Important, Read Carefully
This End-User License Agreement and Terms of Service (“Agreement”) is a legal agreement between You (either an individual or a single entity) and MoveValet for all of its software applications, software, services and products (the “Valet Service”). This Agreement governs Your ongoing use of the Valet Service, whether or not You have paid for use of the Valet Service.
By clicking a box indicating Your acceptance or by executing an order form for the Valet Services, You agree to be bound by the terms of this Agreement. If You do not agree, do not use the Valet Services.
If You are entering into this Agreement on behalf of a company or other entity, You represent that You have the authority to bind such entity and its Affiliates to these terms and conditions, in which case the terms “You” or “Your” shall refer to such entity and its Affiliates. If You do not have such authority, or if You do not agree with these terms and conditions, You must not accept this Agreement and may not use the Valet Services. You will not be charged unless You use the Valet Services. You shall not access the Valet Services for purposes of monitoring the Valet Services’ availability, performance or functionality, or for competitive purposes.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. YOUR Confidential Information shall include YOUR Data; MoveValet’s Confidential Information shall include the Valet Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than YOUR Data) shall not include any information that: (1) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (2) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (3) is received from a third party without breach of any obligation owed to the Disclosing Party; or (4) was independently developed by the Receiving Party.
“Malicious Code” means harmful or malicious code, files, scripts, agents or programs, including but not limited to, viruses, worms, malware, time bombs, Trojan horses and Advanced Persistent Threats..
“Order Form” means the ordering documents and/or online order forms used for purchases hereunder, including addenda thereto, that are entered into between You and MoveValet from time to time. Order Forms shall be deemed incorporated herein by reference.
“User” means You as an individual.
“User Guide” means the online user guidance (displayed, written, video or otherwise) presented online for Valet Services, or any site associated therewith, as updated from time to time. You acknowledge that You have the opportunity to review the User Guide during the use of Valet Services.
“Users” means You, when you seek Valet Services on behalf of a corporation or other entity, and includes persons or entities who are authorized by You to use Valet Services, who use Your credentials or have been supplied their own user identifications and passwords by You (or by MoveValet at Your request). Users may include, but are not limited to, Your employees, consultants, contractors and agents or third parties with whom You transact business.
“Valet Services” means any and all online, web-based applications, software, platform, and/or services provided by MoveValet that are ordered by You, including associated offline components and services, if any, and any related product or services that You or Your Affiliates purchase under this Agreement and/or on the MoveValet site. Valet Services may consist of product documentation, sample applications, books and periodicals, tools and utilities, miscellaneous technical information, development toolkits, server applications and development tools (each, a “Component,” and collectively “Components,” of Valet Services); Valet Services may include groups of Components identified as any one or more of the following: Library, Platforms, Server Products, Applications, and Developer Tools, all as modified from time to time. This Agreement defines the entire Product and all its Components.
“You” or “Your” means either You or both You and the Company or other legal entity for which You are accepting this Agreement, and Affiliates of that company or entity depending on whose behalf You entered this Agreement.
“Your Data” means all electronic data or information submitted by You to any component of Valet Services.
2. Grant of License
2.1 If You are an individual, MoveValet grants to You a personal, nonexclusive license to use Valet Services in accordance with the terms of this Agreement, provided that You are the only individual using Valet Services.
2.2 If You are registering on behalf of a corporation or other entity, MoveValet grants You the right to designate users who may have access to Valet Services in accordance with the terms of this Agreement.
2.3 Valet Services is licensed as a single product. Their Component parts may not be separated for use for any reason and by any means.
2.4 All Updates shall be considered part of Valet Services and subject to the terms and conditions of this Agreement. Additional license terms may accompany Updates. By installing, copying, or otherwise using any Update, You agree to be bound by the terms accompanying each such Update. If You do not agree to the additional license terms accompanying such Update, do not install, copy, or otherwise use such Update.
3. Purchased Valet Services
MoveValet shall make Valet Services available to You pursuant to this Agreement. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Valet Services regarding future functionality or features. Valet Services are as they are on any given use of them.
