Terms of Service for MobileForce Software
“End User” means a person using Software to access and use features or functions of the Services.
“Content” means any information, data, data streams, text, photographs, graphics, video, or other materials provided with or through the Services.
“Intellectual Property Rights” means all current and future worldwide patents, patent applications, copyrights, copyright registrations and applications therefore, mask work rights, trade secrets, and all other intellectual property rights recognized anywhere in the world, now known or later developed, and the related documentation or other tangible expression thereof, including documentation related to ownership.
“Order Form” means any fully executed MobileForce Order Form that references this Agreement.
“Property” means a single physical structure at a geographic address identified by street address.
“Services” means the MobileForce services specified in an Order Form to be provided by MobileForce to Licensee directly, through any MobileForce website and/ or platform under the terms of this Agreement. Services may include Third Party Services and any MobileForce professional services as set forth in any Statement of Work between the parties.
“Software” means client software, in object code form only, for use on various mobile devices and platforms as specified by MobileForce, to be used in conjunction with Services. The use of Software is subject to additional terms and conditions in End User License Agreements accompanying the Software.
“Statement of Work” or “SOW” means a document signed by Licensee and MobileForce as an addendum to this Agreement which sets out the scope of professional services to be performed by MobileForce for Licensee and any other applicable terms and conditions.
“Subscription Term” means the period of time for which Licensee has a license to use the Services specified in an Order Form. The duration of the Subscription Term is specified in the applicable Order Form.
“Third Party Services” means any product, service or Content delivered or fulfilled by a third party supplier to MobileForce that may be part of the Services.
2. Grant of License and Restrictions
2.1. Subject to all the terms of this Agreement and payment of all fees, and only for the Subscription Term specified in an Order Form, MobileForce grants Licensee a limited, personal, non-exclusive, non-transferable, worldwide right to use the Services, solely for Licensee’s own internal business purposes subject to any additional terms and conditions set forth on the applicable Order Form. All rights not expressly granted to Licensee are reserved by MobileForce. There are no implied rights. Licensee will not (and will not permit any third party to): (i) modify, translate, or create derivative works based on the Services, reverse engineer, reverse assemble or otherwise attempt to discover any MobileForce Proprietary information; (ii) use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; (iii) remove any proprietary notices or labels from the Services; or (iv) provide any content or information from the Services to any unauthorized third party.
2.2. Licensee may not use the Services or any MobileForce proprietary or confidential information for any purpose other than as expressly permitted in this Agreement.
3. Prices and Payment Terms
3.1. Price. All Order Forms will set forth the fees and payment terms for Services including any fees for professional services under a Statement of Work.
3.2. Payment Terms. All fees shall be due and payable as indicated in the applicable Order Form. Licensee agrees to pay MobileForce all fees when due and fees will be considered delinquent after thirty (30) days of the due date. The prices do not include any taxes and Licensee shall pay any applicable sales use, excise, withholding or other taxes applicable to sale or furnishing of the Services. Delinquent payments shall bear interest at the rate of one-and-one-half (1.5%) per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Licensee will be responsible for all reasonable expenses (including attorneys’ fees and costs) incurred by MobileForce in collecting unpaid or delinquent amounts. Licensee may not require MobileForce to use a third party vendor for billing without MobileForce’s prior written consent. If MobileForce consents to such billing method, Licensee shall be responsible for all fees and costs associated therewith, including without limitation, any fees incurred by MobileForce. MobileForce reserves the right to suspend the Services (by advance written notice or email) until Licensee pays all past due amounts.
3.3. Subscriptions are non-cancelable before the end of the then-current Subscription Term and fees are non-refundable except to the limited extent provided for in Section 12.3.
3.4. Disputed Invoices. In the event either party reasonably and in good faith disputes any fee(s) set forth on any invoice or record of payment, that party must notify the other in writing, setting forth the reasons for and the amount of such dispute (a “Dispute Notice”), no later than thirty (30) days following the receipt of the invoice or record of payment. Upon receipt of a Dispute Notice, both Parties will promptly make available appropriate personnel to work in good faith to resolve the dispute within ten (10) days. Upon resolution of the dispute by the Parties, additional agreed amounts due from a party, if any, in relation to the applicable invoice must be remitted to the other within ten (10) business days following such resolution. If the dispute remains unresolved sixty (60) days after the date of the invoice at issue, either party may declare the other party in breach of this Agreement and pursue any or all remedies available to it.
4. Intellectual Property
4.1. Ownership of MobileForce Proprietary Information. All information of MobileForce relating to the Services or Software or any information relating to MobileForce processes, designs, software programs, source code, formulas, test procedures and results, improvements, inventions or techniques, client lists, business plans, marketing plans and strategies, pricing strategies or other subject matter pertaining to any business of MobileForce (“MobileForce Proprietary Information”) is owned by MobileForce. Licensee shall not reproduce or allow any such MobileForce Proprietary Information to be delivered to or used by any third party. In the event of the termination of this Agreement for any reason, Licensee shall promptly deliver to MobileForce all materials and documents of any nature in its possession pertaining to any MobileForce Proprietary Information. As between Licensee and MobileForce, MobileForce is the sole and exclusive owner of all MobileForce Proprietary Information.
4.2. Licensee Content. Licensee may upload Licensee Content to the Services or provide Licensee Content to MobileForce in connection with Licensee’s use of the Services. MobileForce does not verify, endorse, or claim ownership of any Licensee Content, and Licensee retains all right, title, and interest in and to the Licensee Content. Licensee grants to MobileForce during the term of this Agreement a non-exclusive, royalty-free, world-wide right to modify, create derivative works and publicly display Licensee Content solely and exclusively as part of MobileForce’s performance of Services to Licensee and for no other purpose.
4.3. No Transfer of Ownership. Except for the limited licenses expressly provided in this Agreement, neither party has or will acquire any right, title or interest in any of the products, services, technology or Intellectual Property Rights of the other party as a result of this Agreement.
5. Confidential Information
5.1. As used herein, “Confidential Information” means all confidential information of a party (“Disclosing Party“) disclosed to the other party (“Receiving Party“), that is designated in writing as confidential or that reasonably should be considered confidential in light of the content of the information and the circumstances of its disclosure, as well as the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder) and all MobileForce Proprietary Information. Each party as the Receiving Party understands that the other party as the Disclosing Party has disclosed or may disclose information relating to the Disclosing Party’s business. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information and to only use the Confidential Information to perform its obligations under this Agreement, and (ii) not to divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by the Receiving Party prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party. This Section 5 will not be construed to prohibit the disclosure of Confidential Information if such disclosure is required by law or order of a court or other governmental authority. The parties agree to give the other party prompt notice of the receipt of any subpoena or other similar request for such disclosure.
5.2. Return of Confidential Information. Upon termination of this Agreement, or earlier upon Disclosing Party’s request, the Receiving Party will promptly return or destroy all Confidential Information, together with all copies and summaries of Confidential Information in its possession or under its control.
5.3. No Transfer. This Agreement does not transfer any ownership rights to any Confidential Information.
5.4. Equitable Relief. The parties acknowledge that the remedies available at law for any breach of this Section 5 will, by their nature, be inadequate. Accordingly, a party may seek injunctive relief or other equitable relief to restrain a breach or threatened breach of this Section 5 or to specifically enforce this Section 5, without proving that any monetary damages have been sustained.
6. Third Party Services
The Services or Software may contain hyperlinks to web sites that are not controlled by MobileForce. Licensee acknowledges and agrees that MobileForce is not responsible for and does not endorse or accept any responsibility over the content or use of these web sites, including, without limitation, the accuracy or reliability of any information, data, opinions, advice or statements made on these web sites. Licensee further understands that such third party sites and Third Party Services are governed by separate agreements accompanying such portions of the Services and Licensee agrees to be bound by the terms and conditions of such agreements. Licensee dealings with other entities promoted on or through the Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between Licensee and such other entity. Licensee agrees that MobileForce shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the promotion of such other entities through the Services.
7. Harmful Code
MobileForce will utilize commercially available tools to minimize the risk that the Services or Software will: (a) contain any hidden files; (b) replicate, transmit or activate itself without control of a person operating the computing equipment on which it resides; (c) alter, damage or erase any data or computer programs without control of a person operating the computing equipment on which it resides; or (d) contain any virus, Trojan Horse, worms, disabling programming codes, instructions, scripts, or other such items (“Virus”) that may threaten, infect, damage, disable or otherwise interfere with the permitted use of the Services or Software.
Licensee’s having signed an Order Form and paid all associated fees will be entitled to MobileForce’s standard maintenance and support services which are available at mobileforcesoftware.com/content/support-policy. MobileForce reserves the right to make changes to its standard support and maintenance policies at any time, provided it gives thirty days advanced notice of the changes, such notice to be posted at the foregoing URL. All End User’s must obtain any maintenance or support services from their Licensee and MobileForce will have no direct obligation or liability to End Users for any maintenance or support services.
9. Warranties and Disclaimers
9.1. Licensee Warranty. Licensee represents and warrants that (a) Licensee will not engage in any activities or actions in connection with the Services that infringe or misappropriate the Intellectual Property Rights of others, including without limitation, copyright, patent, trademark, trade secret and confidential information; (b) engage in any activities that violate the personal privacy or publicity rights of others; and (c) that Licensee is the owner, licensor, or is the fully authorized user of all Licensee Content; and (d) Licensee will not upload, record, publish, post, link to, or otherwise transmit or distribute Content that: (i) advocates, promotes, incites, instructs, assists or otherwise encourages violence or any illegal activities; (ii) attempts to mislead others about Licensee identity or the origin of a message or other communication, or impersonates or otherwise misrepresents Licensee’s affiliation with any other person or entity, or is otherwise materially false, misleading, or inaccurate; (iii) promotes, solicits or comprises inappropriate, harassing, abusive, profane, defamatory, libelous, threatening, hateful, obscene, indecent, vulgar, pornographic or otherwise objectionable or unlawful content or activity; (iv) is harmful to minors; (v) contains any viruses, Trojan horses, worms, time bombs, or any other similar software, data, or programs that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, Information, or property of another; or (vi) violates any law, statute, ordinance, or regulation (including without limitation the laws and regulations governing export control, unfair competition, fair housing, anti-discrimination, or false advertising).
9.2. Services Operations. MobileForce warrants that the Services will operate or be provided in material conformity with the applicable documentation provided by MobileForce and that the functionality of the Services will not be materially decreased during a Subscription Term. For any breach of this warranty, the Licensee’s sole and exclusive remedy and MobileForce’s sole and exclusive liability shall be for MobileForce to correct any reported failure in the Services causing a breach of this warranty. MobileForce shall have no obligation with respect to a warranty claim hereunder unless notified of such claim within thirty (30) days of the first instance of any material functionality problem. Subject to the foregoing warranty MobileForce reserves the right, for any reason, in MobileForce’s sole discretion and without notice to Licensee, to modify or change the Services or Software, or to provide additional features or functions. Notwithstanding the foregoing, MobileForce may change, modify, suspend or discontinue any and all aspects of the Services or Software to reflect changes in Third Party Services (or the terms on which such are made available) and except for a refund to Licensee of any unused pre-paid fees for such terminated Third Party Services, MobileForce will not be liable to Licensee or to any third party for doing so.
9.3. Disclaimer of Warranties. EXCEPT AS STATED IN THIS SECTION 8, THE SERVICES AND SOFTWARE ARE PROVIDED ON AN AS-IS BASIS, WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, AND LICENSEE’S USE THEREOF IS AT LICENSEE’S OWN RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, MobileForce DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, MERCHANTABLE QUALITY, SERVICE QUALITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
10. Limitation of Liability and Exclusion of Damages
10.1. EXCEPT FOR LICENSEE’S BREACH OF SECTIONS 2, 4.1, OR 8.1, NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF THE CAUSE OF SUCH DAMAGES.
10.2. EXCEPT WITH RESPECT TO LICENSEE’S BREACH OF SECTION 2, 3, 4.1 OR 8.1, OR EITHER PARTY’S BREACH OF SECTION 5, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID TO MobileForce UNDER THIS AGREEMENT DURING THE PRECEDING TWELVE MONTH PERIOD PRIOR TO THE OCCURRENCE OF SUCH DAMAGES; PROVIDED THAT LIABILITY ARISING UNDER ANY OTHER TERMS AND CONDITIONS MADE A PART OF THIS AGREEMENT MAY BE FURTHER LIMITED AS PROVIDED IN SUCH TERMS AND CONDITIONS.
11.1. MobileForce, at its expense, shall indemnify, defend and hold harmless Licensee against any losses, costs and damages arising from a claim by a third party against Licensee that the Services or the MobileForce Platform infringe any copyright or any United States patent issued as of the Effective Date or misappropriates any protected trade secret; provided that Licensee will provide MobileForce with (i) prompt written notice of the claim, (ii) sole control over the defense or settlement (provided, however, that any such settlement shall not result in financial liability on Licensee or require its admission of any fault without its prior written consent which shall not unreasonably be withheld), and (iii) reasonable support and cooperation with regard to the defense. In the event that MobileForce’s right to provide the Services is enjoined or in MobileForce’s reasonable opinion is likely to be enjoined, MobileForce may, at its expense, obtain the right to continue providing the Services, replace or modify the Services so that they become non-infringing but remain functionally equivalent, or if such remedies are not reasonably available, terminate this Agreement without liability to Licensee. MobileForce shall have no indemnification liability under this Section 10, or otherwise, to the extent a claim or suit is based upon (a) use of the Services or Software in combination with software or hardware not provided by MobileForce if infringement would have been avoided in the absence of such combination, (b) modifications to the Services Software not made by MobileForce, if infringement would have been avoided by the absence of such modifications, (c) use of any version other than a current release of the Services or Software, if infringement would have been avoided by use of a current release, or (d) any claim against third party software, content or services that may be included in the Services or Software.
11.2. Licensee at its expense, shall indemnify, defend and hold harmless MobileForce against any losses, costs and damages arising from a claim by a third party for any breach by Licensee of Sections 2, 4, 5 or 8.1, or any breach by Licensee of any agreement covering Third Party Services, provided that MobileForce will provide Licensee with (i) prompt written notice of the claim, (ii) sole control over the defense or settlement (provided, however, that any such settlement shall not result in financial liability on MobileForce or require its admission of any fault or the making of any public statement without its prior written consent), and (iii) reasonable support and cooperation with regard to the defense.
This Agreement will commence on the Effective Date specified in the Order Form. The initial Subscription Term shall commence on the date MobileForce initially activates the Services for Licensee, and shall continue for the duration of the Subscription Term set forth in the Order Form unless earlier terminated pursuant to Section 12, of this Agreement. All Subscription Terms shall automatically renew for additional periods equal to the expiring Subscription Term at MobileForce’s then-current price for the Services, unless terminated by either party upon thirty (30) days written notice of non-renewal prior to the expiration of the applicable Subscription Term.
13.1. Generally. Either party may immediately terminate this Agreement, including any Order Form or Statement of Work, and any order previously accepted by MobileForce: (a) in the event of any proceedings, voluntary or involuntary, in bankruptcy or insolvency by or against the other party; or in the event of the appointment, with or without the other party’s consent, of an assignee for the benefit of creditors, or of a receiver; or if the other party admits in writing its inability to pay its debts when due; or (b) in the event the other party has materially breached this Agreement and, if curable, has not cured such breach within 30 days after receiving written notice thereof by the non-breaching party. If a breach is not curable, the non-breaching party can terminate this Agreement immediately.
13.2. By MobileForce On Certain Conditions. MobileForce may at any time and upon written notice to Licensee immediately terminate this Agreement and Licensee’s access to the Services, Software or any deliverables under a Statement of Work, or suspend or restrict Licensee’s access to the Services, Software or any deliverables under a Statement of Work in whole or in part, if: (a) Licensee breaches Section 2, License, Section 4.1 Ownership of MobileForce Proprietary Information or Section 8.1 Licensee Warranty; or (b) MobileForce determines in its sole and exclusive judgment that terminating Licensee’s access to the Services, MobileForce Platform or deliverables under a Statement of Work is advisable for security reasons, to protect MobileForce from liability, or for the continued normal and efficient operation of the Services or Software.
13.3. Effect of Termination. Licensee’s license rights to use the Services or Software shall terminate immediately upon termination of this Agreement.
13.4. Survival of Obligations. Except for termination arising from a material breach by MobileForce under Section 13.1(b), Licensee shall remain liable for all amounts due under any Order Form, and all such sums will become immediately due and payable upon termination or expiration of this Agreement. Upon expiration or termination the provisions of this Agreement relating to ownership of proprietary information and confidentiality and any other provisions which by their nature should survive termination or expiration of this Agreement, shall so survive.
14.1. Entire Agreement. This Agreement and any executed Order Form or Statement of Work sets forth the entire understanding and supersedes all prior and contemporaneous oral and written agreements between the parties relating to the subject matter contained herein.
14.2. Amendment; Modification. The parties to this Agreement may modify, amend or supplement this Agreement in a signed writing explicitly referencing this Agreement and their intent to modify its terms.
14.3. Waiver of Provisions. No waiver by a party of any condition, or breach of any provision term, covenant, representation, or warranty contained in this Agreement, whether by conduct or otherwise, shall be deemed to be or construed as a further or continuing waiver of any such condition or of the breach of any other provision, term, covenant, representation or warranty of this Agreement.
14.4. Severability. If any portion of this Agreement is found to be invalid, illegal, or unenforceable for any reason, the remainder of the Agreement shall continue in force and, if needed, the parties or a court of competent jurisdiction shall substitute suitable provisions having like economic effect and intent.
14.5. Governing Law. This agreement is governed in all respects by the substantive and procedural laws of the State of California, United States of America, exclusive of its conflicts of laws rules, as applied to agreements entered into and to be performed in California between California residents. All disputes arising under or otherwise involving this Agreement shall be subject to the sole and exclusive jurisdiction of the state and federal courts located in the County of Santa Clara, State of California, and Licensee and MobileForce hereby submit to the personal jurisdiction of such courts. Use of the Services and Software is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this paragraph.
14.6. Successors and Assigns. Licensee may not assign this Agreement or the rights or obligations of Licensee hereunder (including by operation of law or otherwise), except with the written consent of MobileForce, which will not unreasonably be withheld.
14.7. Excuse of Performance. No liability shall result from delay in performance by MobileForce caused by act of God, fire, flood, war, government action, accident, labor trouble or shortage, inability to obtain material, equipment or transportation, or similar circumstances beyond the reasonable control of MobileForce.
14.8. No Third Party Beneficiaries. Nothing in this Agreement, expressed or implied, is intended to confer upon any person, other than the parties hereto and their successors and permitted assigns, any rights or remedies under or by reason of this Agreement.
14.9. Notices. Any and all notices, demands, or other communications required or desired to be given hereunder by either party shall be in writing and shall be deemed validly given if (i) personally served, (ii) deposited in the United States mail, certified or registered, postage prepaid, or (iii) emailed, in each case to the address of such party set forth in the Order Form. If such notice or demand is served personally, notice shall be deemed constructively made at the time of such personal service. If such notice, demand or other communication is given by mail, such notice shall be conclusively deemed given three days after deposit thereof in the United States mail addressed to the party to whom such notice, demand or other communication is to be given. Either party may change its address for purposes of this paragraph by written notice given in the manner provided above.