Terms and Conditions
These terms and conditions form a legally binding agreement (“Agreement”) between you (hereinafter “CUSTOMER”) and Mobile Epiphany, LLC, a Colorado limited liability company with principal business address of 2675 South Abilene Street, Suite 100, Aurora, CO 80014 and its subsidiaries, including Krinkle, (hereinafter “MOBILE EPIPHANY”), each a “Party” and collectively the “Parties.”
This Agreement 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 software and services of MOBILE EPIPHANY. If you do not agree to be bound by the terms and conditions set forth in this Agreement, or accept it in error, you are strictly prohibited from maintaining an account with and/or utilizing the software and services of MOBILE EPIPHANY, and you must notify Mobile Epiphany within 72 hours. Nothing in this Agreement shall supersede the End User License Agreement that all end users of the MOBILE EPIPHANY software are required to agree to prior to using the Licensed Software. In the event that there is a conflict between the MOBILE EPIPHANY Terms and Conditions and any payment provider terms and conditions, including but not limited to the PaySimple Customer Terms of Service, the MOBILE EPIPHANY Terms and Conditions shall apply.
Your account with Mobile Epiphany may include your use of MOBILE EPIPHANY Licensed Software in one of the following environments: (1) Software as a Service (“SaaS”); (2) Hosted Environment; and (3) Enterprise Install Environment.
“Annual Maintenance Fees” shall refer to the annual amount due from Hosted and Enterprise Install CUSTOMERS (calculated based on a percentage of suggested list software price per license) to MOBILE EPIPHANY, which includes updates to KRINKLE and ME Process.
“Data Volume Throughput” shall refer to the amount of CUSTOMER 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.
“End-User Support” refers to mobile application and back office application support, including Remote Device Management software options, available for purchase by CUSTOMER. 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.
“Enterprise Install Licensed Software” shall mean the MOBILE EPIPHANY software licensed by Enterprise Install CUSTOMERS. Enterprise Install Licensed Software shall include new releases, Updates and features to components of the software that are licensed by CUSTOMER. Enterprise Install CUSTOMERS pay the entire cost of the client software license and server software license on a capital expenditure basis (up-front fee).
“Hosted Licensed Software” shall mean the MOBILE EPIPHANY software licensed by Hosted Environment CUSTOMERS. Hosted Licensed Software shall include new releases, Updates and features to components of the software that are licensed by CUSTOMER. Hosted Environment CUSTOMERS 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).
“Hosted Service(s)” for a SaaS or Hosted License means that the server portion of the Licensed Software and CUSTOMER’s Data reside on the servers of MOBILE EPIPHANY or its authorized agents and that MOBILE EPIPHANY allows CUSTOMER to remotely access such Licensed Software and CUSTOMER’s Data.
“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.
“KRINKLE Configuration Tools” shall refer to the MOBILE EPIPHANY tools used to configure/customize the Licensed Software for a CUSTOMER.
“CUSTOMER Data” means all data provided by CUSTOMER.
“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.
“New Versions” shall refer to Next Generation Products or products for a different operating system than is licensed by CUSTOMER hereunder.
“Optional Component” shall refer to features or components of the Licensed Software which provide new functionality or new features, and which are licensed separately.
“Professional Services” refers to administrator support and other professional services available for purchase by CUSTOMER. All other services beyond End-User Support constitute Professional Services.
“Remote Device Management” or “RDM” is technology which manages the number of devices or users which CUSTOMER 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 CUSTOMER and to manage CUSTOMER’s licenses.
“SaaS Licensed Software” shall mean the MOBILE EPIPHANY software licensed by SaaS Environment CUSTOMERS. SaaS Licensed Software shall include new releases, Updates and features to components of the software that are licensed by CUSTOMER. SaaS CUSTOMERS 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).
“Service Commencement Date” means the date on which MOBILE EPIPHANY provides the access codes and/or login credentials that enable CUSTOMER to use the Licensed Software.
“Solutions” or “Solution” means the content of any sort which results from using the KRINKLE Configuration Tools to create a solution.
“Standard Storage/Volume” shall refer to the amount of CUTOMER 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.
“Updates” shall refer to software improvements, feature additions and/or patches to or for the Licensed Software.
Other capitalized terms shall have the meaning otherwise specified herein.