4. Use of the Valet Services
4.1 MoveValet shall: (1) use commercially reasonable efforts to make Valet Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which MoveValet shall give at least 4 hour notice via Valet Services and which MoveValet shall schedule to the extent practicable at lowest usage times, or (b) any unavailability caused by circumstances beyond MoveValet’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, storm, civil unrest, acts of terror, strikes or other labor problems (other than those involving MoveValet’s employees), or Internet Service Provider failures or delays; and (2) provide Valet Services only in accordance with applicable laws and government regulations.
4.2 You shall: (1) be responsible for Your or Your Users' compliance with this Agreement; (2) be solely responsible for the accuracy, quality, integrity, and legality of Your Data and of the means by which You acquired Your Data, except to the extent the acquisition of such data is due to the technical functions of Valet Services; (3) use commercially reasonable efforts to prevent unauthorized access to or use of Valet Services, and notify MoveValet promptly of any such unauthorized access or use; and (4) use Valet Services only in accordance with the User Guide and applicable laws and government regulations.
4.3 You shall not: (1) make Valet Services available to anyone other than Yourself or Users; (2) sell, resell, rent or lease Valet Services without MoveValet’s prior written consent; (3) use Valet Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (4) knowingly use Valet Services to store or transmit Malicious Code; (5) interfere with or disrupt the integrity or performance of Valet Services or third-party data contained therein; (6) use Valet Services to illegally attempt to access, acquire or otherwise obtain Data to which You are not legally entitled; or (7) attempt to gain unauthorized access to Valet Services or their related systems or networks.
5. Valet Services’ Fees and Payment Terms
5.1 Your use of Valet Services is deemed to be Your acknowledgement and acceptance of the Standard Usage Fee Schedule, including both per usage and recurring fees as stated therein.
5.2 You shall pay all Fees for Your use of Valet Services. Except as otherwise specified herein or in a Component of Valet Services: (1) Fees are quoted and payable in United States dollars; and (2) Fees are based on Your actual usage. Unless otherwise agreed, MoveValet reserves the right to alter the Standard Usage Fee Schedule at any time, provided that give You no less than a 30 day notice of the Fee Schedule changes.
5.3 You will provide MoveValet with valid and updated credit card information. If You provide credit card information to MoveValet, You authorize MoveValet to charge such credit card for all Product requests at the prices listed during Your initial account creation or as changed from time to time as provided herein. Such charges shall be processed at the time You submit each request, or in accordance with any different billing frequency as provided in writing. You are responsible for maintaining complete and accurate billing and contact information in Valet Services. MoveValet does not store or otherwise keep a record of Your credit card information, as all that information is stored and kept by a third-party independent credit card facility and gateway.
5.4 If any charges are not received from You by the due date, then at MoveValet’s discretion: (1) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and/or (2) MoveValet may condition future payment terms shorter than those specified above or in Your Order Form.
5.5 If any amount owing by You under this or any other agreement for Valet Services is 60 or more days overdue, MoveValet may, without limiting its other rights and remedies, suspend Your access to Valet Services and any related services provided to You until such amounts are paid in full.
5.6 MoveValet shall not exercise its rights herein if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute. You shall pay all of MoveValet’s reasonable collection costs, including attorney fees, incurred by MoveValet to collect any fees or charges due it under this Agreement following Your breach of Your payment obligations under this section.
5.7 Unless otherwise stated or presented to You at the time of any service request order, MoveValet’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to sales, use or withholding taxes, assessable by any local, state, or federal jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If MoveValet has the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide MoveValet with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, MoveValet is solely responsible for taxes based on its income, property and employees.
6. Proprietary Rights
6.1 Valet Services are protected by copyright, patent and other intellectual property laws and treaties. MoveValet or Our suppliers own the title, copyright and other intellectual property rights in Valet Services. Valet Services are licensed, not sold.
6.2 Subject to the limited rights expressly granted hereunder, MoveValet reserves all rights, title and interest in and to Valet Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
6.3 You shall not: (1) permit any third party to access Valet Services except as permitted herein; (2) create derivative works based on Valet Services; (3) copy, frame or mirror any part or content of Valet Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes; (4) reverse engineer Valet Services; or (5) access Valet Services in order to: (a) build a competitive product or service; or (b) copy any features, functions or graphics of Valet Services.
