Terms of Service

Definitions

(i) “Confidential Information” means all proprietary information, financial information and other commercially valuable or sensitive information, including embodiments of Know-How and information regarding Know-How, including algorithms, research and development, methods, technical data, designs, graphs, drawings, devices, models, specifications, customer and supplier lists, pricing and cost information and business and marketing plans and proposals and any other materials or information which a Party has identified as or a Party should know is regarded as confidential, proprietary or of a commercially sensitive nature by the other Party. Confidential Information does not include: (a) information which is lawfully in the public domain prior to its disclosure to the receiving Party by the disclosing Party; (b) information which enters the public domain after its disclosure to the receiving Party by means other than an unauthorized disclosure of such information by any person; (c) information which is or becomes lawfully available to the receiving Party from a third party who has the proper authority to disclose such information to the receiving Party on a non-confidential basis; and (d) information which is already rightfully known or independently created by the receiving Party (as shown by its written record) prior to the date of disclosure. Information is not in the public domain unless it is lawfully available to the general public from a single source without restriction on its use or disclosure. Specific information is not considered to be in the public domain if only a general embodiment or description of such information is available in the public domain.

(ii) “Customer Data” means any data or information of Customer, including Personal Data, submitted to the Software by Customer.

(iii) “Deliverables” means anything specifically identified as a “Deliverable,” including the tangible embodiments of any information, reports, specifications, drawings, statistics, data, maps, artwork, creative materials, diagrams, plans, conclusions, and recommendations.

(iv) “Documentation” means any supporting user, administrative, training or technical documentation, made available by serviceMob and related to the Software.

(v) “Intellectual Property Rights” means all proprietary, industrial and intellectual property rights, under the law of any jurisdiction or rights under international treaties, both statutory and common law rights, including: (a) utility models, supplementary protection certificates, statutory invention registrations, patents and applications for same, and extensions, divisions, continuations, continuations-in-part, reexaminations, and reissues thereof; (b) trademarks, service marks, trade names, slogans, domain names, logos, trade dress, and other indicia of source (including all goodwill associated thereof), and registrations and applications for registrations thereof (“Trademarks”); (c) copyrights, moral rights, database rights, mask work rights, other rights in works of authorship and registrations and applications for registration of the foregoing; and (d) trade secrets, know-how, and rights in confidential information, including designs, formulations, concepts, compilations of information, methods, techniques, procedures, and processes, whether or not patentable (“Know-How”).

(vi) “Personal Data” means any information or data that identifies or could reasonably be used to identify a natural person, including: a person’s first and last name, home or other physical address, telephone number, fax number, email address or other online identifier, Social Security number or other third-party issued identifier (including state identification number, driver’s license number, or passport number), biometric data, health information, credit card or other financial information (including bank account information), and IP address, geolocation information, cookie information, or any other device-specific number or identifier.

(vii) “Services” means any services provided by serviceMob to Customer and as specifically set forth above.

(viii) “Software” means any customer service interaction software owned by serviceMob and which Customer is given a right to use under this Agreement.

(ix) “Subscription Term” the term set forth above during which Customer may exercise its License rights as set forth in Section 2.B

