Content violates the rights or content of third parties;
(4) respond to customer service requests; or
(5) protect the rights, property, or personal safety of Mosio, its users, Subscribers, and the public.
e) Mosio Use of Posted Content on the Mosio Service. Mosio will not share Personal Data or PHI (defined below) for use in advertising and personalization outside of the Mosio Services without Your express permission, or that of the User such PHI concerns. You may edit or delete Your Content at any time. Copies of Content may persist in backup files for a period of time, but will not be available to others. Mosio reserves the right to refuse to accept, post, display, or transmit any User Content in its sole discretion.
f) All right, title, and interest in and to the Mosio Intellectual Property (defined below), and all copyrights, patents, trademarks, service marks, or other intellectual property or proprietary rights relating thereto, belong exclusively to Mosio. Any modification to the Services performed by Customer directly or indirectly extending the current capabilities shall be the property of Mosio and all copyrights and other rights are hereby assigned to Mosio.
- Billing, Plan Modifications and Payments
a) Please note: message and data rates may apply to an End User’s use of the Service.
b) Pricing of SaaS Services. The pricing of the SaaS services shall be described on the Website, and when purchasing a subscription, the Customer agrees to pay the price advertised and associated with the said subscription. Furthermore, the Customer consents to paying all subscription fees due at the beginning of the month, as described in Section 2, and to allow Mosio to bill automatically their credit card for the subscription fees.c) Service Plans and Other Services. Pricing of other Services, including any Services provided via a Service Plan, may be communicated to the Customer in writing via a Form or quotation sent by Mosio, or as otherwise described on the Website. Unless otherwise indicated on a Form referencing these Terms, all charges associated with Your access to and use of the Service (“Subscription Charges”) are due in full upon commencement of Your Subscription Term. If You fail to pay Your Subscription Charges or charges for other services indicated on any Form referencing these Terms within seven (7) business days of Our notice to You that payment is due or delinquent, or if You do not update payment information upon Our request, in addition to Our other remedies, We may suspend or terminate access to and use of the Service by You, Agents and End Users, without any liability whatsoever for any damages, losses, costs or expenses incurred by You, including loss of data.
d) Service Upgrades. If You choose to upgrade Your Service Plan during Your Subscription Term (a “Subscription Upgrade”), any incremental Subscription Charges associated with such Subscription Upgrade will be prorated over the remaining period of Your then current Subscription Term, charged to Your Account and due and payable upon implementation of such Subscription Upgrade. In any future Subscription Term, Your Subscription Charges will reflect any such Subscription Upgrades.
e) No Refunds. No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to downgrade Your Service Plan. Downgrading Your Service Plan may cause loss of content, features, or capacity of the Service as available to You under Your Account, and Mosio does not accept any liability for such loss.
f) Taxes and Surcharges. Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use, or withholding taxes assessable by any local, state, provincial, or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes except those assessable against Mosio based on its income. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.
g) If You pay by credit card, the Service provides an interface for the account owner to change credit card information (e.g. upon card renewal). The Account owner will receive a receipt upon each receipt of payment by Mosio, or they may obtain a receipt from within the Service to track subscription status. Mosio uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain, or use Your billing information except to process Your credit card information for Mosio.
- Cancellation and Termination
a) General Cancellation of Services and Service Plans. Either You or Mosio may elect to terminate Your Account and subscription to the Service as of the end of Your then current Subscription Term by providing notice, in accordance with these Terms, on or prior to the date thirty (30) days preceding the end of such Subscription Term, or as otherwise specified in any Form/quotation provided by Mosio. Unless Your Account and subscription to the Service is so terminated, Your subscription to the Service will renew on a month-to-month basis, until you terminate your access to the Services, as described in the Form/quote, or on the Website, with thirty (30) days’ notice prior to the intended date of termination. Unless otherwise provided for in any Form, the Subscription Charges applicable to Your subscription to the Service for any such subsequent Subscription Term shall be Our standard Subscription Charges for the Service Plan to which You have subscribed as of the time such subsequent Subscription Term commences, billed/pro-rated on a month-to-month basis.b) Termination of SaaS services. If you opt-in to any SaaS services via the Website, they will continue indefinitely, on a month-to-month basis, until you terminate the SaaS services, as described on the Website. Once you opt to terminate the SaaS services, your credit card will be billed up to the completion of the next full month of your Subscription Term for the SaaS services, after which we will cease billing your credit card.
