TERMS AND CONDITIONS MX® E-SIGN Agreement and Disclosure and Terms and Conditions Updated November 8, 2016 Applicability of Consent The E-Sign Disclosure and Agreement applies only to software development and application programming interface materials and services provided through MX Technologies, Inc. (“MX”). Electronic Delivery of Disclosures and Notices By agreeing to the terms of this E-SIGN Disclosure and Agreement, you are consenting to receive electronic communication, including, but not limited to, disclosures, notices and terms and conditions related to the opening and use of and access to your MX and/or personal accounts via the MX Services, as defined below. Following the E-SIGN Disclosure and Agreement and demonstration of your ability to access the disclosures electronically, you will see eligible disclosures provided electronically.
Withdrawal of Electronic Acceptance of Disclosures and Notices You may withdraw your consent to receiving electronic disclosures or notices at any time by contacting MX Customer Service at firstname.lastname@example.org. Your withdrawal of consent will be effective after we have had a reasonable opportunity to act upon it. TERMINATION AND/OR WITHDRAWAL OF ELECTRONIC ACCEPTANCE WILL RESULT IN YOUR BEING UNABLE TO USE THE MX SERVICES Governing law The E-Sign Disclosure and Agreement is made in Utah and is subject to Utah law to the extent it is not inconsistent with federal law or regulation.
Acceptance or Decline By clicking “Accept” at the end of this entire disclosure (including this E-Sign Agreement and the Additional Terms and Conditions below), you are acknowledging the validity of electronic signature under the United States Electronic Signatures in Global and National Commerce (ESIGN) Act, and the Uniform Electronic Transactions Act (UETA) and are agreeing to receive disclosures electronically as stated in this E-Sign Disclosure and Agreement and you are agreeing to the following Additional Terms and Conditions listed below.
If you DO NOT want to consent to electronic delivery of disclosures, PLEASE EXIT THE APPLICATION NOW.
BY CLICKING TO ACCEPT OR AGREE TO THIS AGREEMENT, WHERE THIS OPTION IS MADE AVAILABLE TO YOU, OR BY USING ANY PART OF THE MX SERVICES, YOU EXPRESSLY (i) ACKNOWLEDGE THAT YOU HAVE READ ALL OF THESE TERMS AND CONDITIONS; (ii) AGREE AND CONSENT TO THIS AGREEMENT; (iii) REPRESENT AND WARRANT THAT YOU: (a) IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF AN ENTITY OR ANOTHER INDIVIDUAL, ARE AUTHORIZED TO BIND SUCH ENTITY OR SUCH INDIVIDUAL, AND (b) AGREE TO BE BOUND BY THIS AGREEMENT, INCLUDING THE DISCLAIMERS AND LIMITATIONS OF LIABILITY; AND (iv) AGREE TO BE LIABLE FOR ANY NONCOMPLIANCE SET FORTH HEREIN. IF YOU DO NOT AGREE TO ANY OF THE TERMS, DO NOT CLICK THE ACCEPTANCE BUTTON, IF APPLICABLE, AND DO NOT ACCESS OR USE THE MX SERVICES.
For purposes of this Agreement, capitalized terms shall have the meanings set forth below. “API” means any MX application programming interface and any accompanying or related documentation, source code, executable applications and other materials made available to you by MX, including, without limitation, through its developer website.
“Confidential Information” means all information disclosed by or on behalf of MX to Developer which is in tangible form and labeled confidential (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. Confidential Information may include, without limitation, proprietary information, technical data, trade secrets or know-how, including, but not limited to, source code, research, product plans, products, services, customers, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, pricing, security or other business information. For all purposes of this Agreement, the Services. Feedback and Service Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information (other than Service Data) that (a) was already known to Developer at the time of disclosure by or on behalf of MX without an obligation of confidentiality; (b) was or is obtained by Developer from a third party not known by Developer to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement; or (d) was or is independently developed by Developer without use of MX’s Confidential Information.
“Documentation” means any written or electronic documentation, images, video, text or sounds specifying the functionalities, limitations, or restrictions of or to the API or the Services as well as any other information made available by MX to you, or End-Users through the Services, www.MX.com/startups (the “Site”) or otherwise.