PAYMENTS, TAXES AND REFUND POLICY
2.1. Fees. CUSTOMER shall pay MOBILE EPIPHANY the setup, professional services and/or initial Monthly Hosting Fees, as set forth in CUSTOMER’S purchase agreement and/or order prior to receiving access to and use of the Licensed Software and Hosted Services. In subsequent years, Monthly Hosting Fees shall be in accordance with the CUSTOMER’s purchase agreement and/or order by MOBILE EPIPHANY and paid directly to MOBILE EPIPHANY, payable in advance of provision of the Hosted Services. End-User and Professional Support Fees, if any, which CUSTOMER has selected in addition to any included support, and Annual Maintenance Fees for CUSTOMERS in an Enterprise Install Environment are due in advance of provision of the services. Additional fees, such as Data Volume Throughput overages and additional licenses used, will be billed in arrears. Fee charges are made monthly, unless other billing frequency is explicitly stated on the order form.
2.2. Past Due Amounts. Any past due amounts hereunder shall accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest amount allowed by law, whichever is lower, until paid. MOBILE EPIPHANY may suspend CUSTOMER’s access to the Hosted Services and any support and/or terminate this Agreement, at its option, for any non-payment to MOBILE EPIPHANY. All drafts or charges dishonored for any reason shall be assessed a $35.00 service charge. In the event that CUSTOMER utilizes a credit card to pay for the order, CUSTOMER agrees not to dispute such charges except in good faith and further agrees to use its best efforts to resolve any such dispute. MOBILE EPIPHANY reserves the right to close accounts and request alternative forms of payment if a payment form is fraudulently obtained or used in purchasing the software, services, and/or goods.
2.3. Non-Payment to MOBILE EPIPHANY. Prior to exercising its right to terminate this Agreement or any portion thereof for nonpayment, MOBILE EPIPHANY may elect to suspend performance of any obligations under this Agreement. Any suspension of performance under this section may continue only until the earlier of (i) the date payment is received by MOBILE EPIPHANY; or (ii) MOBILE EPIPHANY elects to terminate this Agreement.
2.4. Taxes and other Fees. CUSTOMER agrees to pay any tax, levy, export or import duty, however designated or computed, on the license, documentation, initialization, or any other MOBILE EPIPHANY product or service which is levied against CUSTOMER based on this Agreement (the “Use Tax” or “Sales Tax), except taxes based upon the income or other assets of MOBILE EPIPHANY.
2.5. Abatements and Liens. CUSTOMER agrees that it shall not be entitled to any abatement of fees or of any other amounts payable by CUSTOMER under this Agreement, and that its obligation to pay all fees and any other amounts owing under this Agreement shall be absolute and unconditional under all circumstances including, but not limited to, the following circumstances: (a) any claim to a right of abatement, set-off, counterclaim, recoupment, defense, or other right which CUSTOMER may have against MOBILE EPIPHANY, (b) any other event or circumstances whatsoever. All fees and other amounts paid by CUSTOMER under this Agreement shall be final upon payment and CUSTOMER shall not seek to recover all or any part of such payment from MOBILE EPIPHANY for any reason whatsoever.
2.6. No Refund Policy. If technical problems prevent or unreasonably delay delivery of CUSTOMER’s software license, CUSTOMER’s exclusive and sole remedy is replacement of the Licensed Software. Unless otherwise agreed in a writing signed by both parties, all service and software fees and account setup fees, if any, are non-refundable.
2.7. Third Party Fees. Service fees do not include any of the third party fees CUSTOMER incurs in connection with using the software and services, including fees charged by CUSTOMER’s internet access provider, any wireless carrier charges for cellular or data services and any other third party applications with which CUSTOMER may use the software and services. CUSTOMER is responsible for selecting and managing these other services, and paying the fees for such services. Use of any applications may be subject to additional terms and conditions (including fees) and may also subject CUSTOMER to additional regulatory or legal requirements. Such terms are exclusively between CUSTOMER and the third party. MOBILE EPIPHANY has no responsibility or liability associated with any use of such third party applications. Information CUSTOMER submits to a third party application is not controlled by MOBILE EPIPHANY, whether as to how it is collected, stored or used otherwise.
TERM AND TERMINATION
Term. The term of the Hosted Services shall initially be for one year from the Service Commencement Date and shall automatically renew for automatically renew for successive quarterly or annual periods, depending on how the CUSTOMER elects to pay moving forward, unless either Party gives notice of its intent to terminate the Hosted Services at least 30 days prior to the end of the then existing term; provided, however, that CUSTOMER may move up to an Enterprise Install Environment at any time without penalty or without violating the terms of this Agreement. After the first year of this Agreement, MOBILE EPIPHANY may increase the Hosting Fees upon written notice to CUSTOMER no more frequently than once annually and with no less than 30 days’ notice prior to renewal.
Transfer of CUSTOMER 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 CUSTOMER’s Data to the CUSTOMER’s servers, provided CUSTOMER licenses or has licensed a server license and the required services from MOBILE EPIPHANY. If CUSTOMER desires the CUSTOMER 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 CUSTOMER 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.
Automatic Termination. Termination of the Hosted Services does not terminate the remaining terms of this Agreement regarding CUSTOMER’s license and use of the Licensed Software; provided, however, that any other termination of this Agreement (i.e. by virtue of material breach as set forth in Section 3.2.2) shall result in the automatic termination of the Hosted Services. The Parties agree that any provision in this Agreement which by its terms or nature is intended to survive, shall survive termination of this Agreement.
Termination for Material Breach. This Agreement may be terminated by either Party upon a material breach by the other Party of any term hereof which breach is not cured within thirty (30) days of written notice of the breach, or such longer period as may be mutually agreed by the Parties in writing. Material breach by CUSTOMER shall include, without limitation, failure to pay any amount due, which breach is not cured within ten (10) days of written notice thereof.
If CUSTOMER terminates the Hosted Services for convenience or MOBILE EPIPHANY terminates this Agreement for material breach by CUSTOMER, MOBILE EPIPHANY shall have no obligation to refund any amounts paid by CUSTOMER for the then-existing term and CUSTOMER shall be liable to MOBILE EPIPHANY for the balance due for the remaining term and for any other outstanding fees owed to MOBILE EPIPHANY.
Effect of Termination. Upon the termination of this Agreement for any reason, CUSTOMER 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, CUSTOMER may continue to use the Licensed Software in accordance with the terms of this Agreement.
Termination of CUSTOMER Account for Non-Use. Transaction-based CUSTOMER accounts that have not had transaction-based billing for a period of 12 months will be deactivated by MOBILE EPIPHANY and all CUSTOMER Data deleted. It is CUSTOMER’s responsibility to obtain copies of their Customer Data prior to deactivation. MOBILE EPIPHANY shall have no responsibility for Customer Data lost as a result of a non-use deactivation.
Remedies. In the event of CUSTOMER’s Default, MOBILE EPIPHANY shall have the right and option, but shall not be obligated, to exercise any one or more of the following remedies, which remedies or any of them may be exercised by MOBILE EPIPHANY without notice to CUSTOMER and, if the obligations of CUSTOMER are guaranteed by a guarantor or guarantors, MOBILE EPIPHANY shall not be obligated to proceed against any such guarantor or guarantors before resorting to its remedies against CUSTOMER under this Agreement:
To declare the entire amount due under this Agreement, including all orders, or any particular order, immediately due and payable as to any and all Services, software, and/or goods, without notice or demand to CUSTOMER;
To sue for and recover all fees, and other payments, then accrued or thereafter accruing, with respect to any or all services, software and/or goods associated with this Agreement;
To terminate this Agreement or any order in whole or in part;
To pursue any other remedy now, or hereafter, existing in law or equity;
To charge the credit card on file for the full amount or any partial amount due under this Agreement. Notwithstanding any action which MOBILE EPIPHANY may take, CUSTOMER shall be and remain liable for the full performance of all obligations on the part of CUSTOMER to be performed under this Agreement.
Cumulative Remedies. All remedies of MOBILE EPIPHANY hereunder are cumulative and may, to the fullest extent permitted by law, be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed to be an election of such remedy or to preclude the exercise of any other remedy.
CUSTOMER’s Remedy. CUSTOMER’s exclusive remedy under this Agreement or any order hereunder in the event of MOBILE EPIPHANY’s Default shall be either to cancel the order and/or this Agreement.
Confidential Information. MOBILE EPIPHANY may disclose to CUSTOMER certain information including but not limited to technical or business knowledge, know-how, discoveries, inventions, flow charts, source code, algorithms, libraries, processes, software programs, hardware schematics, drawings, databases, data, specifications, trade secrets, customer lists, or other customer information, information relating to released or unreleased software products, the marketing or promotion of any product, financial information, business policies or practices, information received from others that CUSTOMER is obligated to treat as confidential, all of which shall be considered “Confidential Information” under this Agreement. Confidential Information shall include the Licensed Software and the terms contained in this Agreement.
Exclusions. Confidential Information shall not include any information that (i) was lawfully in a recipient Party’s possession before receipt from the other Party; (ii) is or becomes available to the public through no fault of a recipient Party; (iii) is lawfully disclosed to the recipient by a third party without restriction on disclosure; (iv) is independently developed by a recipient Party without using Confidential Information; (v) has been approved for release by written authorization of the disclosing Party; or (vi) is required to be disclosed under legal process, provided the other Party is given prior notice, and the Party compelled to make the disclosure takes all reasonable steps available to protect the Confidential Information in the context of the proceeding.
Non-Use/Prevention of Disclosure/Return of Confidential Information. MOBILE EPIPHANY and CUSTOMER agree that each Party will not use or permit the disclosure of Confidential Information of the other Party for any purpose except pursuant to, or as permitted by and in order to carry out the terms and objectives of this Agreement. MOBILE EPIPHANY and CUSTOMER agree to take reasonable steps to prevent the disclosure and availability of Confidential Information of the other Party to third parties. MOBILE EPIPHANY and CUSTOMER agree to take reasonable steps to ensure that their respective employees, permitted agents and permitted contractors do not disclose or make available to third parties Confidential Information of the other Party. MOBILE EPIPHANY and CUSTOMER shall return to one another all tangible Confidential Information upon written request by the other Party or upon termination or expiration of this Agreement, except that each Party may retain a copy of any such Confidential Information in written form with such Party’s legal representative for record purposes.
CUSTOMER Data. All CUSTOMER Data will be considered confidential according to this Section 5. MOBILE EPIPHANY shall transition the CUSTOMER Data upon termination or expiration of the Hosted Services in accordance with Section 3.1.2.
Term. The confidentiality obligations of MOBILE EPIPHANY and CUSTOMER 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.
LIMITED WARRANTIES/DISCLAIMER OF DAMAGES
Services Warranty. MOBILE EPIPHANY warrants that any Professional Services conducted by MOBILE EPIPHANY will be performed by qualified personnel in a professional and workmanlike manner consistent with the prevailing standards of the industry. CUSTOMER’s sole remedy for breach of this warranty shall be re-performance of the services.
Security Warranty. MOBILE EPIPHANY does not warrant that its electronic files containing information pertaining to CUSTOMER and Hosted Data are not susceptible to intrusion, attack or computer virus infection, but given the confidential nature of this data, MOBILE EPIPHANY will use commercially reasonable efforts to ensure and safeguard the security of this data; provided, however, that CUSTOMER’s sole remedy for breach of this warranty shall be to request the correction of the security breach.
Limited Warranty in the Licensed Software. MOBILE EPIPHANY warrants to CUSTOMER 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 CUSTOMER with the Licensed Software (the “Specifications”). This limited warranty shall not apply if CUSTOMER 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, CUSTOMER’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. CUSTOMER 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, CUSTOMER’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, CUSTOMER’s exclusive remedy shall be to terminate this Agreement.
Requirements for Limited Warranties. CUSTOMER shall have no rights with respect to the foregoing limited warranties and the limited warranties shall be deemed not to apply to CUSTOMER unless:
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;
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 CUSTOMER’s designs, specifications, or instructions); and
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.
Third-Party Components. This limited warranty does not extend to third-party components.
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.
Any data CUSTOMER enters into the MOBILE EPIPHANY software and any customization made to the Licensed Software by or for CUSTOMER’s use during any evaluation period will not be retained by MOBILE EPIPHANY and may be lost, unless CUSTOMER purchase a services subscription to the same services before the end of such evaluation period notwithstanding anything herein to the contrary. During the evaluation period, the Licensed Software is provided “as is” without any warranty. MOBILE EPIPHANY may terminate any evaluation period or deny a request to subscribe to the Licensed Software. Account access for any administrator account and user accounts will be suspended upon expiration of any evaluation period or subscription term, unless CUSTOMER places an order for the Licensed Software and fee payment arrangements are made by CUSTOMER.
