Terms of Service
Last updated October 3, 2023
Current Key Business Terms (as further detailed below):
Scope Of Services: Mogul’s Services provide users with a singular platform to observe, organize, consolidate, track and manage different revenue streams tied to the user’s creative works as well as to provide recommendations about how to collect more revenue tied to those works.
License to Mogul: In order to provide you with the Services, you agree to grant Mogul access to your Royalty Platforms, including, without limitation, access to all associated login information or to individual uploads of earnings and catalog files which you may upload into our Services dashboard.
Additional Users: You may invite third parties, such as business managers, to access your User Account.
Term: You may cancel the Services at any time; provided, however if you have purchased a Paid Subscription, no refunds will be issued (unless required by law).
Fees: You may sign up for an Unpaid Subscription, but you will be subject to certain usage limitations which limitations can be removed by converting to one of our Paid Subscriptions. Our Services plans can be found here [HYPERLINK].
1. Introduction
These terms of service are a legal agreement between Mogul Services Inc., its affiliates and any of our or their respective successors or assigns (collectively, “Mogul” “our,” “we” or “us”), and you regarding your use of Mogul’s website(s) and/or any of its affiliated web applications, [mobile applications], professional services, customer support, data analytics, and other support services (collectively, the “Services”). The Services are offered to you by Mogul and its development and technology partners, suppliers, service providers, licensors and licensees (collectively, “Third Party Providers”) who may assist in the development, hosting, operation, distribution, marketing, publication or exploitation of the Services. Your access to and the use of the Services is contingent upon your acceptance of the terms, conditions, policies and notices contained herein (this “Agreement” or “Terms of Service”).
Your access to and use of the Services constitutes your acceptance, without modification, of this Agreement and our Privacy Policy, which you can view here: https://www.usemogul.com/privacy-policy and which is incorporated herein by reference. These Terms of Service apply whether you have a User Account or are an unregistered user. You agree that by clicking “Sign Up” or otherwise registering, downloading, accessing, or using the Services, you are entering into a legally binding agreement between you and Mogul regarding your use of the Services. You acknowledge that you have read, understood, and agree to be bound by these Terms of Service. If you do not agree to these Terms of Service, do not access or otherwise use any of the Services. If you do not agree to be bound by this Agreement or the Privacy Policy, then you are not permitted to register for access or use of the Services and are not to use or access the Services.
Please note that the services we provide to the developers for building on our Service may be subject to supplemental terms. Further, as detailed in Section 4 (Subscriptions; Billing), if you have selected to be a part of Mogul’s “Revenue Recovery” Services (which shall be included as Services hereunder), you must agree to the Revenue Recovery Terms [HYPERLINK] which are a made a part of and subject to these Terms of Service.
We reserve the right to modify these Terms of Service. We will post the most current version of these Terms of Service at https://www.usemogul.com/terms. If we make material changes to these Terms of Service, we will notify you via the Services and/or by email to the address associated with your User Account. If you do not accept the changes, you must stop using and cancel your account by emailing us at support@usemogul.com. Your continued use of our Services after we publish or send a notice about our changes to these Terms of Service means that you are consenting to the updated term(s).
When opening a User Account (defined below) with us on behalf of a company, entity, or organization (collectively, “Subscribing Organization”), or on behalf of a client that you represent in a professional capacity (“Client”), whether as an agent, business manager or otherwise, you represent and warrant that you: (i) are an authorized representative of that Subscribing Organization and Client with the authority to bind that Subscribing Organization and Client to these Terms of Service and grant the licenses set forth herein; and (ii) agree to these Terms of Service on behalf of such Subscribing Organization and Client.
PLEASE NOTE: SECTION 12, WHICH CONTAINS JURISDICTION-SPECIFIC PROVISIONS, SPECIFIES HOW WE RESOLVE DISPUTES AND CONTAINS AN ARBITRATION AGREEMENT. THIS ARBITRATION AGREEMENT, WITH LIMITED EXCEPTION, REQUIRES YOU TO SUBMIT DISPUTES AND CLAIMS YOU HAVE AGAINST MOGUL TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS. PLEASE READ IT CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING, IF APPLICABLE, YOUR RIGHT TO OPT OUT OF ARBITRATION. BY ACKNOWLEDGING THE TERMS OF SERVICE AND/OR USING THE SERVICES, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE, WITHOUT LIMITATION OR QUALIFICATION, TO BE BOUND BY THIS AGREEMENT, INCLUDING THE DISPUTE RESOLUTION AND ARBITRATION PROVISIONS AND YOU ACCEPT ALL OF ITS TERMS.
