Terms & Conditions

This Application End User Terms and Conditions ("Agreement") is a binding agreement between you ("Client" or "you") and MoJo Active, Inc. ("MoJo Active"). This Agreement governs your use of the PaymentPutty application on the BigCommerce ecommerce platform, (including all related documentation, the "Application"). The Application is licensed, not sold, to you.

BY CLICKING THE "AGREE" BUTTON OR OTHERWISE USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE APPLICATION AND DELETE IT FROM YOUR DEVICE.

Terms Governed by your MSA. Prior to you gaining access to the Application you must sign MoJo Active’s Master Services Agreement (the “MSA”). The MSA governs all aspects of your engagement with MoJo Active for use of, and your use of, the Application. If you access the Application without a signed or otherwise effective MSA, then you hereby agree to the following terms hereafter referred to as the “Default Terms.”
Permitted Use. You agree that the Application will be used as part of the checkout process to exchange but not store sensitive information such as Gift Card Numbers, Credit Cart Authorization Tokens, and other customer data required to complete an ecommerce transaction.
Information Stored. The Application may store meta-data such as IDs, Pickup Schedules, and other checkout settings used to customize your checkout experience.

DEFAULT TERMS

SERVICES AND DELIVERABLES
1. MoJo Active will perform the services (“Services”) and provide the deliverables (“Deliverables”) as described in more detail in each statement of work (“SOW”) which are signed by MoJo Active and Client.
2. Where there is any conflict or inconsistency between the terms and conditions in these Default Terms and the terms and conditions of any SOW, the terms and conditions of these Default Terms shall prevail and control, except if a signed SOW expressly identifies the particular section of these Default Terms which is being superseded and in such event, such provision in the SOW will take precedence over these Default Terms, but only with respect to that particular SOW. Notwithstanding the foregoing, in no event may an SOW, schedule, exhibit, or similar document override any provision of these Default Terms that relates to indemnification or limitation of liability.
SCHEDULE OF SERVICES AND PLACE OF PERFORMANCE
1. The scope of services and place of performance shall be a agreed upon in the SOW.
FEES AND EXPENSES
1. In consideration of the performance of the Services by MoJo Active and the rights granted to Client under these Default Terms, Client agrees to pay the fees set out in the applicable SOW (“Fees”).
2. If and to the extent specified in the SOW, Client agrees to pay the expenses for Services-related materials and reasonable travel, living and accommodation expenses incurred by MoJo Active personnel in the performance of the Services (“Incidental Expenses”). MoJo Active shall not charge the Client any administrative or similar fee on Incidental Expenses.
INVOICING AND PAYMENT TERMS
1. Unless otherwise provided in the applicable SOW, Fees, and Incidental Expenses, if any will be invoiced monthly in arrears for Services performed and/or Incidental Expenses incurred. Services will be billed monthly for Services performed during the previous month or, in the case of short-term assignments not exceeding a 1-month period, after the completion of the Services. Incidental Expenses will be billed as incurred on a monthly basis.
2. MoJo Active’s invoices will comply with Client’s reasonable administrative requirements when requested. If requested by MoJo Active, Client shall issue a purchase order or alternative document acceptable to MoJo Active on or before the commencement or extension of the Services under the applicable SOW in order to facilitate the discharge of Client’s payment obligations thereunder.
3. Client will pay all invoiced amounts due to MoJo Active within 15 calendar days from the date of MoJo Active’s invoice. Client agrees to pay a late payment charge calculated at 2% per month on any amounts invoiced which remain unpaid after 30 calendar days from the invoice date until the date paid, except for invoiced payments that Client has successfully disputed.
4. In addition to all other remedies available under these Default Terms, at law or in equity, MoJo Active will be entitled to suspend the provision of any Services if the Client fails to pay any undisputed amounts when due hereunder and such failure continues for 15 calendar days following written notice thereof, until payment has been made in full.