c) Refunds. No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to terminate Your subscription to the Service or cancel Your Account prior to the end of Your then effective Subscription Term. No refunds or credits will be provided for design, custom development or training once delivered. Following the termination or cancellation of Your subscription to the Service and/or Account, We reserve the right to delete all Your Data in the normal course of operation, except as required otherwise under applicable law. Your Data cannot be recovered once Your Account is cancelled.
d) Service Plan Termination Prior to Subscription Term Completion. If You terminate Your subscription to the Service or cancel Your Account prior to the end of Your then effective Subscription Term under any Service Plan we provide to you in a quote/Form, or We effect such termination or cancellation pursuant to the Terms, in addition to other amounts You may owe Mosio, You must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term, in accordance with the terms described in any Form. This amount will not be payable by You in the event You terminate Your subscription to the Service or cancel Your Account as a result of a material breach of these Terms by Mosio, provided that You provide advance notice of such breach to Mosio and afford Mosio not less than thirty (30) days to reasonably cure such breach.
e) Termination for Violation of the Terms by Mosio. Mosio reserves the right to modify, suspend or terminate the Service (or any part thereof), Your Account, or Your and/or Agents’ or End Users’ rights to access and use the Service, and remove, disable, and discard any of Your Data if We believe that You, Agents, or End Users have violated these Terms, without liability for any loss of data or damages incurred by You. This includes the removal or disablement of Your Data in accordance with Our copyright infringement notice and takedown policies described below. Unless legally prohibited from doing so, Mosio will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. Mosio shall not be liable to You, Agents, End Users or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Service. Any suspected fraudulent, abusive, or illegal activity by You, Agents, or End Users may be referred to law enforcement authorities at Our sole discretion.
- Intellectual Property
a) Mosio hereby grants to customer a nonexclusive, nontransferable, revocable, non-sublicensable, and limited license during the term of this Agreement to use, in object code form, all software and related documentation provided by Mosio by way of the Services, including the Services themselves (the “Services”, as further defined below). Customer agrees to use commercially reasonable efforts to ensure that any authorized employees and users of the Services comply with the terms and conditions set out in this Agreement. Customer also agrees to refrain from taking any steps, such as reverse assembly or reverse compilation, to derive a source code equivalent to that used in the software relating to the Services. All Services furnished to Customer under this Agreement shall be used by Customer only for Customer’s internal business purposes and research, as authorized by Mosio, and shall not be reproduced or copied in whole or in part. If Mosio permits the Customer to utilize any intellectual property belonging to a third party which is not provided as a part of the Services, along with or simultaneously with access to or use with the Services, it shall be the Customer, and not Mosio, who is responsible for ensuring that they have the adequate license required for use of such third party intellectual property, and the Customer is fully liable for any such use or access of third party intellectual property, not Mosio. Such third party intellectual property is not provided as a part of the Services, and is to be considered distinct from the Services.b) All trademarks, copyrights, service marks, ideas, content, know-how, designs, data, software, source code, information, and intellectual property of any kind accessed by the Customer via the Services, (“Mosio Intellectual Property”) is the sole and exclusive property of Mosio, and any third parties who have contracted with Mosio to contribute or provide any component or data included in the Mosio Intellectual Property. The Customer has no right to utilize, use, or claim ownership of any part of the Mosio Intellectual Property.
