INTRODUCTORY PARAGRAPH
This Exhibit (the "End-Customer Terms and Conditions") is incorporated into and forms part of the Layer Embedded Software Master Services Agreement (the "Agreement") between Moxie, Inc. ("Distributor") and Layer Financial Technologies, Inc. ("Provider"), effective December 26, 2023. As used herein: "Product" means Distributor's medical spa business management software application, inclusive of the Embedded Services; "Embedded Services" means additional services provided by
Provider to End-Customers by incorporating the Licensed Software; "Licensed Software" means Provider's embedded business bookkeeping and accounting software; "End-Customer" means any customer of Distributor who is a user of the Embedded Services through the Product; and "End-Customer Data" means any data, information, or material submitted or transmitted by an End-Customer through the Embedded Services. By accessing or using the Product, each End-Customer agrees to be bound by these terms without separate signature.
1. ACCEPTANCE, DATA CONSENT, AND PRIVACY
1.1 Acceptance and Binding Effect. By accessing or using Distributor's Product, including the Embedded Services, End-Customer acknowledges and agrees to be bound by these End-Customer Terms and Conditions, the Moxie Suite platform terms of service, and all applicable terms governing the Embedded Services. No separate signature is required; continued access or use constitutes acceptance.
1.2 Data Consent and Privacy. End-Customer consents to the collection, sharing, and processing of End-Customer Data with Provider for the purpose of delivering and improving the Embedded Services. End-Customer shall comply with Distributor's privacy policy. Provider may use End- Customer Data to:
(a) Provide, maintain, and improve the Embedded Services;
(b) Conduct internal product development, research, and analytics;
(c) Troubleshoot issues; and
(d) Pursue other lawful business purposes, which may involve data aggregation,
anonymization, or other processing that does not disclose personally identifiable information.
2. USE RESTRICTIONS AND INTELLECTUAL PROPERTY
2.1 Use Restrictions. End-Customer shall use the Embedded Services solely for internal business purposes as an integrated component of Distributor's Product. End-Customer shall not: (e) reverse engineer, decompile, disassemble, or attempt to derive source code of the Embedded Services or any component thereof;
(f) distribute, sublicense, lease, lend, or otherwise exploit the Embedded Services;
(g) gain or attempt to gain unauthorized access to the Embedded Services or circumvent any authentication or security measures;
(h) interfere with or disrupt the integrity or performance of the Embedded Services;
(i) transmit materials containing software viruses or other harmful code;
(j) copy, modify, or create derivative works of any component of the Embedded
Services;
(k) use the Embedded Services for benchmarking without prior written consent of
Provider; or (l) use the Embedded Services for designing or creating any competing service.
2.2 Intellectual Property. End-Customer acknowledges that Provider retains all right, title, and interest in and to the Licensed Software and Embedded Services, including all intellectual property rights therein. End-Customer receives no title to, ownership of, or copies of the Licensed Software.
2.3 Feedback. Any feedback, suggestions, or ideas for improvement provided by End-Customer to Provider or Distributor regarding the Embedded Services may be freely used by Provider on a perpetual, irrevocable, royalty-free, and unrestricted basis without compensation or credit to End-Customer.
3. PAYMENT OBLIGATIONS; COMPLIANCE WITH PLATFORM
TERMS AND LAW
3.1 Payment. End-Customer shall pay all fees associated with its use of Distributor's Product, including fees related to the Embedded Services, in accordance with Distributor's pricing and payment terms. Failure to make timely payment may result in suspension or termination of access. All fees are non-refundable except as expressly provided in Distributor's terms of service. End-Customer is responsible for all applicable taxes.
3.2 Compliance with Platform Terms. End-Customer shall comply with: (a) the Moxie Suite platform terms of service, as updated from time to time; (b) Distributor's acceptable use policies; and (c) all terms governing the Embedded Services. Where these End-Customer Terms conflict with the Moxie Suite platform terms, the platform terms govern general use of Distributor's Product, and these End- Customer Terms govern the Embedded Services.
3.3 Compliance with Law; Export Restrictions. End-Customer shall comply with all applicable laws, regulations, and rules. End-Customer shall not access or use the Embedded Services in violation of any U.S. law or in any country subject to a United States embargo.
3.4 TCPA Consent. End-Customer expressly consents, in compliance with the Telephone Consumer Protection Act and all other applicable laws, to receiving SMS messages, text messages, and phone calls from Provider and Distributor related to the Embedded Services and Distributor's Product. End- Customer may revoke this consent at any time by providing written notice to Distributor.
4. DISCLAIMERS, LIMITATION OF LIABILITY, AND THIRD-PARTY
MATTERS
4.1 Disclaimer of Professional Advice. The Embedded Services are technology services and do not constitute legal, financial, accounting, or other professional advice. Neither Provider nor Distributor assumes responsibility for determining End-Customer's legal or regulatory compliance. All business decisions remain End Customer's sole responsibility.
4.2 DISCLAIMER OF WARRANTIES. MOXIE SUITE AND THE EMBEDDED SERVICES ARE PROVIDED "AS IS." NEITHER DISTRIBUTOR NOR PROVIDER MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER DISTRUBUTOR NOR PROVIDER WARRANTS THAT THE EMBEDDED SERVICES WILL PERFORM WITHOUT ERROR OR INTERRUPTION.
4.3 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, NEITHER DISTRIBUTOR NOR PROVIDER SHALL BE LIABLE TO END-CUSTOMER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO END-CUSTOMER'S USE OF MOXIE SUITE OR THE EMBEDDED SERVICES.
4.4 Third-Party Services. The Embedded Services may integrate with third-party software services. Use of such services is solely between End-Customer and the applicable third-party provider. Neither Distributor nor Provider controls or assumes liability for End-Customer Data accessed, stored, or distributed via third-party services.
4.5 Audit. During the term of End-Customer's use of the Embedded Services and for two (2) months thereafter, Provider may audit End-Customer's use of the Embedded Services upon five (5) days' advance written notice. End-Customer shall reasonably cooperate with any such audit.
5. GENERAL PROVISIONS
5.1 Termination and Cessation of Use. Upon termination of End-Customer's access to Distributor's Product or the Embedded Services, for any reason, End-Customer shall immediately cease all use of the Embedded Services.
5.2 Third-Party Beneficiary. End-Customer acknowledges and agrees that Provider is an intended third-party beneficiary of these End-Customer Terms and Conditions and is entitled to enforce the provisions hereof directly against End-Customer.
5.3 Governing Law; Jurisdiction. These End-Customer Terms and Conditions shall be governed by the internal laws of the State of Delaware, without reference to any conflicts of law principles.
5.4 Amendments. Distributor may update these End-Customer Terms and Conditions from time to time. Continued use of Distributor's Product and the Embedded Services after any such update constitutes acceptance of the revised terms