Terms and Conditions
Last Updated: 5/1/2023
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- Access to the Services. Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement. For each Order Form, subject to Customer’s compliance with the terms of this Agreement (including any limitations and restrictions set forth on the applicable Order Form), Mobrium grants Customer a nonexclusive, limited, personal, non-sublicensable, nontransferable right to access and use the Services described in such Order Form during the term set forth in such Order Form. Customer may only use the Services for its internal business purposes and only in accordance with Mobrium’s applicable official user documentation (the “Documentation”).
- Implementation. Subject to Customer’s compliance with the terms of this Agreement (including any limitations and restrictions set forth on the applicable Order Form), Mobrium agrees to use commercially reasonable efforts to provide standard implementation services for the Services only if and to the extent such assistance is set forth on such Order Form (“Implementation Services”). If Mobrium provides Implementation Services in excess of any agreed-upon hours estimate, or if Mobrium otherwise provides additional services beyond those agreed in an Order Form, Customer will pay Mobrium at its then-current hourly rates for consultation.
- Professional Services. Subject to Customer’s compliance with the terms of this Agreement (including any limitations and restrictions set forth on the applicable Order Form), Mobrium agrees to provide any professional services described in such Order Form (“Professional Services”).
- Fees; Payment. Customer shall pay Mobrium fees for the Services as set forth in each Order Form (“Fees”). Unless otherwise specified in an Order Form, all Fees shall be invoiced annually in advance and shall increase by 6% upon each renewal of the term of such Order Form and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer shall be responsible for all taxes associated with the Services (excluding taxes based on Mobrium’s net income). All Fees paid are non-refundable and are not subject to set-off.
- Customer Intellectual Property and Data. For purposes of this Agreement, “Customer Materials” shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Services. Customer shall retain all right, title and interest in and to the Customer Materials, including all intellectual property rights therein. Customer, not Mobrium, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Materials. Customer acknowledges and agrees that Mobrium may internally use and display Customer Materials for the purposes of providing the Services to Customer.
- Mobrium Intellectual Property. As between the parties, Mobrium retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Mobrium for the purposes of this Agreement, including any copies and derivative works of the foregoing. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Except as otherwise set forth in an Order Form, Customer may (but is not obligated to) provide suggestions, comments or other feedback to Mobrium with respect to the Services (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Mobrium and Mobrium may freely use and exploit such Feedback. Notwithstanding anything else, Mobrium may freely use and make available data submitted to, collected by, or generated by Mobrium in connection with Customer’s use of the Services, but only in aggregate, anonymized form which can in no way be linked specifically to Customer, for Mobrium’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Mobrium’s products and services).
- Restrictions. Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Services; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (iv) use the Services for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (vi) use the Services to build an application or product that is competitive with any Mobrium product or service; (vii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (viii) bypass any measures Mobrium may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Service); or (ix) “crawl,” “scrape,” or “spider” any page, data, or portion of or relating to the Services (or any information, data or content made available through the Services), whether through use of manual or automated means. Customer is responsible for all of Customer’s activity in connection with the Services, including but not limited to uploading Customer Materials onto the Services. Customer shall use the Services in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Services (including those related to email marketing, data privacy, international communications, export laws and the transmission of technical or personal data laws). Customer shall not use the Services in a manner that is harmful, deceptive, threatening, harassing or obscene or that violates any third-party intellectual property, contractual or other proprietary rights. Customer shall indemnify and hold Mobrium harmless against any damages, losses, liabilities, settlements and expenses in connection with any claim or action that arises from any violation of the foregoing or otherwise from Customer’s use of Services.
- Third-Party Services. Customer acknowledges and agrees that the Services may operate on, with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”), including without limitation through integrations or connectors to such Third-Party Services that are provided by Mobrium. Mobrium is not responsible for the operation of any Third-Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third-Party Services. Customer is solely responsible for procuring all rights necessary for it to access Third-Party Services (including any Customer Materials or other information relating thereto) and for complying with any applicable terms or conditions thereof. Mobrium does not make any representations or warranties with respect to Third-Party Services or any third-party providers. Any exchange of data or other interaction between Customer and a third-party provider is solely between Customer and such third-party provider and is governed by such third party’s terms and conditions.
- Term; Termination. Unless earlier terminated as provided in this Agreement, this Agreement shall begin on the date of the first Order Form and end as of the expiration of the last active Order Form. For each Order Form, unless otherwise provided therein or earlier terminated as provided in this Agreement, the term of such Order Form shall begin as of the date of such Order Form and shall continue until the end of the term set forth in such Order Form, and shall automatically renew for successive one (1) year periods unless either party provides notice of non-renewal at least thirty (30) days prior to the end of the then-current term. Either party may terminate this Agreement for the other party’s material breach that remains uncured thirty (30) days after the terminating party provides the breaching party notice of such breach. Without limiting the foregoing, Mobrium may suspend Customer’s access to the Services if Customer’s account is more than sixty (60) days past due. All provisions of this Agreement that by their nature should survive termination shall survive termination, including without limitation accrued payment obligations, ownership provisions, warranty disclaimers, indemnification obligations and limitations of liability.
- Indemnification. Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim that (a) in the case of Customer as Indemnitor, the Customer Materials or Customer’s use of the Services infringes, violates, or misappropriates any third-party intellectual property or proprietary right or violates any applicable law, or (b) in the case of Mobrium as Indemnitor, the Services infringe, violate, or misappropriate any third-party intellectual property or proprietary right. Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (i) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnification obligations if the Indemnitor is materially prejudiced by such failure); (ii) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (iii) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). The foregoing obligations of Mobrium do not apply with respect to the Services or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by Mobrium (including without limitation any Customer Materials), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by Mobrium, (iv) combined with other products, processes or materials not provided by Mobrium (where the alleged Losses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Services is not strictly in accordance herewith.
- Warranty; Disclaimer. Mobrium will provide the Services and Professional Services in a professional and workmanlike manner. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND PROFESSIONAL SERVICES (IF ANY) ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
- Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND FOR CUSTOMER’S BREACH OF THE SECTION ENTITLED “RESTRICTIONS,” IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (A) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), OR (B) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO MOBRIUM HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
- Free Trial. If Customer signed up for the Services under a free trial, the free trial expires on the last day of the free trial period specified in the Order Form. Unless Customer has terminated this Agreement on or prior to the last day of such free trial period, this Agreement shall continue in accordance with the terms of this Agreement and Mobrium may immediately charge Customer for the Services in accordance with the payments set forth under this Agreement. Additional free trial terms and conditions may appear on the Order Form or the free trial promotions page. Any such additional terms and conditions are hereby incorporated into this Agreement by reference and are legally binding. Customer may only sign up for one free trial. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY AND MOBRIUM SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE MOBRIUM’S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, MOBRIUM AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER'S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET CUSTOMER'S REQUIREMENTS, (B) CUSTOMER'S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO MOBRIUM AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER. CUSTOMER SHALL REVIEW THE APPLICABLE SERVICES DOCUMENTATION DURING THE TRIAL PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SERVICES BEFORE MAKING A PURCHASE.
- Miscellaneous. This Agreement represents the entire agreement between Customer and Mobrium with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Mobrium with respect thereto. The Agreement shall be governed by and construed in accordance with the laws of the State of Utah, excluding its conflicts of law rules, and any dispute between the parties related to the subject matter of this Agreement will be resolved by binding arbitration in the English language in Salt Lake City, UT under the rules of JAMS; the decision of the arbitrator will be enforceable in any court. All notices under this Agreement will be sent via email. All notices to Mobrium must be sent to email@example.com, and all notices to Customer must be sent to the email address set forth in the applicable Order Form, or in each case, at such other email address as may be given in writing by either party to the other in accordance with this Section. Notice will be treated as given on receipt, as confirmed by written or electronic records. Except as otherwise provided herein, no modification or amendment of any provision of this Agreement shall be effective unless agreed by both parties in writing, and no waiver of any provision of this Agreement shall be effective unless in writing and signed by the waiving party. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including without limitation the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; pandemics; epidemics; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) Mobrium may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. Customer agrees to allow Mobrium to use and display Customer’s name and logo on Mobrium’s website and in Mobrium’s promotional materials to identify Customer as a customer. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.