This Mobile Action Master Software as a Service Agreement (this “Agreement”) is made by and between Mobile Action, Inc. (“Mobile Action”) and the subscriber identified on the applicable Order Form (“Subscriber”). Mobile Action and Subscriber may be referred to herein collectively as the “Parties” or individually as a “Party”.
The definitions for some of the defined terms used in this Agreement are set forth below. The definitions for other defined terms are set forth elsewhere in this Agreement.
(a) “Affiliate” means, with respect to any entity, any other entity who, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
(b) “Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Subscriber Data; or (ii) Subscriber’s, its Designated Affiliates’ and/or their respective Authorized Users’ use of the Subscription Services, including, without limitation, any usage data or trends with respect to the Subscription Services.
(c) “Applicable Law” means any applicable federal, state, county, and local law, ordinance, regulation, rule, code, and order.
(d) “Authorized User” means (i) an employee or individual contractor of Subscriber or of any of its Designated Affiliates who has been authorized by Subscriber or such Designated Affiliate to use the Subscription Services, or (ii) a subscriber or customer using Subscription Services as a component of Subscriber’s or its Designated Affiliates’ services.
(e) “Change of Control” means a transaction or a series of related transactions: (i) in which one or more related parties that did not previously own or control greater than a fifty percent (50%) equity interest in a party obtains ownership or control of greater than a fifty percent (50%) equity interest in a party; (ii) as a result of which one or more related parties that did not previously have the right or power to exercise a controlling influence over the management or policies of a party acquires such right or power; or (iii) in which a party sells all or substantially all of its assets.
(f) “Designated Affiliate” means an Affiliate of Subscriber identified as a Designated Affiliate on the applicable Order Form for purposes of accessing and using the Subscription Services as contemplated in Section 2(b) of this Agreement.
(g) “Documentation” means the user guides and user manuals for the Subscription Services that Mobile Action provides to Subscriber, which may be updated from time to time upon notice to Subscriber.
(h) “Effective Date” has the meaning given in the Order Form. (i) “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
(j) “Mobile Action IP” means the Website, Subscription Services, the underlying software provided in conjunction with the Website and Subscription Services, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Services, Documentation and Aggregate Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.
(k) “Order Form” means a mutually executed order form or other mutually agreed upon ordering document issued by Mobile Action, in each case which references this Agreement and sets forth the applicable Subscription Services and Professional Services to be provided by Mobile Action.
(l) “Professional Services” means implementation, training, customization, and other services relating to the Subscription Services to be provided by Mobile Action to Subscriber as set forth in the relevant Order Form.
(m) “Service Data” means the results, metrics and data generated from the use of the Subscription Services.
(n) “Services” means the Subscription Services, Professional Services, and access to the Documentation via the Website.
(o) “Subscriber Data” means all data, information, content and other materials stored or transmitted by Subscriber, Subscriber’s Designated Affiliates and their respective Authorized Users through the Subscription Services (i) in their user accounts; and (ii) on a Third Party Application to which Subscriber, Subscriber’s Designated Affiliates and Authorized Users facilitate Mobile Action’s access via an application programming interface or other means.
(p) “Subscription Services” means the app store optimization, app promotion and other related services provided by Mobile Action, including via Mobile Action’s proprietary hosted technology services, and the Service Data generated by such services.
(q) “Term” has the meaning set forth in Section 6(a)(ii).
(r) “Third Party Application” means third party services, products, technology and content which may be interfaced or interacted with through the Subscription Services.
(s) “Website” means any Internet website through which Mobile Action provides the Subscription Services under this Agreement.
(a) Access and Use. Subject to Subscriber’s compliance with this Agreement, Mobile Action hereby grants Subscriber during the Term a non-exclusive, non-transferable, non-sublicensable (except as expressly set forth below) right to access and use the features and functionality of the Subscription Services specified in the Order Form via the Website in accordance with the Documentation for Subscriber’s internal business purposes. Subscriber may grant sublicenses under the foregoing license only to (i) its Designated Affiliates and (ii) Authorized Users for the sole purpose of accessing the Subscription Services for internal business purposes.