BY DOWNLOADING, INSTALLING, OR OTHERWISE USING THE SERVICES, YOU REPRESENT THAT YOU ARE AT LEAST 13 YEARS OF AGE, THAT YOUR PARENT OR LEGAL GUARDIAN AGREES TO BE BOUND BY THESE TERMS OF SERVICE IF YOU ARE BETWEEN 13 AND THE AGE OF LEGAL MAJORITY IN YOUR JURISDICTION OF RESIDENCE, AND THAT YOU HAVE NOT BEEN PREVIOUSLY REMOVED FROM AND ARE NOT PROHIBITED FROM RECEIVING THE SERVICES.
2. Services Overview; Analytics
Mogul’s Services provide users with a singular platform to observe, organize, consolidate, track and manage different revenue streams tied to a user’s creative works.
In connection with your use of the Services and as part of the functionality of the Services as applicable, you may be able to link and connect the Services to certain third party platforms or services, including, without limitation websites, tools, applications, dashboards and portals (each, a “Royalty Platform” and collectively “Royalty Platforms”), that may be made available to you by record labels/digital distributors, music publishers, performing rights societies, neighboring rights societies, and any other organizations in the business of remitting royalties to creators and/or rightsholders (each, a “Royalty Payor”).
You understand and agree that Mogul has no control over the provision of the Royalty Platforms or provision of access to the Royalty Platforms by the applicable Royalty Payor. Mogul does not in any way guarantee the Royalty Platforms or any information contained thereon. You understand and agree that you may be able to use the Services in conjunction with the Royalty Platforms, and that Mogul disclaims any and all liability whatsoever for any actions or inactions on the part of the Royalty Payors resulting in any inability to use the Services to access accounts, obtain data, download transactions, or otherwise use or access the Royalty Platforms.
You acknowledge and agree when you access data and information through the Services, Royalty Platform account access number(s), password(s), security question(s) and answer(s), account number(s), login information, and any other security or access information (collectively, “Platform Access Information”), and the actual data in your user account(s) with such Royalty Platforms, including, without limitation account balances and revenue streams, as may be applicable (collectively, "Analytics"), may be collected and stored in the Services. You expressly authorize Mogul and our Third Party Providers, in conjunction with the operation and hosting of the Services, to use the Platform Access Information to (i) collect, store display and utilize the Analytics in furtherance of the Services, (ii) reformat and manipulate the Analytics, (iii) access the Royalty Platforms, (iv) update and maintain Platform Access Information, (v) update or make changes to the Royalty Platform, including the registration of metadata, and (vi) take such other actions as are reasonably necessary to perform the actions described in (i) through (v) above. In accessing and using the Services you represent that you are the legal owner of the Platform Access Information and the related Royalty Platform account and that you have the authority to appoint, and do expressly appoint, Mogul or our Third Party Providers as your agent with limited power of attorney to access and retrieve Analytics on your behalf as well as to make changes to the Royalty Platform account in furtherance of this Agreement, including, without limitation, to register metadata for the creative works tracked by such Royalty Platform. You agree that we and our Third Party Providers are not responsible for the accuracy and completeness of the Platform Access Information or the Analytics. Any transactions or informational activities performed on any of the Royalty Platforms are not made through the Services and Mogul assumes no responsibility for such transactions or activities. You acknowledge that you are solely responsible for any charges associated with all Royalty Platforms.
You further acknowledge and agree that (x) some Royalty Platforms may not allow the Services to access such services, (y) Royalty Payor’s may make changes to their Royalty Platforms, with or without notice to Mogul, that may prevent or delay aggregation of the Analytics, and (z) the Services may "refresh" the Analytics by collecting the Analytics at set times, so your most recent transactions may not be reflected in any account balances or other account information presented to you in the Services. In the event that you see a discrepancy in the Analytics, and in any case before making any transactions or decisions based on such account information presented in the Services, you agree to check the last refresh date for the account and confirm with that applicable Analytics presented by the Services is correct or otherwise confirm with the Royalty Platform that the Analytics are up to date and accurate.