LIMITATION OF LIABILITY
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.
CUSTOMER 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 CUSTOMER AND THE PARTIES HAVE RELIED UPON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT. THE REMEDIES PROVIDED TO CUSTOMER IN THIS AGREEMENT ARE EXCLUSIVE.
GOVERNING LAW/JURISDICTION/DISPUTE RESOLUTION.
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 CUSTOMER 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.
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 CUSTOMER if sent to CUSTOMER either by email or regular mail at the address specified on the purchase order or at such address as otherwise specified by CUSTOMER 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.
OBLIGATIONS OF CUSTOMER
License Metering for SaaS and Hosted CUSTOMERS. CUSTOMER 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 CUSTOMER is licensed to use/have pursuant to this Agreement. If MOBILE EPIPHANY determines that CUSTOMER is using the Licensed Software on more devices or for more users than is permitted pursuant to this Agreement and upon demonstration to CUSTOMER of the same, CUSTOMER shall pay for such additional licenses as to bring CUSTOMER’s past and future use of the Licensed Software in compliance with the terms of this Agreement, including the End User License Agreement.
Verification of Utilization for Enterprise Install CUSTOMERS. CUSTOMER shall, at the request of MOBILE EPIPHANY, but no more frequently than once per quarter, certify to MOBILE EPIPHANY the number of devices on which the Licensed Software is installed and used and/or the number of users of the Licensed Software, as applicable, in accordance with the licenses purchased by CUSTOMER. This will be achieved by CUSTOMER agreeing to run a license usage query and/or report as provided by MOBILE EPIPHANY and return the results to MOBILE EPIPHANY in order for MOBILE EPIPHANY to gain visibility into CUSTOMER’s utilization. CUSTOMER agrees not to alter these results in any manner. In the event that CUSTOMER is using the Licensed Software on more devices or by more users than is permitted pursuant to this Agreement, CUSTOMER shall purchase such additional licenses as to bring CUSTOMER’s use of the Licensed Software in compliance with the terms of this Agreement and pay for retroactive use of the licenses.
MOBILE EPIPHANY has built-in license metering capabilities that help MOBILE EPIPHANY track actual usage by CUSTOMER.
MOBILE EPIPHANY’s Software may use CUSTOMER’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 CUSTOMER’s computer and the MOBILE EPIPHANY license server. CUSTOMER agrees that MOBILE EPIPHANY may use these measures and CUSTOMER agrees to follow any applicable requirements. CUSTOMER 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. CUSTOMER 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
Data Volume Throughput and Standard Storage/Volume Limitations. CUSTOMER’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.
MOBILE EPIPHANY’s Right to Use Subcontractors. CUSTOMER acknowledges and agrees that MOBILE EPIPHANY shall have the right to subcontract any or all of MOBILE EPIPHANY’s obligations under this Agreement to one or more parties.
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.
Independent Contractors. The relationship of MOBILE EPIPHANY and CUSTOMER under this Agreement is that of independent contractors. 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.
MOBILE EPIPHANY’s Right to Use Subcontractors. CUSTOMER acknowledges and agrees that MOBILE EPIPHANY shall have the right to subcontract any or all of MOBILE EPIPHANY’s obligations under this Agreement to one or more parties.
Assignment. This Licensed Software may not be assigned or transferred by CUSTOMER without the prior written consent of MOBILE EPIPHANY. MOBILE EPIPHANY may assign this Agreement without the prior written consent of CUSTOMER. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, successors, representatives and permitted assigns.
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.
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, 2 (“Payments, Taxes and Refund Policy”), 3 (“Term and Termination”), 5 (“Confidentiality”), 6 (“Limited Warranties/Disclaimer of Damages”), 8 (“Limitation of Liability”) and 11 (“General Provisions”).
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.
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.
Export Restrictions. CUTOMER 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. CUSTOMER 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 CUSTOMER’s activities pursuant to this Agreement. CUSTOMER 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. CUSTOMER 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.
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.
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.
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.
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.
CUSTOMER’s use of the services and software includes the ability to enter into agreements and/or to make transactions electronically. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF ANY ENTITY YOU REPRESENT, AND TO LEGALLY BIND SUCH ENTITY TO THE TERMS AND OBLIGATIONS OF THIS AGREEMENT. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON THIS SITE, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.