These Advantage Terms of Service (“Terms”) are effective as of the date of the Order (defined below) to which these Terms are attached and/or incorporated and made a part thereof, and entered into between, MobileDay Inc. (“MobileDay”) and Customer identified in the Order (“Customer”). MobileDay has developed a consumer mobile business productivity software application, as further described below, used to provide a software-as-a-service (“SaaS”) solution that provides, in addition to other Features (defined below), mobile phone users with one-touch dialing into any conference call on any conference provider. The parties agree as follows:
1 . DEFINITIONS
1.1 “Affiliate” means, with respect to a party, any other entity that directly or indirectly controls, is controlled by or is under common control with such entity, where “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such entity through the ownership of fifty percent (50%) or more of the outstanding voting securities (but only for as long as such or entity meets these requirements).
1.2 “Agreement” means these Terms and the applicable Order (including all pricing and payment terms) and any attachments and amendments that may be incorporated into the foregoing.
1.3 “Application” means MobileDay’s proprietary software programs made available by MobileDay through remote access via the internet, including any modified, updated, or enhanced versions of such software that may become part of the Application.
1.4 “Customer Data” means the Customer data supplied by Customer to MobileDay under this Agreement including but not limited to geographic and network rule data (dialing rules), conference service name, user email address and encrypted user password.
1.5 “Usage Data” means data received by MobileDay based on an Authorized User usage including date and time of registration, dial in numbers, activity of open/close of Application, activity of signing in and out of Application, completed call data such as time, number and location, and device meta-data such as carrier, model, application version, etc.
1.6 “Documentation” means any user manuals and other documentation made available by MobileDay to Customer for the Service(s) and the Application.
1.7 “Order” means any written or online document agreed to and executed by MobileDay and Customer setting forth the specific terms and conditions relating to the Service(s) requested by Customer and which refers to these Terms.
1.8 “Service” means mobile business productivity services and features described in an Order made available by MobileDay to Authorized Users using the Application.
1.9 “Authorized User” means an employee or contractor of Customer who has a valid email address through a domain owned or controlled by Customer or who is authorized by the administrator designated by Customer in an Order (“Account Manager”) to access the Features and who accesses the Application at least once during a calendar month. The Account Manager may be changed by Customer by providing written notice to MobileDay.
2 . SERVICES.
2.1 Scope of Agreement. These Terms govern the provision of all Services purchased by Customer from MobileDay pursuant to, and as described in, an Order. All Services shall be performed in accordance with these Terms.
2.2 Provision of Service. Subject to the Terms, during the Term, MobileDay will make the Services available as part of the Services for Authorized Users pursuant to these Terms.
2.3 Cooperation. Customer shall use reasonable commercial efforts to supply to MobileDay the Customer Data along with access and resources reasonably requested by MobileDay that are necessary for MobileDay to provide the Services. The parties shall reasonably cooperate with each other to facilitate MobileDay’s provision of the Services for Customer.
2.5 Use of the Services. Customer shall not, and shall not permit any third party to use the Services except as expressly permitted under these Terms. Customer will not provide or permit use of or access to the Services to any third party without the prior written approval of MobileDay in each instance.
2.6 Support. MobileDay will provide support for the Services as set forth on the Mobileday website. Further, MobileDay will use commercially reasonable efforts to analyze and correct any deficiencies in the Services which are reported by Customer or Authorized Users; provided, however, that MobileDay will have no obligation to make revisions or repairs to the Services requested by Customer or to maintain the Services at any particular level of performance.
3. CUSTOMER AND USAGE DATA.
3.1 Provision of Customer Data. Customer shall provide or make available to MobileDay all Customer Data required for the provision of Services by MobileDay under these Terms in accordance with procedures and technical requirements provided to or made available to Customer. Customer is solely responsible for the completeness and accuracy of all Customer Data.