“End-User(s)” means each unique natural individual authorized and permitted access to the Services and/or Developer Application by Developer.
“Fees” means the fees payable by Developer for the use of and access to the Services (including data storage related costs) as further set forth herein and in accordance with the Pricing Schedule and any applicable Order Form.
“Intellectual Property Rights” means patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights.
“MX Services” means, individually and collectively, the applicable MX software, Updates, API, Modifications and Documentation that you have access to, have purchased or deployed or to which you have subscribed, whether made available to you on a trial or paid basis.
“MX Terms and Conditions” means the terms and conditions found at https://www.mx.com/hubfs/mx-terms-and-conditions which is incorporated into this Agreement, and which may be updated from time to time.
“Order Form” means any of our generated service order forms executed or approved by you with respect to your subscription to the Services, which form may specify, among other things, the number of End Users authorized to use the Services under your subscription to the Services and the Services Plan applicable to your subscription to the Services.
“Pricing Schedule” means the Fees and any pricing related terms and conditions posted on the Site, or otherwise made available to Developer, which is incorporated into this Agreement and which may be updated from time to time.
“Service Data” means data, including any login or other account configuration or usage data, stored or transmitted on or through the Services by or on behalf of Developer, its agents or End-User’s that Developer warrants, covenants and represents it has received specific authorization to access and use such data in connection with Developer’s Applications and the Services.).
“Services Plan” means applicable software and Services to which you have subscribed to pursuant to an Order Form.
“We,” “us,” “our,” or “MX” means MX Technologies, Inc. a Delaware corporation with its primary location at 3401 N Thanksgiving Way, Suite 500, Lehi, Utah 84043
2. PURPOSE AND LICENSE
2.1 Subject to the terms and conditions of this Agreement(and any other Documentation provided by MX, including the restrictions set forth in Section 3 and the timely payment of all Fees, as applicable), MX grants to Developer a limited, revocable, nonexclusive, non-assignable, non-transferable, non-sublicensable right to use the API solely as necessary for its internal business purposes to (a) make an application owned and operated by Developer (the “Developer Application”) that interfaces with the MX Services (collectively, the “Services”) in strict accordance with the terms of this Agreement, and (b) provide the Services to its End Users solely as part of the Developer Application. Developer shall not use the Services to conduct load, scalability or performance testing. Developer is limited to allowing access to the Services to up to one hundred (100) unique End Users during the Trial Term, Fees for the Paid Term will be on a per End User basis. The use of the Services is limited to the United States. The Services will also include certain online and email technical support to Developer.
2.2 In all instances where Developer permits access to the Services by customers, End Users or any other third parties, Developer agrees that it shall ensure compliance with the terms and conditions of this Agreement, and the MX Terms and Conditions by such third parties and End Users. Any act or omission relating to the Services by or through Developer’s account shall be deemed acts or omissions as though performed (or not) by Developer.
3. RESTRICTIONS AND RESPONSIBILITIES
3.1 Developer must comply with all restrictions set forth in this Agreement and as otherwise instructed by MX. If MX believes, in its sole discretion, that you (including any End User) have violated or attempted to violate any term, condition or the spirit of this Agreement, the license afforded pursuant to this Agreement may be temporarily or permanently revoked, with or without notice.
3.2 Developer must comply with the acceptable use of the Services which includes limiting background aggregation to update an account once every 24 hours and foreground aggregation to pull data only when a user is present. Activity outside of these bounds may be throttled or blocked to prevent issues with 3rd party aggregation providers and financial institutions. Frequent and abnormal aggregation activity is usually seen as potential fraud which triggers increased security, blocks individual users, and has the potential to completely sever an institution connection or partnership.
3.3 Developer Application shall not (i) access the Services in order to substantially replicate products or services offered by MX including the MX Services, (ii) display any form of advertising within or connected to any Service Data received by any End User that is not in strict conformance with applicable law. Developer may not (a) use or access the API or the Services in order to monitor the availability, performance, or functionality of any of the API or the Services or for any similar benchmarking purposes and may not make any representations related thereto, (b) perform any penetration or security testing of the Services, including but not limited to “ethical hacks.,” or (c) make representations, warranties or guarantees to End Users or any other third party with respect to MX, the specifications, features, performance or capabilities of MX, the API and/or the Services.