TAXES
1. Client agrees to pay all applicable taxes arising out of or in connection with the Services and/or Deliverables, excluding taxes based on MoJo Active’s income, revenues, gross receipts, personnel, real or personal property or other assets. MoJo Active agrees to list all payable taxes, if applicable, as a separate line item on each invoice.
CONFIDENTIALITY
1. MoJo Active and Client covenant to hold in confidence any non-public, confidential, or proprietary information that either party receives (“Receiving Party”) from the other (“Disclosing Party”) in connection with the Services or relating to the other party, including, but not limited to trade secrets, technology, information pertaining to business operations, strategies, clients, pricing, and marketing, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as confidential (“Confidential Information”).
2. Confidential Information does not include information which (i) is or becomes generally available to the public through no breach of this Article by the Receiving Party; (ii) was in the Receiving Party’s lawful possession prior to the disclosure and obtained from sources other than the Disclosing Party on a non-confidential basis; (iii) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure; or (iv) was or is independently developed by the Disclosing Party without reference to or access to the Confidential Information of the Disclosing Party.
3. While these Default Terms are in effect, and for a period of 3 years thereafter, the Receiving Party shall:
  1. Protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party holds its own Confidential Information, but at all times with no less than a commercially reasonable degree of care.
  2. Not disclose or permit the disclosure of the Confidential Information to any third party without first obtaining written permission from the Disclosing Party.
  3. Not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purposes other than to exercise its rights or perform its obligations under these Default Terms.
  4. Promptly notify the Disclosing Party upon discovery of any unauthorized use or disclosure of Confidential Information and cooperate with the Disclosing Party in every reasonable way to assist in regaining possession of such Confidential Information and prevent its further unauthorized use or disclosure.
  5. Promptly return all originals, copies, reproductions and summaries in hard copy and/or electronic form of Confidential Information upon the termination of these Default Terms, or upon the request of the Disclosing Party, or, at the option and upon the request of the Disclosing Party, certify destruction of the same, except for copies that are maintained as archive copies on its disaster recovery and/or information technology backup systems in which case such copies shall be destroyed upon the normal expiration of the backup files.
4. In the event that the Receiving Party is or becomes required by applicable law or legal process to disclose any Confidential Information of the Disclosing Party, it shall, prior to making such disclosure, use commercially reasonable efforts to notify the Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy, or waive compliance with this Article. The Receiving Party will cooperate with the Disclosing Party in any effort the Disclosing Party undertakes to obtain a protective order and, if disclosure is nonetheless required, will furnish only such Confidential Information as is legally required to be disclosed.
INTELLECTUAL PROPERTY
1. PREEXISTING INTELLECTUAL PROPERTY. Except for rights expressly granted under this Agreement, each party will retain exclusive interest in and ownership of its Intellectual Property, including source code, machine code, object code, database structures, database code, wireframes and any other materials or content developed before this Agreement and any applicable Statement of Work or developed outside the scope of this Agreement and Statement of Work (“Pre-Existing-IP”).
  1. Preexisting Intellectual Property for MoJo Active will include any materials and tools, such as all documents, data, know- how, routines, libraries, tools, methods, methodologies, processes, techniques, designs, ideas, concepts, technologies, software and other materials, including computer programs, reports and specifications and any improvements thereto that is (i) provided by or used by MoJo Active in connection with performing the Services and providing the Deliverables, or (ii) conceived, created, developed, generated, produced or reduced to practice or adapted by MoJo Active in its business generally before the commencement or independently of these Default Terms or in connection with performing the Services and providing the Deliverables, including all associated Intellectual Property Rights of any nature whatsoever.