6.4 You acknowledge that Valet Services and its structure, organization and source code contain MoveValet’s valuable trade secrets. Accordingly, You may not reverse engineer, decompile or disassemble Valet Services.
6.5 Move Valet shall solely retain all Intellectual Property that may be deemed to have been created during or in association with Your use of Valet Services or any other services provided by MoveValet. MoveValet shall remain the sole owner of and retain all rights, title and interest in any service, technical information and/or intellectual property rights provided to You, including without limitation all trademarks, trade names, service marks, copyrights, computer programs, general utility programs, software, methodology, databases (but not Your content contained in databases), specifications, systems designs, applications, enhancements, documentation, manuals, know-how, formulas, hardware, audio/visual equipment, tools, libraries, discoveries, inventions, techniques, writings, designs course materials, structure and content of the courses as presented to You or other Users, and to any methods, procedures, practices, and software or hardware solutions utilized, and any other intellectual property whether used or developed by Us or Our agents or business associates in connection with Valet Services provided by Us (each and all of the foregoing, the “Intellectual Property”).
6.6 As to Your data and as between MoveValet and You, You exclusively own all rights, title, and interest in and to all of Your Data. That is independent of access to Your Data for there may be additionally incurred charges for Your use of Valet Services or Your access to Your Data as provided herein.
6.7 MoveValet shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into Valet Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of or in any way to Valet Services. You may permanently transfer or assign all Your rights to Valet Services subject to the terms provided below.
6.8 You agree that MoveValet and its business associates may collect and use technical information You provide as a part of support services related to Valet Services. We agree not to use this information in a form that personally identifies You.
7.1 Except as otherwise permitted in writing by the Disclosing Party, when a transfer of Confidential Information occurs: (1) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (2) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
7.2 Without limiting the above, MoveValet shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. MoveValet shall not: (1) modify Your Data; (2) disclose Your Data except as compelled by law in accordance with the “Compelled Disclosure” Section below or as expressly permitted by You; or (3) access Your Data except to provide Valet Services or prevent or address service or technical problems, or at Your request in connection with customer support matters.
7.3 The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
8. Warranties and Disclaimers
8.1 The Limited Warranty referenced below is the only express warranty made to You and is provided in lieu of any other express warranties (if any) created by any marketing, documentation or packaging. Except for the Limited Warranty and to the maximum extent permitted by applicable law, MoveValet and Our suppliers and business associates provide Valet Services and support services (if any) AS IS AND WITH ALL FAULTS, and hereby disclaim all other warranties and conditions, either express, implied, statutory or otherwise, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, or fitness for a particular purpose, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses and of lack of negligence, all with regard to Valet Services, and the provision of or failure to provide support services, to the maximum extent permitted by applicable law. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION AND CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO VALET SERVICES.
8.2 MoveValet warrants that: (1) Valet Services shall perform materially in accordance with the User Guide; and (2) the functionality of Valet Services will not be materially decreased. For any breach of either such warranty, Your exclusive remedy shall be as provided in the “Termination for Cause” and “Refund or Payment upon Termination” Sections below.
8.3 Each party represents and warrants that: (1) it has the legal power to enter into this Agreement; and (2) it will not knowingly transmit to the other party any Malicious Code.
8.4 Best efforts will be made to process all electronically stored information (“ESI”) in accordance with the normal functions of Valet Services. Where text, metadata or other information or data is extracted from ESI, it is acknowledged that a certain amount of ESI may not be suitable or available for such extractions because of file type, file corruption, encryption or other data related issues (“Exceptions”). In the event ESI cannot be fully extracted, it is hereby acknowledge by You that such Exceptions may limit the function of any searching, filtering or other analysis of data subject to such Exceptions. Where image files (TIFF/PDF) are created from native documents for purposes of review or production, it is acknowledged that a certain number of files will not convert to the image format correctly due to file corruption, unsupported file types or other automated conversion issues. All Exceptions will be logged and reported. Exception reports will be provided which detail the data that could not be processed in an automated manner.
