MobilePhire, Inc. Terms and Conditions
Data Control & Analytics Subscription Services
Terms and Conditions
1.1. “Agreement” means MobilePhire’s Data Control & Analytics Subscription Services Agreement which incorporates these Terms and Conditions, the Order Form, and any additional or Customer Specific Terms attached to the Order Form and any Statements of Work for Professional Services entered into by the parties.
1.2. “Analyzed Data” means the Data, once analyzed by the Service, together with any related visualizations, analysis, and alerts generated by the Services and made available to Customer via the ”MobilePhire Web Interface.
1.3. “Customer” means the entity identified in the Order Form.
1.4. “Customer Specific Terms” means terms, if any, specific to a given Customer that are included in the Order Form.
1.5. “Data” means IP address, which may include a domain name, general browser information, general operating system information, session durations, page impressions, mobile operator details, information regarding applications usage and the consumption of data by such applications, the date and time the above information is logged, and traffic data collected through the Services.
1.6. “Documentation” means any documentation made available to Customer by MobilePhire in connection with the Services.
1.7. “Intellectual Property” means, with respect to each party, its patents, trademarks, service marks, logos, copyrights, trade secrets, and any other intellectual property.
1.8. “Marks” means, with respect to each party, its trademarks, service marks, and taglines and associated logos.
1.9. “Order Form” means MobilePhire’s standard order form entered into by Customer and MobilePhire and pursuant to which Customer may order Services.
1.10. “Professional Services” means the consulting and other professional services ordered by Customer pursuant to an Order Form and which are set forth in a separate Statement of Work entered into by the parties.
1.11. “Service(s)” means MobilePhire’s collection, aggregation, tracking, and analysis of Data to generate Analyzed Data for Customer to access through the MobilePhire Web Interface.
1.12. “Subscription Period” means the period commencing on the Effective Date and continuing for the number of months set forth on the Order Form or until the Agreement is terminated, whichever is earlier.
1.13. “Third Party” means any third party from which Data is collected by the Service.
1.14. “Third Party Properties” means any websites, mobile sites, apps, and products, owned or controlled by Third Parties, from which MobilePhire collects Data.
1.15. “MobilePhire Web Interface” means the web interface through which Customer may access Analyzed Data.
1.16. “MobilePhire Technology” means the software, algorithims, methodologies, know-how and other technology used by MobilePhire to provide the MobilePhire Services through the MobilePhire Web Interface.
1.17 “MobilePhire Properties(s)” means any and all websites and mobile sites owned or controlled by MobilePhire.
1.18. “User(s)” means Customer personnel authorized to access the Services via the MobilePhire Web Interface.
1.19. “User Licenses” means the number of Users authorized to access the Services.
2.1. Services. MobilePhire provides Services to Customer in which it collects, aggregates, tracks, and analyzes unrestricted Data on a select number of mobile devices and generates Analyzed Data that Customer may view through the MobilePhire Web Interface. The parties acknowledge and agree that MobilePhire will use commercially reasonable efforts to continually develop, deliver and provide ongoing innovation to the Services in the form of new features, functionality, capabilities and services and, accordingly, MobilePhire reserves the right to modify the Services from time to time in its sole discretion.
2.2. Ordering Services. Customer shall execute an Order Form to order Services, which will include, among other information, the number of User Licenses initially ordered. During the Subscription Period, Customer may add Users through a modified or additional Order Form. All Order Forms are subject to approval by MobilePhire.
2.3. Training. Training is provided at no additional charge and includes webinars on how to maximize use of the Services, as well as unlimited access to virtual training sessions.
2.4. Professional Services. Customer may order Professional Services from MobilePhire pursuant to an Order Form and a separate Statement of Work which will describe in reasonable detail the Professional Services to be provided by MobilePhire and the fees payable therefor.
2.5. Support. Support is available via phone and email. In addition, MobilePhire shall appoint an account manager to support Customer.