  2. LICENSE TO PRE-EXISTING IP. To the extent any of MoJo Active’s Pre-Existing IP is incorporated in any modifications or Deliverables, MoJo Active hereby grants Client a worldwide, non-exclusive, royalty-free, transferable, irrevocable license in perpetuity to use, copy, install, perform, display, and modify any such of our Pre-Existing IP in connection with the Deliverables in which they are incorporated or embedded or the Services in which they are used. Nothing in this Agreement allows Client to reverse engineer MoJo Active’s IP or to use for purposes outside the scope of the Deliverables.
2. MODIFICATIONS AND NEW INTELLECTUAL PROPERTY: Except as set forth in Section 7.1, upon all payment due to MoJo Active with respect to the Services and Deliverables, Client shall be the sole and exclusive owner of all right, title and interest in and to the Deliverables, including all Intellectual Property Rights therein, unless otherwise stipulated in the applicable SOW.
3. INTELLECTUAL PROPERTY. “Intellectual Property" means any and all of the following in any jurisdiction throughout the world:
  1. trademarks and service marks, including all applications and registrations, and the goodwill connected with the use of and symbolized by the foregoing,
  2. copyrights, including all applications and registrations related to the foregoing,
  3. trade secrets and confidential know-how,
  4. patents and patent applications,
  5. websites and internet domain name registrations,
  6. other intellectual property and related proprietary rights, interests, and protections (including all rights to sue and recover and retain damages, costs, and attorneys' fees for past, present, and future infringement, and any other rights relating to any of the foregoing).
4. MODIFICATIONS. "Modifications" means any additions to, updates, improvements on, bug patches, new versions of, or other modifications to the Intellectual Property, including Pre-Existing IP, made by either party during this Agreement.
REPRESENTATIONS AND WARRANTIES
1. MoJo Active represents and warrants to the Client that:
  1. The Services will be performed in a timely and professional manner consistent with generally recognized industry standards for similar services.
  2. All Services and Deliverables will substantially conform to the requirements or written specifications set out in the applicable SOW or otherwise expressly agreed to by Client and MoJo Active in writing for a period of 30 calendar days after delivery to the Client.
  3. The Services and Deliverables will not infringe or violate the Intellectual Property Rights of any third party.
2. If MoJo Active breaches any of the foregoing warranties, subject to Sections 8.3 and 8.4, MoJo Active shall, in its sole discretion, either (i) use reasonable efforts to cure such breach; (ii) re-perform the defective Services or revise the Deliverables or (iii) if MoJo Active is unable to cure such breach within a reasonable time (but no more than 60 calendar days) after the Client’s written notice of such breach, credit or refund the Fees paid for the deficient Services or Deliverables at the pro rata contract rate of Fees under the applicable SOW.
3. MOJO ACTIVE MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN SECTION 8.1 ABOVE. ALL OTHER WARRANTIES AND CONDITIONS, OR GUARANTEES, WHETHER EXPRESS OR IMPLIED, BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, INCLUDING WARRANTIES OR CONDITIONS OF PERFORMANCE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY DISCLAIMED BY MOJO ACTIVE AND WAIVED BY THE CLIENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNLESS ADDITIONAL WARRANTIES OR EXCLUSIONS ARE INCLUDED IN THE APPLICABLE SOW. THE REMEDIES SET FORTH IN SECTION 8.2 WILL BE THE CLIENT’S SOLE AND EXCLUSIVE REMEDY AND MOJO ACTIVE’S SOLE AND EXCLUSIVE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 8.1.
4. MoJo Active will not be liable for breach of the warranty set forth in Sections 8.1 and 8.2 unless Client provides written notice of the breach, defective Services or Deliverables reasonably described, to MoJo Active within 30 calendar days after the discovery of such breach or the delivery of such defective Services or Deliverables to Client.
