BY ENTERING THE APPLICATION, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR USE OF MOCHADOCS™.COM'S ONLINE SERVICE, INCLUDING OFFLINE COMPONENTS (COLLECTIVELY, THE "SERVICE"). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICE.
As part of the Service, Mochadocs.com will provide you with use of the Service, including a browser interface and data encryption, transmission, access and storage. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the Mochadocs.com website incorporated by reference herein, including but not limited to Mochadocs™.com's privacy and security policies. For reference, a Definitions section is included at the end of this Agreement.
Mochadocs™ is offered as Software as a Service, a Cloud Solution.
1. Privacy & Security; Disclosure
Mochadocs™'s privacy and security policies may be viewed by clicking the requested statement. Mochadocs™ reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Note that because the Service is a hosted, online application, Mochadocs.com occasionally may need to notify all users of the Service of important announcements regarding the operation of the Service. If you become a paying customer of the Service, you agree that Mochadocs.com can disclose the fact that you are a paying customer and the package of the Service that you are using.
2. Service Grant & Restrictions
Mochadocs™ hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement.
You may not access the Service if you are a direct competitor of Mochadocs™, except with Mochadocs™ prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User accounts cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service.
You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
3. Your Responsibilities
You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Mochadocs.com immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Mochadocs™ immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another Mochadocs.com user or provide false identity information to gain access to or use the Service.
4. Account Information and Data
Mochadocs™ does not own any data, information or material that you submit to the Service in the course of using the Service ("Customer Data"). You, not Mochadocs™, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Mochadocs™ shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of your breach), Mochadocs™ will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. Mochadocs™ reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and Mochadocs.com shall have no obligation to maintain or forward any Customer Data.
MochaDocs™ maintains security incident management policies and procedures specified in the Security, Privacy and Master Agreement and shall, to the extent permitted by law, promptly notify Customer of any actual or reasonably suspected unauthorized disclosure of Customer Data, including Personal Data, by MochaDocs™ or its Subprocessors (any Data Processor engaged by MochaDocs™) of which MochaDocs™ becomes aware (a “Security Breach”). To the extent such a Security Breach is caused by a violation of the requirements of the MochaDocs™ Master Agremeent, Privacy Statement or Security Statement, MochaDocs shall make reasonable efforts to identify and remediate the cause of such a Security Breach.
5. Third Party Interactions
During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. Mochadocs™ and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. Mochadocs™ does not endorse any sites on the Internet that are linked through the Service Mochadocs™ provides these links to you only as a matter of convenience, and in no event shall Mochadocs™ or its licensors be responsible for any content, products, or other materials on or available from such sites. Mochadocs™ provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different licenses or other terms prior to your use of or access to such software, hardware or services.
6. Charges and Payment of Fees
You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The initial charges will be equal to the current number of total User licenses requested times the User license fee currently in effect. Payments will be handled via PayPal consistent with the Initial Term, or as otherwise mutually agreed upon. All payment obligations are non-cancelable and all amounts paid are non-refundable. You are responsible for paying for all User licenses ordered for the entire License Term, whether or not such User licenses are actively used. You must provide PayPal™ with valid information as a condition to signing up for the Service. An authorized SuperUser may add licenses by executing an additional written Order. Added licenses will be subject to the following: (i) added licenses will be coterminous with the pre-existing License Term (either Initial Term or renewal term); (ii) the license fee for the added licenses will be the then current, generally applicable license fee; and (iii) licenses added in the middle of a billing month will be charged in full for that billing month. Mochadocs™ reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which may be provided by e-mail. All pricing terms are confidential, and you agree not to disclose them to any third party.
7. Excess Data Storage Fees
The maximum GB disk storage space per writer/manager provided to you at no additional charge is agreed and is part of the signed order form. If the amount of disk storage required exceeds these limits, you will be charged the then-current storage fees. Mochadocs™ will use reasonable efforts to notify you when the average storage used per license reaches approximately 90% of the maximum; however, any failure by Mochadocs™ to so notify you shall not affect your responsibility for such additional storage charges. Mochadocs™ reserves the right to establish or modify its general practices and limits relating to storage of Customer Data.
8. Billing and Renewal
Mochadocs™ charges and collects in advance for use of the Service. Mochadocs™ will automatically renew and bill you on a yearly base for monthly licenses or as otherwise mutually in written agreed upon. The renewal charge will be equal to the then current number of total User licenses times the license fee in effect during the prior term, unless Mochadocs.com has given you at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. MochaDocs charges a 3.5% yearly indexation fee on standard pricing, or a different percentage as otherwise mutually agreed upon. For monthly subscriptions the published surcharge on the MochaDocs™ websites is the actual surcharge, not the surcharge in your orderform. The total of the subscription fees cannot exceed the published subscription fees. Fees for other services will be charged on an as-quoted basis. Mochadocs™'s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Mochadocs™'s income.
You agree to provide Mochadocs™ with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, Mochadocs™ reserves the right to terminate your access to the Service in addition to any other legal remedies.