2. Services, License and Maintenance.
3. Services. Subject to Customer’s payment of all Fees, serviceMob shall provide the Services and, if applicable, Deliverables, to Customer as described above. Customer must identify in writing any defects or deficiencies to Deliverables within ten (10) days of delivery, otherwise the Deliverables will be deemed accepted. Unless otherwise agreed, serviceMob shall have thirty (30) days to correct such defects or deficiencies.
4. License. Subject to Customer’s payment of all Fees, serviceMob hereby grants Customer a limited, nonexclusive, nonsublicensable, nontransferable, license, during the Subscription Term, to use the Software (the “License”).
5. Maintenance and Support. Subject to Customer’s payment of all Fees, serviceMob shall provide Customer maintenance and support during the term of this Agreement, including includes periodic updates to the Software (“Maintenance”). serviceMob will use commercially reasonable efforts to maintain the Software and to respond to technical issues identified by Customer regarding the Software; provided, however, that if Customer makes and modifications to the Software or any component thereof, or modifies or replaces internal software or systems of Customer that affect the usability or performance of the Software, serviceMob has no duty to provide Maintenance as to any defects or errors caused by such modifications. New Services may be required to remedy such defects or errors, and additional fees may apply to such Services.
6. Fees & Payment. As set forth above, Customer shall pay serviceMob the following fees: (i) a Services fee, (ii) a monthly License fee, and (iii) a monthly Maintenance fee (collectively, the “Fees”). serviceMob will invoice Customer monthly and Customer shall pay the invoiced Fees within thirty (30) days. If any undisputed amounts are not received when due: (i) Customer shall pay interest at the maximum lawful rate, and (ii) serviceMob has the right to interrupt the Services and Customer’s access to the Software. Customer acknowledges that the Fees as set forth above are subject to change, and that such Fees may assume a certain scope (e.g. usage volume of the Software). Changes in market conditions may require serviceMob to increase Fees; provided that serviceMob will give Customer reasonable advanced notice prior to any such change taking effect.
7. Restrictions on Use of Software. Except as expressly permitted in this Agreement, Customer shall not, and shall not allow any person to: (i) decompile, disassemble, or otherwise reverse engineer the Software or Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever; (ii) distribute, sell, rent, lease or use the Software (or any portion thereof) for time sharing, hosting, service provider, or like purposes; (iii) modify, translate or create derivative works of any part of the Software; or (iv) attempt to circumvent or disable any security mechanism that protects the Software against unauthorized use.
8. Ownership. Customer agrees that the Software and Documentation, all data contained therein (other than Customer Data), and any and all modifications, and enhancements, and all Intellectual Property Rights or other rights associated with the Software and Documentation are proprietary to serviceMob, and title to them shall remain exclusively in serviceMob. Title to Customer Data shall remain with Customer, provided that serviceMob may use any aggregated or anonymized Customer Data, or any other data submitted to or processed by the Software, for its internal business purposes, including improving the Software. In no event will any Deliverables be deemed a “work made for hire” under applicable law, and ownership and title to such Deliverables, including all Intellectual Property Rights therein, shall vest in serviceMob. To the extent Customer acquires any right, title or interest in the Deliverables or any aspect of the Software, Customer hereby assigns all right, title or interest, including Intellectual Property Rights, to serviceMob in and to such Deliverable(s) or such aspect of the Software. Each Party retains title to its Trademarks, provided that Customer hereby grants serviceMob a perpetual, irrevocable, worldwide, non-exclusive, non-transferable and fully paid-up license to use Customer’s Trademarks that are incorporated into the Software and as necessary to provide the Services.
9. Customer’s Responsibilities. Customer is responsible for ensuring that all software and systems owned by or licensed to Customer that interact with the Software (“Customer Systems”) are connected, functioning, and maintained. Maintenance will not include such Customer Systems, and Customer acknowledges that serviceMob is not liable for any failures, errors or defects in Customer Systems. Customer represents and warrants to serviceMob that Customer has obtained (i) all c onsents (if any) required to grant serviceMob the right to use and/or access any

Terms of Service

Customer Systems or any third party hardware or software in connection with providing the Services and the Software above, and (ii) all other consents, permits, licenses and other approvals required to permit serviceMob to perform its obligations and to permit serviceMob to provide the Services and the Software.