(b) Use by Designated Affiliates and Authorized Users. A Designated Affiliate of Subscriber may access and use the Subscription Services for Subscriber’s internal business purposes and only in accordance with the terms and conditions of this Agreement provided that: (i) Subscriber ensures such Designated Affiliate agrees in writing to comply with the terms and conditions of this Agreement, and (ii) all of Subscriber’s obligations under this Agreement and the applicable Order Form will remain in full force and effect. Subscriber will not allow any third any party other than Designated Affiliates and Authorized Users to use the Subscription Services. Subscriber remains and will be responsible to Mobile Action for acts or omissions of each Designated Affiliate and Authorized User in connection with their use of the Subscription Services as if they were Subscriber’s acts and omissions.
(c) Restrictions on Use. Subscriber, its Designated Affiliates and their Authorized Users will not (and will not permit any third party to): (i) share login credentials; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code, underlying ideas, algorithms, file formats, or interface protocols of the Subscription Services or of any files contained in or generated by the Subscription Services; (iii) copy, modify, adapt or translate the Subscription Services or Documentation, or otherwise make any use, resell, distribute or sublicense the Subscription Services other than in connection with this Agreement; (iv) make the Subscription Services available on a “service bureau” basis or allow any parties other than Subscriber’s Designated Affiliates and Authorized Users to use the Subscription Services subject to the terms of this Agreement; (v) disclose the Subscription Services or any of its components to third parties, other than Subscriber’s Designated Affiliates and Authorized Users to the extent permitted under Section 4(c); (vi) remove or modify any proprietary marking or restrictive legends placed on the Subscription Services; (vii) use the Subscription Services in violation of any Applicable Law, or (viii) access or search the Subscription Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Subscription Services features provided by Mobile Action for use expressly for such purposes.
(d) Reservation of Rights. Subject to the limited rights expressly granted hereunder, Mobile Action reserves and, as between Mobile Action and Subscriber (including its Designated Affiliates), will solely own the Mobile Action IP and all rights, title and interest in and to the Mobile Action IP, including all Intellectual Property Rights therein. Subscriber will have no rights with respect to the Mobile Action IP other than those expressly granted under this Agreement.
(e) Third Party Applications. If Subscriber installs or enables a Third Party Application for use with the Subscription Services, Subscriber hereby grants Mobile Action permission to access Subscriber Data stored on that Third Party Application as required for the interoperation of that Third Party Application with the Subscription Services. Mobile Action does not provide any aspect of the Third Party Applications and in no event will Mobile Action be responsible for any errors or bugs in the Subscription Services or Third Party Applications caused in whole or in part by the Third Party Applications, or for any failure of a Third Party Application to properly interoperate with the Subscription Services. If Mobile Action receives information that a Third Party Application may violate any Applicable Laws or third-party rights, Subscriber will, promptly upon receiving notice of the foregoing from Mobile Action, disable any connection between such Third Party Application and the Subscription Services to resolve the potential violation (and if Subscriber fails to promptly disable such connection, Mobile Action shall have the right to do so).
(a) Access to Documentation. Mobile Action will provide Subscriber via the Website or other means with access to the Documentation, as may be updated from time to time. Subscriber may print a reasonable number of copies of, use, and permit its Designated Affiliates and Authorized Users to use, the Documentation solely in connection with the use of the Subscription Services. Subscriber will not, and will not permit any other person to, remove any copyright, trademark or other notices from any copies of the Documentation.
(b) Professional Services. Subject to Subscriber’s cooperation and assistance in accordance with Section 4(b) Mobile Action will provide the Professional Services described in one or more Statements of Work entered into by the Parties under this Agreement. Any Professional Services to be provided by Mobile Action to Subscriber will be set forth in a statement of work that references this Agreement and is signed by authorized representatives of the Parties (each, a “Statement of Work”). Each Statement of Work will describe the Professional Services to be provided by Mobile Action, the fees to be paid by Subscriber for such Professional Services, and any other terms and conditions that may be agreed to by the Parties with respect to such Professional Services. Each Statement of Work will be governed by the terms and conditions of this Agreement. To the extent any provision set forth in a Statement of Work conflicts with any provision set forth elsewhere in this Agreement, the provision set forth elsewhere in this Agreement will control. Unless otherwise expressly provided in a Statement of Work, if any Professional Services involve the development of any customization to the Subscription Services, all rights to such customization will be owned by Mobile Action and will be deemed to be included in the definition of Subscription Services and licensed to Subscriber on the terms set forth herein.
(a) Subscriber Infrastructure. Subscriber, its Affiliates and Authorized Users will be responsible for obtaining and maintaining their respective internet and other network connections and telecommunications links, and other third party software, services, and related hardware, and infrastructure necessary for it to access the Services.
(b) Professional Services Support. In connection with the provision of Professional Services (if any), Subscriber will: (i) provide timely access to appropriate Subscriber personnel who will promptly grant approvals and otherwise make any necessary decisions; and (ii) perform Subscriber’s duties set forth in the applicable Statement of Work (if any), in each case through qualified personnel who are capable of performing Subscriber’s duties and tasks under the Agreement. All materials and information provided by Subscriber to Mobile Action will be reliable, adequate and accurate for the purpose of performing its obligations pursuant to this Agreement and each Statement of Work, and Mobile Action will not be required to independently test, verify or audit such information.
(a) Fees. Subscriber will pay Mobile Action subscription fees as set forth in the applicable Order Form (the “Subscription Fees”) and other rates and amounts set forth in the applicable Order Form and/or Statements of Work (together with the Subscription Fees, the “Fees”) without offset or deduction. Mobile Action will issue invoices to Subscriber during the Term as set forth in the applicable Order Form, and Subscriber will pay all amounts set forth on such invoice as set forth in the applicable Order Form.. All payments of Fees are non-refundable.
(b) Payments. All amounts stated in this Agreement or on any invoice are in U.S. dollars, and all payments will be made in U.S. dollars. Payments due to Mobile Action under this Agreement must be made by wire transfer of immediately available funds to an account designated by Mobile Action or such other payment method as specified in the applicable Order Form or as mutually agreed by the Parties in writing. All payments are non-refundable and neither Party will have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other Party under this Agreement. Late payments will accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum allowable interest under applicable law, from due date until paid. Subscriber will reimburse Mobile Action for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest.
(c) Taxes. All Fees and other amounts stated in the Order Form are exclusive of, and all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local government regulatory authority on any amount (“Taxes”). Subscriber will pay all Taxes on any Fees or other amounts payable by Subscriber to Mobile Action hereunder, provided that Subscriber is not responsible for income taxes and payroll taxes relating to Mobile Action’s employees. Without limiting the foregoing, in the event that Subscriber is required to deduct or withhold any Taxes from the amounts payable to Mobile Action hereunder, Subscriber will pay an additional amount, so that Mobile Action receives the amounts due to it hereunder in full, as if there were no withholding or deduction.
(a) Term.
(b) Termination for Cause. Either Party may terminate this Agreement, effective on written notice to the other Party, in the event the other Party materially breaches this Agreement and fails to cure such breach within thirty (30) days of the non-breaching Party providing written notice of such breach, the non-breaching Party.
(c) Effect of Termination. Upon termination or expiration of this Agreement:
(d) Survival. The following provisions will survive any termination or expiration of this Agreement: Section 1 (Definitions), Section 2(c) (Restrictions on Use), Section 2(d) (Reservation of Rights), Section 5 (Fees and Payment Terms), Section 6(c) (Effect of Termination), this Section 6(d) (Survival), Section 8 (Confidentiality), Section 9 (Representations and Warranties), Section 10(b) (Disclaimer), Section 11 (Trademarks), Section 12 (Limitation of Liability), Section 13 (Indemnification), Section 14 (Miscellaneous Provisions).
(a) Subscriber Data. As between Mobile Action and Subscriber, and except as set forth in Section 7(b), Subscriber owns and shall retain all right, title, and interest, including, without limitation, all Intellectual Property Rights, in and to the Subscriber Data. Subscriber shall have the sole responsibility for the accuracy, quality, and legality of the Subscriber Data.
(b) License to Subscriber Data. Subscriber hereby grants to Mobile Action an irrevocable, worldwide, royalty free, non-exclusive, transferable, sublicensable license to use, reproduce, display, perform, modify the Subscriber Data for the purposes of operating, improving, developing and providing the Services as well as Mobile Action’s other related products, services and technologies; and developing and deriving Aggregate Data.
(a) Definition of Confidential Information. For the purposes of this Agreement, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure, including (a) with respect to Mobile Action, the Subscription Services, any and all source code relating thereto, the Documentation, as well as non-public information or material regarding Mobile Action’s legal or business affairs, financing, customers, properties or data, and all pricing information of the Services, whether provided on an Order Form or otherwise, and (b) with respect to Subscriber, any non-public information or material regarding Subscriber’s legal or business affairs, financing, customers, properties or data. Notwithstanding any of the foregoing, Confidential Information does not include information which: (i) is or becomes public knowledge without any action by, or involvement of, the Disclosing Party; (ii) is documented as being known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (iv) is rightfully obtained by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party.
(b) Use and Disclosure of Confidential Information. The Receiving Party will, with respect to any Confidential Information disclosed by the Disclosing Party: (i) use such Confidential Information only in connection with the Receiving Party’s performance of this Agreement, provided that Mobile Action may use and modify Confidential Information of Subscriber in deidentified form for purposes of developing and deriving Aggregate Data; (ii) restrict disclosure of such Confidential Information within the Receiving Party’s organization to only those of the Receiving Party’s employees, representatives or contractors who have a need to know such Confidential Information in connection with the Receiving Party’s performance of this Agreement, and disclose such Confidential Information only in compliance with Section 8(d), and (iii) not disclose such Confidential Information to any third party unless authorized in writing by the Disclosing Party to do so.
(c) Protection of Confidential Information. The Receiving Party will protect the confidentiality of any Confidential Information disclosed by the Disclosing Party using at least the degree of care that it uses to protect its own confidential information (but no less than a reasonable degree of care).
(d) Personnel Compliance. The Receiving Party will, prior to providing an employee, representative or contractor access to any Confidential Information of the Disclosing Party, inform such employee, representative or contractor of the confidential nature of such Confidential Information and require such employee, representative or contractor in writing to comply with the Receiving Party’s obligations hereunder with respect to such Confidential Information.
(e) Required Disclosures. If a Party is requested to disclose any of the other Party’s Confidential Information pursuant to any judicial or governmental order, that Party will not disclose the Confidential Information without first giving the other Party written notice of the request and sufficient opportunity to contest the order, to the extent such notice and opportunity to contest may be lawfully given.
(a) Mutual Representations and Warranties. Each Party represents and warrants that it has the full right, power and authority to enter into this Agreement and to discharge its obligations hereunder.
(b) Subscriber Representations and Warranties. Subscriber represents and warrants that (i) it has obtained and will obtain and continue to have, during the Term, all necessary rights, authority and licenses for the access to and use of the Subscriber Data (including any personal data provided or otherwise collected pursuant to Subscriber’s privacy policy) as contemplated by this Agreement and (ii) Mobile Action’s use of the Subscriber Data in accordance with this Agreement will not violate any Applicable Law or cause a breach of any agreement or obligations between Subscriber and any third party.
(a) Mobile Action warrants that Professional Services will be performed in a good and workmanlike manner consistent with applicable industry standards. This warranty will be in effect for a period of thirty (30) days from the completion of any Professional Services. As Subscriber’s sole and exclusive remedy and Mobile Action’s entire liability for any breach of the foregoing warranty, Mobile Action will promptly re-perform any Professional Services that fail to meet this limited warranty.
(b) EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SUBSCRIPTION SERVICES, PROFESSIONAL SERVICES, AND OTHER MOBILE ACTION IP ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND MOBILE ACTION MAKES NO WARRANTIES OR REPRESENTATIONS TO SUBSCRIBER, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY IN CONNECTION WITH THE SUBSCRIPTION SERVICES, PROFESSIONAL SERVICES, MOBILE ACTION IP, AND ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MOBILE ACTION HEREBY DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, MOBILE ACTION HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE SUBSCRIPTION SERVICES, PROFESSIONAL SERVICES OR OTHER SERVICES PROVIDED HEREUNDER WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED.
Subscriber hereby grants Mobile Action a limited, non-exclusive, royalty-free license to use and display Subscriber’s name, designated trademarks and associated logos (the “Subscriber Marks”) during the Term in connection with (i) the hosting, operation and maintenance of the Subscription Services; and (ii) Mobile Action’s marketing and promotional efforts for its products and services, including by publicly naming Subscriber as a customer of Mobile Action and in case studies; provided that, upon expiration or termination of this Agreement, Mobile Action may reasonably wind down its use of such Subscriber Marks in a reasonable period of time. All goodwill and improved reputation generated by Mobile Action’s use of the Subscriber Marks inures to the exclusive benefit of Subscriber. Mobile Action will use the Subscriber Marks in the form stipulated by Subscriber and will conform to and observe such standards as Subscriber prescribes from time to time in connection with the license granted hereunder.
(a) Liability Exclusion. SUBJECT TO SECTION 12(C), NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM SUCH OTHER PARTY’S RIGHTS) FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, OR ANY LOSS OF INCOME, LOSS OF USE, LOSS OF COST OR OTHER SAVINGS, LOSS OF GOODWILL OR REPUTATION, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE MOBILE ACTION IP OR THE PROVISION OF THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
(b) Limitation of Damages. SUBJECT TO SECTION 12(C), IN NO EVENT WILL MOBILE ACTION’S TOTAL LIABILITY TO SUBSCRIBER, ITS DESIGNATED AFFILIATES OR THEIR AUTHORIZED USERS IN CONNECTION WITH THIS AGREEMENT, THE MOBILE ACTION IP, OR THE PROVISION OF THE SERVICES EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID BY SUBSCRIBER TO MOBILE ACTION IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT MOBILE ACTION WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
(c) Exceptions. NOTWITHSTANDING THE FOREGOING, THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN SECTION 12(A) AND SECTION 12(B) SHALL NOT APPLY TO DAMAGES ARISING FROM: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) EITHER PARTY’S INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT, (III) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (IV) BREACH OF SUBSCRIBER’S PAYMENT OBLIGATIONS.
(d) Basis of the Bargain. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 12 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN MOBILE ACTION AND SUBSCRIBER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
(a) Indemnification by Mobile Action. Mobile Action will defend, indemnify and hold harmless Subscriber and its Authorized Users, Designated Affiliates, and each of their officers, directors, managers, shareholders, members and employees from any and all claims, liabilities, costs and expenses (including reasonable attorney’s fees and expert and consulting fees) in connection with any third party claim that the use of the Subscription Services in accordance with this Agreement infringes or misappropriates intellectual property or proprietary rights of third party; provided, however, that the foregoing obligations shall be subject to Subscriber (x) promptly notifying Mobile Action of the claim, and (y) providing Mobile Action with reasonable cooperation in the defense of the claim when Subscriber becomes aware. Mobile Action will have sole control over the defense and negotiations for a settlement or compromise. Notwithstanding the foregoing, Mobile Action shall have no obligation with respect to a third party claim to the extent the third party claim arises from: (i) use of the Subscription Services in combination with modules, apparatus, hardware, software, or services not authorized by Mobile Action or contemplated for use with the Documentation for the Subscription Services; (ii) Subscriber’s breach of this Agreement, negligence, willful misconduct or fraud, (iii) any Subscriber Data, (iv) Subscriber’s failure to use any enhancements, modifications, or updates to the Subscription Services that have been provided by Mobile Action, (v) use of the Subscription Services in a manner that is not in accordance with this Agreement or the Documentation; (vi) the alteration or modification of the Subscription Services by a party other than Mobile Action, unless such alterations and modifications were authorized by Mobile Action or contemplated for use with the Subscription Services.
(b) Indemnification by Subscriber. Subscriber will defend, indemnify and hold harmless Mobile Action and its Affiliates, and each of their officers, directors, managers, shareholders, members and employees from any and all claims, liabilities, costs and expenses (including reasonable attorney’s fees and expert and consulting fees) in connection with any third party claim arising from or relating to (i) any allegation that any data, information or materials provided by Subscriber hereunder, including, without limitation, the Subscriber Data, when used in connection with the Subscription Services: (A) infringes or misappropriates any intellectual property or proprietary rights of a third party, or (B) violates any Applicable Laws; (ii) Subscriber’s actual or alleged violation of Applicable Law, or breach of this Agreement; provided, however, that the foregoing obligations shall be subject to Mobile Action (x) promptly notifying Subscriber of the claim, and (y) providing Subscriber with reasonable cooperation in the defense of the claim. Subscriber will have sole control over the defense and negotiations for a settlement or compromise, provided that Subscriber may not settle any claim without Mobile Action’s prior written approval unless the settlement is for a monetary amount, unconditionally releases Mobile Action from all liability without prejudice, does not require any admission by Mobile Action, and does not place restrictions upon Mobile Action’s business, products or services. Mobile Action may participate in the defense or settlement of any such claim at its own expense and with its own choice of counsel or, if Subscriber refuses to fulfill its obligation of defense, the Mobile Action may defend itself and seek reimbursement from the Subscriber.
(c) IP Remedies. If Mobile Action believes the Subscription Services (or any component thereof) do or could infringe any third party’s Intellectual Property Rights, Mobile Action may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Subscription Services, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Subscriber to continue use in accordance with the terms and conditions of this Agreement. If Mobile Action determines that neither alternative is commercially practicable, Mobile Action may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Subscriber.
(a) Notices. Unless otherwise specified herein, all notices and other communications between the Parties required or permitted by this Agreement or by applicable law, will be deemed properly given, if given by (i) personal service, (ii) registered or certified mail, postage prepaid, return receipt requested, (iii) nationally recognized private courier service or (iv) email, to the respective addresses of the Parties set forth in the Order Form, provided when Subscriber signed up for the Services or such other addresses as the respective Parties may designate by like notice from time to time. Notices so given will be effective upon (A) receipt by the Party to which notice is given when delivered personally; (B) on the fifth (5th) business day following mailing, or (C) if sent by email on the date the email was sent without a bounce back message if sent during normal business hours of the receiving party, and on the next business day if sent after normal business hours.
(b) Relationship Of The Parties. Each Party is an independent contractor of the other Party. Nothing in this Agreement will constitute or be construed to establish a partnership between or joint venture by the Parties, or constitute either Party the agent of the other. Neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent.
(c) Non-Exclusivity. The Parties agree that this Agreement does not create an exclusive relationship between the Parties. Mobile Action may provide the Subscription Services to any competitor of Subscriber without the prior express written consent of Subscriber. Subscriber may purchase any services from any supplier of its selection regardless of whether the services are similar to those provided under this Agreement.
(d) Assignment. Subscriber may not assign or transfer this Agreement, in whole or in part, by operation of law or otherwise, without Mobile Action’s prior written consent. For purposes of this Agreement, a Change of Control of Subscriber is deemed to be an assignment of this Agreement. Mobile Action may, without the consent of the Subscriber, freely assign or otherwise transfer this Agreement . Any assignment or other transfer in violation of this Section will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
(e) Force Majeure. Except with respect to failure to pay any amount due under this Agreement, nonperformance of either Party will be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts, orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing Party.
(f) Choice of Law. This Agreement, and any disputes directly or indirectly arising from or relating to this Agreement, will be governed by and construed in accordance with the laws of the State of California, without regard to principles of conflicts of law. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Northern District of California and the Parties irrevocably consent to the personal jurisdiction and venue therein.
(g) Modification. No modification of or amendment to this Agreement will be effective unless in writing signed by authorized representatives of both Parties.
(h) No Waiver. The rights and remedies of the Parties to this Agreement are cumulative and not alternative. No waiver of any rights is to be charged against any Party unless such waiver is in writing signed by an authorized representative of the Party so charged. Neither the failure nor any delay by any Party in exercising any right, power, or privilege under this Agreement will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege.
(i) Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect, and, if legally permitted, such offending provision will be replaced with an enforceable provision that as nearly as possible effects the Parties’ intent.
(j) Export Regulation. Subscriber affirms that it is not named on, owned by, or acting on behalf of any U.S. government denied-party list, and it agrees to comply fully with all relevant export control and sanctions laws and regulations of the United States (“Export Laws”) to ensure that neither the Services, software, any Subscriber Data, nor any technical data related thereto is: (i) used, exported or re-exported directly or indirectly in violation of Export Laws; or (ii) used for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, or biological weapons proliferation, missile systems or technology, or restricted unmanned aerial vehicle applications. Subscriber will complete all undertakings required by Export Laws, including obtaining any necessary export license or other governmental approval.
(k) U.S. Government End Users. The Services, software and Documentation were developed solely at private expense and are “commercial products”, “commercial items”, or “commercial computer software” as defined in the Federal Acquisition Regulation 2.101 and other relevant government procurement regulations including agency supplements. Any use, duplication, or disclosure of the Services, software and Documentation by or on behalf of the U.S. government is subject to restrictions as set forth in this Agreement as consistent with federal law and regulations. If these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Subscriber will immediately discontinue its use of the Services, software and Documentation.
(l) Entire Agreement. This Agreement and corresponding Order Forms, together with Statements of Work issued hereunder, contains the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior agreements and commitments with respect thereto. There are no other oral or written understandings, terms or conditions and neither Party has relied upon any representation, express or implied, not contained in this Agreement.
If you have any questions about these terms, please get in touch with us.
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