9. Mutual Indemnification
9.1 MoveValet shall defend You against any claim, demand, suit, or proceeding (“Claim”) made or brought against You by a third party alleging that the use of Valet Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney's fees incurred by You in connection with any such Claim; provided, that You: (1) promptly give MoveValet written notice of the Claim; (2) give MoveValet sole control of the defense and settlement of the Claim (provided that MoveValet may not settle any Claim unless the settlement unconditionally releases You of all liability); and (e) provide to MoveValet all reasonable assistance, at Our expense.
9.2 You shall defend MoveValet against any Claim made or brought against Us by a third party alleging that Your Data, or Your use of Valet Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify MoveValet for any damages finally awarded against, and for reasonable attorney’s fees incurred by MoveValet in connection with any such Claim; provided, that MoveValet: (1) promptly gives You written notice of the Claim; (2) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally releases MoveValet of all liability); and (3) provide to You all reasonable assistance, at Our expense.
9.3 This Section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.
10. Limitation of Liability
LIMITATION OF LIABILITIES AND REMEDIES: IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOUR HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $1,000 OR THE AMOUNT PAID BY YOUR HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOURR PAYMENT OBLIGATIONS UNDER THE "FEES AND PAYMENT FOR PURCHASED SERVICES" SECTION.
EXCLUSION OF INCIDENTAL, CONSEQUENTIAL, AND CERTAIN OTHER DAMAGES: IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUE OR PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER), WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
THE FOREGOING LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
11. Term and Termination
11.1 This Agreement commences on the date You accept it and continues until Your account has been terminated.
11.2 Either party may terminate this Agreement for cause: (1) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (2) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.3 Upon any termination for cause by You, MoveValet shall refund You any fees for any related services not actually supplied. Upon any termination for cause by MoveValet, You shall pay any unpaid fees covering any use of Valet Services or related services actually provided prior to the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the use of Valet Services provided prior to the effective date of termination.
11.4 Upon request by You made within 90 days after the effective date of the termination of Your use of Valet Services subscription, and provided that You have fully paid for all requested use of Valet Services, MoveValet will make Your Data available to You for download. After such 90-day period, MoveValet shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in MoveValet’s systems or otherwise in its custody, possession or control.
12. Notices & Governing Law
12.1 Unless otherwise provided in this section, any demand, notice or other communication (“Notice”) given by either party to the other shall be in writing and delivered personally, effective on the date of delivery, by overnight delivery via a nationally recognized overnight courier to be effective the day following deposit, or sent by registered or certified mail, postage prepaid, return receipt requested, to be effective three (3) days after deposit. All Notices to Us shall be delivered to MoveValet, 12 Starck Drive, Burgettstown, PA 15021.
12.2 Notices to You shall be addressed to the address designated by You in Valet Services, and in the case of billing-related notices, to the relevant billing contact designated by You.
12.3 MoveValet may change the address above by providing Notice of such change of address by U.S. Mail or by sending a notice to You at the email address You have registered with MoveValet. You may change Your address at any time in Valet Services Account Management section.
12.4 This Agreement will be governed by the laws of the State of Commonwealth of Pennsylvania, without regard to the principles of conflict of laws.
13. General Provisions
13.1 This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
13.2 There are no third-party beneficiaries to this Agreement.
13.3 The parties hereby acknowledge that Valet Services may be subject to certain state, federal, or local laws, statutes, acts, ordinances, rules, codes, standards and or regulations. The parties further acknowledge that in the event that the terms set forth in this Agreement are affected or required to be modified from time-to-time by state, or federal, or local laws, statutes, acts, ordinances, rules, codes, standards and or regulations that such modifications shall be incorporated as required without terminating or invalidating this Agreement.
13.4 No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
13.5 If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
13.6 The rights and remedies provided by this Agreement are cumulative, and the exercise of any right or remedy by either party, whether pursuant to this Agreement, to any other agreement, or to law, shall not preclude or waive its right to exercise any or all other rights and remedies.
13.7 Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.8 The Sections titled “Valet Services’ Fees and Payment Terms,” “Proprietary Rights,” “Confidentiality,” “Warranties and Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Term and Termination,” “Notices & Governing Law” and “General Provisions” shall survive any termination or expiration of this Agreement.
13.9 This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement.