During the Subscription Term, MobileSmith grants to Customer the non-exclusive, non-transferable right to access and use the MobileSmith Platform, and to provide access to the MobileSmith Platform to Authorized Users.
2. CUSTOMER RESPONSIBILITIES
You are responsible for all activity occurring under Your accounts. You shall abide by all applicable laws, treaties and regulations in connection with Your use of the Service, including, without limitation, those related to data privacy, international communications and the transmission of technical or personal data. You shall treat the account information, access and identification codes as confidential. You shall not impersonate another User or provide false information to gain access to or use the Services. If you know or suspect any unauthorized use of any password or account, other breach of security, or any copying or distribution of the Services, you shall notify MobileSmith immediately.
3. MOBILESMITH RESPONSIBILITIES
MobileSmith will (a) make the Services and Content available to Customer, and (b) use commercially reasonable efforts to make the MobileSmith Platform available 24 hours a day, 7 days a week, except for: (i) planned downtime and (ii) any unavailability caused by circumstances beyond MobileSmith’s reasonable control. MobileSmith will access Customer’s data only (a) to provide the Services; (b) as compelled by law; or (c) as Customer expressly permits in writing.
4. NON-MOBILESMITH/THIRD PARTY PROVIDERS
4.1 Third Party Code. The MobileSmith Platform allows Customer to incorporate third party code into Customer’s mobile apps or connect Customer’s mobile apps to various databases using third-party data connectors and database management systems. Such code and connectors, among other applications, are referred to as non-MobileSmith Applications, Products or Services and such vendors are referred to as Third Party Providers.
4.2 Acquisition of Third Party Products and Services. Any acquisition by Customer of or integration with non-MobileSmith products or services is solely between Customer and the third party provider. Customer may further be required to grant MobileSmith access to Customer’s account(s) and Customer’s Data with the Third Party Applications, Services or Products to ensure proper integration with the MobileSmith Platform. MobileSmith is not responsible for any disclosure, modification or deletion of Customer’s Data resulting from access by a non-MobileSmith Application.
5. CUSTOMER INTELLECTUAL PROPERTY RIGHTS
As between MobileSmith and You, You own all rights, title and interest, including all related intellectual or industrial property rights, in and to any Customer Data. Subject to your payment in full of the Fees, MobileSmith assigns and transfers to You any rights, title or interest MobileSmith may acquire in any Customer Deliverables. Subject to this Agreement, and during the term for which You have a right to use the Service, MobileSmith hereby grants You a limited, non-exclusive, non-transferable and terminable right to use any Content incorporated in the Customer Deliverables, solely in connection with Your authorized use of the Service.
6. MOBILESMITH INTELLECTUAL PROPERTY RIGHTS
MobileSmith alone, and its licensors where applicable, own all right, title and interest, including all related intellectual or industrial property rights, in and to all Services of MobileSmith (including all its algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information). This Agreement is not a sale and does not convey to You any rights of ownership in or related to the Service or the intellectual property rights owned by MobileSmith.
7.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information includes Customer’s Data. MobileSmith’s Confidential Information includes the Services and certain Content. Confidential Information of each party includes the terms and conditions of this Agreement and all Sales Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
7.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). The Receiving Party agrees (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement.
7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
MobileSmith warrants that (a) MobileSmith has sufficient right, title, interest and authority to convey to Customer the right of use granted in this Agreement; (b) this Agreement and the Sales Order Forms accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer’s Data. EXCEPT AS EXPRESSLY PROVIDED HEREIN, MOBILESMITH DOES NOT MAKE ANY WARRANTY OF ANY KIND.
9. MUTUAL INDEMNIFICATION
9.1. Indemnification by MobileSmith.
- MobileSmith shall defend, indemnify and hold Customer harmless from and against and shall pay all losses, damages, liabilities, claims and actions, and all related expenses (including reasonable attorneys’ fees and expenses and cost of litigation) by reason of injury or death to any person, damage to any property, or any other occurrence arising or resulting from this Agreement, to the extent caused by the gross negligence or intentional acts or omission of MobileSmith or its employees, agents, or representatives.
- MobileSmith shall fully indemnify and hold Customer harmless from any claims based on any allegation or accusation of infringement or violation by the MobileSmith Platform of third party proprietary rights including, without limitation, claims that the MobileSmith Platform or Services infringe third party intellectual property. Customer shall promptly notify MobileSmith of any such claim, and MobileSmith will control the defense or settlement of such claim. MobileSmith shall at its option (i) modify the MobileSmith Platform to remove any allegedly infringing components; (ii) obtain a license to enable Customer to continue to use the MobileSmith Platform, or (iii) terminate Customer’s subscriptions for the MobileSmith Platform or the allegedly infringing components of the MobileSmith Platform and refund Customer any prepaid fees covering the remainder of the Subscription Term (or a pro rata portion in the event Customer’s access to only a portion of the MobileSmith Platform is terminated).
9.2. Indemnification by Customer.
- Customer shall defend, indemnify and hold MobileSmith harmless from and against and shall pay all losses, damages, liabilities, claims and actions, and all related expenses (including reasonable attorneys’ fees and expenses and cost of litigation) by reason of injury or death to any person, damage to any property, or any other occurrence arising or resulting from this Agreement, to the extent caused by the gross negligence or intentional acts or omission of Customer or its employees, agents, or representatives.
- Customer shall fully indemnify and hold MobileSmith harmless from any claims based upon any allegation or accusation of infringement by Customer, Customer’s Apps or Customer’s Content of any third party proprietary rights. MobileSmith shall promptly notify Customer of any such claim, and Customer will control the defense or settlement of such claim.
9.3. Exclusive Remedy. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any infringement claim.
10. LIMITATION OF LIABILITY
10.1 Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE AGREEMENT OR SECTION 9.2 (INDEMNIFICATION BY CUSTOMER).
10.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11. TERM AND TERMINATION
11.1. Termination. Either party may terminate this Agreement (i) upon 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately upon delivery of written notice, 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. If this Agreement is terminated by Customer due to any breach by MobileSmith, MobileSmith will refund Customer any prepaid fees covering the remainder of the term of all Sales Order Forms after the effective date of termination. If this Agreement is terminated by MobileSmith, Customer will have no right to refund and will pay any unpaid fees covering the remainder of the term of all Sales Order Forms.
11.2. Surviving Provisions. 5 (Customer Intellectual Property Rights), 6 (MobileSmith Intellectual Property Rights) 7 (Confidentiality), 8 (Representations, Warranties, Exclusive Remedies and Disclaimers), 9 (Mutual Indemnification), 10 (Limitation of Liability), 11 (Term and Termination), 12 (Notices, Governing Law and Jurisdiction), will survive any termination or expiration of this Agreement.
12. NOTICES, GOVERNING LAW AND JURISDICTION
12.1. Notices. All notices under this Agreement shall be in writing and may be personally delivered, sent by U.S. mail or overnight delivery, or transmitted by e-mail (with confirmation of receipt). If sent by U.S. mail, receipt will be deemed upon expiration of the third business day after posting. If by overnight service, the delivery will be deemed effective on the next business day after delivery to the courier. E-mail transmission shall be deemed effective upon automatic confirmation of delivery or confirmation via telephone or return e-mail.
12.2. Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement will be interpreted and governed by the laws of North Carolina without giving effect to its conflict of law provisions. The parties consent to the jurisdiction of the federal and state courts sitting in Wake County, North Carolina. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
13. GENERAL PROVISIONS
- Assignment; Successors. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign its rights and obligations to any of its Affiliates or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted
- If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
“Agreement”, “Contract”: the arrangements agreed in a form or a document or in some other way, under which MobileSmith will deliver the Services or any other products or services defined therein.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Authorized User” means an individual who is authorized by Customer to use a Service, for whom Customer has ordered the Service, and to whom Customer (or MobileSmith at Customer’s request) have supplied a user identification and password. Users may include, for example, Customer’s employees, consultants, contractors and agents, and third parties with which Customer transacts business.
“Content” means information obtained by MobileSmith from MobileSmith’s content licensors or publicly available sources and provided to Customer pursuant to a Sales Order Form, as more fully described in the Documentation.
“Customer’s Data” means electronic data, graphics, databases and access to those databases, units of source code and other specific electronic and computer information generated for a specific App and submitted by or for Customer to the Services or collected and processed by or for Customer using the Services, excluding Content and Third Party Applications.
“Customer Deliverables” means deliverables that are provided by MobileSmith as part of Professional Services that: (i) constitute Customer Data, or a modification, translation, abridgment or adaptation of Customer Data, or (ii) are expressly identified as being owned by You in the applicable Sales Order Form or Statement of Work (SOW), The term “Customer Deliverable(s)” does not include Content.
“Documentation” means any or all written materials made available to Customer, including but not limited to, MobileSmith’s online user guides, documentation, and help and training materials, as updated from time to time, accessible via www.mobilesmith.com or login to the applicable Service.
“Sales Order Form” means each ordering document specifying the Services to be provided hereunder that is entered into between Customer and MobileSmith and/or Customer and any of MobileSmith’s Affiliates, including any addenda and supplements thereto.
“Services” and/or “Services” means the products and services that are ordered by Customer an Sales Order Form and made available online by MobileSmith, including associated offline components, as described in the Documentation. “Services” exclude Third Party Applications.
“Source Code” means any computer code written and inserted into the Platform using documented methods to extend the Functionality of an App. For the purpose of clarity, with the exception of this definition of Source Code herein, the Platform does not produce source code that can be exported, modified, compiled, or released outside the Platform.
“Third Party Applications” or “Third Party Services” means a third party software application, service or products that is listed on the MobileSmith Platform and/or which interoperates with Customer’s App. Third Party Applications includes third party code that may be incorporated into Customer’s mobile apps, as Well as third-party data connectors and database management systems. (“Gimbal” – a wayfinding solution – is an example of a Third Party Service that is currently available through the MobileSmith Platform, as an option. For more information, refer to www.gimbal.com)