Terms of Service
Moonvalley’s Terms of Service
ContentFly Inc. d/b/a Moonvalley AI (“Moonvalley”) provides Content (as defined below) and other services, including an AI-based content generation service, as well as a website located at www.moonvalley.ai (“Site,” and together with such Content and services, including any updated or new features, content, functionality and technology, collectively the “Services”).
These Terms of Service (the “Agreement”) constitute a legal agreement and are entered into by and between anyone (“you”/“your”/“User”) who accesses the Site or uses the Services (including to receive Content) and Moonvalley. You agree that the following terms and conditions, together with any documents and/or additional terms they expressly incorporate by reference, govern your access to and use of, the Services, including the Content and Site. If you do not agree to this Agreement, please do not access or use the Services.
Moonvalley reserves the right, at their sole discretion, to change or modify this Agreement from time to time. Any and all such changes and modifications are effective immediately upon posting and apply to all access to and continued use of the Site. If changes or modifications are made, Moonvalley will post the changes and modifications on this page and will indicate at the top of this page the date this Agreement was last revised. Moonvalley will also notify you of any material changes, either through the Services user interface, a pop-up notice, email, or through other reasonable means. You agree to periodically visit this page to review this Agreement so you are aware of any revisions and your continued use of the Services constitutes your acceptance of the new Agreement. If you do not agree to abide by this or any future Agreement, you agree not to access or use (or continue to access or use) the Services.
THIS AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION ON YOUR LEGAL RIGHTS, REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES, OBLIGATIONS AND LIABILITIES THAT ARE APPLICABLE TO THE SERVICES SO YOU SHOULD READ IT CAREFULLY BEFORE ACCESSING OR USING THE SERVICES.
BY ACCESSING OR USING THE SERVICES, YOU AGREE TO THIS AGREEMENT.
IF YOU ARE ACCESSING OR USING THE SERVICES ON BEHALF OF OR ON THE INSTRUCTIONS OF ANOTHER ENTITY YOU REPRESENT AND WARRANT THAT, (I) YOU ARE AN AGENT OR EMPLOYEE OF THE ENTITY, (II) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY'S BEHALF AND TO BIND SUCH ENTITY, AND (III) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.
IF YOU ARE ASSESSING OR USING THE SERVICES ON YOUR OWN BEHALF, YOU REPRESENT AND WARRANT THAT (I) you are of the legal age of majority under applicable law to form a binding contract with Moonvalley and (II) YOU meet all eligibility requirements under applicable law. If you do not meet all of these requirements, THEN do not access or use the Services.
IF YOU DO NOT ACCEPT THIS AGREEMENT, THEN DO NOT ACCESS OR USE THE SERVICES.
For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the meanings ascribed to them as follows:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity (Moonvalley);
“Control”, for purposes of this Agreement, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity;
“Content” means the content (including text, images and video) generated by the Services as a result of User Data submitted by the User to the Services and made available to User through the Services;
“User Data” means all electronic data or information submitted by User to the Services;
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; and
“Term” has the meaning ascribed to that term in Section 7.1.
2. PROVISION AND USE OF THE SERVICES.
2.1 Provision of Services. Subject to the terms and conditions of this Agreement, Moonvalley may make the Services available to User for User’s personal and/or internal business use during the Term. User’s right to use the Services during the Term shall be in accordance with any additional conditions, restrictions or parameters specified in the Services.
The Services are subject to modification and change, including but not limited to features available to you. No guarantees are made with respect to the Services’ quality, stability, uptime, reliability or continued availability. Please do not create any dependencies on any aspect of the Services. Moonvalley will not be liable to you (or as applicable, your downstream users) for any dependency of yours on the Services.
The Services, including the Content, are provided to you on an “AS IS” BASIS, WITHOUT REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied, including, without limitation, any representations, warranties or conditions of TITLE, NON-INFRINGEMENT, MERCHANTABILITY, or FITNESS FOR A PARTICULAR PURPOSE. You are solely responsible for determining the appropriateness of using or redistributing the Content and assume any risks associated with access or use of the Services.