INDEMNITY
1. Subject to the limitations and exclusions of liability in these Default Terms, MoJo Active agrees to indemnify, defend and hold harmless Client, its officers, directors, employees, successors and assigns (“Client Indemnified Parties”) against and in respect of any loss, cost, damage, demand, deficiency, judgment, interest, award, cost or expense, liability, or disbursement (“Loss”) brought by a third party and incurred by the Client Indemnified Parties as a result of a final, non-appealable judgment to the extent any such Loss arising out of or resulting from any third-party claim, suit, action, proceeding or prosecution arising out of or in connection with damage to real or tangible, personal property resulting from the willful, fraudulent or grossly negligent acts or omissions of MoJo Active or its personnel.
2. MoJo Active shall indemnify, defend and hold harmless the Client Indemnified Parties from and against all Losses awarded against a Client Indemnified Party in a final, non-appealable judgment based on a claim that any of the Services or Deliverables or Client’s receipt or use thereof infringes any Intellectual Property Right of a third party arising under the laws of the United States of America (“IP Claim”); provided however, that MoJo Active shall have no obligations under this with respect to claims arising out of:
  1. Any Client materials or any instruction, information, designs, specifications, or other materials provided by Client in writing to MoJo Active.
  2. Use of the Deliverables in combination with any materials, equipment or software not supplied to Client or specified by MoJo Active in writing if the infringement would have been avoided by the use of the Deliverables not so combined.
  3. Any modifications or changes made to the Deliverables by or on behalf of any person other than MoJo Active or its personnel.
    
    The remedies in this Section 9.2 are Client’s sole and exclusive remedies and MoJo Active’s sole liability regarding the subject matter giving rise to any IP Claim.
3. MoJo Active shall indemnify, defend, and hold harmless the Client Indemnified Parties from and against all Losses sustained by or awarded against a Client Indemnified Party resulting from, arising out of, or relating to any claim relating to a breach of Article 6 (Confidentiality).
LIMITATION OF LIABILITY
1. Risk Allocation. Client acknowledges and agrees that the Fees payable by it to MoJo Active pursuant to these Default Terms and any SOW have been or will be negotiated based upon a specific risk allocation between MoJo Active and the Client, and that MoJo Active would not have entered into these Default Terms and will not enter into any SOW but for the specific understanding reached with the Client as to certain risk allocation as set forth in this article.
2. No Liability for Indirect Damages. IN NO EVENT, SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY, REGARDLESS OF THE FORM OF ACTION, WHETHER ARISING OUT OF BREACH OF CONTRACT UNDER THESE DEFAULT TERMS OR ANY SOW OR IN TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, AGGRAVATED OR PUNITIVE DAMAGES OF ANY NATURE OR KIND WHATSOEVER INCLUDING, BUT NOT LIMITED TO, LOSSES OR DAMAGES ARISING OUT OF OR RESULTING FROM THESE DEFAULT TERMS OR ANY SOW, ANY USE OF OR INABILITY TO USE THE SERVICES AND/OR ANY DELIVERABLE, BUSINESS INTERRUPTION, LOSS OF USE, DATA, REVENUE, PROFIT, GOODWILL, OR DIMINUTION IN VALUE, FAILURE TO REALIZE SAVINGS, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE BREACHING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
3. Liability Cap. IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY FOR EACH AND ALL CLAIMS ARISING OUT OF OR RELATED TO THESE DEFAULT TERMS OR ANY SOW, ANY USE OF OR INABILITY TO USE THE SERVICES AND/OR ANY DELIVERABLE OR OTHERWISE, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE BY CLIENT TO MOJO ACTIVE PURSUANT TO THE APPLICABLE SOW IN THE 12 (TWELVE) MONTHS PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR IN THE EVENT SUCH CLAIM OCCURS WITHIN THE FIRST 12 (TWELVE) MONTHS OR LESS OF THESE DEFAULT TERMS, THEN THE AVERAGE MONTHLY PAYMENT MULTIPLIED BY 12 (TWELVE) OR THE NUMBER OF MONTHS DURING WHICH THE SERVICES UNDER THE APPLICABLE SOW WERE DELIVERED. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDER.
