TERMS AND CONDITIONS
BY CREATING AN ACCOUNT WITH TUTURUMA LLC (“WE” “US” “OUR” OR “MAGOO”) AND/OR UTILIZING OUR SERVICES (DEFINED BELOW), YOU, OR THE ENTITY OR COMPANY YOU REPRESENT (THE “LICENSEE”), ARE VOLUNTARILY AGREEING TO BE BOUND BY AND BECOMING A PARTY TO THESE TERMS AND CONDITIONS (THE “AGREEMENT”). THIS AGREEMENT GOVERNS YOUR UTILIZATION OF MAGOO SOFTWARE AND TECHNOLOGY ACROSS COMPUTERS, MOBILE DEVICES, TABLETS, AND OTHER GADGETS (THE “TECHNOLOGY”), ACCESS TO THE MAGOO PLATFORM THAT FACILITATES MAGOO HOSTING SERVICES FUNCTIONALITY FOR STORING CONTENT CREATED, UPLOADED, OR SHARED THROUGH THE TECHNOLOGY OR PLATFORM (THE “HOSTING SERVICES”), AND OTHER PRODUCTS AND SERVICES PROVIDED BY MAGOO (COLLECTIVELY, THE “SERVICES”). IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR ENTITY, YOU HEREBY AFFIRM THAT YOU HAVE THE AUTHORITY TO LEGALLY BIND THAT ORGANIZATION OR ENTITY TO THESE TERMS. YOUR DOWNLOAD, INSTALLATION, OR CONTINUED UTILIZATION OF THE SERVICES ALSO SERVES AS YOUR ASSENT TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT FULLY AGREE TO ALL THE TERMS IN THIS AGREEMENT, YOU WILL NOT HAVE THE AUTHORITY TO UTILIZE THE TECHNOLOGY AND/OR SERVICES. IF THESE TERMS ARE VIEWED AS AN OFFER, ACCEPTANCE IS STRICTLY RESTRICTED TO THESE TERMS, EXCLUDING ALL OTHERS.
Licensee will establish an account and select a password and username (“MAGOO User ID”) for the purpose of accessing and utilizing the Services. Licensee commits to providing accurate, complete, and up-to-date account information. Licensee bears the responsibility of safeguarding the security of Licensee’s account, including passwords (including administrative and user passwords), and files, as well as any use of Licensee’s account, whether authorized by Licensee or not. Licensee will also cooperate with MAGOO in the establishment of a password or other verification procedures to ensure that only designated employees of Licensee have access to any administrative functions of the Services. Licensee will make sure that these designated employees do not transfer their accounts to any third party without our prior written consent.
2. INTELLECTUAL PROPERTY.
a. Limited License to Access the Platform. Subject to full compliance with the terms of this Agreement, we hereby grant Licensee a limited, personal, non-sublicensable, non-transferable, royalty-free, nonexclusive license to use and access the MAGOO Platform and online portal solely for its internal business purposes.
b. Limited License to Use the Technology. Subject to full compliance with the terms of this Agreement, we hereby grant Licensee a limited, personal, non-sublicensable, non-transferable, royalty-free, nonexclusive license to use the Technology for the sole purpose of allowing Licensee to develop (strictly in accordance with our official user documentation) software applications or, if MAGOO permits you to do so, web applications on your own website (each “App”) and that may communicate with the Platform, and for other purposes authorized by us in writing.
c. Limited License to Distribute the Technology in Licensee’s App. Subject to full compliance with the terms of this Agreement, we hereby grant Licensee a limited, personal, non-sublicensable, non-transferable, royalty-free, nonexclusive license to distribute the Technology in object code form only as part of an App, and only subject to an end-user license agreement which is at least as protective of our proprietary rights in the Technology as those contained in this agreement. Without limiting the foregoing, these terms and conditions will include terms for MAGOO’s benefit regarding (a) restrictions on reverse engineering (to the maximum extent permitted by applicable law); (b) disclaimer of warranties; and (c) limitation of liability, all of which will be at least as beneficial to MAGOO as those contained herein.
d. Limited License to Use the Sample Application. Subject to full compliance with the terms of this Agreement, we hereby grant Licensee a limited, personal, non-sublicensable, non-transferable, royalty-free, nonexclusive license to download and use the sample application available by MAGOO for download (the “Sample Application”) solely for the purpose of evaluating the Sample Application and the functionality of the Technology.
e. Hosting Services. If Licensee chooses to use the Hosting Services, (i) Licensee shall also comply with the Hosting Services Terms and Conditions below, which are incorporated into this Agreement, and (ii) subject to full compliance with the terms of this Agreement, we hereby grant Licensee a limited, personal, non-sublicensable, non-transferable, royalty-free, nonexclusive license to use and access the Hosting Services solely for its internal business purposes.