c) Each of us shall maintain all rights, title and interest in and to all our respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how, and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to You, Agents, and End Users to use the Service under these Terms do not convey any additional rights in the Service, or in any Intellectual Property Rights associated therewith. Mosio shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations, or other feedback We receive from You, Agents, or End Users (including without limitation any add-ons or modifications described in any Form). “Mosio” and Mosio’s product and service names and logos used or displayed on the Service are trademarks of Mosio (collectively, “Marks”), and You may only use such Marks to identify You as a Subscriber; provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Mosio, its services, or products.
d) Mosio respects copyright law and We expect You, Agents, and End Users to do the same. Unauthorized copying, distribution, modification, display, or public performance of copyrighted works that is not considered fair use is an infringement of the copyright holder rights. As a condition of access to the Service by You, Agents, and End Users, You agree that You, Agents, and End Users will not use the Service to infringe the intellectual property rights of other people or entities in any way. Mosio reserves the right to terminate the account or usage of You, Agents, or End Users upon any single infringement of the rights of others in conjunction with use of the Service or for any other reason or no reason in Mosio’ sole discretion.
e) In accordance with the Digital Millennium Copyright Act of 1998 (the text of which may be found on the U.S. Copyright Office website at copyright.gov), Mosio will respond expeditiously to claims of copyright infringement committed using the Service that are reported to Mosio. If you are a copyright owner, or authorized to act on behalf of an owner of the copyright or of any exclusive right under the copyright, please report your notice of infringement by sending an email to the Development Team at support(((@)))mosio(.)com.
- Warranties and Disclaimers
a) THE SERVICE AND ALL CONTENT, MATERIALS, INFORMATION, PRODUCTS AND SERVICES INCLUDED IN IT ARE PROVIDED “AS IS,” WITH NO WARRANTIES WHATSOEVER. MOSIO, SUBSCRIBER AND MOSIO’S LICENSORS EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. MOSIO AND ITS LICENSORS DISCLAIM ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SERVICE. MOSIO, SUBSCRIBER, AND MOSIO’S LICENSORS DISCLAIM ANY WARRANTIES FOR ANY INFORMATION, DATA, OR ADVICE OBTAINED THROUGH THE SERVICE. MOSIO AND ITS LICENSORS DISCLAIM ANY WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SERVICE OR RECEIVED THROUGH ANY LINKS PROVIDED BY THE SERVICE, AS WELL AS FOR ANY INFORMATION, DATA, OR ADVICE RECEIVED THROUGH ANY SUCH GOOD OR SERVICE, INCLUDING LINKS TO SAID INFORMATION, DATA, OR ADVICE. NO ORAL OR WRITTEN INFORMATION GIVEN BY MOSIO, ITS EMPLOYEES, LICENSORS, OR THE LIKE WILL CREATE A WARRANTY.b) If an End User uses the Service to purchase or otherwise engage in direct transactions with Subscriber, then all such transactions shall be governed by the terms and conditions entered into with Subscriber. Under no circumstances shall Mosio have any responsibility or liability therefor. If an End User believes that Subscriber is in violation of any consumer protection laws or regulations, including but not limited to the standards set forth by the CTIA Wireless Association, Mobile Marketing Association (MMA), such as the MMA Code of Conduct, or the MMA Consumer Best Practice Guidelines, then such End User shall immediately report any such suspected violations to Mosio.
c) END USER UNDERSTANDS AND AGREES THAT IF END USER CLICKS ON, DOWNLOADS, OR OTHERWISE OBTAINS MATERIAL, DATA, OR CONTENT THROUGH THE USE OF THE SERVICE, THEN END USER DOES SO AT END USER’S OWN DISCRETION AND RISK, AND THAT END USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO END USER’S COMPUTER SYSTEM, COMPUTING DEVICE, AND/OR MOBILE PHONE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.
d) Third Party Offerings. Mosio does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Services or any hyperlinked website or service, and Mosio shall not be a party to or in any way monitor any transaction between the Customer and third-party providers of products or services.
e) Customer Warranties.
