“User Data” means data collected or created by User and uploaded to or posted to the Service by User for access, use and viewing by Providers. User Data includes, for example, your name, email address and other personal and financial information required by Providers in order to qualify for college financial aid.
“User Account” means a unique combination of username and password created by the User in order to access and use the Service.
“Purchase Fees” means the fees, if any, charged to User by Mos in exchange for access to the Service as set forth in a Purchase Order.
“Plan Purchase Agreement” means a standard Mos ordering document submitted online by User for access specific Service Plans.
ENTERING INTO AGREEMENT
- Creating a User Account, To access the Service, the User must create a User Account by choosing a unique username and password.
- Plan Purchase Agreement. To access certain elements of the Service, User must have entered into a Plan Purchase Agreement with Mos.
- Trial Access. If Mos makes access to a Service Plan available to User without charge on a trial basis for a limited period, the agreement between User and Mos concerning the trial period and any limitations or restrictions on use of the Service, however documented, will be considered a Plan Purchase Agreement, and the specified trial period will be considered the Plan Period.
ACCESS AND FEES
- Access. Subject to all terms and conditions of the Agreement, User may access the Service in accordance with the Agreement. Mos uses reasonable efforts to ensure that the Service is generally available. However, at times the Service will be interrupted. Mos will use reasonable efforts to minimize interruptions where this is within the control of Mos.
- Mos Plan Fees. If the User chooses to purchase a Mos Service Plan, User agrees to pay the Plan Fees to Mos. Plan Fees are non-cancelable and non-refundable.
- Billing and Payment. If User elects to pay any Plan Fee with a credit card, User hereby (a) authorizes Mos to charge the Plan Fees to such credit card account and verify that the credit card account has the necessary funds or credit available to cover User’s purchase and (b) agrees to provide Mos with updated information regarding User’s credit card account promptly when the information changes, or on Mos’s request. All payments pursuant to the Agreement will be made in United States dollars.
USER RESPONSIBILITIES AND RESTRICTIONS
- Eligibility. You must be 18 years of age or older, or 16 years of age or older and using the service under the supervision of a parent or legal guardian, and a resident of the United States to use the Service.
- Privacy Notice. Please review our Privacy Notice, which is incorporated into the Agreement by reference.
- Acceptable Use. User may use the Service only to assist User in identifying Providers of financial aid and applying for financial aid with these Providers. User may not use the Service:
- for any illegal purpose;
- to contact any other user of the Service without that person’s permission;
- for data mining, scraping, or releasing spiders, robots, web crawlers, or any other data gathering or extraction tools to collect any information from our Service, except to the extent the Service is indexed by general purpose public search engines;
- to compete with Mos;
- for modifying, copying, distributing, displaying, performing, reproducing, publishing, licensing, creating derivative works from, transferring, selling any content available through the site unless it is content that you rightfully posted;
- to attempt to gain unauthorized access to Mos’s networking platform or interfere with the Service by any means including introduction of malware or excessive usage or network traffic;
- to access or collect any personally identifiable information of other persons; or
- to interfere with any security features of our Service or network platform.
- Misuse. In the event that Mos reasonably concludes that User has provided Mos with untrue or inaccurate information or is failing to comply with the Agreement then Mos may suspend User’s access to the Service or terminate User’s Service account.
- Unauthorized Access. User shall take reasonable steps to prevent unauthorized access to the Service, including without limitation by protecting its passwords and other login information. User shall notify Mos immediately of any known or suspected unauthorized use of the Service or breach of its security and shall use best efforts to stop such breach to the extent caused by the acts or omissions of User.
- Compliance with Laws. In its use of the Service, User shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information.
THIRD-PARTY SERVICES AND WEBSITES
Using the Service dashboard, User may choose to link to third party websites, such as those belonging to prospective providers of financial aid (“Third Party Sites”). The Service includes tools and features that enable the User, in its sole discretion, to export User Data to Third Party Sites. By using such tools and features, User authorizes Mos to transfer such User Data and other information to Third Party Sites. Third Party Sites are not under Mos’s control. Neither the Agreement nor Mos’s Privacy Notice are binding upon such third parties, and Mos does not endorse such third parties. Mos is not responsible for the actions or inactions of such third parties or the contents or performance of any Third Party Site.
- Definition. “Confidential Information” means (a) in the case of User, all User Data, and (b) in the case of Mos, any and all non-public features of the Service and all pages and materials on the Mos website that are accessible only after logging in. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in receiving party’s possession at the time of disclosure without an obligation of confidentiality; (ii) is independently developed by receiving party without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of wrongdoing by receiving party; or (iv) is approved for release in writing by disclosing party.
- Confidentiality Restrictions. Receiving party shall not use Confidential Information for any purpose other than to provide, facilitate, access or use the Service as allowed under the Agreement (the “Purpose”). Receiving party shall not disclose Confidential Information: (a) to any employee or contractor of receiving party unless such person needs access in order to facilitate the Purpose and is subject to a nondisclosure agreement with receiving party; and (b) to any other third party without disclosing party’s prior written consent, or as expressly permitted under the Agreement. Receiving party shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. With respect to each item of Confidential Information, the obligations of this Section 6.2 will continue for five years after the date of disclosure.
- Exceptions. Notwithstanding the provisions of Section 6.2, receiving party may disclose Confidential Information to the extent required by applicable law or by proper legal or governmental authority, provided that receiving party shall, to the extent allowed by law, give disclosing party prompt notice of any such legal or governmental demand and reasonably cooperate with disclosing party in any effort to seek a protective order or otherwise to contest such required disclosure by lawful means, at disclosing party’s expense.
TERM AND TERMINATION
- Term. The term of the Agreement (the “Term”) is the duration of the Plan Purchase Agreement.
- Termination for Breach. Either party may terminate the Agreement and all Service Plans upon notice if the other party materially breaches the Agreement, provided that (a) such party gives 30 days’ notice to such other party describing the manner in which the Agreement has been breached, and (b) the breach remains uncured during such notice period. Notwithstanding the foregoing, Mos may suspend access to the Service by User as described at Section 4.4.
- Effect of Termination or Expiration. Upon User’s request, Mos will enable User to export User Data from the Service and will delete User Data from the Service. Following the termination or expiration of the Agreement, Mos shall delete User Data to the extent required by applicable data protection laws. If the Agreement is terminated by User pursuant to Section 7.3 due to a breach by Mos, then Mos shall refund the prepaid, unused fees for the remainder of the duration of the Service Plan. From the Account Settings page, User may select the option to download their information or to delete their information.
- Survival. Provisions of the Agreement that by their nature are intended to survive, will continue to apply in accordance with their terms including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, indemnity obligations, limitations of liability and the miscellaneous provisions section.
- Proprietary Rights.
- The Service and related documentation are the exclusive property of Mos and constitute valuable intellectual property and proprietary materials of Mos. Subject to the limited rights expressly granted in the Agreement, Mos reserves all right, title and interest in and to the Service, and Documentation, including all Intellectual Property Rights. No rights are granted to User except as expressly set forth in the Agreement.
- The look and feel of the Service, including any custom fonts, graphics and button icons are the property of Mos and User may not copy, imitate, or use them, in whole or in part.
- Ownership of User Data. Mos asserts no ownership rights in User Data. Subject to the limited rights granted to Mos in the Agreement, User retains full ownership of User Data and all intellectual property rights and other proprietary rights in the User Data.
- No Transfer of Intellectual Property. Except as expressly set forth in the Agreement, nothing in the Agreement grants any license to, or transfers any right, title or interest in or to, the Service, User Data, the Confidential Information of Mos, or any patents, copyrights, trade secrets, logos, trademarks, trade names or service marks of either party, whether by implication, estoppel, or otherwise.
- License to User Data. Subject to the terms of the Agreement, User grants Mos a non-exclusive, non-transferable, worldwide, fully-paid, royalty-free license during the Term to use, copy, distribute, modify for transmission and display, publicly perform, and publicly display User Data solely for the purpose of providing the Service to User.
- License to Browser Extensions. Mos grants User a non-exclusive, non-transferable, non- sublicensable, worldwide, fully-paid, royalty-free license during the Term to download, copy, and use browser extensions provided by Mos as part of the Service, for User’s internal and personal purposes only.
- Definition. “User Content” means data you provide to the Service for access, use, viewing and commentary by other visitors to the Site. User Content may include, for example, comments, feedback, information, content, text, files, trademarks, logos, graphics, postings, and other materials and information you choose to submit to the Service.
- Your Privacy. You may choose to post User Content that is personal information about yourself but please think carefully before you do this, because all User Content is visible to other visitors to the Site. You are prohibited from posting User Content that is personal information about others.
- Restrictions. Mos cannot and does not review all User Content made available through the Service. By posting User Content, you represent that you have the full legal right to provide the User Content. You may not contribute any User Content that:
- infringes any intellectual property rights or rights of privacy of any person or entity;
- violates any law;
- is threatening, harassing, obscene, indecent or generally false or misleading;
- violate community standards of decency; or
- is the confidential information of any third party.
- Ownership. You retain all right, title and interest in and to the User Content that you submit and all intellectual property rights embodied therein.
- License Grant. Upon your submission of User Content or other material or information to the Service, you grant Mos a worldwide, royalty-free license to, and to permit Mos’s cloud hosting provider to access, use, distribute, reproduce, display, reformat, host, communicate, publish, publicly perform and publicly distribute the User Content, for the purpose of providing the Service to you and other customers.
REPRESENTATIONS; DISCLAIMER OF WARRANTIES
- Authority. Each party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under the Agreement.
- User Warranties. User further represents and warrants that: (a) User is 18 years or older, or is 16 years or older and using the Service under the supervision of a parent or legal guardian, and resides in the United States; and (b) it has not previously been suspended or removed from the Service.
- Data Accuracy. User understands and accepts Mos does not guarantee the accuracy of information available on the Site.
- Service Disclaimer. USER ACCEPTS THE SERVICE “AS IS,” AND ASKMOS MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. ASKMOS DOES NOT WARRANT THAT THE SERVICE OR THE INFORMATION OBTAINED THROUGH OR STORED ON THE SERVICE IS ACCURATE, CURRENT, FREE OF ERRORS OR OMISSIONS, SECURE, RELIABLE, OR ACCESSIBLE AT ANY PARTICULAR TIME.
- Data Disclaimer. Mos is not responsible or liable for the accuracy of any User Data. User assumes sole responsibility for User’s use of this information. Mos expressly disclaims any responsibility for any interactions between Users and Providers.
- Indemnification. User shall defend, indemnify, and hold harmless Mos against any third party claim, suit, or proceeding (including resulting liabilities, damages and/or costs (such as, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) to the extent arising out of: (a) User’s gross negligence or willful misconduct, (b) User's violation of Section 4.1 or (c) the User Data.
- Exclusions. User’s indemnity obligations as set forth in this Section 10 will not extend to any claim, suit, or proceeding for which (a) the indemnified party fails to promptly notify the indemnifying party of the claim, (b) the indemnified party fails to promptly give the indemnifying party sole control over the defense and settlement of the claim, provided that such indemnifying party may not agree without the indemnified party’s consent (not to be unreasonably withheld) to any settlement that imposes any obligations upon or admits any wrongdoing on the part of the indemnified party, or (c) the indemnified party fails to promptly provide the indemnifying party reasonable cooperation in such defense or settlement.
LIMITATION OF LIABILITY
- No Consequential Damages. NEITHER ASKMOS NOR ITS DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS, OR OTHER REPRESENTATIVES, SHALL BE LIABLE, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE), FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT.
- Dollar Cap. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ASKMOS’S TOTAL LIABILITY FOR ANY MATTERS ARISING OUT OF OR RELATED TO THE AGREEMENT REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE), EXCEED ONE HUNDRED DOLLARS.
- Exclusions. NO LIMITATION OF LIABILITY IN THE AGREEMENT, WHETHER THROUGH THE EXCLUSION OF CERTAIN TYPES OF DAMAGES, A CAP ON THE AMOUNT OF DAMAGES, OR OTHERWISE APPLIES TO EITHER PARTY’S LIABILITY FOR MISAPPROPRIATION OF INTELLECTUAL PROPERTY, GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT, DEATH OR PERSONAL INJURY.