Licensee will not utilize the Services to create, develop, or continue a current or proposed program that is competitive with the Technology. If Licensee intends at any time to institute such a program, Licensee will promptly inform MAGOO, will not utilize in that program (whether for advice, review, or otherwise) any personnel who have had access to any part of the Technology, and will not utilize any part of the Technology or any related intellectual property in connection with that program. Except in connection with Licensee’s limited right to distribute the Technology in object code form in accordance with Section 2, Licensee will not disclose (or allow access to) the Technology (or any information derived from them) to any third party and will restrict access to the Technology (and any derived information) to individuals who are developing the App and who are bound by this agreement (“Authorized Users”). In support of this obligation, Licensee will apply at least the same security that Licensee uses to protect Licensee’s own most confidential information. Licensee will not (and will not authorize or encourage any third party to): (i) reverse engineer or otherwise attempt to discover the source code of any aspect of the Services (except to the extent such restriction is prohibited by applicable law), (ii) modify, translate, or create derivative works based on the Services; (iii) except as expressly permitted herein, use the Services for timesharing or service bureau purposes or for any purpose other than its own use and benefit; or (iv) use the Services other than in accordance with this Agreement and in compliance with all applicable laws and regulations. Any rights not expressly granted are reserved.
4. CHANGES TO THE TECHNOLOGY.
Licensee’s App will maintain 100% compatibility with the Technology and the Platform (including changes provided to Licensee by MAGOO which will be implemented in the App promptly thereafter). Licensee understands and agrees that we may cease support of old versions or releases of the Technology at any time. We may also automatically update the version of the Services that Licensee is using, including without limitation the Technology installed on each device (each, a “Device”) of Licensee’s end-users.
Certain versions or functionalities of the Technology may currently be free of charge, but we reserve the right to make certain additional features, updates, or new versions/releases available only for payment. If Licensee chooses to purchase such Services, Licensee will pay MAGOO fees for the applicable Service (“Fees”). We will not charge you any Fees without your prior authorization. Unless otherwise agreed to in writing, all Fees will be invoiced monthly and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from the date of the invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Licensee will be responsible for all taxes associated with the Services (excluding taxes based on MAGOO’s net income). All Fees paid are non-refundable and are not subject to set-off.
Licensee may from time to time provide suggestions, comments, or other feedback to MAGOO with respect to the Services (“Feedback”). Feedback, even if designated as confidential by Licensee, shall not create any confidentiality obligation for MAGOO notwithstanding anything else. Licensee shall, and hereby does, grant to MAGOO a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose.
Data Collection. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
a. Use and Non-Disclosure. The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. Notwithstanding anything else, MAGOO is permitted to disclose (including through display of Licensee’s logo) that Licensee is one of its customers (including in its publicity and marketing materials).
d. Aggregated Anonymous Data. Notwithstanding anything to the contrary, Licensee acknowledges and agrees that MAGOO may (i) use and modify (but not disclose) Licensee Data and Device Data for the purposes of (A) providing the Services and any support or consultation services to Licensee and (B) generating Aggregated Anonymous Data (as defined below), and (ii) freely use and make available Aggregated Anonymous Data for MAGOO’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting, and marketing MAGOO’s products and services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by MAGOO in connection with Licensee’s use of the Services, but only in aggregate, anonymized form which can in no way be linked specifically to Licensee or any individual.
The Licensee will defend, indemnify, and hold harmless Magoo, its affiliates, and each of its employees, contractors, directors, suppliers, and representatives from all liabilities, claims, and expenses (including reasonable attorney's fees) that arise from or are related to (i) the Licensee's use or misuse of the Services, an Authorized User, or the Licensee's end-users, (ii) the Licensee's violation of this Agreement or a breach of its representations or warranties, (iii) any intellectual property or other rights infringement by the Licensee or any Authorized User, or (iv) a claim alleging that the Licensee or the Licensee's App infringes or violates the rights of, or has caused harm to, a third party. Magoo reserves the right to assume exclusive defense and control of any matter otherwise subject to indemnification by the Licensee, in which case the Licensee will assist and cooperate with Magoo in asserting any available defenses.