2.6. Customer Obligations. Customer shall cooperate with MobilePhire to enable MobilePhire to provision the Services, including without limitation providing MobilePhire with a list of Users on or promptly after the Effective Date. Customer is responsible for keeping such lists current and providing MobilePhire with updates. Customer is responsible for restricting use of the Services to authorized Users, using no more than the number of User Licenses ordered. Customer is responsible for all activities occurring under its User accounts.
2.7. License Grant. Contingent on Customer compliance with the terms of the Agreement, MobilePhire hereby grants to Customer a limited, non-exclusive, revocable, and non-transferable, right to use the Service(s), in object code only, solely (i) for Customer’s own internal business purposes; (ii) during the Subscription Period; (iii) subject to these Terms and Conditions and the Agreement; (iv) for authorized Users only; and (v) for the number of Users licensed by Customer under an Order Form. Any and all rights not expressly granted to Customer are reserved by MobilePhire.
2.8. Restrictions. With respect to the Service, the MobilePhire Web Interface, the MobilePhire Technology, the Data, the Analyzed Data, and any other MobilePhire Intellectual Property (collectively, the “MobilePhire Property”), Customer may not, directly or indirectly: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit the MobilePhire Property in whole or in part; (ii) copy, modify or make derivative works based upon the MobilePhire Property in whole or in part; (iii) reverse engineer or otherwise decompile or disassemble the MobilePhire Property in whole or in part; (iv) interfere with or disrupt the integrity or performance of the Services or disobey any requirements, procedures, policies or regulations of MobilePhire with respect to its computer systems and networks; (v) attempt to gain unauthorized access to the Services or circumvent or modify any security mechanism employed by MobilePhire; (vi) use or publish Data, Analyzed Data or any data derived therefrom or otherwise use the Services other than for lawful, internal, business purposes and as authorized under this Agreement; (vii) use any robot, spider, site search/retrieval application or other device to retrieve or index any portion of the MobilePhire Services or collect information about users for any unauthorized purpose or create user accounts by automated means or under false or fraudulent pretenses; (viii) transmit any viruses, worms, defects, Trojan horses or any items of a destructive nature or (ix) make use of the MobilePhire Property in whole or in part in any way to: (a) build a competitive product or service; (b) build a product using similar ideas, features, functions or graphics; or (c) copy any of its ideas, features, functions, or graphics. Customer shall comply with all applicable laws and regulations concerning export, data privacy and protection and cooperate with MobilePhire in connection with compliance thereto. MobilePhire retains the right to terminate or suspend the Services or the Agreement and any Order Forms immediately for any breach by Customer of this Section.
2.9. Compliance. Customer agrees to provide MobilePhire with access related to Customer’s use of the Services and the MobilePhire Web Interface as reasonably requested by MobilePhire to verify compliance with this Agreement and, at MobilePhire’s request, will provide a written certification to MobilePhire, signed by an executive officer of Customer, that Customer and its Users are in compliance with the terms and conditions of this Agreement.
Fees are set forth in the Order Form. Unless stated otherwise in the Order Form, Customer shall pay all fees and expenses, by check or wire transfer, without setoff, deduction, or delay, within fifteen (15) days of receipt of invoice. If any amounts invoiced are disputed, Customer shall notify MobilePhire within fifteen (15) days of receipt of the invoice, and any amounts not disputed in such fifteen (15) day period will be deemed valid. If Customer fails to make payment of undisputed amounts when due, MobilePhire shall have the right to suspend the provision of the Services and the MobilePhire Web Interface to Customer with at least fifteen (15) days prior written notice if Customer fails to cure the nonpayment within such fifteen (15) day period. MobilePhire will resume provision of the Services and the MobilePhire Web Interface upon Customer’s full payment of past due amounts.
- PROPRIETARY RIGHTS
4.1 Generally. Each party shall retain all rights, title, and interest, in and to Intellectual Property. MobilePhire expressly retains all rights, title, and interest to the Services, including the MobilePhire Web Interface, MobilePhire Technology, and any improved, updated, modified or additional parts thereof. Any Intellectual Property produced, conceived, or otherwise developed by or for MobilePhire hereunder shall be the exclusive property of MobilePhire. Each party grants the other a limited, non-exclusive, revocable, nontransferable, non-sublicenseable, royalty-free license to use certain Intellectual Property of the other party in connection with the Agreement, as designated by and in accordance with the guidelines of such granting party, and subject to the terms of the Agreement and each Order Form. Customer shall not remove any MobilePhire Marks from any Data, Analyzed Data or Documentation. Customer grants MobilePhire the right to issue press releases and use Customer’s name and logo for marketing and promotion purposes.
4.2 Feedback. Customer and its users may, from time to time, make known to MobilePhire suggestions, enhancement requests, techniques, know-how, comments, feedback or other input to MobilePhire with respect to the Services or MobilePhire Intellectual Property (collectively, “Suggestions”). Unless otherwise agreed to in writing by the parties with respect to any Suggestion, MobilePhire shall have a royalty-free, worldwide, irrevocable, perpetual license to use, disclose, reproduce, license, distribute and exploit any Suggestion without restriction or obligation of any kind, on account of confidential information, intellectual property rights or otherwise, and may incorporate into its services any service, product, technology, enhancement, documentation or other development (“Improvement”) incorporating or derived from any Suggestion with no obligation to license or to make available the Improvement to Customer or any other person or entity.
“Confidential Information” means all written or oral information, disclosed by one party (the “Discloser”) to the other (the “Recipient”), identified as confidential, as well as information that, based on its nature and the circumstances surroundings its disclosure, a reasonable person would consider to be confidential or proprietary. The Recipient will keep confidential any Confidential Information disclosed to it by the Discloser; provided such information shall not be considered proprietary once it is in the public domain by no fault of the Recipient. With respect to any Confidential Information, the Recipient shall: (i) maintain confidentiality using the same care that it would use for its own confidential information, but in any event with reasonable care; (ii) use the confidential information solely in connection with the Agreement; (iii) cease use of such confidential Information immediately upon termination of the Agreement and either return or destroy it upon request of the Discloser; and (iv) not attempt to reverse engineer or create derivate works from or using the Confidential Information. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given notice to the other, if legally permissible, and provided such assistance as may be reasonably requested to limit or prevent such disclosure.
- LIMITED WARRANTY; DISCLAIMER
6.1. Mutual Warranties. Each party hereby represents and warrants that it: (i) is a legal entity duly organized, validly existing and in good standing; (ii) has all requisite corporate power and authority to execute, deliver and perform its obligations hereunder; (iii) will avoid deceptive, misleading or unethical practices that could adversely affect the performance of the other party’s obligations under the Agreement or damage the reputation of the other party; (iv) will not, in performing its obligations under the Agreement, knowingly violate any other agreement between such party and any third party, and (vi) will comply, in its performance related to the Agreement, with all applicable law.
6.2. DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 6.1 OF THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, SYSTEM INTEGRATION, TITLE, NON-INFRINGEMENT AND/OR QUIET ENJOYMENT. NO WARRANTY IS MADE BY EITHER PARTY ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE. MOBILEPHIRE DOES NOT WARRANT THAT THE SERVICES AND MOBILEPHIRE WEB INTERFACE WILL (i) MEET ALL OF CUSTOMER’S REQUIREMENTS; (ii) WILL OPERATE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR THAT KNOWN OR DISCOVERED ERRORS WILL BE CORRECTED; OR (iii) WILL PROVIDE DATA, ANALYZED DATA OR OTHER RESULTS THAT ARE COMPLETE, ACCURATE OR RELIABLE OR (iv) WILL MEET CUSTOMER’S EXPECTATIONS. MOBILEPHIRE IS NOT RESPONSIBLE FOR ANY DATA, ANALYZED DATA OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES OR THE MOBILEPHIRE WEB INTERFACE, ALL OF WHICH IS OBTAINED AT CUSTOMER’S OWN DISCRETION AND RISK, AND CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO COMPUTER SYSTEMS OR DEVICES OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD AND/OR USE OF ANY SUCH DATA, ANALYZED DATA AND/OR MATERIALS. MOBILEPHIRE EXERCISES NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, ANY THIRD PARTY COMPONENTS OF THE SERVICES WHICH ARE OUTSIDE MOBILEPHIRE’S CONTROL, SUCH AS INTERNET ACCESS, AND COMPUTER OR NETWORK EQUIPMENT, ALL OF WHICH ARE THE RESPONSIBILITY OF CUSTOMER.
- LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS TO PROCURE SUBSTITUTE SERVICES, LOSS OR CORRUPTION OF DATA OR DOCUMENTATION, USE OR INABILITY TO USE THE SERVICES, MOBILEPHIRE WEB INTERFACE, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT WITH RESPECT TO CUSTOMER’S BREACHES OF THE LICENSES OR RESTRICTIONS SET FORTH IN SECTION 2 OR MOBILEPHIRE’S PROPRIETARY RIGHTS SET FORTH IN SECTION 4, EITHER PARTY’S BREACHES OF CONFIDENTIALITY OBLIGATIONS UNDER SECTION 5, AND EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, THE TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING FROM OR RELATING TO THE AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED, THE AMOUNTS ACTUALLY PAID TO MOBILEPHIRE BY CUSTOMER UNDER THE ORDER FORM UNDER WHICH THE CLAIM AROSE DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM.
8.1. MobilePhire Indemnities. MobilePhire shall defend Customer from any third party claim, suit or proceeding (including reasonable attorneys’ fees and court costs) (“Claims”) brought against Customer contending that Customer’s use of the Services infringes any U.S. patent rights of a third party and shall indemnify and hold Customer harmless from and against all amounts finally awarded by a court of competent jurisdiction or agreed to by MobilePhire in settlement of the Claim and all reasonable attorneys’ fees and court costs incurred by MobilePhire to defend and/or settle the Claim. In the event that the Services or any part thereof are likely to, in MobilePhire’s sole opinion, or do become the subject of an infringement related Claim, and MobilePhire cannot, at its option and expense, procure for Customer the right to continue using the Services, or any part thereof, or modify the Services, or any part thereof, to make them non infringing, then MobilePhire may terminate the Services. MobilePhire shall have no liability for any Claim or demand arising from (i) an allegation that does not state with specificity that the Services are the basis of the Claims; (ii) the use or combination of the Services or any part thereof with software, hardware, or other materials not developed by MobilePhire if the Services or use thereof would not infringe without such combination; (iii) MobilePhire’s compliance with Customer’s instructions; or (iv) the Data or Analyzed Data. The foregoing states MobilePhire’s entire liability and Customer’s sole remedy for claims of intellectual property infringement.
8.2. Customer Indemnity. Customer shall defend, indemnify and hold MobilePhire, its affiliates, employees, officers, directors and shareholders harmless against any loss or damage (including reasonable attorneys’ fees) incurred in connection with Claims made or brought against MobilePhire by a third party alleging that the Customer’s use of the Services, Data or the Analyzed Data in violation of the Agreement infringes the intellectual property rights, or rights of publicity or privacy, of a third party or violates applicable laws, rules or regulations.
8.3. Procedure. The party seeking indemnification hereunder (the “Indemnified”) shall promptly inform the other party (the “Indemnifying”) of any suit or proceeding filed against the Indemnified for which the Indemnified is entitled to indemnification hereunder. The Indemnifying may direct the defense and settlement of any such claim, with counsel of its choosing. The Indemnified will provide the Indemnifying, at the Indemnifying’s expense, with information and assistance reasonably necessary for the defense and settlement of the claim. The Indemnified shall have the right, but not the obligation, at its sole expense to participate in (but not to control) the defense of any such suit or proceeding. An Indemnifying will not settle any such action without the written consent of the Indemnified (which consent will not be unreasonably withheld or delayed).