Unless Mochadocs™ in its discretion determines otherwise: (i) entities with headquarters and a majority of users resident in the United States will be billed in U.S. dollars and subject to U.S. payment terms and pricing schemes ("U.S. Customers"); (ii) entities with headquarters and a majority of users resident in the Netherlands will be billed in Euro's and subject to Dutch payment terms and pricing schemes ("Dutch Customers"); and (iii) all other entities will be billed in U.S. dollars, Euros or local currency supported by PayPal and be subject to either U.S. or non-U.S. payment terms and pricing schemes at the discretion of Mochadocs™ ("Non-U.S./Dutch Customers"). Non-SEPA (non-automated bank transfered) payments will be charged with administrative costs per invoice due to manual handlings.
If you believe your bill is incorrect, you must contact us in writing within 30 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
9. Non-Payment and Suspension
In addition to any other rights granted to Mochadocs™ herein, Mochadocs™ reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for User licenses during any period of suspension. If you or Mochadocs™ initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above. You agree that Mochadocs™ may charge such unpaid fees to your PayPal account or otherwise bill you for such unpaid fees.
Mochadocs™ reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that Mochadocs™ has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.
10. Termination upon Expiration/Reduction in Number of Licenses
This Agreement commences on the Effective Date. For Mochadocs™ licenses, the Initial Term is one year or two years (as you elect during sign-up). For Mochadocs™ Enterprise Edition licenses, the Initial Term will be as you elect during the online subscription process or as otherwise mutually agreed upon, commencing on the date you agree to pay for the Service by completing the online subscription form or otherwise. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) at Mochadocs™'s then current fees. Either party may terminate this Agreement or reduce the number of licenses, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least thirty (30) business days prior to the date of the invoice for the following term. In the case of free trials, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination. In the event this Agreement is terminated (other than by reason of your breach), Mochadocs™ will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. You agree and acknowledge that Mochadocs™ has no obligation to retain the Customer Data, and may delete such Customer Data, more than 30 days after termination.
11. Termination for Cause
Any breach of your payment obligations or unauthorized use of the Mochadocs™ Technology or Service will be deemed a material breach of this Agreement. Mochadocs™, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, MochaDocs™ may terminate a free trial account at any time in its sole discretion. You agree and acknowledge that Mochadocs™ has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
12. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Mochadocs™ represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Mochadocs™ help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
13. Mutual Indemnification
You shall indemnify and hold Mochadocs™, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that Mochadocs™ (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Mochadocs™ of all liability and such settlement does not affect Mochadocs™'s business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
Mochadocs™ shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by Mochadocs.com of its representations or warranties; or (iii) a claim arising from breach of this Agreement by Mochadocs™; provided that you (a) promptly give written notice of the claim to Mochadocs™; (b) give Mochadocs™ sole control of the defense and settlement of the claim (provided that Mochadocs™ may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to Mochadocs™ all available information and assistance; and (d) have not compromised or settled such claim. Mochadocs™ shall have no indemnification obligation, and you shall indemnify Mochadocs™ pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process.
14. Disclaimer of Warranties
MOCHADOCS™ AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. MOCHADOCS™ AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY MOCHADOCS™ AND ITS LICENSORS.
15. Internet Delays
MOCHADOCS™'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. MOCHADOCS.COM IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
16. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Mochadocs™ may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in Mochadocs™'s account information, or by written communication sent by first class mail or pre-paid post to your address on record in Mochadocs™'s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Mochadocs.com (such notice shall be deemed given when received by Mochadocs™) at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Mochadocs™ at the following addresses (whichever is appropriate): Mochadocs™. Otto van Taverenstraat 96, 7521 TH, Enschede, the Netherlands addressed to the attention of: Chief Financial Officer.
18. Modification to Terms
Mochadocs™ reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. As set forth in applicable contracts with Customers, MochaDocs shall provide Customers (administrators) within thirty (30) days with prior notification before changes in the Master Agreement MochaDocs will be activated. Continued use of the Service after any such changes shall constitute your consent to such changes.
19. Assignment; Change in Control
This Agreement may not be assigned by you without the prior written approval of Mochadocs™ but may be assigned without your consent by Mochadocs™ to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of Mochadocs™ directly or indirectly owning or controlling 50% or more of you shall entitle Mochadocs™ to terminate this Agreement for cause immediately upon written notice.
Within thirty (30) days following the go-live date (database activation date) Mochadocs may use your company logo and information for publishing and marketing purposes.
With respect to European Customers, this Agreement shall be governed by Dutch law and controlling, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in the Netherlands. With respect to non-European Customers, this Agreement shall be governed by the laws of the Netherlands, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the courts of the Netherlands. No text or information set forth on any other purchase order, pre-printed form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Mochadocs™ as a result of this agreement or use of the Service. The failure of Mochadocs™ to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Mochadocs™ in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and Mochadocs™ and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
Last updated: December 2, 2018