2.3 Content. USER ACKNOWLEDGES THAT DUE TO THE NATURE OF THE SERVICES, THE CONTENT MAY NOT BE UNIQUE FOR EACH USER AND THE SERVICES MAY GENERATE THE SAME OR SIMILAR OUTPUT FOR OTHER USERS. USER ACKNOWLEDGES THAT ALL CONTENT IS PROVIDED ON AN “AS-IS” BASIS, AND THAT MOONVALLEY MAKES NO REPRESENTATION OR WARRANTY REGARDING THE CONTENT, WHETHER IN REGARDS TO ITS UNIQUENESS, ACCURACY, ORIGINALITY, SUITABILITY, NON-INFRINGEMENT OR OTHERWISE. USER IS SOLELY RESPONSIBLE FOR THE REVIEW AND APPROVAL OF ANY AND ALL CONTENT PRIOR TO USER’S USE OR PUBLICATION. USER IS SOLELY RESPONSIBLE FOR ANY DECISION OR ACTION THAT IT MAY TAKE, REGARDING THE USE, PUBLICATION OR DISTRIBUTION OF ANY CONTENT, AND MOONVALLEY ACCEPTS NO RESPONSIBILITY FOR ANY CONSEQUENCES ARISING FROM SUCH USE, PUBLICATION OR DISTRIBUTION BY USER (INCLUDING WITHOUT LIMITATION ANY CLAIM FOR PLAGIARISM, INFRINGEMENT, ROYALTIES OR OTHERWISE).
2.4 User. User is responsible for maintaining the confidentiality of the User’s password and account details, if any, and for all activities that occur on the User’s account, including for any and all Content and User Data, and for its compliance with this Agreement. User shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all User Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify Moonvalley promptly of any such unauthorized access or use; and (iii) comply with all applicable laws related to the User Data, Content and Services.
2.6 Publicity. You shall not issue any press releases or other public statements relating to this Agreement or the Services without Moonvalley’s prior written consent.
2.7 Audit Rights. Moonvalley shall have the right to use the capabilities of the Services to monitor the use of the Services and User’s compliance with this Agreement.
3. OWNERSHIP RIGHTS.
3.1 Rights to Content. Subject to terms of this Agreement, to the extent any copyright vests with respect to any Content resulting from User’s submission of User Data to the Services, User will be the owner of such copyright in such Content; provided, however, as noted above, User acknowledges and agrees that no copyright or anything herein or otherwise restricts Moonvalley or the Services from creating content that is the same or similar to User’s Content. In order to ensure that Moonvalley is not subject to a potential claim of copyright infringement or other claims, User hereby grants Moonvalley and its affiliates a non-exclusive, non-transferable (except in connection with the permitted assignment of this Agreement), irrevocable, sublicensable (through multiple tiers), worldwide, royalty-free, fully paid-up, perpetual license to use, reproduce, modify, make derivative works of, distribute, perform, display and otherwise exploit the Content. In addition, User irrevocably releases, acquits and forever discharges the Moonvalley Indemnitees (as defined below) of any liability (including without limitation for direct or indirect copyright or other infringement) with respect to any and all User Data and Content.
3.2 Rights to the Services. Subject to the limited rights expressly granted hereunder, Moonvalley reserves all rights, title and interest in and to the Services, including all related intellectual property rights therein. No rights are granted to User hereunder other than as expressly set forth in this Agreement. User is permitted to access the Services solely for User’s personal and/or internal business purposes.
3.3 Restrictions. User shall not (and shall not allow any third party to): (i) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Services except to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (ii) circumvent any user limits or other timing or use restrictions that are built into the Services; (iii) remove any proprietary notices, labels, or marks from the Services; (iv) frame or mirror any content forming part of the Services; or (v) access the Services in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Services. Moonvalley’s name, logo, and all related names, logos, product and service names, designs, images, and slogans are trademarks of Moonvalley or its affiliates or licensors. User must not use such trademarks without the prior written permission of Moonvalley. Other names, logos, product and service names, designs, images, and slogans mentioned, or which appear on the Site are the trademarks of their respective owners. Use of any such property, except as expressly authorized, may constitute an infringement or violation of the rights of the property owner and may be a violation of applicable law.
3.4 User Data. As between Moonvalley and User, User exclusively owns all rights, title and interest in and to all User Data. User hereby grants Moonvalley a non-exclusive, non-transferable (except in connection with the permitted assignment of this Agreement), irrevocable, sublicensable (through multiple tiers), worldwide, royalty-free, fully paid-up, perpetual license to use, reproduce, modify, make derivative works of, distribute, perform, display, aggregate, collect, analyze and otherwise exploit the User Data and other information relating to the performance of the Services. For certainty, among other things Moonvalley shall be free (during and after the Term) to (i) use such User Data and other information to improve and provide Moonvalley’s products and services, and (ii) disclose such User Data and other information in an aggregated and anonymized format that does not identify User or any individual (“Aggregated Data”). Moonvalley shall own all Aggregated Data created from the User Data and/or other information relating to or generated from the performance of the Services.
3.5 Suggestions. Moonvalley shall have a royalty-free, worldwide, transferable, sublicensable (through multiple tiers), irrevocable, perpetual, unrestricted license to use, reproduce, modify or incorporate into the Services and/or any other products or services, or otherwise exploit, any suggestions, enhancement requests, recommendations or other feedback provided by User relating to the Services.
3.7 Fees and Payment. The Services may be provided on a subscription basis under specific subscription plans offered by Moonvalley from time to time (a “Subscription Plan”). Moonvalley reserves the right to increase the fees on not less than 60 days’ advance notice in writing to User. Except as set forth in Section 7.2, all payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable. Fees for such Services will be invoiced monthly in advance or as otherwise as specified in the applicable Subscription Plan. If User purchases a subscription, User will pay Moonvalley the fees specified in the applicable Subscription Plan. If User’s Subscription Plan includes an ongoing subscription that is automatically renewed periodically, User hereby authorizes Moonvalley to bill User’s payment instrument in advance on such periodic basis in accordance with the terms of the applicable Subscription Plan until User’s subscription expires or is terminated, and User further agrees to pay any charges so incurred. Unless otherwise stated in an invoice, charges are due immediately on the invoice date. User is responsible for maintaining complete and accurate billing and contact information with Moonvalley. Any payment not received from User by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at Moonvalley's discretion, late charges at the rate of 1.0% of the outstanding balance per month (12.67% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
3.8 Taxes. Unless otherwise stated, Moonvalley's fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, "Taxes"). User is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Moonvalley's net income or property. If Moonvalley has the legal obligation to pay or collect Taxes for which User is responsible under this section, the appropriate amount shall be invoiced to and paid by User, unless User provides Moonvalley with a valid tax exemption certificate authorized by the appropriate taxing authority.
4. WARRANTIES AND DISCLAIMERS.
4.1 Warranties. Each party warrants that it has the legal power to enter into this Agreement. User represents, warrants and agrees that (i) User has all rights necessary to provide any User Data that it provides hereunder, and to permit Moonvalley to use the same as contemplated hereunder; and (ii) all information that User provides to Moonvalley, including without limitation the User Data, are complete, true and accurate.
4.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, MOONVALLEY, ITS SUBSIDIARIES, AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS, OR SUCCESSORS MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. TO THE MAXIMUM EXTENT PERMITTED BY LAW, MOONVALLEY, ITS SUBSIDIARIES, AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS, OR SUCCESSORS FURTHER DISCLAIMS ALL WARRANTIES (I) RELATING TO THE ACCURACY, RELIABILITY, CORRECTNESS, OR COMPLETENESS OF THE CONTENT OR ANY PORTION THEREOF THAT IS MADE AVAILABLE THROUGH THE SERVICES; (II) THAT THE CONTENT PROVIDED THROUGH THE SERVICES WILL BE FREE FROM ERRORS, OMISSIONS, DEFECTS, OR DELAYS IN OPERATION, OR FROM TECHNICAL INACCURACIES OR OTHER ERRORS; (III) THAT THE CONTENT OR SERVICES SHALL NOT INFRINGE THE INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF ANY THIRD PARTY; (IV) THAT THE CONTENT OR SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (V) THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION.
4.3 Obligation to Monitor. Moonvalley has no obligation, nor any responsibility to any party to monitor the Services or its use, and does not and cannot undertake to review material that you or other users submit to the Services. Moonvalley cannot ensure prompt removal of objectionable material after it has been posted and has no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party, subject to applicable laws.
5.1 Indemnification by User. To the extent permitted under applicable law, User agrees to defend, indemnify and hold harmless Moonvalley, its Affiliates and its and their directors, officers, employees, service providers, contractors, suppliers, successors, licensors, and agents (the “Moonvalley Indemnitees”) from any and all losses, damages, liabilities, judgments, awards, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind, injury (including death) or costs arising out of or relating to User Data, User's use of the Content or Services, User’s connection to the Services, User’s violation of this Agreement, or User’s violation of any rights of another. Moonvalley shall notify User promptly in writing upon becoming aware of any such claim, suit, or proceeding and User’s connection thereto. Moonvalley reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, and User agrees to cooperate with any reasonable requests assisting Moonvalley’s defense of such matter. You shall not settle or compromise any claim against the Moonvalley Indemnitees without Moonvalley’s written consent.
6. LIMITATION OF LIABILITY.
6.1 Limitation of Liability. IN NO EVENT SHALL MOONVALLEY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF $100 OR THE AMOUNTS ACTUALLY PAID BY AND DUE FROM USER HEREUNDER, IF ANY, IN THE TWO MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
6.2 Exclusion of Damages. TO THE EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTACES SHALL MOONVALLEY BE LIABLE FOR ANY DAMAGES OR OTHER HARMS OF ANY KIND WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE IN CONNECTION WITH THE SERVICES. IN NO EVENT SHALL MOONVALLEY HAVE ANY LIABILITY TO USER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT USER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.3 Beneficiaries. Every right, exemption from liability, release, defense, immunity and waiver of whatsoever nature applicable to a party under this Agreement shall also be available and shall extend to benefit and to protect such party’s Affiliates, subcontractors, agents, licensors, suppliers, directors and/or employees and for such purposes such party is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of such companies and persons in respect to such rights, exemptions, releases, defenses, immunities and waivers.
7. TERM AND TERMINATION.
7.1 Term of Agreement. This Agreement shall commence as of the date of the User’s access, use or subscription to the Services and shall continue in effect on a month-by-month basis unless terminated by a party as provided herein (“Term”). Either party may terminate this Agreement without cause on not less than thirty (30) days’ prior notice, or by otherwise following any termination mechanism provided for within the Services. Upon termination for any reason, User shall cease all access or use of the Services. For certainty, if User thereafter commences any access, use or subscription to the Services, the Agreement shall then commence again and continue in effect on a month-by-month basis unless terminated by a party as provided herein.
7.2 Termination for Cause. A party may terminate this Agreement for cause: (i) upon ten (10) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) 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.
7.3 Suspension or Termination by Moonvalley. User agrees that Moonvalley, in its sole discretion, may suspend or terminate User’s account or use of the Services and remove and discard any Content within the Services, for any reason, including for overdue accounts, lack of use or if Moonvalley believes that User has violated or acted inconsistently with the letter or spirit of this Agreement or applicable laws. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of User’s use of the Services, may be referred to appropriate law enforcement authorities. Without limiting the foregoing, Moonvalley has the right to fully cooperate with any law enforcement authorities or court order requesting or directing Moonvalley to disclose the identity or other information of anyone posting any materials on or through the Services. Moonvalley may also in its sole discretion and at any time discontinue providing the Services, or any part thereof, with or without notice. User agrees that any suspension or termination of User’s access to the Services under any provision of this Agreement may be effected without prior notice, and acknowledges and agrees that Moonvalley may immediately deactivate or delete User’s account and all related information and files in User’s account and/or bar any further access to such files or the Services. Further, User agrees that Moonvalley will not be liable to User or any third party for any suspension or termination of User’s access to the Services.
7.4 Outstanding Fees. Termination or expiration of this Agreement shall not relieve User of the obligation to pay any fees accrued or payable to Moonvalley prior to the effective date of termination or expiration of this Agreement.
7.5 Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 3 through 9.
8. DISPUTE RESOLUTION BY BINDING ARBITRATION.
8.1 Agreement to Arbitrate. This Dispute Resolution by Binding Arbitration section 8 is referred to in this Agreement as the “Arbitration Agreement.” User agrees that any and all disputes or claims that have arisen or may arise between User and Moonvalley, whether arising out of or relating to this Agreement (including any alleged breach thereof), the Services, or any aspect of the relationship or transactions between the parties (“Dispute”), will be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement. User agrees that, by entering into this Agreement, User and Moonvalley are each waiving the right to a trial by jury or to participate in a class action. User’s rights will be determined by a neutral arbitrator, not a judge or jury.
