GroupFlow Terms of Use

By accessing or using Moxley Data Inc’s GroupFlow offering, you (“the Customer”) signify acceptance of and agree to the terms and conditions of this agreement.

This GroupFlow Agreement (“Agreement”) is entered into between Customer and Moxley Data Inc., an Oregon corporation (“Moxley Data”), with its principal place of business at 5252 NE 8th Ave., Portland, OR 97211. Moxley Data and Customer agree that the following terms and conditions will apply to the services provided under this Agreement and Orders placed thereunder.

Definitions

“Group” means, the Customer’s member-based organization will use GroupFlow under this agreement. A Group includes the members of the group.

“Group Member” or “Member” means, a member of the Group.

“Group Representative” means, a member of the Group who is authorized to represent the Group in communications with Moxley Data, or act as the Customer on behalf of the Group with Moxley Data.

“Group Visitor” means, a Group Member or other person using the Group’s GroupFlow-hosted website or mobile application.

“Group Content” means all data and information provided by Customer’s Group to Moxley Data for use in connection with GroupFlow, or all data entered into GroupFlow by the Customer’s Group, including, without limitation, data, text content, and graphics.

“Schedule" is a written document attached to this Service Agreement under Exhibit A or executed separately by Moxley Data and Customer for the purpose of purchasing GroupFlow under the terms and conditions of this Service Agreement

“GroupFlow” or “Service” refers to the specific Moxley Data Inc’s internet-accessible service offered to the Customer under this agreement.

“Group Website” refers to the Customer’s website that hosted by GroupFlow.

“Subscription Term” shall mean that period specified in a Schedule during which Customer will have online access and use of Moxley Data Inc’s GroupFlow Service. The Subscription Term shall renew for successive 12-month periods unless either party delivers written notice of non-renewal to the other party at least 30 days prior to the expiration of the then-current Subscription Term.

“One Time Setup” shall mean work performed by Moxley Data to set up GroupFlow Service for a new Customer.

2. GroupFlow Services

2.1 During the Subscription Term, Customer will receive a nonexclusive, non-assignable, royalty free, worldwide right to access and use GroupFlow solely for its business operations subject to the terms of this Agreement and up to the number of Members documented in the Schedule.

3. Restrictions

Customer shall not, and shall not permit anyone to: (i) copy, republish remove, modify or obscure GroupFlow or Software and any copyright, trademark or other proprietary notices contained in the software used to provide GroupFlow, (ii) use or access GroupFlow to provide service bureau, time-sharing or other computer hosting services to third parties, (iii) create derivative works based upon GroupFlow, (iv) use the source code of GroupFlow in order to build a similar product or competitive product. Subject to the limited licenses granted herein, Moxley Data shall own all right, title and interest in and to the Software, and other deliverables provided under this Service Agreement, including all modifications, improvements, upgrades, derivative works and feedback related thereto and intellectual property rights therein. Customer agrees to assign all right, title and interest it may have in the foregoing to Moxley Data.

4. Customer Responsibilities

4.1 Assistance. In the case of a One Time Setup, Customer shall provide commercially reasonable information and assistance to Moxley Data to enable Moxley Data to deliver GroupFlow. Upon request from Moxley Data, Customer shall promptly deliver Group Content to Moxley Data in an electronic file format specified and accessible by Moxley Data.

4.2 Compliance with Laws. Customer shall comply with all applicable local, state, national and foreign laws in connection with its use of GroupFlow, including those laws related to data privacy, international communications, and the transmission of technical or personal data.

4.3 Customer Input. Customer is solely responsible for collecting, inputting and updating all Group Content stored in GroupFlow, and for ensuring that the Group Content does not (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or (ii) contain anything that is defamatory, harassing, or malicious. Customer shall: (i) notify Moxley Data immediately of any unauthorized use of any password or user ID or any other known or suspected breach of security, (ii) report to Moxley Data immediately and use reasonable efforts to stop any unauthorized use of the Service that is known or suspected by Customer or any Group Member, and (iii) not provide false identity information to gain access to or use the Service.

4.4 License from Customer. Subject to the terms and conditions of this Service Agreement, Customer shall grant to Moxley Data a limited, non-exclusive and non-transferable license, to copy, store, configure, perform, display and transmit Group Content solely as necessary to provide GroupFlow to Customer.

4.5 Ownership and Restrictions. Customer retains ownership and intellectual property rights in and to its Group Content. Moxley Data or its licensors retain all ownership and intellectual property rights to the Service and anything developed and delivered under the Agreement.

4.6 Suggestions. Moxley Data shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into GroupFlow any suggestions, enhancement requests, recommendation or other feedback provided by Customer, including Members, relating to the operation of GroupFlow.

4.7 Import of Group Content. For new Groups added to GroupFlow, Moxley Data may work with Customer on a one-time basis, to import Group Content into GroupFlow, as described in Exhibit C.

5. ORDERS AND PAYMENT

5.1 Orders. Customer shall order GroupFlow pursuant to a Schedule.

5.2 Invoicing and Payment. Unless otherwise provided in the Schedule, Moxley Data shall invoice Customer for all fees on the Schedule effective date. Customer shall pay all undisputed invoices within 30 days after Customer receives the invoice. Except as expressly provided otherwise, fees are non-refundable. All fees are stated in United States Dollars, and must be paid by Customer to Moxley Data in United States Dollars.

5.3 Taxes. When applicable, Moxley Data shall bill Customer for applicable taxes as a separate line item on each invoice. Customer shall be responsible for payment of all sales and use taxes, value added taxes (VAT), or similar charges relating to Customer’s purchase and use of the services. Customer shall not be liable for taxes based on Moxley Data’s net income, capital or corporate franchise.

6. TERM AND TERMINATION

6.1 Term of Service Agreement. The term of this Service Agreement shall begin on the Effective Date and shall continue until terminated by either party as outlined in this Section.

6.2 Termination. Either party may terminate this Service Agreement immediately upon a material breach by the other party that has not been cured within thirty (30) days after receipt of notice of such breach.

6.3 Suspension for Non-Payment. Moxley Data reserves the right to suspend delivery of GroupFlow if Customer fails to timely pay any undisputed amounts due to Moxley Data under this Service Agreement, but only after Moxley Data notifies Customer of such failure and such failure continues for fifteen (15) days.

6.4 Suspension for Ongoing Harm. Moxley Data reserves the right to suspend delivery of GroupFlow if Moxley Data reasonably concludes that Customer or a Customer Group Members use of GroupFlow is causing immediate and ongoing harm to Moxley Data or others. Nothing in this Section 6.4 will limit Moxley Data’s rights under Section 6.5 below.

6.5 Effect of Termination.

(a) Upon termination of this Service Agreement or expiration of the Subscription Term, Moxley Data shall immediately cease providing GroupFlow and all usage rights granted under this Service Agreement shall terminate.

(b) If Moxley Data terminates this Service Agreement due to a breach by Customer, then Customer shall immediately pay to Moxley Data all amounts then due under this Service Agreement and to become due during the remaining term of this Service Agreement, but for such termination. If Customer terminates this Service Agreement due to a breach by Moxley Data, then Moxley Data shall immediately repay to Customer all pre-paid amounts for any unperformed GroupFlow scheduled to be delivered after the termination date.

(c) Upon termination of this Service Agreement and upon subsequent written request by the disclosing party, the receiving party of tangible Confidential Information shall immediately return such information or destroy such information and provide written certification of such destruction, provided that the receiving party may permit its legal counsel to retain one archival copy of such information in the event of a subsequent dispute between the parties.

7. WARRANTIES

7.1 Warranty. Moxley Data represents and warrants that it will provide GroupFlow in a professional manner consistent with general industry standards and that GroupFlow will perform substantially. For any beach of a warranty, Customer’s exclusive remedy shall be as provided in Section 6, Term and Termination.

7.2 Moxley Data warrants that GroupFlow services will perform in all material respects. Moxley Data does not guarantee that GroupFlow services will be performed error-free or uninterrupted, or that Moxley Data will correct all GroupFlow services errors.

8. LIMITATIONS OF LIABILITY

NEITHER PARTY (NOR ANY LICENSOR OR OTHER SUPPLIER OF MOXLEY DATA) SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, DATA OR USE OF ANY SERVICE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS SERVICE AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS SERVICE AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, SHALL EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS SERVICE AGREEMENT DURING THE 12 MONTHS PRECEDING THE DATE THE CLAIM AROSE. The foregoing limitations shall not apply to the parties’ obligations (or any breach thereof) under Sections entitled “Restrictions”, “Indemnification”, or “Confidentiality”.

9. INDEMNIFICATION

9.1 Indemnification by Moxley Data. If a third party makes a claim against Customer that GroupFlow infringes any patent, copyright or trademark, or misappropriates any trade secret, or that Moxley Data’s negligence or willful misconduct has caused bodily injury or death, Moxley Data shall defend Customer and its directors, officers and employees against the claim at Moxley Data’s expense and Moxley Data shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Moxley Data, to the extent arising from the claim. Moxley Data shall have no liability for any claim based on (a) the Group Content, (b) modification of GroupFlow not authorized by Moxley Data, or (c) use of GroupFlow other than in accordance with his Service Agreement. Moxley Data may, at its sole option and expense, procure for Customer the right to continue use of GroupFlow, modify GroupFlow in a manner that does not materially impair the functionality, or terminate the Subscription Term and repay to Customer any amount paid by Customer with respect to the Subscription Term following the termination date.

9.2 Indemnification by Customer. If a third party makes a claim against Moxley Data that the Group Content infringes any patent, copyright or trademark, or misappropriates any trade secret, Customer shall defend Moxley Data and its directors, officers and employees against the claim at Customer’s expense and Customer shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Customer, to the extent arising from the claim.

9.3 Conditions for Indemnification. A party seeking indemnification under this section shall (a) promptly notify the other party of the claim, (b) give the other party sole control of the defense and settlement of the claim, and (c) provide, at the other party’s expense for out-of-pocket expenses, the assistance, information and authority reasonably requested by the other party in the defense and settlement of the claim.

10. CONFIDENTIALITY

10.1 Definition. “Confidential Information” means any information disclosed by a party to the other party, directly or indirectly, which, (a) if in written, graphic, machine-readable or other tangible form, is marked as “confidential” or “proprietary,” (b) if disclosed orally or by demonstration, is identified at the time of initial disclosure as confidential and is confirmed in writing to the receiving party to be “confidential” or “proprietary” within 30 days of such disclosure, (c) is specifically deemed to be confidential by the terms of this Service Agreement, or (d) reasonably appears to be confidential or proprietary because of the circumstances of disclosure and the nature of the information itself. Confidential Information will also include information disclosed by third parties to a disclosing party under an obligation of confidentiality.

10.2 Confidentiality. During the term of this Service Agreement and for 5 years thereafter (perpetually in the case of software), each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Service Agreement, and shall not disclose such Confidential Information to any third party.

11. GENERAL PROVISIONS

11.1 Non-Exclusive Service. Customer acknowledges that GroupFlow is provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict Moxley Data’s ability to provide GroupFlow or other technology, including any features or functionality first developed for Customer, to other parties.

11.2 Personal Data. Customer hereby acknowledges and agrees that Moxley Data’s performance of this Service Agreement may require Moxley Data to process, transmit and/or store Customer personal data or the personal data of Customer’s Group’s Members and Affiliates. By submitting personal data to Moxley Data, Customer agrees that Moxley Data and its Affiliates may process, transmit and/or store personal data only to the extent necessary for, and for the sole purpose of, enabling Moxley Data to perform its obligations under this Service Agreement. In relation to all Personal Data provided by or through Customer to Moxley Data, Customer will be responsible as sole Data Controller for complying with all applicable data protection or similar laws such as EU Directive 95/46/EC and laws implementing that Directive that regulate the processing of Personal Data and special categories of data as such terms are defined in that Directive. Customer agrees to obtain all necessary consents and make all necessary disclosures before including Personal Data in Group Content and using GroupFlow. Customer confirms that Customer is solely responsible for any Personal Data that may be contained in Group Content, including any information which any GroupFlow User shares with third parties on Customer’s behalf. Customer is solely responsible for determining the purposes and means of processing Group Personal Data by Moxley Data under this Agreement, including that such processing according to Customer’s instructions will not place Moxley Data in breach of applicable data protection laws. Prior to processing, Customer will inform Moxley Data about any special categories of data contained within Customer Personal Data and any restrictions or special requirements in the processing of such special categories of data, including any cross border transfer restrictions. Customer is responsible for ensuring that GroupFlow meets such restrictions or special requirements. Moxley Data to process any Personal Data that meets the requirements set forth in this Section according to these Terms of Use.

11.3 Moxley Data Personal Data Obligations. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and retains ownership of all of Group Content. Customer retains the right to access data originated by its members, including event data. Moxley Data will provide such data upon request.

11.4 Waiver. No waiver shall be effective unless it is in writing and signed by the waiving party. The waiver by either party of any breach of this Service Agreement shall not constitute a waiver of any other or subsequent breach.

11.5 Governing Law. This Service Agreement shall be governed by the laws of the State of Oregon, excluding its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.

11.6 Publicity.

Moxley Data may include Customer’s name and logo in its customer lists and on its website. Upon signing, Moxley Data may issue a high-level press release announcing the relationship and the manner in which Customer will use GroupFlow. Moxley Data shall coordinate its efforts with appropriate communications personnel in Customer’s organization to secure approval of the press release if necessary. Moxley Data will include a small, branded message about GroupFlow at the web page end of every page on the Group Website. Customer must not remove or obscure the message.