Terms of service
1. Acceptance of Terms
1.1 By accessing the MOODNUT Lda “MOODNUT” website located at http://www.moodnut.com and/or downloading the iPhone app located at https://itunes.apple.com/en/app/moodnut-customer-experience/id932146800?mt=8 and/or downloading the Android app located at https://play.google.com/store/apps/details?id=com.moodnut, the user “You” agree to be bound by these Terms Of Service (“TOS”).
1.2 You may access the Service as either an individual or on behalf of a company. If You are signing up for the Service on behalf of a company, You represent and warrant that You are duly authorized to represent the company and that You accept the TOS on behalf of the company.
1.3 The TOS may be revised or modified from time to time and all subscription renewals will be subject to the TOS in effect at the time of the renewal. Your invoice will indicate the TOS version number that applies to your order. You may review the most current version of the TOS at any time at: http://www.moodnut.com/terms.
2. License and Restrictions
2.1 For the Term set forth below and subject to these TOS, MOODNUT grants You a limited, non-transferable, non-exclusive right to access and use Our proprietary software products and related documentation (“Software”) found on the Service for Your internal business use only (collectively referred to as the “Service”).
2.2 Nothing contained in these TOS shall transfer or be deemed to transfer to You any rights in or to the Service other than those specifically stated herein. Nothing in these TOS obligates MOODNUT Lda to deliver or make available any copies of computer programs or code from the Software to You, whether in object code or source code form.
2.3 You will not (i) copy, reproduce, alter, modify, or create derivative works from the Service; (ii) rent, lease, distribute, or resell the Service, or use the Service as the basis for developing a competitive solution (or contract with a third party to do so); or (iii) remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Service. You will use the Service in compliance with all applicable local, state, national, and international laws, rules and regulations.
2.4 You will not nor will You authorize or encourage any third party to (i) use the Service to upload, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, abusive, fraudulent, obscene, contains viruses, or is otherwise objectionable as reasonably determined by MOODNUT; (ii) resell, duplicate, reproduce or exploit any part of the Service without Our express written permission; or (iii) use any robot, spider, other automated device, or manual process to monitor or copy any content from the Service.
2.5 The license granted to You includes basic support at no additional charge. Basic support includes commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for: (a) planned downtime (which MOODNUT shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 1:00 a.m. Monday Pacific Time), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, or denial of service attacks.
3. Data Security
3.1 MOODNUT shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your data. MOODNUT shall not disclose Your data except as compelled by law or as expressly permitted in writing by You, or access Your data except to provide the Service and prevent or address service or technical problems, or at Your request in connection with support matters.
3.1.1 You allow MOODNUT to use your data in anonymized format for improving our services.
3.2 In the event Moodnut discovers that the security of your data has been breached, Moodnut will promptly notify You of the nature and scope of such breach and will immediately initiate remedial actions consistent with industry standards.
4. Payment Terms
4.1 Monthly Terms: Your month-to-month Service subscription renews automatically each month until cancelled. MOODNUT will invoice you by email. Payments may be made by credit card or Pay Pal. If You do not pay the invoice within fourteen (14) days of receipt of the email, Your access to the Service may be suspended and You will need to contact MOODNUT in order to resume use. You may cancel your subscription at any time by emailing email@example.com. There will be no refunds or credits for termination of month to month subscriptions.
4.2 Annual Terms: Yearly subscription pricing requires a one year minimum commitment. If You cancel Your subscription, or Your subscription is suspended for non-payment, before the end of the first year commitment period, You will no longer qualify for yearly subscription pricing and You will be charged the difference between the monthly and yearly commitment pricing for the number of months Your subscription was active. Upon the anniversary of Your one-year subscription, Your subscription may be renewed for a subsequent one year period.
4.3 All payments are due within fourteen (14) days from the date of the invoice and should be paid by wire transfer using the bank information provided on the invoice, by credit card, or by PayPal.
4.4 All fees are exclusive of taxes or duties imposed by governing authorities. You are responsible for payment of all such taxes or duties.
4.5 MOODNUT may at any time, upon notice required by applicable law, change the price of Your subscription or any part thereof, or institute new charges or fees. Price changes and/or new charges implemented during Your one year subscription period will be effective as of the start of any renewal terms. If You do not agree to any such price changes, You must cancel your subscription and stop using the Service prior to the commencement of the renewal subscription period for which the price change applies.
5. Intellectual Property Rights
5.1 You acknowledge that MOODNUT owns all right, title and interest in and to the Software, Service and any modifications and enhancements thereof, including without limitation all intellectual property rights, and such rights are protected by U.S. and international intellectual property laws. MOODNUT also retains all right, title and interest to transactional and performance data related to use of the Service that MOODNUT may collect, use and disclose for our business purposes (including software use optimization and product marketing) provided that such use does not reveal any of Your Confidential Information.
5.2 You retain all right, title and interest to any and all information provided, input or uploaded to the Service by You, or by MOODNUT on Your behalf.
6. Acknowledgements and Disclaimer of Warranty
6.1 You accept and acknowledge that MOODNUT do not exercise any control over Your specific human resource practices implemented or Your decisions related to employment, promotion, advancement, termination or compensation of any employee when using the Software or the Service. You assume full responsibility for any and all decisions with respect to Your use of the Service and agree to use the Service at your own risk.
6.2 You further acknowledge that it is Your sole responsibility to monitor Your and Your employees’ compliance with all applicable laws when using the Service.
6.3 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. THE ENTIRE RISK ASSOCIATED WITH THE USE, PERFORMANCE AND RESULTS OF THE SERVICE RESIDES WITH YOU AND MOODNUT SPECIFICALLY DISCLAIMs ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE OR ANY HARMFUL DATA OR CODE UPLOADED TO THE SERVICE BY YOU, YOUR EMPLOYEES OR CONTRACTORS. MOODNUT DOES NOT WARRANT THAT OPERATION OF THE SERVICE IS ERROR-FREE OR THAT IT WILL BE UNINTERRUPTED.
7. Indemnification and Limitation of Liability
7.1 You agree to hold harmless and indemnify MOODNUT, and our affiliates, officers, agents, and employees from and against any third party claim arising from or in any way related to Your use of the Service, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. In such a case MOODNUT will provide you with written notice of such claim, suit or action.
7.2 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR REVENUES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA OR BREACH OF SECURITY WITH RESPECT TO YOUR DATA, LOSS OF BUSINESS INFORMATION AND OTHER PECUNIARY LOSS AND COSTS OR LEGAL EXPENSES) INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY, ARISING FROM OR RELATED TO THESE TERMS OF SERVICE, INCLUDING WITHOUT LIMITATION THE SERVICE, OR USE THEREOF, HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S TOTAL LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY CLAIM OR DAMAGES UNDER THESE TERMS SHALL NOT EXCEED THE AMOUNTS PAID TO MOODNUT DURING THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH CLAIM OR DAMAGES. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE FOREGOING IS A REASONABLE ALLOCATION OF RISK.
8. Term and Termination
8.1 The term of these TOS begins the day You first access the Service (“Effective Date”) and continues until all subscriptions granted in accordance with these TOS have expired or been terminated (the “Term”).
8.2 User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein.
8.3 You may cancel your subscription at any time by emailing firstname.lastname@example.org. Upon cancellation You will receive no refund and will be obligated to pay the fees till the end of the agreed subscription period.
8.4 Either party may terminate the TOS at any time in the event of a material breach by the other party that is not cured within thirty (30) days after receiving written notice of such breach. If these TOS are terminated due to your breach, you will receive no refund. If the cause of termination is our breach, You will receive a pro-rata refund of the fees paid calculated from the first day of the month after the termination takes effect.
8.5 Upon Your request made within thirty (30) days after the effective date of termination, MOODNUT will make a file of Your data in JSON format available to You for download. After such thirty day period, MOODNUT will have no obligation to maintain or provide any of Your data and shall thereafter, unless legally prohibited, delete all of Your data in Our systems or otherwise in Our possession or under Our control.
If You subscribe to the Service, You agree that MOODNUT may disclose the fact that You are Our customer. During the Term of this Agreement, and unless otherwise set forth, You grant Us the right to reference Your company name, along with Your logo, in marketing materials and on Our public web site until such time as Your use of the Service is discontinued.
10.1 Governing Law. These TOS are governed and construed under the laws of the United States of America without reference to its conflicts of laws principles. In no event shall these TOS be subject to the United Nations Convention on Contracts for the International Sale of Goods.
10.2 Arbitration. Any disputes that cannot be amicably resolved by the parties shall be resolved by final and binding arbitration before a single arbitrator under the rules of the International Arbitration Association. The arbitration will take place in Amsterdam, Netherlands. Arbitration costs and reasonable documented attorneys’ costs of both parties will be borne by the party that ultimately loses.
10.3 Assignment. Neither party shall assign this Agreement (or any of its rights hereunder), or delegate its obligations hereunder without the prior written consent of the other party. Any such assignment shall render this Agreement null and void.
10.4 Force Majeure. Under no circumstances shall MOODNUT be liable for failure to fulfill MOODNUT’s obligations under these TOS for delays in delivery due to acts of God, man-made or natural disasters, earthquakes, fire, riots, flood, material shortages, strikes, delays in transportation or inability to obtain labor or materials through its regular sources. The time for performance of any such obligation shall be extended for the time period lost by reason of the delay.
10.5 Severability. If any provision hereof should be held invalid, illegal or unenforceable in any jurisdiction, the parties shall negotiate in good faith a valid, legal and enforceable substitute provision that most nearly reflects the original intent of the parties and all other provisions hereof shall remain in full force and effect in such jurisdiction and shall be liberally construed in order to carry out the intentions of the parties hereto as nearly as may be possible. Such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of such provision in any other jurisdiction.
10.6 Entire Agreement. These TOS as amended from time to time including any schedules and exhibits attached hereto and any executed Order Forms comprise the entire agreement between MOODNUT with respect to the subject matter hereof and supersede all prior representations, agreements and understandings, written or oral.