i. General. You represent and warrant that you have the right and authority to enter into an agreement with Mosio any time you subscribe to any Services, and that Your entering into such an agreement will not violate, conflict with, or cause a material default under any other contract, agreement, indenture, decree, judgment, undertaking, conveyance, lien, or encumbrance to which You a party or by which You or any of Your property is or may become subject or bound.
ii. Compliance with the Laws. You represent and warrant that no consent, approval, or authorization of, or designation, declaration, or filing with any governmental authority is required in connection with the valid execution, delivery, and performance of any agreement You enter into with Mosio, and your access to the Services. You shall, at your own expense, comply with all laws, regulations, and other legal requirements that apply to You and these Terms, as well as any agreement to access the Services, including copyright, privacy, intellectual property, and data protection laws.
iii. Customer Transactions using the Services. The Customer specifically agrees and acknowledges that it will be the Customer themselves, and not Mosio under any circumstances whatsoever, who are responsible for compliance with any laws applicable to transactions facilitated or undertaken via the Services by the Customer, and which include but are not limited to health and patient data collection laws, anti-corruption laws, anti-discrimination laws, or any other applicable law in a jurisdiction to which the Customer, an End User, or Mosio is subject. Customers are also independently responsible for the terms of their agreements or transactions with any Users. The Customer will immediately defend, indemnify, and hold Mosio harmless against any costs, claims, liabilities, damages, penalties, sanctions, or government actions which are incurred by Mosio in connection with the Customer’s responsibilities described in this clause.
- Limitation of Liability
a) UNDER NO CIRCUMSTANCES SHALL MOSIO, ITS SUBSCRIBERS OR ITS LICENSORS BE LIABLE TO ANY CUSTOMER FOR THAT CUSTOMER’S USE OR MISUSE OF OR RELIANCE ON THE SERVICE, EXCEPT TO THE EXTENT OF ANY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF DIRECT, INDIRECT, INCIDENTAL, PURPOSEFUL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE OR OTHERWISE, (EVEN IF MOSIO OR ITS SUBSCRIBERS AND LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SERVICE, FROM INABILITY TO USE THE SERVICE, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SERVICE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). THIS LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SERVICE OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE SERVICE, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED ON THE SERVICE OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE SERVICE. THIS LIMITATION SHALL ALSO APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DAMAGES, LOST PROFITS, OR LOST DATA. SUCH LIMITATION SHALL FURTHER APPLY WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICE OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO, THE SERVICE. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.b) IN THE EVENT MOSIO IS FOUND TO BE LIABLE PURSUANT TO THIS AGREEMENT, MOSIO’S LIABILITY TO CUSTOMER WILL NOT EXCEED THE AMOUNT PAID TO MOSIO BY CUSTOMER DURING THE PREVIOUS ONE YEAR. IN ALL CASES, MOSIO IS LIABLE ONLY FOR THEIR OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN ADMINISTERING THE SERVICES ALONE.
c) TO THE EXTENT PERMITTED UNDER LAW, MOSIO SHALL NOT BE LIABLE TO ANY PARTY HEREUNDER, INCLUDING CUSTOMERS, THEIR AGENTS OR END USERS, FOR ANY CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS, EVEN IF SUCH DAMAGES ARE FORESEEABLE.
- Force Majeure
Without limiting the foregoing, under no circumstances shall Mosio, Subscriber, or Mosio’s licensors be held liable for any delay, outage, or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment and software failures, hackers, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, pandemics/epidemics, war, governmental actions, orders of domestic or foreign courts or tribunals unrelated to these Terms, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning.
- Updates and Changes to Our Terms and Conditions
We may modify or terminate Our Services from time to time, for any reason, and without notice, including the right to terminate with or without notice, without liability to You, Agents, End Users or any third party, except to the extent any Service Plan binds us otherwise. We reserve the right to modify these Terms from time to time without notice. Please review these Terms from time to time so that You will be apprised of any changes. Your continued use of the Service following the effective date of any such modification may be relied upon by Mosio as Your consent to any such modification. Mosio’s failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of the Terms.
- Governing Law and Severability
a) These Terms will be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflict of laws, provisions, or Your actual state or country of residence. You hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of California, San Francisco County, for the purpose of resolving any dispute relating to the Terms, or access to, or use of the Service by You, Agents, or End Users. If for any reason a court of competent jurisdiction finds any provision or portion of the Terms to be unenforceable, the remainder of the Terms will continue in full force and effect.b) Class Action Waiver. To the extent permitted under applicable law, the Customer unequivocally waives all rights to participate in, initiate, or be a Party to any class action lawsuit in which Mosio is a defendant and the Customer is a plaintiff, and the Customer agrees that the only legal remedies available to the Customer under these Terms are those obtained as described herein.
- Export Compliance and Use Restrictions
The Service may be subject to U.S. export control and economic sanctions laws. You agree to comply with all such laws and regulations as they relate to access to and use of the Service by You, Agents and End Users. You shall not access or use the Service if You are located in any jurisdiction in which the provision of the Service is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and You shall not provide access to the Service to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant, and covenant that:(i) You are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person,
(ii) You are not a national of, or a company registered in, any Prohibited Jurisdiction,
(iii) You shall not permit Agents or End Users to access or use the Service in violation of any U.S. or other applicable export embargoes, prohibitions, or restrictions, and
(iv) You shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which You, Agents, and End Users are located.
All notices to be provided by Mosio to You under these Terms may be delivered in writing:
(i) by nationally recognized overnight delivery service (“Courier”) or US mail to the contact mailing address provided by You on any Form; or
(ii) electronic mail to support((at))mosio((.))com.You must give notice to us in writing by Courier or US Mail to the following address: Mosio, Inc., 8001 14th Avenue NE, Suite A, Seattle, WA 98115, USA. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.
- Federal Government End Use Provisions
If You are a U.S. federal government department or agency or contracting on behalf of such department or agency, the Service is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, this Service is licensed to You with only those rights as provided under the terms and conditions of these Terms.
- Entire Agreement
- Business Associate Agreements
Mosio is dedicated to ensuring private and secure software solutions with its clients, including Business Associate Agreements. If your organization requires a BAA, please email documents to hipaa[[@]]mosio[[dot]]com and allow up to 7-10 business days for review and completion after the project/program agreements have been confirmed.
- Confidential Information
a) Definition. For purposes of these Terms, “Confidential Information” shall mean information including, without limitation, all Customer personal data or PHI, all Mosio computer programs, code, algorithms, names, and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics, and other technical, business, financial, and product development plans, forecasts, strategies, and information marked “Confidential”, or if disclosed verbally, is identified as confidential at the time of disclosure. In addition to the foregoing, Confidential Information shall include third party software, if any, that may be provided to Customer under any Service plan or in the course of providing any SaaS services, including any related source or object codes, technical data, data output of such software, documentation, or correspondence owned by the applicable licensor. Confidential Information excludes information that:
(1) was or becomes publicly known through no fault of the receiving party;
(2) was rightfully known or becomes rightfully known to the receiving party without confidential or proprietary restriction from a source other than the disclosing party;
(3) is independently developed by the receiving party without the participation of individuals who have had access to the Confidential Information;
(4) is approved by the disclosing party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing party; and
(5) the receiving party is legally compelled to disclose; provided, however, that prior to any such compelled disclosure, the receiving party will
(i) assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and
(ii) cooperate fully with the disclosing party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information.
In the event that such protection against disclosure is not obtained, the receiving party will be entitled to disclose the Confidential Information, but only as, and to the extent, necessary to legally comply with such compelled disclosure.
b) Nondisclosure. During this the term which the Customer uses the Services and a period of 2 years after the Customer’s complete cessation of use of the Services, both Mosio and the Customer agree to maintain all Confidential Information in confidence to the same extent that they protect their own similar Confidential Information, but in no event using less than reasonable care, and to use such Confidential Information only as permitted under any Service Plan, any Form/quotation, or as otherwise described on the website. Both Mosio and the Customer agree to only disclose the other Party’s Confidential Information to its employees:
(1) with a need to know to further permitted uses of such information; and
(2) who are informed of the nondisclosure/ non-use obligations imposed by this Section.
Both the Customer and Mosio shall take steps each determines appropriate to implement and enforce such non-disclosure/non-use obligations.
c) Injunctive Relief. In the event of an actual or threatened breach of the above confidentiality provisions, the non-breaching Party will have no adequate remedy at law and will be entitled to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.
- Customer Responsibility
a) Indemnification. Customer is solely responsible for the content of communications transmitted by Customer using the Services, as well as their general use of the Services, and shall defend, indemnify, and hold harmless Mosio from and against all liabilities and costs (including reasonable attorneys’ fees) arising from any and all third-party claims by any person based upon the content of any such communications, the use of the Services by the Customer, or any third parties in association with or due to the Customer’s use of the Services, or the Customer’s negligence or willful misconduct.b) Service Reselling. The Customer is not permitted to resell the Services. The Customer shall use the Services only for lawful purposes. To the extent deemed necessary by Customer, Customer shall implement security procedures necessary to limit access to the Services to Customer’s authorized users and shall maintain a procedure external to the Services for reconstruction of lost or altered files, data, or programs.
- Inquiries and Service Outages
a) For any Services related inquiries, the Customer may contact:
b) Mosio will acknowledge all requests within (10) business days of receipt and respond to the Customer via email within thirty (30) days if the request requires further investigation by Mosio.c) The duration of a Service outage will be determined by summing the amount of time Customer Trouble Tickets are open with the appropriate Mosio Customer Care person for the service. The time starts with the opening of a trouble ticket by Mosio Customer Support and ends when Mosio Customer Support notifies customer of the restoration of the service.d) All claims are subject to review and verification by Mosio.
- Independent Contractor
Nothing contained in these Terms or any agreement by Mosio to provide Services, shall be construed as creating a joint venture, partnership, or employment relationship between the Parties. Mosio and the Customer are strictly independent contractors.
The Customer may not assign, sublicense or transfer, in whole or in part, any agreement to receive Services from Mosio, under any circumstances, except when Mosio has authorized the same in writing. Any attempted assignment, subletting, or transfer shall be void. Mosio may transfer, assign, or subcontract any rights or obligations hereunder at any time, without the consent of the Customer.
- No Waiver
No delay or failure of Mosio or Customer in exercising any right herein, and no partial or single exercise thereof shall be deemed of itself to constitute a waiver of such right or any other rights herein. Any waiver by Mosio or Customer of any breach of any provision of these Terms or any agreement, shall not operate or be construed as a waiver of any subsequent or other breach.
- HIPAA COMPLIANCE
- GDPR COMPLIANCE AND GENERAL DATA PROTECTION LAW COMPLIANCE
a) Any personal or sensitive data shared with Mosio by the Customer or End User(s)/User(s) (the people who send you messages, data, and content via the Services) shall remain the property of the Customer or the individual who otherwise owns such data (“personal data”), and shall be subject to full confidentiality and data protection obligations on the part of Mosio, to the extent required under these Terms. However, the Customer and User specifically allows Mosio, by the act of accessing the Services, to use any such personal or sensitive data, and transmit such data to third parties with reasonable and adequate data protection, confidentiality, and data security capabilities and obligations, and to other regions with similar or less data protection regulations in place, such as the United States of America, or elsewhere, if required for the sole purpose of providing access to the Services. If the Customer or any User, submitting any information to Mosio, does not wish to have their data sent to third parties, or other regions outside their home jurisdiction, then they must communicate this in writing to Mosio, who will then determine whether they can continue providing the Services without remitting or using their data as described. If Mosio, in their sole discretion, discontinues the Services for the Customer after the Customer or a User makes such a declaration, then any fees paid or currency of value transferred to Mosio shall be rendered forfeited to Mosio, and shall be non-refundable.b) The Customer will be liable for, and will indemnify, defend, and hold Mosio harmless against, all claims, costs, expenses, fines, damages, or other losses incurred or arising from the improper disclosure of a third party’s Personal Data to Mosio by the Customer. The Customer will be obligated to ensure that all submission of third-party/ User Personal Data to Mosio by the Customer is with the consent of any such third parties/Users, and is in full compliance with any applicable laws.c) Mosio may request various types of Personal Data from the Customer or User, and Mosio can only receive such data if the Customer provides it willingly and consents to its provision to Mosio, when receiving the Services. Any use or transmittal of Customer or third party data (“Customer data”) will only be completed once the Customer is made completely aware of its use and transmittal, and then only with the Customer’s consent. If the Customer wishes to know of any specific use of Customer data that may be undertaken by Mosio, they may address their inquiry to Mosio at legal((at))mosio(((dot)))com
d) Personal Data collected is defined by any applicable law which governs the Customer’s use and access of the Service, and any such data which can be used to personally identify an individual, or which contains personally identifiable data about an individual. This can include a person’s name, browsing habits, credit card details, address, passport, or other identity information, and any other information specified by applicable law.e) Residents of the European Economic Area (“EEA”) and the European Union (“EU”) may be entitled to rights under the General Data Protection Regulations (“GDPR”). If an individual User qualifies, these rights are summarized below. If a User requests to exercise their rights under the GDPR, we may require verification of their identity before we respond to any such request. If the User is entitled to these rights, they may exercise the following rights with respect to their Personal Data that we collect and store:
- the right to withdraw consent to data processing at any time;
- the right of access to User Personal Data;
- the right to request a copy of User Personal Data;
- the right to correct any inaccuracies in User Personal Data;
- the right to erase User Personal Data;
- the right to data portability, meaning to request a transfer of User Personal Data from us to any other person or entity as chosen by a User;
- the right to request restriction of the processing of User Personal Data; and
- the right to object to processing of User Personal Data.
Users may exercise these rights free of charge. These rights will be exercisable subject to limitations as provided for by the GDPR. Any requests to exercise the above-listed rights may be made to: (insert address).
- CCPA COMPLIANCE
To the extent that the California Consumer Privacy Act (“CCPA”) is applicable to either Mosio or the Customer, or any User: both Parties agree to comply with all of its obligations under the CCPA; and in relation to any communication of ‘Personal Data’ as defined by the CCPA, the parties agree that no monetary or other valuable consideration is being provided for Customer Data or User Data, and therefore neither Party is ‘selling’ (as defined by the CCPA) Customer Data or User Data to the other Party, unless specifically agreed for and consented to by the Parties. The principal rights the Customer (and any relevant third parties) has (have) under the CCPA include but are not limited to:
- the right to know the Personal Data we collect form the Customer/User;
- the right to request the deletion of Customer’s/User’s Personal Data;
- the right not to be discriminated against for having exercised Customer’s/User’s rights under the CCPA;
- the right to opt out from the collection/sale of Customer’s/User’s Personal Data; and
- the right to access Customer’s/User’s Personal Data.
Both Parties agree to notify the other immediately if it receives any complaint, notice, or communication that directly or indirectly relates to either Party’s compliance with the CCPA. Specifically, we shall notify Customer or User within ten (10) working days if we receive a verifiable consumer request under the CCPA.
- Compliance on Behalf of Users
The Customer will be solely responsible for complying with the requirements of Sections 24-26 hereunder with respect to any User data they transmit via the Services, and shall immediately defend, indemnify, and hold Mosio harmless from and against any liabilities whatsoever, arising from such failures in compliance on behalf of the User(s). The Customer will be solely and directly responsible for obtaining the consent of Users whose data is provided to Mosio via the Services, pursuant to this Agreement and all applicable laws.
This document was updated on March 10, 2023