3.4 Developer shall not, under any circumstances, through the Developer Application or otherwise, repackage or resell the Services, or any part thereof, including the API or Service Data. Developer is not permitted to use the API, the Services or any Service Data in any manner that does or could potentially undermine the security of the Services, the API, Service Data or any other data or information stored or transmitted using the Services. In addition, Developer shall not, and shall not attempt to, interfere with, modify or disable any features, functionality or security controls of the Services or the API, defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms for the Services or the API, or reverse engineer, decompile, disassemble or derive source code, underlying ideas, algorithms, structure or organizational form from the Services or the API. Developer will respect and comply with the technical and policy implemented limitations of the API (including complying with any limitations or restrictions set forth in the Documentation), and the restrictions of this Agreement in designing and implementing the Developer Application. Without limiting the foregoing, Developer shall not violate any explicit rate limitations on calling or otherwise utilizing the API as may be further set forth in Documentation or determined by MX.
3.5 Developer acknowledges that Developer is solely responsible, and that MX has no responsibility or liability of any kind, for the content, development, operation, support or maintenance of the Developer Application. Without limiting the foregoing, Developer will be solely responsible for (i) the technical installation and operation of the Developer Application, (ii) creating and displaying information and content on, through or within the Developer Application, (iii) ensuring that the Developer Application does not violate or infringe the Intellectual Property Rights of any third party, (iv) ensuring that the Developer Application is not offensive, profane, obscene, libelous or otherwise illegal, (v) ensuring that the Developer Application does not contain or introduce malicious software into the Services, API, any Service Data or other data stored or transmitted using the Services, and (vi) ensuring that the Developer Application is not designed to or utilized for the purpose of spamming MX, End Users, or any third party.
3.6 Developer agrees to (i) provide true, accurate, current, and complete information about itself and its accounts maintained at other web sites, as requested in MX’s registration form and account setup process, (ii) not to misrepresent your identity or your account registration information. Failure to provide accurate and complete information during registration may prohibit the use of the Services, (iii) be responsible for maintaining the confidentiality of its passwords and accounts.
3.7 By using the Services, Developer authorizes MX to access third party sites it or its End Users designate. Such MX access is on Developer’s or its End User’s behalf in order to retrieve such requested information. Developer authorizes and permits MX to use information submitted into the Services (such as Service Data, account passwords and user names) to accomplish the foregoing and to configure the Services so that it is compatible with the third party sites for which such information is submitted. For all purposes hereof, Developer, for itself and for its End Users, grants MX a limited power of attorney, and appoints MX as its and its End User’s true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, for Developer and its End Users, and in its and their name, place and stead, in any and all capacities, to access third party sites, retrieve information, and use such information, all as described above, with the full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with such activities, as fully to all intents and purposes as Developer or the applicable End User might or could do in person. DEVELOPER ACKNOWLEDGES AND AGREES THAT WHEN MX IS ACCESSING AND RETRIEVING INFORMATION FROM THIRD PARTY SITES, MX IS ACTING AS DEVELOPER’S OR DEVELOPER’S END USER’S AGENT, AND NOT THE AGENT OR ON BEHALF OF THE THIRD PARTY.
3.8 It is the express intent of MX that no End User accesses the Services and/or Developer Application until he or she has agreed to minimum end user terms and conditions between the End User and Developer governing such End User’s use and access to the Services and/or Developer Application. Accordingly, Developer shall ensure that each End User, prior to having the ability to access or use the Services or Developer Application has agreed to and is bound by an end user license agreement (“EULA”) governing such End User’s use of the Services and Developer Application that includes terms at least as protective of MX as set forth in the MX Terms and Conditions. MX, as a provider of the Services, shall be entitled to the same liability restrictions and limitations and warranty disclaimers to which Developer is entitled under its agreement with such End Users. In its End User agreements, Developer shall (i) exclude all implied warranties, including without limitation for merchantability and fitness for a particular purpose, from applying to the Services, (ii) exclude consequential, special, indirect, incidental, punitive, exemplary and tort damages in connection with the Services, and (iii) include a quantified limitation of liability for direct damages in connection with the Services as further set forth herein.
3.9 Developer shall register and activate any End Users, as necessary, to access and make use of the Services and Developer Application, including but not limited to, any necessary pre-registrations, consents and authorizations from and notices to End Users. Developer shall further obtain any necessary consents or provide any necessary notices and disclosures to End Users in accordance with applicable law. Developer shall ensure that MX has no liability or further obligations relating to any availability, delays, inaccuracies or incomplete services caused by the failure of Developer or its third-party providers to properly or timely meet their obligations or requirements. Further, prior to providing MX access to any End User data including any Service Data, Developer shall ensure it has agreements in place with End Users allowing for MX to access and use such End Users’ data and Service Data, including aggregated data and nonpublic personal information solely as necessary for MX to provision the Services in accordance with the terms of this Agreement and the MX Terms and Conditions.
3.10 In order to better predict results for the Services availability (uptime), bandwidth (throughput), latency (delay), and error rates limitations apply to Developer’s usage. Developer’s allotted Atrium usage is (i) 100 records per call, and (ii) 100 calls per minute. Developer will receive 1 additional call per minute for every 100 End Users accessing the Services. Additionally, Developer may purchase a block of 100 calls per minute for $500.00/month.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS
4.1 To the extent the Developer Application transmits Service Data outside the Services, Developer represents and warrants that Developer has notified and obtained consent of all users of such applications, including End Users, that their Service Data will be transmitted as such and that MX is not responsible for the privacy, security or integrity of such Service Data. Developer shall maintain and handle all Service Data in accordance with privacy and security measures reasonably adequate to preserve the confidentiality and security of all Service Data and in accordance with all applicable laws and regulations, including all privacy and data protection laws, the Fair Credit Reporting Act and equivalent state laws, and all other laws, rules and regulations that are applicable to the Services, Service Data and/or Developer Application.
4.2 Developer represents, warrants and covenants that (i) Developer is at least 18 years old, a United States resident and legally capable to enter into contracts, (ii) the Developer Application and the use of such Developer Application by its users, including End Users, and the activities with respect to such Developer Application undertaken by MX in accordance with the terms of this Agreement, do not and will not violate, misappropriate or infringe upon the Intellectual Property Rights of any third party, (iii) Developer will comply with all applicable local, state, national and international laws and regulations, including, without limitation, all applicable export control laws, and maintain all licenses, permits and other permissions necessary to develop, implement and provision the Developer Application, (iv) the Developer Application nor the Services shall be used by Developer for any unlawful, harassing, libelous, invasion of another’s privacy, abusive, threatening, obscene, or infringe the rights of others, (v) the Developer Application does not and will not contain or introduce into the Services, API, any Service Data or other data stored or transmitted using the Services, any malicious software, (vi) Developer acknowledges and agrees to MX’s recurring right to charge Fees for the Services on a monthly basis for the Paid Term as provided in Section 8 herein, and (vii) Developer (specifically including the Entity) does not and its products or services do not compete with MX or any of MX’s products, services (including the MX Services) or software.
Subject to the limited license expressly provided in this Agreement, MX retains all right, title, and interest in and to its Confidential Information and the Services, inclusive of all Intellectual Property Rights therein, which includes but is not limited to the Feedback, API, Documentation, and any related data, software, products, works, and other intellectual property created, used, or provided by MX for the purposes of this Agreement. All other rights not expressly granted herein are reserved by MX.
Except as set forth above in Section 2.1, this Agreement does not entitle Developer to any support for the Services or the API unless Developer makes separate arrangements with MX for such support. Further, MX is under no obligation to provide Developer with subsequent releases, enhancements or error corrections for the Services (“Updates”). If MX, in its sole discretion, supplies Updates to Developer, the Updates will be considered part of the Services, and subject to the terms of this Agreement. Developer is solely responsible for providing all support and technical assistance to End Users of the Developer Application and third parties who access, deploy and/or purchase the Developer Application. Developer acknowledges and agrees that MX has no obligation to provide support or technical assistance to Developer, or End Users of the Developer Application and Developer shall not represent to any such third parties that MX is available to provide such support.