4. Exceptions. Notwithstanding anything to the contrary, the foregoing exclusions and limitations of liability set out in Sections 10.2 and 10.3 shall not apply to
  1. Losses arising out of or relating to an IP Claim
  2. Damages or other liabilities arising out of or relating to a party’s failure to comply with its obligations under Article 6 (Confidentiality)
  3. Damages or other liabilities arising out of or relating to a party’s gross negligence or willful misconduct.
TERM AND TERMINATION
1. The term of these Default Terms shall start on the Effective Date and continues until terminated by mutual agreement or as set out in this Article.
2. A SOW shall become effective upon the effective date designated in the SOW and shall remain in effect until all Services and Deliverables have been performed and delivered or until otherwise terminated by mutual agreement or as set out in this Article.
3. Either party may immediately terminate these Default Terms or any SOW, effective upon written notice to the other Party (“Defaulting Party”), if the Defaulting Party:
  1. Materially breaches any material provision of these Default Terms or any SOW, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within 30 calendar days or present a plan acceptable to the other party to cure such breach within 30 calendar days after receipt of written notice of such breach.
  2. (i) Becomes insolvent, (ii) is generally unable to pay, or fails to pay, its debts as they become due or otherwise acknowledges its insolvency, (iii) ceases to carry on business in the ordinary course, (iv) files, or has filed against it, any application, proceeding or other action under any law relating to bankruptcy, insolvency, winding-up, reorganization, administration, plan of arrangement, relief or protection of debtors, compromise of debts or similar laws, (v) makes or seeks to make a general assignment for the benefit of its creditors.
4. Notwithstanding anything to the contrary in Section 11.3 (a), MoJo Active may terminate these Default Terms or any SOW with immediate effect upon written notice to Client, if Client fails to pay any amount when due under these Default Terms or any SOW and such failure continues for 30 calendar days after the Client’s receipt of written notice of non-payment.
5. In the event of termination of these Default Terms or any SOW, MoJo Active shall be entitled to receive payment for all such sums then due for Services already performed, materials used, or Deliverables delivered, ready to be delivered or in the course of preparation on a proportionate basis or on a time and materials basis if the Fees for such Services and Deliverables are not otherwise specified in the applicable SOW.
6. The parties agree that any termination of these Default Terms shall trigger the termination of all SOWs placed on the basis of these Default Terms, however, termination of any SOW will not trigger the termination of these Default Terms, unless otherwise agreed by the parties in writing.
CLIENT OBLIGATIONS
1. Client shall:
  1. Cooperate with MoJo Active in all matters relating to the Services and provide, subject to compliance by MoJo Active personnel with Client’s reasonable safety, physical and cyber security requirements, such access to Client’s premises, and such office accommodation and other facilities, equipment, information technology systems, network, software as may reasonably be requested by MoJo Active, for the purposes of performing the Services.
  2. Respond promptly to any MoJo Active request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for MoJo Active to perform Services in accordance with the requirements of these Default Terms and the applicable SOW.
  3. Provide such Client materials, information, or data as MoJo Active may request to carry out the Services in a timely manner and ensure that such Client materials, information, or data are complete and accurate in all material respects.
2. If MoJo Active’s performance of its obligations under these Default Terms or the applicable SOW is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants or employees, MoJo Active shall not be deemed in breach of its obligations under these Default Terms or any applicable SOW or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
3. INDEMNITY. Client will indemnify, defend, and hold harmless the MoJo Active and its directors, officers, and employees from and against all taxes, losses, damages, liabilities, costs, and expenses, including attorneys’ fees and other legal expenses, arising directly or indirectly from or in connection with: any negligent, reckless, or intentionally wrongful act of Client’s assistants, employees, or agents, any breach by Client’s assistants, employees, or agents of any of their obligations under this Agreement, any failure of the client for failure to comply with all applicable laws, rules, and regulations, or any violation or claimed violation of a third party’s rights by Client.
NON-SOLICITATION
1. Each of the parties hereby agrees that it shall not, without the express written consent of the other party, so long as these Default Terms have not been terminated and for an additional period of 1 year after the effective date of termination of these Default Terms,
  1. Directly or indirectly recruit or extend an offer for employment, an independent contractor relationship or any other similar business relationship to any current employee of the other party or any former employee of the other party whose employment was terminated within the period of 6 months prior to the effective date of termination of these Default Terms.
  2. Directly or indirectly solicit or induce any person, firm or corporation who is then in an employment, independent contractor, or other similar business relationship with the other party to terminate or breach that relationship.
2. Notwithstanding the foregoing, nothing herein shall restrict the right of either party to solicit or recruit generally in the media or from hiring any employee or former employee of the other party who answers any general advertisement not specifically targeted toward such employee or former employee or who otherwise voluntarily applies for hire without having been initially personally solicited or recruited by such party.
MISCELLANEOUS PROVISIONS
1. Amendment to Statements of Work. If either party wishes to change the scope or performance of any SOW, the delivery schedule, or any other terms and conditions of the SOW, it shall be confirmed in writing, which may include but not be limited to, emails, use of software scheduling messaging, and other electronic forms of submission. Due to the nature of the services provided a formal amendment or signed change order will not be necessary to meet the requirements of this section.
2. Notices. All formal legal notices, requests, consents, claims, demands, waivers, or other communications, other than day-to-day operational notices and communications (“Notices”), including notices of address changes, must be in writing. Each party shall send all Notices by personal delivery, nationally recognized overnight courier or by facsimile or email of a PDF document with confirmation of transmission to the respective address of the parties set forth in this Section. Any Notice is conclusively deemed effective only (a) if delivered in person or by overnight on the date of actual delivery and, (b) if sent by facsimile or email on the date of transmission if a business day or if not a business day or after 5:00 p.m. on the date of transmission, on the next following business day.
  
  All Notices must be sent to
  Client at the information provided to MoJo upon accessing the Application.
  
  MoJo Active at:
  MoJo Active, Inc.
  14 W. Brimmer Ave.
  Watsontown, PA 17777
3. Choice of Law and Venue. These Default Terms, any SOW, and all matters arising out of or relating to these Default Terms or any SOW shall be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania. Each party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other party in any way arising from or relating to these Default Terms or any SOW, including contract, equity, tort, fraud and statutory claims, in any forum other than the Courts in Northumberland County, PA. Each party irrevocably submits to the exclusive jurisdiction of such courts in any such action, litigation or proceeding. The parties irrevocably and unconditionally waive any objection to the venue of any action, litigation or proceeding in such courts. Each party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
4. Publicity. MoJo Active will not issue or release any announcement, statement, press release or other publicity or promotional, sales or marketing materials relating to these Default Terms or any SOW, or otherwise use the Client’s trademarks, service marks, trade names, logos, symbols, or brand names, in each case, without the prior written consent of the Client, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, MoJo Active will be entitled to include a description of the Services rendered under these Default Terms or any SOW in marketing and research materials and disclose such information to third parties, provided that all such information will be rendered anonymous and not subject to association with the Client.
5. Independent Contractor. The relationship between the parties is that of independent contractors. Nothing contained in these Default Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
6. No Third-Party Beneficiaries. These Default Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Default Terms.
7. Limitation Period. Except for actions for non-payment, no action, regardless of form, arising directly or indirectly out of these Default Terms or any SOW may be brought by either party more than 1 year after the cause of action arose or the date of its discovery when a party knows or ought to know of the existence of the cause of action, whichever occurs earlier. With the exception of actions for non-payment, the parties waive the right to file an action arising directly or indirectly out of these Default Terms or any SOW under any longer statute of limitations.