7. Confidentiality. Each Party agrees to hold in strictest confidence all Confidential Information of the other Party that is exchanged under this Agreement; provided that either Party may disclose to its employees on a need-to-know basis the Confidential Information of the other Party, so long as such employees are bound by confidentiality obligations no less restrictive that in this Agreement. Notwithstanding the foregoing, serviceMob may issue public releases concerning this Agreement, and serviceMob may use Customer’s Trademarks in such public release. The Parties’ obligations of confidentiality under this Agreement shall survive termination of this Agreement and for a period of three (3) years thereafter.
8. Term, Termination and Renewal. The term of this Agreement is as contemplated above, unless terminated earlier by either Party under any of the following provisions: (i) either Party may terminate Services under this Agreement by providing ninety (90) days written notice to the other Party, (ii) in the event either materially breaches this Agreement, the other Party shall give written notice, and, if the breaching Party has not cured the breach within thirty (30) days of the notice, the other Party will have the right to terminate this Agreement, and (iii) serviceMob may terminate this Agreement if Customer makes a general assignment for the benefit of creditors, file a voluntary petition of bankruptcy, suffer or permit the appointment of a receiver for its business or assets, becomes subject to any proceedings under any bankruptcy law, have liquidated Customer’s business voluntarily or otherwise, or similar.
9. Effect of Termination. TERMINATION SHALL NOT RELIEVE CUSTOMER OF CUSTOMER’S CONFIDENTIALITY OR PAYMENT OBLIGATIONS. Upon termination of this Agreement, (i) Customer shall immediately cease all use of the License; and (ii) each Party shall return or destroy, at the discretion of the other Party, all Confidential Information of the other Party in its possession or control.
10. Collection of Personal Data. During and in connection with Customer’s use of the Software, to the extent Customer Data contains Personal Data, serviceMob may collect and use such Personal Data as necessary to provide the Software Services to Customer. Customer agrees that serviceMob may share Personal Data contained in Customer Data, with third parties only as follows: (i) when serviceMob has Customer’s permission or consent to share such Personal Data; (ii) if it is necessary to share such Personal Data in order to investigate, prevent or take action regarding a violation of law, a violation of this Agreement, or technical problems and malfunctions in computer systems and networks that support the Software; (iii) in response to a request under applicable law or court order; or (iv) in an aggregated and/or anonymized form that does not identify particular individuals. Customer also agrees that serviceMob may use and share such Personal Data contained in Customer Data in an aggregated and/or anonymized format for serviceMob’s internal business purposes.
11. Disclaimer of Warranties. serviceMob DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SOFTWARE, SERVICES, LICENSE, AND MAINTENANCE (“PRODUCTS”), WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. THE PRODUCTS ARE PROVIDED “AS IS.” serviceMob DOES NOT WARRANT THAT THE PRODUCTS WILL BE UNINTERRUPTED, ERROR FREE, ACCURATE, CONTINUOUSLY AVAILABLE, FREE OF HARMFUL COMPONENTS, OR COMPLETELY SECURE. ALTHOUGH serviceMob HAS TAKEN CERTAIN MEASURES REGARDING THE DATA SECURITY OF THE PRODUCTS, serviceMob CANNOT GIVE ANY REPRESENTATION OR WARRANTY AS TO THE ABSOLUTE SECURITY OF THE DATA TRANSMITTED USING THE SOFTWARE, INCLUDING ANY CUSTOMER DATA, AND CANNOT GIVE ANY GUARANTEE THAT SUCH DATA WILL NOT BE COMPROMISED.
12. Limitation of Remedies and Damages. IN NO EVENT SHALL serviceMob BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, RELIANCE, OR COVER DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA, OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, EVEN IF

serviceMob HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, serviceMob’S TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT FOR ANY REASON SHALL BE LIMITED TO THE TOTAL AMOUNT OF LICENSE AND MAINTENANCE FEES PAID BY CUSTOMER TO serviceMob UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRECEDING SUCH LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THESE LIMITATIONS AND EXCLUSIONS WILL APPLY REGARDLESS OF WHETHER LIABILITY ARISES FROM BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING SOLE OR CONCURRENT NEGLIGENCE), BY OPERATION OF LAW OR OTHERWISE. LIABILITY FOR DAMAGES SHALL BE LIMITED AND EXCLUDED, EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.

13. Entire Agreement; Amendment. The Parties agree that this Agreement is the complete and exclusive agreement between the Parties that supersedes all prior and contemporaneous proposals, understandings, and agreements, oral and written, between the Parties relating to the subject matter hereof. This Agreement may not be modified except in a writing executed by both Parties.

13. Additional Terms. The laws of the State of California shall govern this Agreement and performance under this Agreement without regard to its conflict of laws provisions. Venue shall lie exclusively in Los Angeles County, California. If any provision of this Agreement is invalid, it is to that extent to be deemed omitted. The remainder of this Agreement is valid and enforceable to the maximum extent possible. Customer may not assign or sublicense, without the prior written consent of serviceMob, Customer’s rights, duties, or obligations under this Agreement. The waiver or failure of a Party to exercise any right provided for in this Agreement shall not be deemed a waiver of any further right of such Party under this Agreement. The provisions of this Agreement which by their nature or express language are intended to survive the termination or expiration of this Agreement, including Sections 1, 3, 4, 5, 6, 7, 9, 10, 11, 12, and 13. Notices will be sent by certified or registered mail (return receipt requested) or reputable overnight courier with shipment tracking capabilities.