Magoo PROVIDES THE SERVICES "AS IS" AND WITHOUT WARRANTY OF ANY KIND, HEREBY DISCLAIMING ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO THE LICENSEE.
10. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, WILL MAGOO OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO THE LICENSEE OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, ACCURACY OF RESULTS, DEVICE FAILURE OR MALFUNCTION, OR DAMAGES RESULTING FROM THE LICENSEE'S USE OF THE SERVICES. MAGOO'S LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT WILL BE LIMITED TO $100. THE FOREGOING WILL NOT APPLY TO DAMAGES FOR BODILY INJURY THAT, UNDER APPLICABLE LAW, CANNOT BE SO LIMITED. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE LICENSEE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO THE LICENSEE.
11. TERM; Termination.
This Agreement is effective as of the date the Licensee begins using the Services and is effective until terminated in accordance with this Section 11. The Licensee may terminate this Agreement at any time by removing or ceasing all use of the Services. Magoo may terminate this Agreement and the Licensee's access to the Services at any time and for any reason. All licenses granted to the Licensee hereunder terminate upon termination or expiration of this Agreement. Without limiting the foregoing, Magoo may suspend or limit the Licensee's access to or use of the Services if (i) the Licensee's account is more than sixty (60) days past due or (ii) the Licensee's use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with Magoo's ability to provide access to the Service to other customers; provided that in the case of subsection (ii): (a) Magoo will use reasonable good faith efforts to work with the Licensee to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, Magoo will use commercially reasonable efforts to provide notice to the Licensee describing the nature of the damage or degradation; and (c) Magoo will reinstate the Licensee's use of or access to the Services, as applicable, if the Licensee remediates the issue within thirty (30) days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued payment obligations (if applicable), ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
12. CHOICE OF LAW; Arbitration.
This Agreement is governed by and will be construed under the laws of the State of Washington, without regard to the conflicts of laws provisions thereof. Any dispute arising from or relating to the subject matter of this Agreement will be finally settled in English, in accordance with the Simplified Rules of Arbitration and Judicial Arbitration and Mediation Procedures, followed by one commercial arbitrator with substantial experience in intellectual property and commercial contract disputes who shall be selected from the appropriate list of arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party will have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, Washington. Any arbitration under these Terms will take place on an individual basis: class arbitrations and class actions are not permitted. THE LICENSEE UNDERSTANDS AND AGREES THAT BY ENTERING INTO THESE TERMS, THE LICENSEE AND MAGOO ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
13. CHANGES TO THE AGREEMENT.
Platform, or Service Magoo may modify the Agreement at any time, in Magoo's sole discretion. If Magoo does so, Magoo will let the Licensee know either by posting the modified Agreement on the Platform or Magoo's website or through other communications. It is important that the Licensee reviews the Agreement whenever Magoo modifies it because if the Licensee continues to use the Platform or Services after Magoo has notified the Licensee of the modification and the modified Agreement has been posted on the Platform or Magoo's website, the Licensee is indicating to Magoo that the Licensee agrees to be bound by the modified Agreement. If the Licensee does not agree to be bound by the modified Agreement, then the Licensee may not continue to use the Platform or Services. Because the Platform and Services are evolving over time, Magoo may change or discontinue all or any part of the Platform or Services at any time and without notice, at Magoo's sole discretion.
The Licensee represents and warrants that the Licensee is not located in a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a "terrorist supporting" country and that the Licensee is not listed on any U.S. government list of prohibited or restricted parties. This Agreement represents the complete agreement concerning the subject matter hereof between the parties and supersedes all prior agreements and representations between them. This Agreement may be amended only by a writing executed by both parties or as otherwise provided in Section 13. If any provision of this Agreement is held to be unenforceable for any reason, such provision will be reformed only to the extent necessary to make it enforceable. Any notices or other communications provided by Magoo under this Agreement, including those regarding modifications to this Agreement, will be given: (i) via email; or (ii) by posting to the Platform. For notices made by email, the date of receipt will be deemed the date on which such notice is given. For notices made by posting to the Platform, the date of such posting will be deemed the date that notice is given. The failure of Magoo to act with respect to a breach of this Agreement by the Licensee or others does not constitute a waiver and will not limit Magoo's rights with respect to such breach or any subsequent breaches. This Agreement is personal to the Licensee and may not be assigned or transferred for any reason whatsoever without Magoo's consent, and any action or conduct in violation of the foregoing will be void and without effect. Magoo expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder.