Terms and Conditions of Services
Effective Date: May 17, 2019
These Terms and Conditions of Services (these “Terms”) govern your acquisition and use of MobileSmith Services.
BY EXECUTING AN ORDER FORM, STATEMENT OR WORK OR WORK ORDER THAT REFERENCES THESE TERMS, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU ARE EXECUTING THE ORDER ON BEHALF OF A LEGAL ENTITY, THEN (I) YOUR EXECUTION INDICATES YOUR ACCEPTANCE OF THESE TERMS ON BEHALF OF THAT ENTITY, (II) YOU REPRESENT THAT YOU ARE AUTHORIZED TO BIND THAT ENTITY, AND (III) REFERENCES BELOW TO “YOU” OR “YOUR” REFER TO THAT ENTITY.
MobileSmith, Inc. may update these Terms from time to time, but you will only be bound by the version in effect on the date of your acceptance. The Effective Date of these Terms is shown above. Previous versions of these Terms may be viewed at https://www.mobilesmith.com/legal/previous_terms.
1. BINDING AGREEMENT, ACCEPTANCE
Except as described below, these Terms form a binding agreement between you and MobileSmith effective on the date when you and MobileSmith enter into an Order referencing these Terms.
Notwithstanding the foregoing:
- If an Order contained an expiration date and you returned the signed Order to MobileSmith after the expiration date, then MobileSmith may reject the Order within a reasonable time after delivery, in which case neither you nor MobileSmith will have any further obligation to each other related to the Order.
- MobileSmith may cancel an unsigned Order before the expiration date by providing you written notice of cancellation.
- If you make any changes to an Order, then such changes shall have no effect unless MobileSmith separately agrees to the changes in writing. Changes to Order should be requested from MobileSmith, and, if agreed, shall be made on a replacement Order.
- Even if you indicate on an Order that your company requires the use of a purchase order, the Order will be considered effective on the date when you and MobileSmith enter into the Order referencing these Terms. The use of purchase orders is for your convenience only. If the purchase order purports to vary these Terms or any descriptions, quantities or other terms shown on the Order, then such variance shall have no effect. Your agreement with MobileSmith is governed solely by the Order and these Terms.
2. PROVISION OF MOBILESMITH SUBSCRIPTION SERVICES
MobileSmith shall use commercially reasonable efforts to provide you with the MobileSmith Subscription Services for the term of the subscription(s) shown in the Order and for any renewal term on a continual basis except for any Planned Downtime or any downtime caused by circumstances outside of MobileSmith’s reasonable control.
3. PROVISION OF MOBILESMITH PROFESSIONAL SERVICES
MobileSmith shall perform MobileSmith Professional Services in material compliance with the relevant Order. MobileSmith warrants that MobileSmith Professional Services shall be performed by personnel who are qualified by education or experience to perform such services and shall be performed in accordance with a commercially reasonable standard of care. If MobileSmith breaches such warranty, then your sole remedy shall be to have MobileSmith re-perform such MobileSmith Professional Services, but only if you have provided notice to MobileSmith within 30 days after delivery of the Professional Services.
MobileSmith shall be responsible for all employment-related matters related to the personnel used to perform MobileSmith Professional Services including, but not limited to, the payment of wages, the withholding and payment of applicable taxes and benefits. You agree not to hire or solicit for hire any of MobileSmith’s personnel involved in performing MobileSmith Professional Services for you during the period of time they are performing such services and for one (1) year after they cease performing such services.
You shall reasonably cooperate with MobileSmith in the delivery of MobileSmith Professional Services, including without limitation by providing MobileSmith with approvals and access to your technical personnel, information, systems and other items as reasonably requested by MobileSmith in connection with the delivery of the MobileSmith Professional Services.
4. YOUR RESPONSIBILITIES
With respect to MobileSmith Subscription Services, you shall:
- ensure that your Users treat all passwords, authentications and logins as confidential;
- ensure that your Users comply with these Terms;
- be responsible for Your Data and your use of Your Data with the MobileSmith Subscription Services;
- use commercially reasonable efforts to prevent unauthorized access to or use of the MobileSmith Subscription Services and notify MobileSmith promptly if you discover any unauthorized access or use;
- use the MobileSmith Subscription Services only in accordance with these Terms and applicable laws and government regulations, including (but not limited to) those related to the protection of personal data;
- not reverse engineer the MobileSmith Subscription Services or the MobileSmith Software or otherwise attempt to discover their source code;
- not introduce any worm, virus, trojan horse or other types of malicious code or malware into the MobileSmith Subscription Services or the MobileSmith Software;
- not use the MobileSmith Subscription Services in a manner that would reasonably be expected to disrupt the use of the MobileSmith Software by MobileSmith’s other customers.
- comply with all applicable laws and regulations in your use of the MobileSmith Subscription Services.
If MobileSmith, in its discretion, determines that you or your Users have not complied with the foregoing obligations and that such failure to comply threatens the security, integrity or availability of any of MobileSmith’s services, then MobileSmith may suspend your and your Users’ access to the Services until MobileSmith determines that such threat no longer exists.
With respect to MobileSmith Professional Services:
- You shall provide any information and documents reasonably requested by MobileSmith in order to provide such MobileSmith Professional Services;
- if the MobileSmith Professional Services require MobileSmith personnel to access Third-Party Services, then you shall provide all accounts and passwords necessary to access such services and databases and shall ensure that such access by MobileSmith personnel is permitted by the relevant Third-Party Provider.
5. RENEWAL AND PRICE INCREASE
Upon the end of the subscription term specified in the Order, MobileSmith Subscription Services will automatically renew for successive renewal terms, each of equal length with the original subscription term unless either party provides written notice of non-renewal to the other party at least sixty (60) calendar days before the start of the renewal term.
MobileSmith may increase its prices from time to time by providing written notice to you of the price increase at least ninety (90) days before the start of a renewal term, with each such price increase being effective for the next renewal term.
MobileSmith Professional Services shall not automatically renew, unless such renewal is specifically provided for in the relevant Order.
An Order for MobileSmith Services may not be terminated during its term (or any renewal term) unless either party breaches its obligations under this Agreement and such breach has not been cured within thirty (30) days of notice of breach by the other party.
In your discretion, you may discontinue your use of MobileSmith Subscription Services during the term of the subscription by notifying MobileSmith of such discontinuance, but such discontinuance shall not affect your obligation to pay for the entire term of the subscription or entitle you to any refund of amounts which you had previously paid to MobileSmith.
You agree to pay MobileSmith for the MobileSmith Services at the prices and rates shown in the Order and agree to reimburse MobileSmith for all expenses reasonably incurred in providing MobileSmith Professional Services. If an Order does not specify rates for MobileSmith Professional Services, then you agree to pay MobileSmith for such MobileSmith Professional Services at MobileSmith’s then-current standard hourly rates.
MobileSmith shall invoice you for MobileSmith Services as specified in the relevant Order.
Payment on invoices is due thirty (30) days from the date of the invoice. Amounts not paid when due will incur interest at a rate of one and a quarter percent (1.25%) per month or, if lower, the highest interest rate allowed by applicable law. You also agree to pay MobileSmith’s cost of collection of any past-due amount, including, but not limited to, attorney’s fees and costs. All fees paid hereunder are nonrefundable.
Amounts shown on an Order are exclusive of sales taxes, GST, HST, value-added taxes or similar (excluding taxes on MobileSmith’s income), and you agree to pay all such taxes in addition to the amounts shown on the face of the Order. If any withholding tax is imposed by any government entity on payments to be made to MobileSmith, then you agree to true-up the payment such that the payment received by MobileSmith after application of the withholding tax shall equal the amount shown on the Order.
If any fees hereunder are not paid when due, and such failure is not cured within one week after written notice, then MobileSmith may suspend some or all MobileSmith Services upon written notice to you, without limiting MobileSmith’s other remedies.
8. NON-MOBILESMITH/THIRD PARTY PROVIDERS
You may have the choice to incorporate third party code into Your Applications and/or to connect Your Application to various databases controlled by you or by third parties using third-party data connectors and database management systems. Such code and connectors, among other applications, are referred to as “Third-Party Services” and such vendors are referred to as “Third-Party Providers.”
Your use of, or integration with, Third-Party Services, and your interaction with Third Party Providers are solely at your option and at your risk. MobileSmith is not responsible for any Third-Party Services or their compatibility with the MobileSmith Software. MobileSmith is not responsible for any disclosure, modification or deletion of Your Data resulting from access by Third-Party Providers.
9. INTELLECTUAL PROPERTY RIGHTS
MobileSmith and its licensors shall retain all intellectual property rights in and to the MobileSmith Subscription Services and the MobileSmith Software. MobileSmith hereby grants you a limited, non-transferable, non-sublicenseable, non-exclusive, license to use the MobileSmith Subscription Services and the MobileSmith Software for the term of the subscriptions shown in the Order solely in compliance with these Terms.
As between MobileSmith and you, you own all intellectual property rights in and to Your Data. You hereby grant MobileSmith a license to Your Data solely as necessary for MobileSmith to provide you with the MobileSmith Services.
MobileSmith hereby grants you a license to use any new information, data or work of authorship created by MobileSmith in the course of performing the MobileSmith Professional Services, solely in connection with your use of the MobileSmith Subscription Services.
You hereby grant MobileSmith a license to copy and use Your Data (including your data stored in Third-Party Services) solely as necessary to perform the MobileSmith Professional Services.
You will not (and will not knowingly allow any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Software and MobileSmith Subscription Services; (ii) modify, translate, or create derivative works based on the Software or MobileSmith Subscription Services; (iii) copy, rent, lease, distribute, sublicense, resell, pledge, assign, or otherwise transfer or encumber rights to the MobileSmith Subscription Services or Software; (iv) use the MobileSmith Subscription Services or Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) remove or alter any proprietary notices from the MobileSmith Subscription Services or Software, or (vi) use the MobileSmith Subscription Services or Software to create any other product or service, or knowingly allow any party who provides services or software that competes with or who is planning to compete with any MobileSmith product or service to use or access the MobileSmith Subscription Services or Software. Except for the rights expressly granted to Customer under this Agreement, MobileSmith and its licensors reserve all right, title, and interest in and to the Software and the MobileSmith Subscription Services.
“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. Your Confidential Information includes Your Data. MobileSmith’s Confidential Information includes (a) information regarding the operation of the MobileSmith Software, and/or proposed future modifications to the MobileSmith Software or future services to be provided by MobileSmith; and (b) any special pricing which has been offered to you, 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.
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 not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement.
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.
MobileSmith may compile, maintain and use aggregated and anonymized data based on Your Data; provided that (i) you shall retain all rights in Your Data, and (ii) such aggregated and anonymized data will not be attributable to you or your Authorized Users.
The terms of this Section supplement, and do not replace, any confidentiality terms which may be in a separate written agreement between you and MobileSmith.
MobileSmith shall have a royalty-free, worldwide, perpetual license to use or incorporate into the MobileSmith Services any suggestions, ideas, enhancement requests, or other feedback provided by you or any User relating to the MobileSmith Services.
11. DATA PROTECTION
Each party agrees to comply with all applicable laws and regulations related to privacy and data protection, including (but not limited to), to the extent applicable the Health Insurance Portability and Accountability Act (“HIPAA”), the General Data Protection Regulation, and Massachusetts’ Standards for the Protection of Personal Information of the Commonwealth.
MobileSmith shall maintain a commercially reasonable information security program that complies with applicable laws and industry standards. MobileSmiths’ information security program shall include administrative, technical, and physical, safeguards and other security measures designed to (i) protect the security and confidentiality of Your Data and (ii) protect against the threat of information security incidents.
Within two (2) business days of MobileSmith becoming aware of any use or disclosure of Your Data not authorized by this Agreement, MobileSmiths shall report to you, either orally or in writing, any such use or disclosure. MobileSmiths’ report shall identify, to the extent feasible: (i) the nature of the unauthorized use or disclosure, (ii) Your Data that has been used or disclosed, (iii) who made the unauthorized use or received the unauthorized disclosure, (iv) what MobileSmiths has done or shall do to mitigate any deleterious effect of the unauthorized use or disclosure, and (v) what corrective action MobileSmiths has taken or shall take to prevent future similar unauthorized use or disclosure. You shall be responsible for notifying consumers of any data breach of their data stored in Your Applications as required by applicable law.
You agree to indemnify, defend and hold MobileSmith harmless from and against any losses, damages, liabilities and all related expenses (including reasonable attorneys’ fees and expenses and cost of litigation) arising from a claim or action brought by a third party related to (a) your breach of these Terms or of an Order, (b) your infringement of any third-party intellectual property right or any third-party proprietary right (unless arising from the MobileSmith Subscription Services or MobileSmith Software and covered by the following paragraph), (c) Your Data; (d) Your Applications, or (e) the use by MobileSmith of Third-Party Services selected by you in the performance of MobileSmith Professional Services.
MobileSmith shall indemnify, defend and hold you harmless from and against any losses, damages, liabilities and all related expenses (including reasonable attorneys’ fees and expenses and cost of litigation) arising from a claim or action brought by a third party arising from the infringement of the third party’s intellectual property rights by the MobileSmith Subscription Services or the MobileSmith Software. MobileSmith shall not have any liability or obligation to you under this Section in regard to any claim to the extent the infringement is caused by: (1) the combination, operation or use of the MobileSmith Subscription Services or the MobileSmith Software with software, services, systems or other items not supplied by MobileSmith; or (2) modifications to the MobileSmith Subscription Services or the MobileSmith Software by you or your contractor; or (3) Your Data or specifications provided by you.
Each party shall inform the other party of any claim which may be subject to the foregoing indemnification obligations within thirty (30) days of receiving notice of such claim, shall allow the other party to defend such claim using counsel of its choice and shall cooperate with the other party in the defense of such claim. The indemnified party may participate in the defense of the claim using counsel of its own choice, at the indemnified party’s expense.
This Section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any infringement claim.
13. LIMITATION OF LIABILITY
NEITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, THE MOBILESMITH SOFTWARE OR THE MOBILESMITH SERVICES WILL EXCEED THE AMOUNT PAID BY YOU FOR THE MOBILESMITH SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO SUCH LIABILITY; PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OR RELATED TO AN ORDER EXCEED THE TOTAL AMOUNT PAID BY YOU UNDER SUCH ORDER.
IN ADDITION, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL DAMAGES, PUNITIVE DAMAGES, INDIRECT DAMAGES, LOST PROFITS OR LOST OPPORTUNITIES. 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 YOUR OBLIGATION TO PAY FOR MOBILESMITH SERVICES, OR EITHER PARTY’S OBLIGATIONS UNDER SECTION 10 (INDEMNIFICATION), OR YOUR LIABILITY TO MOBILESMITH FOR INFRINGEMENT OF ANY MOBILESMITH INTELLECTUAL PROPERTY, OR MOBILESMITH’S LIABILITY TO YOU FOR UNAUTHORIZED USE BY MOBILESMITH OF ANY OF YOUR DATA.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, MOBILESMITHS DOES NOT MAKE ANY WARRANTIES OF ANY KIND, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Your obligation to pay for MobileSmith Services and the provisions of sections 9-20 of these Terms shall survive termination of this Agreement or the relevant Order for any reason.
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. Notices shall be effective upon receipt or refusal of delivery, provided that any notice received not during normal business hours shall be deemed to have been received on the following business day.
16. GOVERNING LAW; DISPUTES.
These Terms are governed by North Carolina substantive law and any dispute arising from or related to the parties’ relationship, these Terms or the MobileSmith Service shall be heard exclusively by the state and federal courts whose judicial districts include Wake County, North Carolina. The parties consent to the personal jurisdiction of such courts.
Neither party may assign its rights or obligations under these Terms or an Order, in whole or in part, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, (i) either party may assign an Order in its entirety to the successor company in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its business (or division of its business relating to these Terms), whether by sale of assets or otherwise; and (ii) MobileSmith may assign its right to receive payments due hereunder to any third party.
Notwithstanding the foregoing, MobileSmith may subcontract portions of its obligations under an Order, provided that MobileSmith shall be responsible for the performance of such subcontractors and that such subcontractors are bound by obligations of confidentiality consistent with those of Section 10.
18. FORCE MAJEURE
If either party is delayed in performing its obligations under an Order due to war, natural disaster, civil unrest, strike or other circumstances outside its reasonable control, then such obligations shall be suspended until such time as the underlying cause of the delay has been remedied. This section shall not, however, suspend your obligation to pay amounts when due.
19. ENTIRE AGREEMENT
These Terms, together with all Orders, constitute the entire agreement between the parties related to the MobileSmith Services and, except as specified in Section 10, supersedes all prior agreements, proposals or representations, written or oral, concerning their subject matter. In the event of any conflict or inconsistency between an Order and these Terms, the terms of the Order shall govern over these Terms but only if the Order expressly indicates an intent to do so. These Terms may not be waived (in whole or part), amended or superseded except in a writing which is signed by both you and MobileSmith.
“MobileSmith Professional Services” means those consulting and other professional services identified in an Order.
“MobileSmith Software” means proprietary MobileSmith software used in support of the MobileSmith Subscription Services, including without limitation to build and deploy mobile applications.
“MobileSmith Services” means the MobileSmith Subscription Services and MobileSmith Professional Services.
“MobileSmith Subscription Services” means those MobileSmith subscription services shown on the executed and accepted Order which references these Terms, but excludes MobileSmith Professional Services.
“Order” means an Order Form, Work Order, Statement of Work or other document used to order MobileSmith Services which references these Terms, but excludes your purchase order, purchase acknowledgement or similar document.
“Planned Downtime” means such times during which MobileSmith intends for the MobileSmith Software and MobileSmith Subscription Services to be unavailable due to the need to perform system maintenance, perform hardware or software upgrades, correct software issues, migrate the MobileSmith Software to alternate geographic or hosted platforms or perform similar activity which has been pre-announced by MobileSmith by mail, email or by announcement on MobileSmith’s website.
“Your Application(s)” means your application(s) for mobile devices based on the MobileSmith Software which are the subject of an Order.
“Your Data” means data and information which you upload to the MobileSmith Subscription Services or which you collect or process using such Services.
“User” means an individual who you authorize to use a MobileSmith Subscription Service on your behalf.