8.1 Developer will pay MX Fees for the Services for the Paid Term (as defined below), as set forth herein and in accordance with the Pricing Schedule and any applicable Order Form. Unless otherwise specified in the Pricing Schedule or any Order Form, data storage for the Paid Term includes 1 megabyte of relational data storage and 1 megabyte of columnar storage per User. Any storage in addition to these amounts will be charged at a rate of $10 per gigabyte per month for relational data storage and $30 per gigabyte per month for columnar data storage. No data storage is included for the Trial Term. In the event that any End User activity exceeds normal volume or MX’s anticipated usage of the Services then MX reserves the right to charge additional fees to Developer for such usage.
8.2 Invoices are due upon receipt and all Fees will be charged to Developer’s credit card (or debited from Developer’s account) on file. Unpaid invoices are subject to a finance charge of 1.5% per month or the maximum permitted by law, whichever is lower, plus all expenses of collection. Developer shall be responsible for all taxes associated with its subscription to the Services and its Developer Application other than taxes based on MX’s net income. All payments made are non-refundable, non-cancellable, and not subject to set-off.
Developer may from time to time, gain access to or be given Confidential Information. Developer may use Confidential Information only to the extent necessary to exercise its rights under this Agreement. Subject to the express permissions set forth herein, Developer may not disclose Confidential Information to any third party without the prior express written consent of MX (which may be withheld or delayed for any reason in MX’s sole discretion). Without limiting any other obligation of Developer under this Agreement, Developer agrees that it will protect Confidential Information from unauthorized use, access, or disclosure in the same manner that Developer would use to protect its own confidential and proprietary information of a similar nature and in any event with no less than a reasonable degree of care. Developer’s duty to protect Confidential Information hereunder shall survive any expiration or termination of this Agreement, and shall extend for a period of five (5) years from the date of disclosure of the Confidential Information, except for any Service Data, which shall be protected in perpetuity.
10. DISCLAIMER OF WARRANTIES
DEVELOPER EXPRESSLY UNDERSTANDS AND AGREES THAT: YOUR AND ANY END USERS USE OF THE SERVICES AND API AND ALL INFORMATION, AND OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE FROM THE SERVICES IS AT YOUR AND THEIR SOLE RISK. ALL ASPECTS OF THE SERVICES AND THE API, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND MX EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, AVAILABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. DEVELOPER ACKNOWLEDGES THAT MX DOES NOT WARRANT THAT THE SERVICES OR API WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM MX OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
11. LIMITATION OF LIABILITY
11.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL MX, OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR ITS THIRD PARTY PROVIDERS BE LIABLE TO DEVELOPER, END USERS OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY DEVELOPER, END USERS OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF WHETHER MX HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
11.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, MX’S AGGREGATE LIABILITY TO DEVELOPER, END USERS OR ANY THIRD PARTY ARISING OUT THIS AGREEMENT, SHALL IN NO EVENT EXCEED ONE HUNDRED U.S. DOLLARS ($100.00). ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE FIRST EVENT OR OCCURRENCE GIVING RISE TO THE CLAIM.
11.3 Some jurisdictions 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 JURISDICTIONS, MX’s LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. The limitations set forth in this Section 11 will survive and apply even if any limited remedy specified in this agreement is found to have failed of its essential purpose.
Developer agrees, at your expense, to defend, indemnify, hold harmless, protect and fully compensate MX, its affiliates, and their respective officers, directors, employees, consultants, agents, distributors, partners, licensors and third-party providers from any and all claims, liability, damages, losses, expenses and costs (including attorneys’ fees) caused by or arising out of (i) an obligation, representation, warranty, covenant or other provision of this Agreement, (ii) or in any way connected with your (including any End User’s) access to or use of the Services, (iii) your violation of this Agreement, or (iv) your infringement (or infringement by any other user of your account for the Services) of any intellectual property or other right of anyone. For the avoidance of doubt, if Developer is agreeing to this Agreement and utilizing the Services on behalf of an Entity, your obligations hereunder shall extend to indemnification based on the acts and omissions of the Entity’s employees, consultants and agents.
13. TERM AND TERMINATION
13.1 This Agreement shall have a trial term of ninety days (the “Trial Term) upon which it shall automatically renew for a term of twelve (12) months (the “Paid Term”). The Paid Term shall automatically renew for one (1) year periods thereafter unless either party provides the other party with thirty (30) days written notice of its intent not to renew prior to the end of the then current Paid Term. The Trial Term and Paid Term (including any renewal thereof), shall be collectively referred to herein as the “Term.”
13.2 Either party may terminate this Agreement (i) at any time during the Trial Term, or (ii) in the event the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days from receipt of written notice thereof. In addition, MX may immediately suspend or terminate the Services upon notice to Developer at any time in the event it determines or believes that (a) the Developer or any of its End Users has violated any law or regulation in connection with use of the Services, or (b) any aspect of the Developer Application or content thereon may cause harm to MX or its networks or systems or its reputation. Upon termination of this Agreement, all rights granted herein to Developer will terminate and Developer will make no further use of the Services or API, and shall either return to MX, or destroy and remove from all computers, hard drives, networks, and other storage media, all copies of any materials licensed pursuant to this Agreement and any Confidential Information in Developer’s possession, and shall certify to MX that such actions have occurred.
During the Term of this Agreement and for one (1) year following the termination of this Agreement, Developer will not encourage or solicit any employee or consultant of MX to leave its employment or sever its relationship with MX for any reason.
15. ASSIGNMENT; ENTIRE AGREEMENT; REVISIONS
Developer agrees that this Agreement is the complete and exclusive agreement between Developer and MX and this Agreement supersedes any proposal or prior agreement, oral or written, and any other communications between Developer and MX relating to the subject matter of this Agreement. This Agreement, as the same may be amended from time to time by MX, will prevail over any subsequent oral communications between you and MX. MX shall not be deemed to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by MX. No delay or omission on the part of MX in exercising any rights or remedies shall operate as a waiver of such rights or remedies or any other rights or remedies. A waiver on any one occasion shall not be construed as a waiver of any rights or remedies on future occasions. Developer may not assign or otherwise transfer any rights or obligations under this Agreement.
16. SEVERABILITY AND SURVIVAL
If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by Law. All covenants, agreements, representations and disclaimers as to warranties and limitations on liability made in this Agreement shall survive your acceptance of this Agreement and the termination of this Agreement.
17. RELATIONSHIP OF THE PARTIES
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
All notices to be provided by MX to Developer under this Agreement may be delivered in writing (i) by nationally recognized overnight delivery service (“Courier”) or U.S. mail to the contact mailing address provided by Developer to MX; or (ii) electronic mail to the electronic mail address provided for Developer related to your subscription to the Services. Developer must give notice to MX in writing by Courier or U.S. Mail to the following address: 3401 N Thanksgiving Way, Suite 500, Lehi, Utah 84043 USA, with a copy to email@example.com. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.
19. CHOICE OF LAW AND FORUM FOR DISPUTES
By visiting or using the Site and/or the Services, you agree that the laws of the State of Utah, without regard to principles of conflict of laws, will govern this Agreement. You agree that any claim or dispute of any sort that might arise between you and MX, its officers, directors, employees, agents or affiliates must be brought in Salt Lake County or Utah County, Utah, subject to applicable jurisdictional requirements in any such action or proceeding. You irrevocably waive any objection to such venue. You understand that, in return for your agreement to this provision, MX is able to offer the Services as this Agreement designates and that your assent to this provision is an indispensable consideration to this Agreement. You also acknowledge and agree that, with respect to any dispute with MX, its officers, directors, employees, agents or affiliates, arising out of or relating to your use of the Services or this Agreement: (i) YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY; and (ii) YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INVOLVING SUCH DISPUTE.
Contact Information: MX Technologies, Inc. 3401 North Thanksgiving Way, Suite 500 Lehi, Utah 84043 firstname.lastname@example.org