8. Waiver. No failure to exercise, nor any delay in exercising any right, power, or remedy under these Default Terms shall operate or be construed as a waiver. No single or partial exercise of any right, power, or remedy hereunder prevents any further or other exercise thereof or the exercise of any other right, power or remedy. Any waiver of any breach of these Default Terms shall not be deemed to be a waiver of any subsequent breach. No term or provision of any SOW or these Default Terms shall be deemed waived by either party, and no breach excused by either party, unless the waiver or consent shall be in writing signed by the party granting such waiver or consent.
9. Equitable Remedy. Each party acknowledges that (a) a breach or threatened breach by a party of Article 6 (Confidentiality), Article 7 (Intellectual Property) and Article 13 (Non-solicitation) may cause the non-breaching party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, (b) in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a temporary restraining order, injunctive relief, specific performance and any other relief that may be available from any court of competent jurisdiction, in addition to any other remedy to which the non- breaching party may be entitled at law, in equity or otherwise, subject to any express exclusions or limitations in these Default Terms.
10. Severability. If any term or provision of these Default Terms or any SOW is held to be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability will not affect any other term or provision of these Default Terms or any SOW or invalidate or render unenforceable such term or provision in any other jurisdiction and the remaining provisions will remain in full force and effect.
11. Statement of Work. The terms and conditions of Client’s purchase orders or similar ordering document, whether issued before, concurrently, or subsequent to the execution of any SOW, shall be superseded by the terms and conditions of these Default Terms and the applicable SOW.
12. Amendment. These Default Terms may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto which specifically states that it amends, modifies, or supplements these Default Terms.
13. Entire Agreement. These Default Terms, including and together with any related SOWs signed by MoJo Active and Client and any other documents incorporated therein by reference constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, conditions, covenants, representations, and warranties, both written and oral, regarding such subject matter. In the event of any conflict between the terms and provisions of these Default Terms and those of any SOW or any other documents incorporated therein by reference, the following order of precedence shall govern: (a) first, these Default Terms, exclusive of SOWs; (b) second, the applicable SOW; and (c) third, any other documents incorporated therein by reference.
14. Force Majeure. With the exception of payment obligations arising under these Default Terms or any SOW, neither party shall be liable or responsible to the other party, nor be deemed to have defaulted or breached these Default Terms or any SOW for failures to fulfill or delay in fulfilling or performing its obligations under these Default Terms or any SOW due to causes beyond its reasonable control (“Force Majeure Event”). The party claiming relief under this Section shall notify the other party of the occurrence or existence of the Force Majeure Event and of the termination of such event. Notwithstanding anything to the contrary, in the event that a party is affected by a Force Majeure Event for more than 45 continuous calendar days, then the other party may terminate the affected SOW by providing written notice to the other party.
15. Assignment. Neither these Default Terms, nor any SOW issued pursuant hereto may be assigned, transferred, or delegated by either party without the prior written consent of the other party. Any purported assignment, transfer, or delegation in violation of this Section shall be null and void. Notwithstanding the immediately preceding two sentences, MoJo Active may, without Client’s consent, assign any of its rights or delegate any of its obligations to (a) any affiliate or subsidiary, (b) a successor of MoJo Active, (c) a purchaser of all or substantially all of MoJo Active’s assets.
16. Successors and Assigns. These Default Terms are binding on and enure to the benefit of the parties and their respective successors and permitted assigns.
17. Survival. Provisions in these Default Terms which, by their nature and in order to give proper effect to their intent, must survive termination of these Default Terms, will survive any such termination of these Default Terms, including, but not limited to, the provisions in relation to limitation of liability, waiver, relationship of the parties, no third-party beneficiaries, notices, choice of law and venue, survival, termination, confidentiality, non-competition, intellectual property, indemnity, and payment. All rights, obligations, and remedies of the parties that (i) accrued prior to the time of termination of these Default Terms, (ii) come into effect after the termination of these Default Terms or any SOW or which (iii) are by their nature continuing and all other provisions necessary for the interpretation or enforcement of such provisions shall survive the termination of these Default Terms.

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