You acknowledge that the Analytics are not so-called “private information” or confidential as between you and any Royalty Payor. To the extent you have executed a non-disclosure, confidentiality, or other similar agreement with a Royalty Payor in regard to Analytics, and such terms conflict with these Terms of Service, the terms and conditions of this paragraph shall apply to the extent of the conflict.
In certain instances, it may be necessary for Mogul, upon prior notice to you, to establish an account on your behalf directly with a Royalty Platform and you hereby grant us the right, in our discretion, to establish, control, and maintain an account directly with any such Royalty Platform in our name for the purpose of accessing the Analytics.
Notwithstanding anything herein to the contrary, Mogul shall have the right to collect, download and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies, including, without limitation, information concerning the Analytics and data derived therefrom (collectively, “Services Data”). Mogul will be free to use the Service data: to improve and enhance the Services, (b) for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings and (c) to disclose such Services Data solely in aggregate or other de-identified form.
3. User Accounts
In order to access portions of the Services, you must register with us and create an account (“User Account”). To establish a User Account, you may be required to provide Mogul with certain personal information, including without limitation, your first and last name, date of birth, e-mail address, username, phone number, and Platform Access Information. You agree that you will supply accurate information, and that you will update that information promptly if it changes. Mogul reserves all right to pursue legal action against all persons who misrepresent personal information or who are otherwise untruthful about their identity, and to suspend or cancel User Accounts registered with inaccurate or incomplete information. Multiple accounts may not be created sharing the same name, email, credit card or payment processing account(s). You are solely responsible for maintaining the confidentiality of your User Account, your password and for restricting access to your computer.
You may be able to share access to your User Account with third parties, including business managers and accountants (each an “Additional User”). If you send an Additional User an invite to join your User Account, you represent and warrant that you have permission to use their email for such purpose. You may be able to provide such Additional User with various account level access, including, by way of example “Read Only” or “Editing” access and may change that access at any time via your User Account settings or by contacting us at support@usemogul.com. All Additional Users will need to separately agree to these Terms of Service. If you permit others to use your User Account credentials, or permit any Additional Users, you understand and agree that you are responsible for all activities that occur under your User Account or password.
Unless expressly permitted in writing by Mogul and except for Additional Users, you may not sell, rent, lease, share, or provide access to your account to anyone else, including without limitation, charging anyone for access to administrative rights on your account. Mogul reserves all available legal rights and remedies to prevent unauthorized use of the Services, including, but not limited to, technological barriers, IP mapping, and, in serious cases, directly contacting your Internet Service Provider (ISP) regarding such unauthorized use. YOU AGREE THAT YOU HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN YOUR USER ACCOUNT, AND THAT ALL RIGHTS IN AND TO THE USER ACCOUNTS ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF MOGUL.
By creating a User Account or signing up for Services, including as an Additional User under an existing User Account, you understand and consent to us sending you (including but not limited to via email, SMS text messaging, and/or in-app messaging) information regarding the Services, such as: (a) notices about your use of the Services, including notices of violations of use; (b) updates to the Services and new features or products; (c) administrative messages and other information; and (d) advertising, marketing, and other materials regarding Mogul's products and services. Please review your settings in your User Account to control the service notifications you receive from us. You may unsubscribe from commercial content at any time by emailing us at support@usemogul.com.
4. Subscriptions; Billing
Mogul offers both free and paid Services. If you are using a free version of the Services (“Unpaid Subscription”) you will be subject to certain data and use limits as detailed on our subscriptions page https://www.usemogul.com/pricing.
If you choose to subscribe to a paid version of the Services (each, a “Paid Subscription”), you agree to pay the fees ("Fees") as displayed on our subscriptions page [HYPERLINK] as agreed upon by you when you purchase the Paid Subscription. We may calculate taxes payable by you based on the billing information that you provide us at the time of purchase. You are responsible for all charges related to using the Paid Subscription (for example, data charges and currency exchange settlements). All Fees shall be paid in US Dollars.
The subscription period for an annual Paid Subscription plan ("Annual Subscription Plan") will be for one year and will automatically renew (without the need to go through the Services-interface "check-out" or execute a renewal Order Form) for additional periods equal to one (1) year each year on the anniversary of the purchase, unless you cancel at least three (3) business days prior to your renewal date. You will be billed annually on or about the same day each year until such time that you cancel. Note that under the Annual Subscription Plan you will not be permitted to cancel or downgrade the Paid Subscription you have selected until the anniversary date.
Mogul reserves the right to change its prices at any time, however, if we have offered a specific duration and Fee for your use of a Paid Subscription, we agree that the Fee will remain in force for that duration. Upon renewal, your use of the Services will be charged at the then-current Fee(s). If you don't agree to these changes, you must stop using the Services and cancel via email to support@usemogul.com (with cancellation confirmation from a Mogul representative) or via the cancellation prompts built into the Services. If you cancel, your Service ends at the end of your current Service period or payment period, and no refunds for previously paid services will be issued.
You elect to have Mogul act as your representative and agent in the collection of payments from various collective management organizations and other third party payors by enrolling in our Revenue Recovery Services.
If you select a Paid Subscription or enroll in our Revenue Recovery Services, you must provide our Third Party Provider for payment services (e.g. Stripe) with current, complete, accurate and authorized payment method information (e.g. credit card information). You authorize us via our Third Party Provider to charge your provided payment method for the Services you have selected and for any paid feature(s) that you choose or do credit your account, as applicable. If you do not cancel your account, we may automatically renew your Service(s) and charge you for any renewal term. You understand that failure to pay any charges or fees may result in the suspension or cancellation of your Services.
5. Services License
The Services are owned and operated by Mogul. Unless otherwise indicated, all content, information, and other materials on the Services (excluding Analytics), including, without limitation, Mogul’s trademarks and logos, the visual interfaces, graphics, design, compilation, information, software, computer code (including source code or object code), services, text, pictures, information, data, sound files, other files, and the selection and arrangement thereof (collectively, the “Materials”) are protected by relevant intellectual property and proprietary rights and laws and are the property of Mogul or its subsidiaries or affiliated companies and/or third-party licensors. Unless otherwise expressly stated in writing by Mogul, by agreeing to these Terms of Service you are granted a limited, non-sublicensable license (i.e., a personal and limited right) to access and use the Services for your personal use or internal business use only. Mogul reserves all rights not expressly granted in these Terms of Service.
The Mogul logos, and any other product or service name, logo, or slogan used by Mogul, and the look and feel of the Services, including all page headers, custom graphics, button icons, and scripts, are trademarks or trade dress of Mogul, and may not be used in whole or in part in connection with any product or service that is not Mogul’s, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Mogul, without our prior written permission.
All other trademarks referenced in the Services are the property of their respective owners. Reference on the Services to any products, services, processes, or other information by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof by us or any other affiliation.
6. Idea Submission
If you send us creative suggestions, ideas, notes, drawings, concepts, or other information (collectively the “Submissions”) such Submissions shall be deemed and shall remain the property of Mogul in perpetuity. By making any Submission, the sender automatically grants, or warrants that the owner of such material expressly grants, Mogul the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, and distribute such material (in whole or in part) throughout the universe and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for any purpose that Mogul chooses, whether internal, public, commercial, or otherwise, without any compensation, credit or notice to the sender whatsoever. The sender waives all so-called “moral rights” in all Submissions. The sender further waives the right to make any claims against Mogul relating to unsolicited Submissions, including, but not limited to, unfair competition, breach of implied contract and/or breach of confidentiality.
7. Prohibited Conduct
YOU AGREE NOT TO violate any law, contract, intellectual property, or other third-party right; not to commit a tort, and that you are solely responsible for your conduct while on the Services.
You agree that you will comply with these Terms of Service and will not:
- create, upload, transmit, distribute, or store any content that is inaccurate, unlawful, infringing, defamatory, obscene, pornographic, invasive of privacy or publicity rights, harassing, threatening, abusive, inflammatory, or otherwise objectionable;
- impersonate any person or entity; falsely claim an affiliation with any person or entity; access the User Accounts of others without permission; forge another person’s digital signature; misrepresent the source, identity, or content of information transmitted via the Services; or perform any other similar fraudulent activity;
- delete, remove, circumvent, disable, damage, or otherwise interfere with (i) security-related features of the Services, (ii) features that prevent or restrict use or copying of any content accessible through the Services, (iii) features that enforce limitations on the use of the Services, or (iv) the copyright or other proprietary rights notices on the Services;
- reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Services or any part thereof, except and only to the extent that this activity is expressly permitted by the law of your jurisdiction of residence;
- modify, adapt, translate, or create derivative works based upon the Services or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
- interfere with or damage the operation of the Services or any user’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code;
- interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies, or regulations of networks connected to the Services;
- use the Services for any illegal purpose, or in violation of any local, state, national, or international law or regulation, including without limitation laws governing intellectual property and other proprietary rights, data protection, and privacy; and
- use the Services for comparative analysis or to build a competing service.
8. Termination
Subject to Section of these Terms and Conditions, you may terminate the Services and your User Account by sending an email to support@usemogul.com or by following the prompts for termination within the Services.
To the fullest extent permitted by applicable law, Mogul reserves the right, without notice and in our sole discretion, to terminate your license to use the Services and to block or prevent your future access to and use of the Services, including where we reasonably consider that: (i) your use of the Services violates these Terms of Service or applicable law; (ii) you fraudulently use or misuse the Services; or (iii) we are unable to continue providing the Services to you due to technical or legitimate business reasons. Our right to terminate your license includes the ability to terminate or to suspend your access to the Services under any Paid Subscriptions. To the fullest extent permitted by applicable law, your only remedy with respect to any dissatisfaction with: (a) the Services, (b) any term of these Terms of Service, (c) any policy or practice of Mogul in operating the Services, or (d) any content or information transmitted through the Services, is to terminate your account and to discontinue use of any and all parts of the Services.
9. Indemnification
To the fullest extent permitted by applicable law, you agree to indemnify, defend, and hold harmless Mogul, its affiliated companies, and each of our respective Third Party Providers, contractors, employees, officers, directors, agents, third-party suppliers, licensors, and partners (individually and collectively, the “Indemnified Parties”) from any claims, losses, damages, demands, expenses, costs, and liabilities, including legal fees and expenses, arising out of or related to your access, use, or misuse of the Services, your violation of the rights of any third party, any violation by you of these Terms of Service, or any breach of the representations, warranties, and covenants made by you herein. You agree to promptly notify the Indemnified Parties of any third-party claim, and Mogul reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Mogul, and you agree to cooperate with Mogul’s defense of these claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
10. Disclaimers; No Warranties
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) THE SERVICES AND THE CONTENT AND MATERIALS CONTAINED THEREIN ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN WRITING BY MOGUL; (B) THE INDEMNIFIED PARTIES DISCLAIM ALL OTHER WARRANTIES, STATUTORY, EXPRESS, OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AS TO THE SERVICES, INCLUDING ANY INFORMATION, CONTENT, OR MATERIALS CONTAINED THEREIN; (C) MOGUL DOES NOT REPRESENT OR WARRANT THAT THE CONTENT OR MATERIALS ON THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE; (D) MOGUL IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO TEXT OR PHOTOGRAPHY; AND (E) MOGUL CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR OUR SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, AND THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MOGUL OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU ARE SOLELY RESPONSIBLE FOR ALL ACTIONS WHICH YOU TAKE BASED OFF OF THE INFORMATION OBTAINED FROM THE SERVICES.
11. Limitation of Liability and Damages
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (I) IN NO EVENT SHALL MOGUL OR THE INDEMNIFIED PARTIES BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE SERVICES, THE CONTENT OR THE MATERIALS, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM THE SERVICES, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO OUR RECORDS, PROGRAMS, OR SERVICES; AND (II) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF MOGUL, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE, OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY, OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS ($100 USD), WHICHEVER IS GREATER. TO THE EXTENT THAT APPLICABLE LAW PROHIBITS LIMITATION OF SUCH LIABILITY, MOGUL SHALL LIMIT ITS LIABILITY TO THE FULL EXTENT ALLOWED BY APPLICABLE LAW.
YOU ACKNOWLEDGE AND AGREE THAT MOGUL HAS OFFERED THE SERVICES, USER CONTENT, MATERIALS, AND OTHER CONTENT AND INFORMATION, SET ITS PRICES, AND ENTERED INTO THESE TERMS OF SERVICE IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND MOGUL, AND THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND MOGUL. MOGUL WOULD NOT BE ABLE TO PROVIDE THE SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
12. Applicable Law and Venue; Arbitration
PLEASE READ THE FOLLOWING CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH MOGUL AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM MOGUL.
