Terms of Service
Date of Last Revision: April 01, 2015
1. Acceptance of Terms.
- Moo Digital may change this TOS from time to time. If we do this, we will post the changes to this TOS on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you, either through the Service user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Service or changes made for legal reasons will be effective immediately. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new TOS.
2. Description of Service
The "Service" includes web-based platform, nudge tool, storage and collaboration tools comprised of the following: (a) the Web-based user-interface, (b) the Nudge Tool, © server-side software, and (d) any software (including the Software, as defined below), data, reports, text, images, sounds, video, and content made available through any of the foregoing (collectively referred to as the "Content"). Any new features added to or augmenting the Service are also subject to this TOS.
3. General Conditions/ Access and Use of the Service.
- Subject to the terms and conditions of this TOS, you may access and use the Service only for lawful purposes. All rights, title and interest in and to the Service and its components will remain with and belong exclusively to Moo Digital. You shall not display, distribute, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sublicense, sell, resell, rent, lease, transfer, assign, time share or otherwise make the Service available to any third party. You shall comply with any codes of conduct, policies or other notices Moo Digital provides you or publishes in connection with the Service, and you shall promptly notify Moo Digital if you learn of a security breach related to the Service.
- In addition to (and without limiting the generality of) the other terms and conditions of this TOS, you hereby agree to comply with Moo Digital’s acceptable use policy ("AUP"), as described in this section. You will not use the Service to (or assist another person to):
- email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, "junk mail," "spam," "chain letters," "pyramid schemes," "contests," "sweepstakes," or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of Moo Digital, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Moo Digital or its users to any harm or liability of any type;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or
- violate any applicable local, state, national or international law, or any regulations having the force of law;
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- solicit personal information from or otherwise collect information regarding anyone under the age of 18;
- harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
- advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
- further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
- obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.
- Any software that may be made available by Moo Digital in connection with the Service ("Software") contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of this TOS, Moo Digital hereby grants you a non-transferable, non-sublicensable and non-exclusive right and license to use the object code of the Software solely in connection with the Service. You shall not (and shall not allow any third party to) create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code of any Software. The Software and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Using the Software is at your sole risk.
- Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content. You agree not to access the Service by any means other than through the interface that is provided by Moo Digital for use in accessing the Service. Any rights not expressly granted herein are reserved and no license or right to use any trademark of Moo Digital or any third party is granted to you in connection with the Service.
- You are solely responsible for all software, videos, audio, data, information, feedback, suggestions, text, content and other materials that you upload, post, deliver, publish, provide or otherwise link, transmit or store (hereafter "post(ing)") in connection with or relating to the Service ("Your Content"). You are responsible for maintaining the confidentiality of your login, password and account and for all activities that occur under your login or account. Moo Digital reserves the right to access your account in order to respond to your requests for technical support.
- THIS AGREEMENT DOES NOT GRANT MOO DIGITAL ANY RIGHTS TO YOUR CONTENT OR THE INTELLECTUAL PROPERTY RIGHTS EMBODIED THEREIN, EXCEPT FOR THE LIMITED RIGHTS EXPRESSLY SET FORTH IN THIS AGREEMENT, WHICH ARE NEEDED TO RUN THE SERVICES. By posting Your Content on or through the Service, You hereby do and shall grant Moo Digital a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform Your Content in connection with storing Your Content, displaying Your Content to those you designate (including, for purposes of Public Projects, as defined below, the general public) ("Designated Recipients") and allowing Designated Recipients to download Your Content. Moo Digital has the right, but not the obligation, to monitor the Service, Content, or Your Content. You further agree that Moo Digital may remove or disable any Content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content).
- You understand that the operation of the Service, including Your Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices; and (c) transmission to Moo Digital’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. By creating a publicly available project through the Service (a "Public Project"), you hereby consent to the public dissemination of Your Content associated with the Public Project. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. Moo Digital will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.
- The failure of Moo Digital to exercise or enforce any right or provision of this TOS shall not be a waiver of that right. You acknowledge that this TOS is a contract between you and Moo Digital, even though it is electronic and is not physically signed by you and Moo Digital, and it governs your use of the Service and takes the place of any prior agreements between you and Moo Digital. If any provision of this TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this TOS remain in full force and effect.
- Moo Digital reserves the right to use your name and/or company name as a reference for marketing or promotional purposes on Moo Digital’s website and in other communication with existing or potential Moo Digital customers. To decline providing Moo Digital with this right, you need to email firstname.lastname@example.org stating that you do not wish to be used as a reference.
4. External Content.
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Moo Digital has no control over such sites and resources and Moo Digital is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Moo Digital will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that Moo Digital is not liable for any loss or claim that you may have against any such third party.
To the extent the Service or any portion thereof is made available for any fee, you will be required to select a payment plan and provide Moo Digital information regarding your credit card or other payment instrument. You represent and warrant to Moo Digital that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Moo Digital the amount that is specified in the payment plan in accordance with the terms of such plan and this TOS. You hereby authorize Moo Digital to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred. If you dispute any charges you must let Moo Digital know within thirty (30) days after the date that Moo Digital bills you. We reserve the right to change Moo Digital’s prices. If Moo Digital does, Moo Digital will provide notice of the change on the Site or in email to you, at Moo Digital’s option, at least thirty (30) days before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount.
7. Representations and Warranties.
You represent and warrant to Moo Digital that (i) you have full power and authority to enter into this TOS; (ii) you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in your posting and other activities (and allow Moo Digital to perform its obligations) in connection with the Services without obtaining any further releases or consents; (iii) Your Content and other activities in connection with the Service, and Moo Digital’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and (iv) you are eighteen (18) years of age or older.
You have the right to terminate your account at any time in accordance with the procedures set forth on the Site. Moo Digital reserves the right to (i) modify or discontinue, temporarily or permanently, the Service (or any part thereof) and (ii) refuse any and all current and future use of the Service, suspend or terminate your account (any part thereof) or use of the Service and remove and discard any of Your Content in the Service, for any reason, including if Moo Digital believes that you have violated this TOS. Moo Digital shall not be liable to you or any third party for any modification, suspension or discontinuation of the Service. Moo Digital will use good faith efforts to contact you to warn you prior to suspension or termination of your account by Moo Digital. All of Your Content on the Service (if any) may be permanently deleted by Moo Digital upon any termination of your account in its sole discretion. If Moo Digital terminates your account without cause and you have signed up for a fee-bearing service, Moo Digital will refund the pro-rated, unearned portion of any amount that you have prepaid to Moo Digital for such Service. However, all accrued rights to payment and the terms of Sections 4, 7.2 and 9-17 shall survive termination of this TOS.
9. DISCLAIMER OF WARRANTIES.
THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND Moo Digital EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT MOO DIGITAL DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BY OBTAINED FROM USE OF THE SERVICES, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM MOO DIGITAL OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
10. LIMITATION OF LIABILITY.
- UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL Moo Digital BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR BUSINESS INTERRUPTION, OR (B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS.
- Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, MOO DIGITAL’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
11. Indemnification and Release.
You shall defend, indemnify, and hold harmless Moo Digital from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this TOS, any of Your Content, or your other access, contribution to, use or misuse of the Service. Moo Digital shall provide notice to you of any such claim, suit or demand. Moo Digital reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Moo Digital’s defense of such matter. If you are a California resident, you waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
At Moo Digital’s or your election, all disputes, claims, or controversies arising out of or relating to this TOS or the Service that are not resolved by mutual agreement may be resolved by binding arbitration to be conducted before JAMS, or its successor. Unless otherwise agreed by the parties, arbitration will be held in Danbury, Connecticut before a single arbitrator mutually agreed upon by the parties, or if the parties cannot mutually agree, a single arbitrator appointed by JAMS, and will be conducted in accordance with the rules and regulations promulgated by JAMS unless specifically modified in this TOS. The arbitration must commence within forty-five (45) days of the date on which a written demand for arbitration is filed by either party. The arbitrator’s decision and award will be made and delivered within sixty (60) days of the conclusion of the arbitration and within six (6) months of the selection of the arbitrator. The arbitrator will not have the power to award damages in excess of the limitation on actual compensatory, direct damages set forth in this TOS and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under this TOS, and each party hereby irrevocably waives any claim to such damages. The arbitrator may, in his or her discretion, assess costs and expenses (including the reasonable legal fees and expenses of the prevailing part) against any party to a proceeding. Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including attorneys’ fees, incurred by the other party in enforcing the award. Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction.
You may not assign this TOS without the prior written consent of Moo Digital, but Moo Digital may assign or transfer this TOS, in whole or in part, without restriction.
14. Governing Law.
This TOS shall be governed by the laws of the State of Connecticut without regard to the principles of conflicts of law. Unless otherwise elected by Moo Digital in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts located within Danbury, Connecticut for the purpose of resolving any dispute relating to your access to or use of the Service not subject to arbitration, as set forth above. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.
The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. Moo Digital will promptly process and investigate notices of alleged infringement and will take appropriate actions under the DMCA and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Moo Digital’s Copyright Agent at email@example.com (subject line: "DMCA" Takedown Request").
You may also contact us by mail or facsimile at:
Attention: Copyright Agent
Moo Digital, Inc. / cc: Pickee.com
6 Stony Hill Road, Suite 230
Bethel, CT 06801
Notice: To be effective, the notification must be in writing and contain the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Site, with enough detail that we may find it on the Site;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner‘s behalf.
Counter-Notice: If you believe that the relevant Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use such Content, you may send a written counter-notice containing the following information to the Copyright Agent:
- your physical or electronic signature;
- identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal courts located within the Western District of Connecticut and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Moo Digital will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Moo Digital’s sole discretion.
Repeat Infringer Policy: In accordance with the DMCA and other applicable law, Moo Digital has adopted a policy of terminating, in appropriate circumstances and at Moo Digital’s sole discretion, members who are deemed to be repeat infringers. Moo Digital may also at its sole discretion limit access to the Site and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.