- Application. THE LIMITATIONS AND EXCLUSIONS OF THIS SECTION 12 APPLY EVEN IF THE LIABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF SUCH DAMAGES WERE FORESEEABLE, AND EVEN IF A LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION 12, THE LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMISSIBLE UNDER SUCH LAW.
- Location. Mos controls and operates the Service from within the United States. Without limiting anything else, Mos makes no representation that the Service is appropriate or available for use in other locations.
- Governing Law; Arbitration.
- The Agreement shall be governed by the laws of the State of California without regard to conflict of law principles.
- Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought without the posting of a bond), any dispute arising from or relating to the subject matter of the Agreement shall be finally settled in San Francisco County, California, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Service, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
- Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction.
- Changes to the Service. Mos continually strives to improve its products and services, and reserves the right to improve or modify the Service and its features in any manner and at any time, including during the Term, at its sole discretion, provided however that such modifications will not materially reduce the functionality of the Service to User.
- Amendments. Mos may amend the terms of the Agreement from time to time, but only in the manner described in this Subsection. In the event that a change to the Agreement materially modifies User’s rights or obligations Mos will make commercially reasonable efforts to notify User of the change, including via email or presentation of a pop-up window or other notification to User through the Service upon login. User may terminate the Agreement after receiving notice of material modifications, by providing notice to Mos within fifteen (15) days of receipt of notice. Immaterial modifications are effective upon publication. Material modifications will be effective upon the earlier of: (a) continued use of the Service with actual knowledge of the modification, or (b) thirty (30) days following the change. For the avoidance of doubt, disputes arising hereunder will be resolved in accordance with the Plan Purchase Agreement and Agreement in effect at the time the dispute arose.
- Waiver. A party’s failure to require performance of any provision shall not affect its right to require performance at any time thereafter, nor shall a waiver of any breach or default constitute a waiver of any subsequent breach or default.
- Interpretation. Use of paragraph headers in the Agreement is for convenience only and shall not have any impact on the interpretation of particular provisions. In the event that any part of the Agreement is held to be invalid or unenforceable, the unenforceable part shall be given effect to the greatest extent possible and the remaining parts will remain in full force and effect.
- Assignment. User may not assign the Agreement without Mos’s express written consent, except to User’s successor by way of merger, acquisition, reorganization, or sale of stock or assets. Mos may freely assign this agreement.
- Notices and Contact Information. Each party will send notices made pursuant to the Agreement in writing by postal delivery or a reputable international courier service, in either case with all postage and delivery fees pre-paid and a delivery confirmation required, to the address provided for such party on an applicable Plan Purchase Agreement, or to such updated address as the party provides by notice in accordance with this Section. Notice will be deemed given when actually received by the other party, or when delivery is refused. User questions or communications regarding Mos, the Service, or the Agreement can be sent to firstname.lastname@example.org but will not serve as notice under the Agreement.
- Relationship Between the Parties. Nothing in the Agreement shall be construed as making either party the partner, joint venturer, agent, legal representative, employer, contractor, or employee of the other.
- Force Majeure. To the extent caused by hurricane, earthquake, other natural disaster or act of God, terrorism, war, labor unrest, general failure of the Internet or of communications systems, or other forces beyond the performing party’s reasonable control (collectively, “Force Majeure”), no delay, failure, or default, other than User’s failure to make payments when due, will constitute a breach of the Agreement. The time for performance shall be extended for a period equal to the duration of the Force Majeure event. The performing party shall use reasonable efforts to minimize the delays, to notify the other party promptly, and to inform the other party of its plans to resume performance.
- Injunctions. Each party agrees that breach of the provisions of Sections 4.3 (regarding acceptable use), 6.2 and 6.3 (regarding confidentiality) would cause the injured irreparable injury for which monetary relief would not provide adequate compensation, and that in addition to any other remedies available, the injured party will be entitled to injunctive relief against such breach or threatened breach, without the necessity of proving actual damages or posting a bond or other security. This Section shall not be taken to limit either party’s right to injunctive relief related to breach of a section of the Agreement not listed in this Section.
- Entire Agreement. The Agreement, together with any other documents expressly incorporated by reference, constitutes the entire and exclusive understanding and agreement between User and Mos regarding User’s use of and access to the Service and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof.