Effective as of September 9, 2013
These terms of service (“Service’) constitute a contract between you and Moco Insight and govern use of and access to the service by You, Agents and End-Users whether in connection with a paid Service Plan or a free trial of service.
By accepting these Terms, or by accessing or using the Service or Site, or authorising or permitting any Agent or End-User to access or use the Service, You agree to be bound by these Terms. If You are entering into these Terms on behalf of a company, organisation or another legal entity (an “Entity”), You are agreeing to these Terms for that Entity and representing to Moco Insight that You have the authority to bind such Entity and its affiliates to these Terms, in which case the terms “Subscriber,” “You,” “Your” or related capitalised terms herein shall refer to such Entity and its affiliates. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and may not use the Service.
When used in these Terms with the initial letters capitalised, in addition to terms defined elsewhere in these Terms, the following terms have the following meanings:
Account: means all Moco Insight accounts or instances created by or on behalf of Subscriber or its Agents within the Service
Agent: means an individual authorised to use the Service through Your Account as an agent and/or administrator as identified through a unique login.
Magento API: means the programming interfaces developed and packaged by Moco for installation on the Subscriber’s Magento system(s) for the sole purpose of providing data access for use with the Subscribers Moco Insight account.
Confidential Information: The Services and documentation thereof comprises of information that is confidential and proprietary to Moco Insight. You agree to use the Services and documentation with the same care that you treat your own confidential information, which is no case will be less than reasonable care.
Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Service provided or made available by Moco Insight to You, Agents or End-Users through the Site or otherwise.
End-User: means any person or entity other than Subscriber or Agents with whom Subscriber or its Agents interact using the Service.
Service: means the on-demand data analytics reporting solution and tools provided by Moco Insight, including, individually and collectively, Software, the API and any Documentation. Any new or modified features added to or augmenting the Service or updates or enhancements to the Service (“Updates”) are also subject to these Terms and We reserve the right to deploy Updates at any time.
Subscription: means the service plan and the functionality and services associated therewith (as detailed on the Site) for which You subscribed to or are currently using on a month by month basis.
Site: means moco.io and all other websites owned or operated by Moco Insight.
Software: means software provided by Moco Insight (either by downloading or accessed through the internet) that allows an Agent or End User to use any functionality in connection with the Service.
Service Term: means the Moco Insight Service Plan you have agreed to or are currently using.
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.
Customer Information: refers to the data collected by the Subscriber, Agent and End-User.
Transaction Information: refers to all transactional data contained in a Subscribers store. This includes final purchases, products in carts and refunds.
Moco Insight: means Moco Media, Pty Ltd, an Australian privately held company. In these Terms, Moco Insight may also be referred to through the use of “We” or “Our.”
Unless otherwise specified the term of this Agreement shall commence upon your agreement to these terms and conditions of this Agreement (“Commencement Date”) and end one month after the Commencement Date (“Initial Term”). The Initial Term shall be extended for one month additional terms unless notice from the Subscriber or Agent has been received to advise otherwise.
2. General conditions; access to and use of service
2.1 During the Service 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 subscribe to for Your internal business purposes. Without limiting the foregoing, Your right to access and use the API is also subject to the restrictions and policies implemented by Moco Insight from time to time with respect to the API as set forth in the Documentation or otherwise communicated to You in writing.
2.2 A high speed Internet connection is required for proper transmission of the Service. You are responsible for procuring and maintaining the network connections that connect Your network to the Service, including, but not limited to, “browser” software that supports protocols used by Moco Insight, including Secure Socket Layer (SSL) protocol or other protocols accepted by Moco Insight, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You, Agents or End Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Your Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Moco Insight. We assume no responsibility for the reliability or performance of any connections as described in this section.
2.3 You agree not to (a) 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 authorised Agents and End Users in furtherance of Your internal business purposes as expressly permitted by these Terms; (b) use the Service to process data on behalf of any third party other than Agents or End Users; (c) modify, adapt, or hack the Service or otherwise attempt to gain unauthorised access to the Service or related systems or networks; (d) falsely imply any sponsorship or association with Moco Insight, (e) use the Service in any unlawful manner, including but not limited to violation of any person’s privacy rights; (f) use the Service to send unsolicited or unauthorised junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (g) use the Service to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (h) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Service; (j) try to use, or use the Service in violation of these Terms.
2.4 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.
2.5 In addition to Our rights as set forth in Section 8.4, Moco Insight reserves the right, in Moco Insight’s reasonable discretion, to temporarily suspend Your access to and use of the Service: (a) during planned downtime for upgrades and maintenance to the Service (of which Moco Insight will use commercially reasonable efforts to notify You in advance via email) (“Planned Downtime”); (b) during any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Our reasonable control (including, without limitation, inability to access the Internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks; or (c) 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 (Australian Eastern Standard Time) and other off-peak hours.
3. Data privacy and security; confidentiality
3.1 Subject to the express permissions of these Terms, You and Moco Insight’s will protect each other’s Confidential Information from unauthorised use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms, each of us may use each other’s Confidential Information solely to exercise our respective rights and perform our respective obligations under these Terms and shall disclose such Confidential Information solely to those of our respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information.
3.2 Moco Insight will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Your Data within your Moco Insight Account instance. These safeguards include encryption of Your Data in transmission (using SSL or similar technologies), except for certain Other Services that do not support encryption, which You may link to through Service at Your election. Our compliance with the provisions of this Section 3.2 shall be deemed compliance with Our obligations to protect Your Data as set forth in Section 3.1.
3.3 You agree that Moco Insight and the service providers We use to assist in providing the Service to You shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose Your Data solely to the extent necessary to provide the Service, including, without limitation, in response to Your support requests. Any third party service providers We utilize will only be given access to Your Account and Your Data as is reasonably necessary to provide the Service and will be subject to confidentiality obligations. Moco Insight may also access or disclose information about You, Your Account, Agents or End Users, including Your Data, in order to (a) comply with the law or respond to lawful requests or legal process; (b) protect Moco Insight’s or its customers’ or partners’ rights or property, including enforcement of these Terms or other policies associated with the Service; (c) act on a good faith belief that such disclosure is necessary to protect personal safety or avoid violation of applicable law or regulation.
4. Intellectual property rights
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. Subject only to limited rights to access and use the Service as expressly herein, all rights, title and interest in and to the Service and all hardware, software and other components of or used to provide the Service, including all related intellectual property rights, will remain with and belong exclusively to Moco Insight. Moco Insight shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use any suggestions, reports, enhancement requests, recommendations or other feedback We receive from You, Agents or End Users. Moco Insight’s product and service name, and logos used or displayed on the Service are registered or unregistered trademarks of Moco Insight (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 Moco Insight, its services or products.
5. Billing, plan modifications and payments
5.1 Unless otherwise specified on an Account, you shall pay the fees for the Service (“Service Fee”) monthly in advance. Service fees for the Initial Terms are set forth in the applicable Order. Unless otherwise specified on an Account, Service Fees are payable on a monthly basis. Service Fees are due on or before the first day of each month for which the Service are to be provided. Service Fees may be adjusted at anytime by Moco Insight, by giving you advanced notice of any change in Service Fees, which notice may include publication of new fees set forth on Moco Insight’s website.
5.2 If You choose to upgrade Your Service Plan or increase the number of Reports, Cohorts and/or Customers, any incremental Service Plan Charges associated with such a Subscription Upgrade will be prorated over the remaining period of that month and charged to Your Account at the beginning for the next monthly instalment. In future payments will continue to be billed at this new Service Plan rate unless you reduce your plan or increase your Service Plan.
5.3 No refunds or credits for Service Plan changes 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 reports, cohorts, features, or capacity of the Service as available to You under Your Account, and Moco Insight does not accept any liability for such loss.
5.4 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 Moco Insight 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.
5.5 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 Moco Insight, or they may obtain a receipt from within the Service to track payment status. Moco Insight 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 Moco Insight.
6. Cancellation and termination
6.1 Either You or Moco Insight may elect to terminate Your Account and Your Subscription to the Service (30) days from Service Plan’s Monthly renewal date. Unless Your Account and Your Subscription to the Service is so terminated, your Service Plan to the Service will automatically renew for another 30 days and your credit card will be deducted accordingly.
6.2 Following the termination or cancellation of Your Subscritopn to the Service and/or Account, We reserve the right to delete all Your Data in the normal course of operation. Your Data cannot be recovered once Your Account is cancelled.
6.3 Moco Insight 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. Unless legally prohibited from doing so, Moco Insight will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. Moco Insight 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.
7. Disclaimer of warranties
THE SITE AND THE SERVICE, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND MOCO INSIGHT EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT MOCO INSIGHT DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM ZMOCO INSIGHT OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
8. Limitations of warranties
YOU ACKNOWLEDGE THAT MOCO INSIGHT RECEIVES CUSTOMER AND TRANSACTIONAL INFORMATION FROM THIRD PARTY SOURCES THAT MOCO INSIGHT DOES NOT CONTROL AND HAS NO ABILITY TO VERIFY THE TRUTH, ACCURACY, OR COMPLETENESS OF THE CUSTOMER INFORMATION. THE CUSTOMER INFORMATION AND THE SERVICES ARE PROVIDED TO YOU AS IS AND WITHOUT ANY WARRANTY WHATSOEVER. MOCO INSIGHT DOES NOT WARRANT THAT THE SERVICES WILL BE CONTINOUSLY AVAILABLE OR THAT THE SERVICES WILL OPERATE ERROR FREE. MOCO INSIGHT MAKES NO WARRANTY, AND HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIE, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF TITLE, AGAINST INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, IN ANY WAY RELATING TO THE CUSTOMERS INFORMATION OR THE SERVICES.
9. Limitations of liability
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THESE TERMS, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY OR THIRD PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
You agree to indemnify, defend and hold harmless Moco Insight from and against any demands, liabilities, losses, costs and claims, including reasonable attorney’s fees, that arise from or are related to a) your use of the Services or Customer Information; b) your breach of this Agreement (including limitation); c) injury to any person or property caused by any products or services sold or otherwise distributed by you through your Website; and d) your use of the Services or Customer Information in violation of law.
11. Agreement revisions
These Terms, together with any Form(s), constitute the entire agreement, and supersede any and all prior agreements between You and Moco Insight with regard to the subject matter hereof. We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any such amendment and Your continued use of the Service following the effective date of any such amendment may be relied upon by Moco Insight as Your consent to any such amendment. Moco Insight’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.
Sections 1, 3, 4 and 9-19 shall survive any termination of our agreement with respect to use of the Service by You, Agents or End Users. Termination of such agreement shall not limit Your or Moco Insight’s liability for obligations accrued as of or prior to such termination or for any breach of these Terms.
13. Governing law
These Terms shall be governed by the law of the State of Victoria, Australia. It is a condition of use that users agree to submit to the exclusive jurisdiction of the courts of Victoria and the federal courts of the Commonwealth of Australia 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.
14. Federal government end of use provisions
If You are a U.S. federal government department or agency or contracting on behalf of such department or agency, this 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.
15. Force majeure
Neither party shall be liable to the other for any failure or delay caused by any events beyond such party’s control, other than the payment of money, including without limitations, acts of God, acts of government or military authorities, terrorism or Moco Insight’s failure to provide any information or materials needed in connection with the performance of the Services.
All notices to Moco Insight must be made through Moco Insight’s website, or in writing, and delivered by at least one of the following: a) postage prepaid Australian Mail or registered mail; b) prepaid delivery by nationally recognised overnight air delivery service. Notices must be sent to Moco Insight, PO Box 322, Abbotsford, Vic, 3066, Australia.