1.2 The Services are provided by MoEngage, Inc. (“MoEngage”), a Delaware corporation.
1.3 Agreements entered into between MoEngage and its Developers, partners and vendors may provide for additional terms related to the treatment of certain information of end users and data generally by MoEngage.
USING OUR SERVICES
2.1 By using the Services, you agree to the terms of the TOU. Please read the TOU carefully. Do not use the Services if you do not agree to all of the terms of the TOU.
2.2 Subject to your remaining in full compliance with the TOU, MoEngage hereby grants to you a limited, non-exclusive, non-transferable, worldwide license, without the right to sublicense, solely for the purpose of enabling you to use and enjoy the benefit of Services as provided by MoEngage, in the manner permitted by the TOU. You may not copy, modify, distribute, sell, or lease any part of the Services or included software, nor may you reverse engineer or attempt to extract the source code of that software, unless prohibit those restrictions, or you have MoEngage’s written permission.
2.3 You shall not, and shall not permit any third party to:
(i)use the Services except to the extent permitted above;
(ii)modify or create any derivative work of any part of the Services;
(iii)permit any third parties to use the Services other than contractors with your specific business need; or
(iv)market, sublicense, publish, distribute, reproduce, assign, transfer, rent, lease or loan the Services.
2.4Use of the Services by children under the age of 13 is prohibited. By using the Services, you warrant that you are 13 years of age or older.
2.5Using the Services does not give you ownership of any intellectual property rights in the Services or the content you access. You may not use content from the Services unless you obtain permission from its owner or are otherwise permitted by law. The TOU does not grant you the right to use any branding or logos used in the Services. Do not remove, obscure, or alter any legal notices displayed in or along with the Services.
LICENSE TO MOENGAGE
3.1By using the Services, you grant MoEngage a limited, worldwide, non-transferable, non-exclusive, non-sub licensable, royalty-free license to use, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, archive, and make derivative works of your data solely in order to enable you to use the Services. MoEngage shall have the right to aggregate and anonymize your data and to publish such aggregated and anonymized (non-personally identifiable) data (or) benchmark studies. MoEngage shall have no right to use your data for any other purpose or share your data with anyone other than you.
3.2MoEngage may use your name in any of the customer lists and testimonials, solely for the purpose of identifying you as a customer of MoEngage.
MODIFICATION AND TERMINATION OF SERVICES
4.1MoEngage may, in its sole discretion, discontinue offering the Services or terminate or suspend your access to the Services at any time.
4.2MoEngage reserves the right to change or modify any of the terms of the TOU at any time, in its sole discretion, by posting changes at moengage.com/terms-of-use/ (or another URL that MoEngage may provide from time to time). You are responsible for regularly visiting the TOU to review any changes. Changes will not apply retroactively and will become effective no sooner than 14 days after they are posted. However, changes addressing new functions or changes made for legal reasons will be effective immediately. If you do not agree to the modified TOU, you should discontinue use of the Services.
THIRD PARTY SOFTWARE
5.1MoEngage makes no warranty of any kind to you or any third party with respect to any third party software used by you in conjunction with the Services. You are solely and exclusively responsible for all licenses and costs for all third-party software that you use. All integration and use of and problems caused by or resulting from your use of any third party software in conjunction with the Services is your sole and exclusive responsibility, and MoEngage shall have no responsibility or liability with respect thereto.
PROTECTION OF CUSTOMER DATA.
MoEngage shall maintain administrative, physical and technical safeguards designed to protect the confidentiality and integrity of your data. MoEngage will only access, use, process, modify, delete or disclose your data (a) to provide the Services, (b) to provide support services and prevent or address service or technical problems, (c) as compelled by law in accordance with the Confidentiality section below or as required under applicable law, (d) to send to users communications (i) about the Services, such as notice of scheduled maintenance, and (ii) of educational or informational nature to optimize their use of the Services, or (e) as expressly permitted in writing by customer. The parties agree to comply with the terms of the data processing addendum at http://moengage.com/dpa (“DPA”).
DISCLAIMER OF WARRANTIES
6.1Other than as expressly set forth in the TOU, the Services are provided “AS IS” and “AS AVAILABLE” and without warranty of any kind. You agree that your use of the Services is at your risk 6.2 MOENGAGE MAKES NO WARRANTIES OF ANY KIND TO YOU OR ANY THIRD PARTY WITH RESPECT TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OPERABILITY OR NONINFRINGEMENT, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED BY MOENGAGE AND WAIVED BY YOU. FOR EXAMPLE, WE DO NOT MAKE ANY COMMITMENTS ABOUT THE CONTENT WITHIN THE SERVICES, THE OPERATION OF THE SERVICES, THE OUTPUT OF THE SERVICES, OR THE RESULTS FROM THE SERVICES.
LIMITATION OF LIABILITY
7.1IN NO EVENT SHALL MOENGAGE, ITS AGENTS OR EMPLOYEES, HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR THE COST OF SUBSTITUTE GOODS OR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, LOSS OF DATA, LOSS OF USE, LOSS OF BUSINESS OPPORTUNITY OR CLAIMS OF THIRD PARTIES) RELATING TO THE SERVICES, HOWEVER CAUSED, WHETHER BY NEGLIGENCE OR OTHERWISE, REGARDLESS OF THE FORM OF ACTION AND REGARDLESS OF WHETHER MOENGAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.1You and any business or third party subject to the TOU through your use shall fully indemnify, hold harmless and defend (collectively “indemnify” and “indemnification”) MoEngage and its directors, officers, employees, agents, stockholders and affiliates (collectively, “indemnified parties”) from and against all claims, demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs and expenses (including but not limited to reasonable attorney’s fees and costs), whether or not involving a third party claim, which arise out of or relate to
(i)any violation of the TOU or Privacy
(ii)your use of the Services, including the use of any other application, software or hardware in conjunction with the Service
(iii)the unauthorized use of the Services.
Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party”), constitute the confidential property of the Disclosing Party, (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any MoEngage technology, performance information relating to the Services, and the terms and conditions herein shall be deemed Confidential Information of MoEngage without any marking or further designation. Except as expressly authorized herein, the Receiving Party shall
(1)Hold in confidence and not disclose any Confidential Information to third parties and
(2)not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section. The Receiving Party’s confidentiality obligations shall not apply to information that the Receiving Party can document: (i)was rightfully in its possession or known to it prior to receipt of the Confidential Information;(ii)is or has become public knowledge through no fault of the Receiving Party;(iii)is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or(iv)is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
9.1The TOU controls the relationship between MoEngage and you. They do not create any third party beneficiary rights
9.2If there is a conflict between the TOU and additional terms, the additional terms will control for that conflict
9.3If you do not comply with the TOU and MoEngage does not take action right away, MoEngage is not giving up any rights that MoEngage may have (such as taking action in the future).
9.4If it turns out that a particular term of the TOU is not enforceable, this will not affect any other terms of the TOU.
9.5The the laws of the state of California, excluding California’s conflicts or choice of laws rules, will apply to any disputes arising out of or relating to the TOU. All claims arising out of or relating to the TOU of the Services shall be litigated exclusively in federal courts of Santa Clara County, California, and you and MoEngage consent to personal jurisdiction in those courts.