To expedite resolution and control the cost of any dispute, controversy or claim related to these Terms of Service or the Privacy Policy (“Dispute”), you and Mogul agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days prior to initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one person or entity to the other in accordance with the Notice section below. Any dispute, claim or controversy arising out of or relating to these Terms of Service or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Los Angeles, California before one arbitrator. The arbitration shall be administered by JAMS pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment may be entered in any court having jurisdiction. Notwithstanding the foregoing, Mogul may seek (and obtain) injunctive or other equitable relief in any court of competent jurisdiction. Without limiting or waiving any right or remedy to which Mogul or its assigns may be entitled under these Terms of Service or applicable law, in the event of any actual or threatened breach of these Terms of Service by you or on your behalf, Mogul would be irreparably damaged if these Terms of Service were not specially enforced and, as such, you agree that Mogul shall be entitled, without the need to post bond or other security or provide proof of damages, to obtain injunctive relief or other equitable relief in any court of competent jurisdiction. You may not, in any circumstance, seek to enjoin or limit the availability of any of Mogul’s products or services. To the full extent permitted by law: (I) no arbitration shall be joined with any other; (II) there is no right or authority for any claim related to these Terms of Service or Mogul’s products or services to be arbitrated on a class action basis or to utilize class action procedures; and (III) there is no right or authority for any claim to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AND MOGUL AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Mogul agree otherwise, the arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of a representative or class proceeding.
THE PARTIES HEREBY WAIVE THEIR RIGHT TO JURY TRIAL WITH RESPECT TO ALL CLAIMS AND ISSUES ARISING UNDER, IN CONNECTION WITH, TOUCHING UPON OR RELATING TO THIS AGREEMENT, THE BREACH THEREOF AND/OR THE SCOPE OF THE PROVISIONS OF THIS SECTION, WHETHER SOUNDING IN CONTRACT OR TORT, AND INCLUDING ANY CLAIM FOR FRAUDULENT INDUCEMENT THEREOF. YOU UNDERSTAND THAT, ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
Except as expressly provided otherwise, this Agreement shall be governed by, and will be construed and enforced under, the laws, rules and regulations of the United States of America and the laws, rules and regulations of the State of California, excluding conflict of law rules and principles.
YOU AND MOGUL AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
13. Miscellaneous
i. Waiver
If we fail to exercise or enforce any right or provision of these Terms of Service, it will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms of Service will be effective only if in writing and signed by the relevant party.
ii. Severability
If any provision of these Terms of Service is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms of Service to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
iii. Notice
In accordance with provisions in this Agreement requiring Mogul to give notice to you, we will do so by means of a general notice on our website or electronic mail to your email address on record in your User Account (if you have created a User Account), the choice of which being at our discretion. Any provisions in this Agreement requiring you to give notice to Mogul can be done so by means of email to: support@usemogul.com by first class mail, postage prepaid, or overnight courier to:
Mogul Services Inc.
Attn: Support
9255 W Sunset Blvd #400
West Hollywood, CA 90069
iv. Assignment
These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Mogul without restriction. Any assignment attempted to be made in violation of this Terms of Service shall be void.
v. Survival
Upon termination of these Terms of Service, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 7-13.
vi. Entire Agreement
The Terms of Service is the entire agreement between you and Mogul relating to the subject matter herein and will not be modified except by a writing signed by authorized representatives of both parties, or by a change to these Terms of Service made by Mogul as set forth herein.
vii. Notices Regarding Apple and the App Store
With respect to any Mogul mobile application (“App”) accessed through or downloaded from the iOS App Store (“App Store”), you will only use such App (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system); and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
You acknowledge and agree that the availability of the App is dependent on the App Store. You acknowledge that these Terms of Service are between you and us and not with the App Store. Mogul, not the App Store, are solely responsible for the Services, including the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Services, including the App. You agree to comply with, and your license to use the App is conditioned upon your compliance with, all terms of agreement imposed by the applicable App Store when using the Service, including the App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of and will have the right to enforce these Terms of Service.
You acknowledge that these Terms of Service are between you and us only, not with Apple, and Apple is not responsible for the App or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the Services, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the App. Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that (i) you are 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. If we provide a translation of the English language version of these Terms of Service, the translation is provided solely for convenience, and the English version will prevail.
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