8.2 Prohibition of Class and Representative Actions and Non-Individualized Relief. TO THE EXTENT PERMITTED BY LAW, USER AND MOONVALLEY AGREE THAT EACH OF THE PARTIES MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH USER AND MOONVALLEY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
8.3 Pre-Arbitration Dispute Resolution. Moonvalley is always interested in resolving Disputes amicably and efficiently, and most User concerns can be resolved quickly and to the User’s satisfaction by emailing user support at firstname.lastname@example.org. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Moonvalley should be sent to ContentFly Inc, 1 King St W, 4800-238, Toronto, Ontario, Canada, M5H 1A1 (“Notice Address”). The Notice must (i) describe the nature and basis of the Dispute and (ii) set forth the specific relief sought. If Moonvalley and User do not resolve the Dispute within sixty (60) days after the Notice is received, User or Moonvalley may commence arbitration for the Dispute in accordance with this Arbitration Agreement.
8.4 Arbitration Procedures. Resolution byarbitration under this Arbitration Agreement shall be by ADR Chambers using the ADR Chambers Arbitration Rules. The arbitration shall take place in Toronto, Ontario, and shall be conducted in English. The arbitration shall be conducted by a single arbitrator having no financial or personal interest in the business affairs of either of the parties. The arbitrator shall be appointed jointly by agreement of the parties, failing which an arbitrator shall be appointed by ADR Chambers if the parties do not jointly appoint an arbitrator within sixty (60) days of commencing arbitration. An oral hearing need not be held. Absent agreement or an award in the arbitration to the contrary, the arbitration fees and expenses shall be paid by the parties jointly and each of the parties shall bear their own costs and expenses. The arbitrator shall have the authority to award any remedy or relief that a court could order or grant in accordance with this Agreement, including, without limitation, specific performance of any obligation created under this Agreement, the issuance of an interim, interlocutory or permanent injunction, or the imposition of sanctions for abuse or frustration of the arbitration process. The arbitral award shall be in writing, stating the reasons for the award and be final and binding on the parties with no rights of appeal, including on any questions of fact, law or mixed fact and law. The award may include an award of costs, including reasonable legal fees and disbursements and fees and expenses of the arbitrator. Judgment upon the award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets. The arbitration shall be kept confidential and the existence of the proceeding and any element of it (including but not limited to any pleadings, briefs or other documents submitted and exchanged, and testimony or other oral submission and any awards) shall not be disclosed beyond the arbitrator, the parties, their counsel and any person necessary to the conduct of the proceeding, except as may be lawfully required in judicial proceedings relating to the arbitration or otherwise.
8.5 Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than Section 8.2 titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement will be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of Section 8.2 above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement will be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of this Agreement will continue to apply.
9. GENERAL PROVISIONS.
9.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
9.2 No Third-Party Beneficiaries. Except as expressly provided in this Agreement, there are no third-party beneficiaries to this Agreement.
9.3 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email. Notices to Moonvalley shall be addressed to the attention of the Legal Department. Notices to User may additionally be addressed to User’s email address associated with User’s account.
9.3 Waiver and Cumulative Remedies. 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.
9.4 Severability. 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. To the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in one jurisdiction will not in any way affect the legality, validity, or enforceability of that or any other provision in any other jurisdiction.
9.5 Assignment. 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, each party may assign this Agreement in its entirety, without consent of the other party, to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its business, stock or assets. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
9.6 Governing Law. This Agreement shall be governed by the laws of the Province of Ontario and the laws of Canada applicable in the province of Ontario. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. The parties confirm that it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, be drawn up in English only.
9.7 Force Majeure. Neither party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labour problems (other than those involving the employees of the affected party), computer, telecommunications, Internet service or hosting facility failures or delays involving hardware, software or power systems not within a party’s possession or reasonable control, provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.
9.8 Export. User acknowledges and agrees that the Services may be subject to export and import controls under the regulations of Canada, the United States and other countries, and User shall comply with all export and import control regulations of such countries. User shall not use the Services for any purposes prohibited by export laws, including, without limitation, nuclear, chemical or biological weapons proliferation. User shall be responsible for procuring all required permissions for any subsequent export, import or use of the Services.
9.9 Entire Agreement. This Agreement 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 signed by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in any third party purchase order or in any other third party order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
On this page