END USER LICENSE AGREEMENT
This document is a legally binding agreement (“Agreement”) between you (“LICENSEE”) and Mobile Epiphany, LLC, a Colorado limited liability company with principal business address of 2675 South Abilene Street, Suite 100, Aurora, CO 80014 (hereinafter “MOBILE EPIPHANY”), including KRINKLE, LLC, and all other wholly owned subsidiaries of MOBILE EPIPHANY, each a “Party” and collectively the “Parties.”
BY INSTALLING AND/OR USING THE LICENSED SOFTWARE, LICENSEE AGREES TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. LICENSEE’S USE OF THE LICENSED SOFTWARE IS EXPRESSLY CONDITIONED UPON LICENSEE’S ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF LICENSEE DOES NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR ACCEPTS IT IN ERROR, LICENSEE IS STRICTLY PROHIBITED FROM USING THE LICENSED SOFTWARE AND ANY ACCOMPANYING OR RELATED ITEMS (including, without limitation, any electronic files, written materials and media), AND LICENSEE MUST NOTIFY MOBILE EPIPHANY WITHIN 72 HOURS, UNINSTALL AND RETURN THE LICENSED SOFTWARE AND ALL ACCOMPANYING OR RELATED ITEMS.
This Agreement sets forth the terms and conditions upon which the Parties wish to establish a relationship for the licensing, hosting and use of certain MOBILE EPIPHANY Software (“Licensed Software”), as set forth herein. This Agreement covers LICENSEE’S use of the Licensed Software in any of the following environments: (1) Software as a Service (“SaaS”); (2) Hosted Environment; and (3) Enterprise Install Environment. If LICENSEE has subscribed to a SaaS Environment, MOBILE EPIPHANY agrees to license the SaaS Licensed Software to the LICENSEE and to host the LICENSEE’s data and the server portion of the SaaS Licensed Software on MOBILE EPIPHANY’s servers or those of its authorized agents and allow the LICENSEE to remotely access the SaaS Licensed Software and store and update LICENSEE’s Data. If LICENSEE has licensed a Hosted Environment, MOBILE EPIPHANY agrees to license the Hosted Licensed Software to LICENSEE and to host LICENSEE’s data on MOBILE EPIPHANY’S servers or those of its authorized agents and allow LICENSEE to remotely store and update LICENSEE’s data. If LICENSEE has licensed an Enterprise Install Environment, MOBILE EPIPHANY agrees to license the Enterprise Install Licensed Software to LICENSEE for hosting on LICENSEE’s servers. SaaS, Hosted and Enterprise Install Environments are governed by the following terms:
1.1. “Annual Maintenance Fees” shall refer to the annual amount due from Hosted and Enterprise Install LICENSEES (calculated based on a percentage of suggested list software price per license) to MOBILE EPIPHANY, which includes updates to KRINKLE and ME Process.
1.2. “Data Volume Throughput” shall refer to the amount of LICENSEE Data passing through the MOBILE EPIPHANY system, to and from its hosted server facility, over a period of time. Data Volume Throughput will typically be measured on a “per quarter” basis or in accordance with the discretion of MOBILE EPIPHANY.
1.3. “End-User Support” refers to mobile application and back office application support, including Remote Device Management software options, available for purchase by LICENSEE. End-User Support specifically excludes any support associated with KRINKLE’s administration tools, configuration tools, report-building tools, application design and all other Professional Services.
1.4. “Enterprise Install Licensed Software” shall mean the MOBILE EPIPHANY software licensed by Enterprise Install LICENSEES. Enterprise Install Licensed Software shall include new releases, Updates and features to components of the software that are licensed by LICENSEE. Enterprise Install LICENSEES pay the entire cost of the client software license and server software license on a capital expenditure basis (up-front fee).
1.5. “Hosted Licensed Software” shall mean the MOBILE EPIPHANY software licensed by Hosted Environment LICENSEES. Hosted Licensed Software shall include new releases, Updates and features to components of the software that are licensed by LICENSEE. Hosted Environment LICENSEES pay the entire cost of the client software license on a capital expenditure basis (up-front fee) and pay the cost of the server software license and the physical infrastructure (server computers and bandwidth) on an operational expenditure basis (recurring fees).
1.6. “Hosted Service(s)” for a SaaS or Hosted License means that the server portion of the Licensed Software and LICENSEE’s Data reside on the servers of MOBILE EPIPHANY or its authorized agents and that MOBILE EPIPHANY allows LICENSEE to remotely access such Licensed Software and LICENSEE’s Data.
1.7. “Hosting Fees” shall refer to the “Monthly Hosting Fees” paid to MOBILE EPIPHANY for the Hosted Service provided under this Agreement, in accordance with the payment terms agreed to at the time of the sale.
1.8. “KRINKLE Configuration Tools” shall refer to the MOBILE EPIPHANY tools used to configure/customize the Licensed Software for a LICENSEE.
1.9. “LICENSEE Data” means all data provided by LICENSEE.
1.10. “Next Generation Products” means versions of Licensed Software, existing or new, which provide fundamentally new functionality, features and/or products, including those for a new or different operating system, and which are licensed separately.
1.11. “New Versions” shall refer to Next Generation Products or products for a different operating system than is licensed by LICENSEE hereunder.
1.12. “Optional Component” shall refer to features or components of the Licensed Software which provide new functionality or new features, and which are licensed separately.
1.13. “Professional Services” refers to administrator support and other professional services available for purchase by LICENSEE. All other services beyond End-User Support constitute Professional Services.
1.14. “Remote Device Management” or “RDM” is technology which manages the number of devices or users which LICENSEE is authorized to use/have pursuant to this Agreement and which technology communicates with an authorized MOBILE EPIPHANY server to deliver Updates to devices, to enable remote control support when support is requested by LICENSEE and to manage LICENSEE’s licenses.
1.15. “SaaS Licensed Software” shall mean the MOBILE EPIPHANY software licensed by SaaS Environment LICENSEES. SaaS Licensed Software shall include new releases, Updates and features to components of the software that are licensed by LICENSEE. SaaS LICENSEES pay the cost of the client software license on an operational expenditure basis (recurring fees) and pay the cost of the server software license and the physical infrastructure (server computers and bandwidth) on an operational expenditure basis (recurring fees).
1.16. “Service Commencement Date” means the date on which MOBILE EPIPHANY provides the access codes and/or login credentials that enable LICENSEE to use the Licensed Software.
1.17. “Solutions” or “Solution” means the content of any sort which results from using the KRINKLE Configuration Tools to create a solution.
1.18. “Standard Storage/Volume” shall refer to the amount of LICENSEE Data which may be stored on MOBILE EPIPHANY’s hosted database servers at their hosting facility, and which is included in the standard license fee.
1.19. “Terms and Conditions Agreement” shall refer to the separate and legally binding agreement that contains the terms and conditions that govern your relationship with MOBILE EPIPHANY in conjunction with opening an account with MOBILE EPIPHANY for the use of the Licensed Software and the services of MOBILE EPIPHANY.
1.20. “Updates” shall refer to software improvements, feature additions and/or patches to or for the Licensed Software.
1.21. Other capitalized terms shall have the meaning otherwise specified herein.
2. SCOPE OF SERVICE
2.1. Hosted Services. In return for the Hosting Fees and/or transaction-based fees paid to MOBILE EPIPHANY in a SaaS or Hosted Environment, MOBILE EPIPHANY shall host the server portion of the SaaS or Hosted Licensed Software and LICENSEE’s Data from a MOBILE EPIPHANY authorized data center accessible via the Internet. MOBILE EPIPHANY allows LICENSEE to remotely access such Licensed Software and LICENSEE’s Data in a SaaS or Hosted Environment for the number of devices, users, or transactions for which LICENSEE has paid for licenses in accordance with the terms of this Agreement and their Terms and Conditions Agreement. In return for the Hosting Fees paid to MOBILE EPIPHANY in a Hosted Environment, MOBILE EPIPHANY shall host the LICENSEE’s Data from a MOBILE EPIPHANY authorized data center accessible via the Internet. MOBILE EPIPHANY’s server software and LICENSEE’s Data reside on the servers of MOBILE EPIPHANY or its authorized agents and LICENSEE accesses its Data and may transmit new Data to these remote servers.
2.2. End-User Support Options. MOBILE EPIPHANY will only provide End-User Support for the Licensed Software if LICENSEE purchases one of the End-User Support Options offered by MOBILE EPIPHANY. Any technical services and/or support beyond the definition of End-User Support are provided only on a time and materials basis, known as “Professional Services.”
2.3. Annual Maintenance Fees/Updates. Upon remaining current with LICENSEE’s Annual Maintenance Fees, as set forth in their Terms and Conditions Agreement for their Hosted and Enterprise Install Licenses, Updates shall be provided to LICENSEE and made available for use as they become available.
2.3.1. In order for LICENSEE to maintain an active license, LICENSEE must and hereby does agree to pay the Annual Maintenance Fee as set forth in their Terms and Conditions Agreement. If LICENSEE is using a Hosted License, LICENSEE must accept any Updates to the client-side of their Licensed Software, which are provided by MOBILE EPIPHANY.
2.3.2. For Hosted LICENSEES, LICENSEE acknowledges that failure to make such annual payments and/or accept such Updates could result in the inability of the client software to access and interact with the server software hosted by MOBILE EPIPHANY and otherwise render the Hosted Licensed Software non-functional.
2.3.3. For Full Enterprise Install LICENSEES, LICENSEE acknowledges that failure to make such annual payments will result in forfeiture of all license rights.
2.4. Optional Components and Next Generation Products. Additional and/or different License and/or Hosting Fees will be charged for Optional Components and/or Next Generation Products.
2.5. Appropriate Use, Content and Etiquette. LICENSEE agrees to abide by the following restrictions:
2.5.1. LICENSEE will not transmit to or from the Hosted Services any material that MOBILE EPIPHANY deems, in its sole discretion, to be pornographic, obscene, offensive in content, or a violation of the rights of a third party. Please contact MOBILE EPIPHANY if this could refer to the nature of LICENSEE’s content.
2.5.2. LICENSEE violations of the foregoing may result in suspension and/or termination of the Hosted Services, without notice, a right to cure or refund.
3. LICENSE RIGHTS
3.1. Use and Access of the Licensed Software/Devices. Subject to this Agreement and the Terms and Conditions Agreement, MOBILE EPIPHANY hereby grants to LICENSEE in a SaaS or Hosted Environment the right to access and use the server portion of the Licensed Software hosted by MOBILE EPIPHANY and grants to LICENSEES in those environments the right to store and update LICENSEE’s Data on MOBILE EPIPHANY’s database servers in accordance with this Agreement for the number of devices, users or transactions licensed by LICENSEE.
3.1.1. LICENSEE may not distribute the Licensed Software, or any portion thereof, by transfer, lease, loan or any other means, or make it available for use by others in any manner except in the ordinary course of the LICENSEE’s business and consistent with this Agreement and their Terms and Conditions Agreement.
3.2. Additional License Rights for Enterprise Install Environment LICENSEES. Upon the initial licensing of an Enterprise Install Environment or upon election of a Hosted License LICENSEE to promote themselves to an Enterprise Install license, and if LICENSEE is in material compliance with the terms of this Agreement, the following additional rights apply:
3.2.1. MOBILE EPIPHANY grants to LICENSEE a nontransferable, worldwide, nonexclusive, perpetual license;
3.2.2. LICENSEE may install and use the server software, in object code form only, and access the server software via the number of devices or for the number of users for which LICENSEE has licensed the software for a server license fee;
3.2.3. LICENSEE may make one (1) identical back-up copy of the server portion of the Enterprise Install Licensed Software for archival purposes;
3.2.4. LICENSEE may make one (1) identical back-up copy of the server portion of the Enterprise Install Licensed Software for disaster recovery purposes; and
3.2.5. LICENSEE may use any documentation provided with the Enterprise Install Licensed Software for LICENSEE’s internal purposes only.
3.3. Solutions may only be distributed to other parties or sold to other parties through MOBILE EPIPHANY, unless LICENSEE has an executed reseller agreement with MOBILE EPIPHANY.
3.4. Transition to Enterprise Install Environment. LICENSEE may elect to transition to an Enterprise Install Environment with MOBILE EPIPHANY without penalty or violation of this Agreement and upon payment of any setup, server or additional fees due for the services or licenses selected. In such event, the terms of this Agreement remain binding on LICENSEE.
3.5. License Limitations.
3.5.1. Data Volume Throughput and Standard Storage/Volume Limitations. LICENSEE’s use of the Hosted Services shall be limited in terms of Data Volume Throughput and Standard Storage/Volume in accordance with the Terms and Conditions Agreement or as otherwise provided by MOBILE EPIPHANY. Data Volume Throughput and Standard Storage/Volume may be increased upon payment to MOBILE EPIPHANY in accordance with MOBILE EPIPHANY’s then current rates for the same. Overages will be billed in arrears. Any amount over the Standard Storage Volume limit provided for by the license shall be made available for an additional cost.
3.5.2. Remote Device Management. LICENSEE acknowledges that if LICENSEE has purchased an End-User Support package that includes the licensing of “Remote Device Management” software (“RDM”) to aid in support of the Mobile users:
126.96.36.199. LICENSEE agrees that if RDM is present in the Licensed Software, to utilize and not interfere with or disable the RDM. If LICENSEE chooses to interfere with or otherwise disable any RDM software or features, MOBILE EPIPHANY shall not be responsible for any support services which it cannot provide as a result.
3.5.3. License Metering/Activation/Updates.
188.8.131.52. MOBILE EPIPHANY has built-in license metering capabilities that help MOBILE EPIPHANY track actual usage by LICENSEE.
184.108.40.206. MOBILE EPIPHANY’s Software may use LICENSEE’s internal network and Internet connection for the purpose of transmitting license-related data at the time of installation, registration, use or update to a MOBILE EPIPHANY-operated license server and validating the authenticity of the license-related data in order to protect MOBILE EPIPHANY against unlicensed or illegal use of the Licensed Software and to improve customer service. Activation is based on the exchange of license-related data between LICENSEE’s computer and the MOBILE EPIPHANY license server. LICENSEE agrees that MOBILE EPIPHANY may use these measures and LICENSEE agrees to follow any applicable requirements. LICENSEE further agrees that use of license key codes that are not or were not generated by MOBILE EPIPHANY and lawfully obtained from MOBILE EPIPHANY as part of an effort to activate or use the Licensed Software violates MOBILE EPIPHANY’s intellectual property rights as well as the terms of this Agreement. LICENSEE agrees that efforts to circumvent or disable MOBILE EPIPHANY’s copyright protection mechanisms or license management mechanism violate MOBILE EPIPHANY’s intellectual property rights as well as the terms of this Agreement. MOBILE EPIPHANY expressly reserves the rights to seek all available legal and equitable remedies to prevent such actions and to recover lost profits, damages and costs.
220.127.116.11. License Metering for SaaS and Hosted Customers. LICENSEE acknowledges and agrees that MOBILE EPIPHANY may use License Metering, or other similar technology now known or hereafter developed, to track the number of devices or users of the Licensed Software which LICENSEE is licensed to use/have pursuant to this Agreement. If MOBILE EPIPHANY determines that LICENSEE is using the Licensed Software on more devices or for more users than is permitted pursuant to this Agreement and upon demonstration to LICENSEE of the same, LICENSEE shall pay for such additional licenses as to bring LICENSEE’s past and future use of the Licensed Software in compliance with the terms of this Agreement, including the Terms and Conditions Agreement.
3.5.4. Restrictions. LICENSEE agrees not to reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code that is derived from the Licensed Software, nor shall LICENSEE attempt to create any passwords to allow unauthorized activation or use of the Licensed Software. LICENSEE shall not copy, distribute, create derivative works (except as permitted pursuant to Section 6) of or modify the Licensed Software in any way.
3.5.5. Allowable Growth of Use. LICENSEE may install and run the Licensed Software on more than the number of devices or for the number of users for which licenses have been paid for by LICENSEE. LICENSEE may also use or enable a third party to use the Licensed Software within the context of this Agreement. LICENSEE agrees to pay for any additional licenses utilized by LICENSEE or its authorized third parties in accordance with the agreed upon payment terms and conditions. If LICENSEE enables a third party to use the Licensed Software, LICENSEE shall ensure that the third party’s actions are in compliance with this Agreement. LICENSEE shall remain liable for actions of the third party under this Agreement and shall be solely responsible for any financial obligations owed to MOBILE EPIPHANY based on the third party’s usage of the Licensed Software.
3.5.6. Proprietary Rights. All right, title and interest in and to all Licensed Software, including the KRINKLE Configuration Tools, and any accompanying documentation, manuals or other materials supplied under this Agreement, and any reproductions made thereof, remain with MOBILE EPIPHANY and/or its licensors. This is a license to use the Licensed Software only. LICENSEE acquires no ownership in the underlying intellectual property embodied in the Licensed Software. LICENSEE shall not remove any product identification or notices of such proprietary rights from the Licensed Software. LICENSEE has no right, title or interest in the Licensed Software other than those granted pursuant to this Agreement. Ownership of Solutions developed by LICENSEE utilizing the KRINKLE Configuration Tools shall be as set forth in Section 6.
3.5.7. Data Compilation. LICENSEE grants MOBILE EPIPHANY the right to de-identify, aggregate and compile LICENSEE Data for statistical reporting and other de-identified purposes.
4. SUPPORT SERVICES
4.1. Updates. MOBILE EPIPHANY shall have no obligation to provide periodic Updates to the Hosted and Enterprise Install Licensed Software absent payment to MOBILE EPIPHANY of the Annual Maintenance Fees in accordance with MOBILE EPIPHANY’s then current rates for the same (calculated based on a percentage of the software license fees as set forth in the Terms and Conditions agreement) (“Annual Maintenance Fees”). Payment of Annual Maintenance Fees includes access to all Updates and defect repairs for the applications and components of the software suite licensed by LICENSEE and are not provided for then-existing components, future developed components, and Next Generation Products, unless such components or products are licensed by LICENSEE. Should any Updates to the Licensed Software be provided by MOBILE EPIPHANY to LICENSEE, the Updates shall be subject to the terms set forth in this Agreement and included in “Licensed Software” as used hereunder.
4.2. Support. Except as provided in Section 4.1, Support of the Licensed Software is not included absent purchase of such services by LICENSEE in accordance with the support options offered by MOBILE EPIPHANY.
4.3. Excluded Items. In no event shall any maintenance or support which is offered by MOBILE EPIPHANY and paid for by LICENSEE include the following items (the “Excluded Items”):
4.3.1. Enhancements to the Licensed Software requested by LICENSEE;
4.3.2. On-site support;
4.3.3. Hardware and related supplies; and
4.3.4. Optional Components to the Licensed Software.
5. MOBILE EPIPHANY may provide the Excluded Items in Section 4.3 and certain other services, including but not limited to, installation, integration, consulting, and/or training pursuant to a separate written agreement between MOBILE EPIPHANY and LICENSEE.
6. SOLUTIONS; THE KRINKLE CONFIGURATION TOOLS
6.1. Ownership/Unique Rights. Any Solutions which are built, in whole or in part, by MOBILE EPIPHANY, shall be subject to the rules set forth in this Agreement in connection with the development of Solutions. Any customization performed in the MOBILE EPIPHANY software by SaaS and Hosted Environment LICENSEES, which is either inextricably linked to the MOBILE EPIPHANY software and/or has no functional use when separated from the MOBILE EPIPHANY software (i.e., configuration of the software), shall be non-exclusive for LICENSEE and MOBILE EPIPHANY shall retain all rights, including all intellectual property rights. Enterprise Install LICENSEE Solutions where ALL aspects of the Solution are created solely by LICENSEE shall be owned by LICENSEE, and may be used only for LICENSEE’s internal business purposes. LICENSEE may use Solutions which it creates or which are created for it consistent with the terms set forth in this Agreement, however any new Solutions, including forms and workflows, created by MOBILE EPIPHANY, are the property of MOBILE EPIPHANY without compensation due to LICENSEE. MOBILE EPIPHANY retains the right to apply knowledge and process flows it has learned in creating a Solution for LICENSEE into other products created by MOBILE EPIPHANY with no compensation owed to LICENSEE. The software tool and the technology that facilitates the process shall at all times remain the property of MOBILE EPIPHANY.
6.2. KRINKLE and the Configuration Tools. The KRINKLE Configuration Tools, including all KRINKLE Applications on all platforms shall be and remain the exclusive intellectual property of MOBILE EPIPHANY. The KRINKLE Configuration Tools shall only be used by LICENSEE pursuant to the terms of this Agreement and the Terms and Conditions Agreement provided with the KRINKLE Configuration Tools and, apart from the rights set forth herein, LICENSEE shall obtain no rights in or to the KRINKLE Configuration Tools.
6.3.1. Effect of Termination. Upon the termination of this Agreement for any reason, LICENSEE shall cease all use of the Licensed Software, including MOBILE EPIPHANY software on Handheld Mobile Devices, Mobile PC Devices or PC Devices, the KRINKLE Configuration Tools and any other software provide by MOBILE EPIPHANY, and return all copies of the same (including, without limitation, any electronic files, written materials and media) to MOBILE EPIPHANY or certify destruction, in the discretion of MOBILE EPIPHANY; provided, however, that in the event of a material uncured breach by MOBILE EPIPHANY, LICENSEE may continue to use the Licensed Software in accordance with the terms of this Agreement.
7.1. LICENSEE Data. LICENSEE retains sole ownership of LICENSEE Data. MOBILE EPIPHANY shall only use LICENSEE Data in the provision of the Hosted Services as set forth in Section 3.5.7 and shall transition the LICENSEE Data upon termination or expiration of the Hosted Services in accordance with Section 7.2.
7.2. Transfer of LICENSEE Data upon Termination of Hosted Services. If either Party gives notice of its intent to terminate the Hosted Services, then MOBILE EPIPHANY agrees to cooperate in the orderly and reasonable transition of the Licensed Software and LICENSEE’s Data to the LICENSEE’s servers, provided LICENSEE licenses or has licensed a server license and the required services from MOBILE EPIPHANY. If LICENSEE desires the LICENSEE Data to be in a form other than that utilized by or readily available to a MOBILE EPIPHANY server, MOBILE EPIPHANY may, at MOBILE EPIPHANY’s discretion, transfer said data at an additional cost as agreed to by the Parties. Transition of the Licensed Software to the LICENSEE does not include any Professional Services to be provided by MOBILE EPIPHANY, which shall be set forth in a separate written agreement as agreed by the Parties. Thereafter, the Parties shall have no further obligations to each other under this Agreement, except the payment of any amounts then due or outstanding or any breaches hereof.
7.3. Term. The confidentiality obligations of MOBILE EPIPHANY and LICENSEE under this section shall remain in effect during the term of this Agreement and for a period of two (2) years from termination or expiration; except that for Confidential Information constituting a trade secret, the period shall be the later of such two (2) year period or the period during which such Confidential Information is entitled to trade secret protection under applicable law. This provision shall survive termination of this Agreement.
8. LIMITED WARRANTIES/DISCLAIMER OF DAMAGES
8.1. Limited Warranty in the Licensed Software. MOBILE EPIPHANY warrants to LICENSEE that, for a period of thirty (30) days from the Service Commencement Date, the Licensed Software shall perform in substantial conformity with any specifications or performance criteria published in any documentation provided by MOBILE EPIPHANY to LICENSEE with the Licensed Software (the “Specifications”). This limited warranty shall not apply if LICENSEE previously evaluated the Licensed Software pursuant to an evaluation program authorized by MOBILE EPIPHANY. MOBILE EPIPHANY does not warrant that the use of the Licensed Software will be uninterrupted or error-free. In the event of a breach of such limited warranty, LICENSEE’s sole and exclusive remedy shall be that MOBILE EPIPHANY will, at its option, either repair or replace any defective Licensed Software so that the Licensed Software performs in accordance with the warranties set forth above. LICENSEE and MOBILE EPIPHANY agree that in the event that MOBILE EPIPHANY, at its discretion, determines that this exclusive remedy is unable to bring the Licensed Software into conformity with the warranty, LICENSEE’s exclusive remedy shall be to terminate this Agreement. In the event the nonconforming portion of the Licensed Software is the MOBILE EPIPHANY server software, LICENSEE’s exclusive remedy shall be to terminate this Agreement.
8.2. Requirements for Limited Warranties. LICENSEE shall have no rights with respect to the foregoing limited warranties and the limited warranties shall be deemed not to apply to LICENSEE unless:
8.2.1. the Licensed Software is used on the computer system or devices tested and certified by MOBILE EPIPHANY for the Licensed Software’s installation a) in a proper manner, b) in compliance with this Agreement and with all operating instructions, documentation, specifications, interfaces and requirements, and c) solely for use as required to operate the Licensed Software as set forth in the documentation;
8.2.2. no modifications or alterations to the Licensed Software have been made other than by MOBILE EPIPHANY or other than with MOBILE EPIPHANY’ prior written consent (provided, however, that no warranties shall extend to LICENSEE’s designs, specifications, or instructions); and
8.2.3. no act or cause beyond the reasonable control of MOBILE EPIPHANY has occurred that was a substantial factor causing the failure of the Licensed Software to meet the warranty terms.
8.3. Third-Party Components. This limited warranty does not extend to third-party components.
8.4. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTIES DESCRIBED IN THIS SECTION AND TO THE EXTENT ALLOWED BY APPLICABLE LAW, MOBILE EPIPHANY MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED, COLLATERAL OR STATUTORY, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMPATABILITY WITH THIRD-PARTY PRODUCTS, GOOD TITLE, SATISFACTORY QUALITY OR THOSE ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
9. LIMITATION OF LIABILITY
9.1. IN NO EVENT SHALL MOBILE EPIPHANY BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR LOST PROFITS, LOST DATA, BUSINESS INTERRUPTION, NAVIGATION OR USE OF MAP DETAILS), WHETHER ARISING FROM, MISTAKES, OMISSIONS, INCOMPATABILITY WITH THIRD-PARTY APPLICATIONS, INTERRUPTIONS, DELETION OR CORRUPTIONS OF FILES OR DATA, ERRORS, DEFECTS, VIRUSES OR OTHER MALICIOUS CODE, DELAYS IN OPERATION OR TRANSMISSION, OR FAILURE OF PERFORMANCE OF THE SERVICES UNDER THIS AGREEMENT OR ANY SUPPORT OR THE USE OF, PERFORMANCE OF OR INABILITY TO USE THE LICENSED SOFWARE EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL MOBILE EPIPHANY’s LIABILITY FOR ALL CLAIMS UNDER THIS AGREEMENT, IN THE AGGREGATE, WHETHER ARISING IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), BUT EXCLUDING WILLFUL MISCONDUCT OR INTENTIONAL BREACH, AND EXCLUDING THE WARRANTY PROVIDED IN SECTION 8.1 EXCEED $500 (FIVE HUNDRED DOLLARS). IN NO EVENT SHALL MOBILE EPIPHANY HAVE ANY LIABILITY FOR CLAIMS ARISING OUT OF OR RELATED TO THIRD PARTY APPLICATIONS OR SERVICES OR THIRD PARTY PRODUCTS.
9.2. LICENSEE ACKNOWLEDGES THAT THE LIMITATIONS ON LIABILITY IN THIS SECTION ARE REASONABLE AND THAT THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN MOBILE EPIPHANY AND LICENSEE AND THE PARTIES HAVE RELIED UPON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT. THE REMEDIES PROVIDED TO LICENSEE IN THIS AGREEMENT ARE EXCLUSIVE.
10. GENERAL INDEMNITY
LICENSEE will defend, indemnify and hold harmless MOBILE EPIPHANY and its authorized agents from and against any and all claims incurred or asserted by any other party arising out of or in connection with LICENSEE’s acts, omissions or misrepresentations or those of its employees or agents, regardless of the form of action, including reasonable attorneys’ fees and costs in connection with this Agreement or the use of the Hosted Services hereunder.
11. GENERAL PROVISIONS
11.1. Notices. Notices between Parties shall be deemed given when sent by facsimile, upon confirmation of receipt, or mailed by certified first class mail, return receipt requested, at the business addresses of the Parties or at such address later specified by notice hereunder. Email notice shall be acceptable and deemed effective, but only if receipt is acknowledged by an authorized officer of the Party to whom the notice is being sent.
11.2. No Authorization to Bind. Nothing in this Agreement authorizes either Party to bind the other, to incur any liability on behalf of the other or to act as an agent for the other.
11.3. Assignment. This Licensed Software may not be assigned or transferred by LICENSEE without the prior written consent of MOBILE EPIPHANY. MOBILE EPIPHANY may assign this Agreement without the prior written consent of LICENSEE. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, successors, representatives and permitted assigns.
11.4. Entire Agreement. This Agreement sets out the entire agreement between the Parties relative to the subject matter hereof and supersedes all prior or contemporaneous agreements or representations, oral or written. This Agreement may not be altered or modified, except by written amendment which expressly refers to this Agreement and which is duly executed by authorized representatives of both Parties.
11.5. Severability/Survival. Any provision of this Agreement held to be invalid under applicable law shall not render this Agreement invalid as a whole, and in such an event, such provision shall be interpreted so as to best accomplish the intent of the Parties within the limits of applicable law. Notwithstanding any termination of this Agreement, the obligations and rights of the Parties which have accrued as of the time of termination, or any provisions which by their nature are intended to survive, shall survive, including Sections 3 (“License Rights/Limitations”), 6 (“Solutions”), 7 (“Confidentiality”), 8 (“Limited Warranties/Disclaimer of Damages”), 9 (“Limitation of Liability”) and 11 (“General Provisions”).
11.6. Waiver. The waiver or failure by either Party to exercise or enforce any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement.
11.7. Exclusion of United Nations Sales Convention. The rights and obligations of the Parties under this Agreement shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods (“the Convention”). Rather the rights and obligations of the Parties shall be governed as provided in Section 12 of this Agreement. The Parties hereby agree that the Convention does not apply to this Agreement or to the resolution of any disputes arising out of or related to this Agreement.
11.8. Export Restrictions. LICENSEE agrees not to export or transmit any of the Licensed Software, directly or indirectly, except in full compliance with all U.S. Export Administration Regulations and the import/export rules of any other country. Diversion contrary to U.S. or other law is expressly prohibited. LICENSEE agrees to comply with all applicable laws and regulations in regard to export of the Licensed Software, if allowed under this Agreement, and the laws, regulations, and rules of any country or region which apply to LICENSEE’s activities pursuant to this Agreement. LICENSEE agrees to hold harmless and defend MOBILE EPIPHANY from and against any allegations, claim, liability or damages which arise from violation of this section of the Agreement. Mobile Epiphany software and technology is subject to U.S. export control laws, including the Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. LICENSEE agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain licenses to export or re-export this software and technology (or any parts thereof). Mobile Epiphany software and technology may not be exported or re-exported into, or to a national resident of, Cuba, Iran, North Korea, Sudan, Syria or any country to which the U.S. has embargoed goods, or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s list of Denied Parties.
11.9. U.S. Government End Users/Restricted Rights. RESTRICTED RIGHTS LEGEND. All Licensed Software and documentation are commercial in nature. The Licensed Software and documentation are “Commercial Items” as that term is defined at 48 C.F.R. 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation” as such terms are used in 48 C.F.R. 12.212 or 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, the Licensed Software and documentation are being licensed to U.S. Government end users/licensees: (a) only as Commercial Items; and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights are reserved to MOBILE EPIPHANY under the copyright laws of the United States. Manufacturer: Mobile Epiphany, LLC, 2675 South Abilene Street, Suite 100, Aurora, CO 80014.
11.10. Force Majeure. Neither Party shall be responsible for any failure to perform due to circumstances beyond its reasonable control, including but not limited to acts of God, war, riot, embargoes, civil or military authorities, fire, floods, earthquakes, accidents, strikes, fuel or energy. In the event of any such delay, any applicable period of time for action by said Party may be deferred for a period of time equal to the time of such delay, except that a Party’s failure to make any payment when due hereunder shall not be so excused.
11.11. Construction. The headings of the several sections of this Agreement are intended for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of this Agreement. Except as otherwise expressly indicated, all references in this Agreement to “Sections” are intended to refer to Sections of this Agreement. As used in this Agreement, “discretion” means “sole discretion” unless otherwise expressly indicated, and “including” means “including but not limited to” unless otherwise expressly indicated.
11.12. Controlling Agreement/Translations. This Agreement is prepared and executed in the English language. The English language version shall govern the Parties’ relationship. Any translation of this Agreement into any other language shall be for convenience of reference only and shall have no legal effect.
12. GOVERNING LAW/JURISDICTION/DISPUTE RESOLUTION.
12.1 Governing Law/Jurisdiction. This Agreement and the legal relations of the Parties hereto shall in all respects be governed, construed and enforced in accordance with the laws of the State of Colorado without regard to conflict of law principles. Any action by LICENSEE against MOBILE EPIPHANY for any cause of action relating to this Agreement shall be brought within one year after any such cause of action first arises.
12.2 Arbitration. Any controversy or Claim arising out of or relating to this Agreement, or the breach or interpretation thereof, shall be settled by mandatory, binding arbitration in the State of Colorado in accordance with the rules of the American Arbitration Association, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Service of process by MOBILE EPIPHANY in connection with any such dispute shall be binding on LICENSEE if sent to LICENSEE either by email or regular mail at the address specified on the purchase order or at such address as otherwise specified by LICENSEE from time to time. Each Party will pay its own costs and expenses (including attorneys’ fees) of any such arbitration (and each Party shall equally share in (i) any translation costs and (ii) the costs and expenses of the arbitrator(s) (including related fees and expenses, such as arbitration meeting room expenses and court reporter fees) except that, where the arbitrator(s) have made a determination that a Party had no substantial basis for its position asserted during the arbitration, the arbitrator(s) may compel such Party to pay all or a portion of the other Party’s costs and expenses, including administrative fees, arbitrator fees, attorneys’ fees, expert fees, witness fees, travel expenses, and out-of-pocket expenses. NOTHWITHSTANDING ANYTHING IN THIS SECTION TO THE CONTRARY, MOBILE EPIPHANY SHALL NOT BE PREVENTED FROM ENFORCING ITS INTELLECTUAL PROPERTY RIGHTS OR RIGHTS WITH RESPECT TO CONFIDENTIAL INFORMATION IN ANY APPROPRIATE JURISDICTION.