3.2 Customer Data License. By submitting or uploading any Customer Data, Customer grants MobileDay a nonexclusive, world-wide, royalty-free license to use such Customer Data on the Application for Authorized Users only as permitted under these Terms. Upon expiration or termination of these Terms for any reason, this license shall automatically terminate. MobileDay acknowledges that, except as expressly set forth herein, it will not acquire any rights in Customer Data.
3.3 Customer Intellectual Property. Notwithstanding anything to the contrary, Customer shall retain all right, title, and interest in all of the Customer Data. To the extent Customer’s intellectual property is incorporated into the Application, Application and/or Services, MobileDay obtains only a limited license to the Customer’s intellectual property, for use of such property only in the provision of the Application and/or Application and Services to Customer.
3.4 Usage data. MobileDay will collect certain Usage Data through its provision of Services and will not disclose any Personally Identifiable Useage Data, but may use such data in an aggregated fashion.
4. MOBILEDAY TECHNOLOGY.
4.1 MobileDay Technology. This Agreement does not provide Customer with any right or license to utilize or access the Application or any of the software, hardware or other technology used by or on behalf of MobileDay in the operation of the Application (“MobileDay Technology”). All MobileDay Technology, including, without limitation, any derivatives, modifications or new versions of any materials prepared by MobileDay prior to, during or independent of this Agreement and all intellectual property rights therein and applicable thereto, are and will remain the sole and exclusive property of MobileDay. Customer acknowledges that MobileDay will retain sole and exclusive title to all MobileDay Technology, including all derivatives, improvements or modifications made by thereto-even if such derivatives, improvements or modifications incorporate suggestions or feedback from Customer or intellectual property created or obtained from the provision of Services to Customer. Customer receives no rights or licenses in or to any MobileDay Technology under these Terms and MobileDay expressly reserves all such rights.
4.2 Restrictions. Customer shall not: (a)permit any third party to access and/or use the Services, other than those authorized under these Terms; (b) rent, lease, loan, or sell access to the Application or MobileDay Technology; (c) interfere with, disrupt, alter or modify the Services or any part thereof, or create an undue burden on the Services or the networks or other third party services connected to the Services, including without limitation, the external websites that are linked in providing the ServicS; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Application; (e) without MobileDay’s express written permission, introduce software or automated agents or scripts to the Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip or mine data from the Services; or (f) perform or publish any performance or benchmark tests or analyses relating to the Services or the use thereof.
4.3 Feedback. All suggestions for correction, change and modification to the Services, evaluation data, evaluations and other feedback (including, but not limited to, quotations of written or oral feedback relating to the Services or the Application), information and reports provided to MobileDay by Customer (including by any Authorized User) (“Feedback”) are and will remain the property of MobileDay and Customer acknowledges and expressly agrees that any contribution in the form of Feedback will not give or grant Customer any right, title or interest in the Services or Application or in any such Feedback. MobileDay may use and disclose any such Feedback in any manner and for any purpose whatsoever without compensation to Customer.
5. FEES AND PAYMENT
5.1 Price. The fees for Services will be set forth in the applicable Order (“Fees”) and Customer agrees to pay MobileDay all such Fees in accordance with these Terms. Customer will be responsible for payment of all taxes (other than taxes based on MobileDay’s net income or employment taxes), fees, duties, and other governmental charges arising from the payment of any fees or any amounts owed to MobileDay under these Terms. Prices for any Services requested by Customer that are not set forth in an Order shall be charged as mutually agreed to by the parties in writing. Pricing may be subject to change upon providing Customer 30 days written notice.
5.2 Payment. Fees for Services are paid according to the terms of the applicable Order. Unless the applicable Order provides otherwise, Customer will pay Fees and expenses within 30 days after Customer’s receipt of the applicable invoice for such Services. Should Customer fail to pay any past due undisputed invoice within 10 days after receipt from MobileDay of such past due notice, MobileDay may revoke or suspend Services upon written notice to Customer. All payments received by MobileDay are non-refundable except as otherwise expressly provided in this Agreement. MobileDay may charge interest on all late payments at a rate equal to the lesser of 11⁄2% per month or the maximum rate of interest permitted by law, from the date due until paid. All payments will be made in United States dollars.
6. TERM, TERMINATION AND SUSPENSION.
6.1 Term. The term of these Terms shall commence on the date of the initial Order (“Effective Date”) and will continue unless earlier terminated as allowed herein (“Term”). The term of each Order shall be set forth in such Order. Unless the parties otherwise agree in writing, the termination or expiration of this Agreement shall not become effective until expiration of all outstanding Orders.
6.2 Termination. Unless stated otherwise in the Order, Customer may terminate these Terms for its convenience at any time by giving MobileDay a thirty (30) days written notice. Either party may terminate this Agreement if the other party breaches any material provision of this Agreement and does not cure such breach (provided that such breach is capable of cure) within thirty (30) days after being provided with written notice thereof. If a breach is not capable of cure, the non- breaching party may terminate the Agreement upon thirty days’ notice to the breaching party.
6.3 Effect of Termination. Upon termination or expiration of this Agreement, (a) MobileDay shall terminate the Services, (b) each party shall promptly destroy or return all information and materials provided or on behalf of the other party, except that MobileDay may retain Usage Data, (c) all Orders will immediately terminate, and (d) Customer will pay MobileDay all amounts owed under this Agreement in accordance with Section 5.2 above. Sections 1, 3.3, 4, 5, 6.3, 8, 9, 10, 11 and 12 shall survive termination or expiration of this Agreement.
7. REPRESENTATIONS AND WARRANTIES.
7.1 Service Warranty. MobileDay warrants that Services provided to Customer under these Terms will be performed in accordance with these Terms. MobileDay does not warrant that the Services and/or Application will be completely error-free or uninterrupted. MobileDay shall, as its sole obligation and Customer’s sole and exclusive remedy for any breach of the warranty set forth in this Section 7.1, re-perform the Services which gave rise to the breach or, at MobileDay’s sole option, refund the applicable Fees paid by Customer for the Services which gave rise to the breach; provided that Customer notifies MobileDay in writing of the breach within 30 days following performance of the defective Services, specifying the breach in reasonable detail.
7.2 Disclaimer. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 7, ALL SERVICES PROVIDED HEREUNDER AND THROUGH THE APPLICATION ARE PROVIDED BY MOBILEDAY “AS IS” AND “AS AVAILABLE” WITH NO WARRANTIES WHATSOEVER. MOBILEDAY EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING THESE TERMS AND THE SERVICES, NOT EXPRESSLY SET FORTH HEREIN, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. CUSTOMER RECOGNIZES THAT THE CURRENT STATE OF TECHNOLOGY DOES NOT ALLOW FOR ERROR-FREE ACCESS TO THE APPLICATION AND INTERRUPTIONS, CRASHES, AND DOWNTIME BEYOND MOBILEDAY’S CONTROL MAY OCCUR FROM TIME TO TIME.
8. INDEMNIFICATION. MobileDay will defend, at its own expense, any claim or action brought by a third party against Customer and its Affiliates, employees, agents, contractors, assigns, licensees, and successors in interest (“Customer Indemnified Parties”) to the extent such claim or action is based upon an allegation that the Application or Services infringe or misappropriates any U.S. patents or any copyrights, trade secrets or any other intellectual property rights of such third party (“Customer Claim”), and MobileDay will indemnify and hold the Customer Indemnified Parties harmless from and against any and all losses, liabilities, damages, fees, expenses, and costs (including reasonable attorneys’ fees, court costs, damage awards, and settlement amounts) that result from any Customer Claim. The foregoing obligations are conditioned on the Customer Indemnified Parties (a) notifying MobileDay promptly in writing of such action, (b) giving MobileDay sole control of the defense thereof and any related settlement negotiations and (c) cooperating and, at MobileDay’s request and expense, assisting in such defense. Notwithstanding the foregoing, MobileDay will have no obligation under Section 8 or otherwise with respect to any infringement claim to the extent based upon (i) any use of the Services not in accordance with these Terms, (ii) any use of the Service in combination with products, equipment, software or data not supplied by MobileDay or (iii) any modification of the Application or Services by any person other than MobileDay or its authorized agents or subcontractors. This Section 8 states MobileDay’s entire liability and the Customer Indemnified Parties’ exclusive remedy for any claims of infringement.
9. LIMITATION OF LIABILITY; REMEDIES.
9.1 IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR ANY LOST DATA, LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, IN CONNECTION WITH THESE TERMS OR THE APPLICATION (OR THE ACCESS THERETO OR USE THEREOF OR FAILURE OR INABILITY TO GAIN ACCESS THERETO OR USE THEREOF), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9.2 MOBILEDAY’S TOTAL AGGREGATE LIABILITY FOR ANY DAMAGES OR LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS WILL NOT EXCEED THE AMOUNTS PAID TO MOBILEDAY BY CUSTOMER PURSUANT TO THE ORDER FOR THE FEATURE WHICH THE LIABILITY RELATES IN THE 12-MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO THE DAMAGES OR LIABILITY.
9.3 THE PARTIES ACKNOWLEDGE AND AGREE THAT THE FEES CHARGED FOR THE SERVICES ASSUME THE ENFORCEABILITY OF THIS LIMITATION OF LIABILITY AND REFLECT A REASONABLE ALLOCATION OF RISK BETWEEN CUSTOMER AND MOBILEDAY.
1 0 . COMPLIANCE.
10.1 Compliance with Law. Notwithstanding anything contained in these Terms or the Order to the contrary, each of MobileDay and Customer agree to comply with all federal and state laws and regulations to which it is subject, with respect to the confidentiality or privacy of information. Nothing contained herein should be construed to limit or otherwise abridge any of the rights MobileDay or Customer has under such laws.
1 1 . CONFIDENTIALITY.
1 1 . 1 Definition. “Confidential Information” means all information disclosed by one party (“Discloser”) to the other party (“Recipient”) relating to or disclosed in the course of the performance of these Terms. Confidential Information includes information that is marked or identified as confidential and, if not marked or identified as confidential, information that should reasonably have been understood by Recipient to be proprietary and confidential to Discloser or to a third party, because of legends or other markings, the circumstances of disclosure or the nature of the information itself. The Application and Documentation shall be considered MobileDay’s Confidential Information, notwithstanding any failure to mark or identify it as such.
11.2 Protection. Recipient will not use any Confidential Information of the Discloser for any purpose not expressly permitted by these Terms, and will disclose Confidential Information only to the employees or contractors of Recipient who have a need to know such Confidential Information for purposes of these Terms and who are under a duty of confidentiality no less restrictive than Recipient’s duty hereunder. Recipient will protect Confidential Information from unauthorized use, access, or disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
1 1 . 3 Exceptions. Recipient’s obligations under Section 11.2 above with respect to any Confidential Information of Discloser will terminate if and when Recipient can document that such information: (a) was already lawfully known to Recipient without restriction at the time of disclosure by Discloser; (b) is disclosed to Recipient by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) is independently developed by Recipient without access to or use of the Confidential Information. In addition, Recipient may disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, provided that Recipient notifies Discloser of such required disclosure in writing prior to making such disclosure and cooperates with Discloser, at Discloser’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
12. MISCELLANEOUS PROVISIONS.
1 2 . 1 Marks. Unless otherwise labeled, all trademarks, trade names, service marks, logos, banners, and page headers displayed on the Application that are not part of the Customer Data (collectively, the “Marks”) are the property of MobileDay and its Affiliates. Except as expressly set forth in these Terms, Customer may not display, link to, or otherwise use the Marks without the prior written permission of MobileDay. Notwithstanding the foregoing, in no circumstances shall MobileDay acquire any of the rights or goodwill in the trademarks owned by Customer and provided to it for use on the Application. As between the parties, all such rights in Customer trademarks shall continue to belong to Customer. Notwithstanding the foregoing, Customer grants MobileDay permission to use its name in MobileDay marketing materials and to publish its name, trademark and/or logo on the MobileDay website, solely for the purpose of identifying Customer as a customer of MobileDay.
1 2 . 2 Independent Contractors. The relationship between the parties is that of independent contractors and no agency, partnership, franchise, joint venture or employment relationship is intended or created by these Terms. Neither party will make any warranties or representations on behalf of, or have authority to bind, the other party.
12.3 Governing Law; Venue. These Terms and the legal relations between the parties arising hereunder shall be governed by and interpreted in accordance with the laws of the State of Colorado without regard to its conflicts of laws provisions. If any legal action is brought to enforce these Terms, the prevailing party will be entitled to receive its reasonable attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive. Any action or proceeding arising from or relating to these Terms shall be brought in a federal or state court in Boulder or Denver, Colorado, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The parties specifically exclude from application to these Terms the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.
12.4 Assignment. Neither party may assign or transfer, by operation of law or otherwise, these Terms or any of its rights under these Terms to any third party without the other party’s prior written consent; except that either party may assign these Terms by operation of law or otherwise to any Affiliate or to a successor to its business or assets to which these Terms relate, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any attempted assignment or transfer in violation of the foregoing will be null and void. These Terms shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, and shall not confer any rights or remedies upon any person or entity not a party hereto.
12.5 Force Majeure. Any failure of either party to perform or any delay in the performance of obligations under these Terms due to any cause or event not reasonable within the parties control, including but not limited to casualty, failure of equipment or carriers or utilities, compliance with governmental authority or Act of God, shall not constitute a breach of these Terms, and such performance shall be excused during such period of delay (“Force Majeure”). In the event MobileDay excuses its performance of any of the requirements of these Terms or otherwise invokes Force Majeure, no Fees shall accrue during such period of time when MobileDay is unable or unwilling to perform.
12.6 Export Control. Without in any way limiting the provisions of these Terms, each party agrees that no products, items, commodities or technical data or information obtained from the other party nor any direct product of such technical data or information is intended to or shall be exported or re-exported, directly or indirectly, to any destination restricted or prohibited by applicable law without necessary authorization by the applicable governmental authorities, including, without limitation, the United States Bureau of Export Administration.
12.7 Notices. All notices, consents, and approvals under these Terms must be delivered in writing by electronic mail, courier, electronic facsimile (fax), or certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address for each party first set forth on the Order or below, and will be effective upon receipt.
2040 14th Street, Suite 200 Boulder, CO 80302 [email protected]
12.8 Entire Agreement. Modifications and Wavier. Each party acknowledges that it has read these Terms and the Order, and further agrees that the Terms and the Order are the complete and exclusive statement of the parties and supersedes all prior or contemporaneous proposals, understandings, and agreements, oral or written, between the parties relating to the subject matter hereof. These Terms may be changed or modified only by a writing signed by both parties. The waiver of a breach of any provision of these Terms will not operate or be interpreted as a waiver of any other or subsequent breach.
12.9 Severability. If any part of these Terms is for any reason found to be unenforceable, all other parts will nevertheless remain enforceable. In lieu of the unenforceable provision, the parties will substitute or add as part of these Terms an enforceable provision that will be as similar as possible in economic and business objectives as was intended by the unenforceable provision.
12.10 Interpretation. Section headings contained in these Terms are inserted for convenience of reference only, shall not be deemed to be a part of the these Terms for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the provisions hereof.
12.11 Counterparts. These Terms may be executed in one or more counterparts, duplicate originals, or facsimile versions, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
1 2 . 1 2 Precedence. In the case of inconsistencies between these Terms and information included in other materials (e.g., promotional materials and mailers), these Terms will always govern and take precedence. In the case of inconsistencies between these Terms and the Order, the Order will always govern and take precedence. No terms and conditions proposed by either party shall be binding on the other party unless accepted in writing by both parties, and each party hereby objects to and rejects all terms and conditions not so accepted.
Last Updated 11/18/2014