- TERM and TERMINATION
9.1. Term. This Agreement shall continue in full force and effect for the duration of the Subscription Period. The Subscription Period will automatically renew for successive one (1) year periods, unless a party notifies the other of non-renewal at least ninety (90) days prior to expiration of the then-current Subscription Period.
9.2. Termination. A party may terminate the Agreement (i) for a breach of the Agreement by the other party, if such other party has not cured the breach within thirty (30) days of receiving notice that it is in breach; (ii) immediately, upon notice, if the other party (a) is adjudged insolvent or bankrupt, (b) has instituted against it, and not dismissed within thirty (30) days after filing, or institutes any proceeding seeking relief, reorganization or arrangement under any laws relating to insolvency, (c) makes any assignment for the benefit of creditors, (d) appoints a receiver, liquidator or trustee of any of its property or assets, or (e) liquidates, dissolves or winds up its business, or (iii) immediately if any change occurs in any applicable laws or regulations that would, in that party’s reasonable opinion, render the party’s performance hereunder illegal or otherwise subject to legal challenge.
9.3. Effect. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to MobilePhire prior to the effective date of termination. Upon expiration or termination of the Agreement, the Subscription Period will end, all licenses granted hereunder shall immediately terminate, Customer’s right to access or use the Services, MobilePhire Web Interface, Data and Analyzed Data shall cease, and each party shall immediately cease using the other party’s Intellectual Property and Confidential Information.
9.4. Survival. Sections 5, 6.2, 6.3, 7, 8, 9 and 10 shall survive any termination or expiration of the Agreement.
- ADDITIONAL PROVISIONS
10.1. Governing Law; Jurisdiction. The Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to conflicts of law principles, UCITA, or the United Nations Convention on Contracts for the International Sale of Goods. Each party submits to the exclusive jurisdiction of the district and federal courts located in Virginia.
10.2. Assignment. Neither party may assign the Agreement without prior written consent of the other party, not to be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing, either party may assign the Agreement upon notice to (i) a successor-in-interest as a result of a merger, change of control, or consolidation, including without limitation the sale of all or substantially all of its assets, stock or business to which this Agreement relates or (ii) an affiliate controlled by or under common control with such party.
10.3. General. The Agreement, including these Terms and Conditions: (i) covers the parties’ entire agreement, and supersedes all prior and contemporaneous discussions and writings between them, relating to its subject matter; (ii) will be binding upon and inure to the benefit of the parties, their successors and permitted assigns; (iii) creates no agency, partnership or employer-employee relationship between the parties; their relationship is that of independent contractors; and (iv) has no third party beneficiaries. If any provision in the Agreement is deemed invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the Parties’ intent; the remainder will remain in full force and effect. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not permit users to access or use Services in violation of any U.S. export embargo, prohibition or restriction. Customer shall pay on demand all of MobilePhire’s reasonable attorney fees and other costs incurred by MobilePhire to collect any fees or charges due MobilePhire under this Agreement. No failure or delay by a party in enforcing the Agreement shall be construed as a waiver of any of its rights under it. No party shall be deemed in default of the Agreement if the performance of its obligations is delayed or prevented by events beyond its reasonable control. The Agreement may only be amended in writing, signed by both parties. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as expressly stated in this Agreement. Customer acknowledges and agrees that its agreement hereunder is not contingent upon the delivery of any future functionality or features not specified herein or in an Order Form or dependent upon any oral or written, public or private comments made by MobilePhire with respect to future functionality or features for the Services. In the event of any conflict between the provisions in this Agreement and any Order Form, the terms of such Order Form shall prevail if so expressly stated therein. No terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. Notices may be delivered in person, by mail, or electronic mail and shall be deemed served when delivered, to the address provided by each party. The Services and MobilePhire Web Interface is “commercial computer software” and any associated documentation is “commercial computer software documentation,” pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Services, MobilePhire Web Interface or such documentation by the United States Government shall be governed solely by the terms of this Agreement, except to the extent expressly permitted by the terms of this Agreement.