MobileInspection.com has developed a software application, offered as a Service under these Terms & Conditions.
Licensee agrees that use of any MobileInspection.com or third party features, services, or content as may be supplied by MobileInspection.com, either in or accessible through the Service shall be subject to any applicable MobileInspection.com terms and conditions.
Licensee agrees to use the Service solely for the Purpose in accordance with the following terms and conditions:
1.1 Agreement means these terms and conditions.
1.2 Confidential Information means any information of a Party (excluding Licensee Content and Registration Data) that is designated as confidential or proprietary at the time of disclosure, or would be reasonably considered as confidential due to its nature or circumstance of disclosure.
1.3 MobileInspection.com Content means any messages or other communications or other information, data, text (including but not limited to names of files, databases, directories and groups/workgroups of the same), software, music, sound, photographs, graphics and video transmitted, entered, or stored by MobileInspection.com, into and as part of the Service.
1.4 Licensee Content means all Licensee and User information or data that is input or uploaded by or on behalf of Licensee and/or Users into the Service, and shall include any messages or files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through the Service, including, without limitation, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips email or other messages, metatags, domain names, software and text or other communications or other information, data, text (including but not limited to names of files, databases, directories and groups/workgroups of the same), software, sound, photographs, graphics and video transmitted, entered, or stored by any User or any other Licensee employee, contractor, assigns or representative using the Service.
1.5 Registration Data means the information provided by an authorized Licensee representative on any associated online Service registration form(s).
1.6 Seat means the license for a User’s access to the Service on a monthly basis in accordance with the terms of this Agreement and subject to Licensee’s payment of the applicable Fees.
1.7 Service means the MobileInspection.com product or application, including any modifications or updates thereto if and as made generally available by MobileInspection.com, and as described in more detail in Exhibit A.
1.8 “SLA” has the meaning set forth in Section 2.5 below.
1.9 “SLA Default” has the meaning set forth in the SLA.
1.10 “Technical Support” has the meaning set forth in Section 2.3.2 below.
1.11 User means those individual employees or contractors of Licensee whom Licensee shall allow to use the Service in accordance with this Agreement.
2. License Grant; MobileInspection.com Obligations; Restrictions
2.1 License Grant by MobileInspection.com.
(a) Subject to the terms of the Agreement and Licensee’s payment of the applicable Fees (including the required Fees per User), MobileInspection.com grants Licensee a limited, non-exclusive, non-transferable, revocable license during the Term to access and use (and to permit its Users to access and use, subject to the number of Seats for which Licensee has paid the required Fees) the Service for Licensee’s own business purposes, but not otherwise, and solely for use within the United States, subject to the terms and conditions of this Agreement and in accordance with the pricing and payment terms set forth below. In addition, except as otherwise expressly agreed to in writing by MobileInspection.com, the foregoing license is limited solely to use by the number of Seats for which Licensee has paid the applicable Fees stated below.
(b) Licensee hereby assumes full responsibility for all use by the Users and shall be solely responsible for ensuring that the Users comply with the terms of this Agreement, including but not limited to the confidentiality and scope of use obligations and the license grant restrictions set forth below.
(c) All rights not expressly granted to Licensee herein are reserved by MobileInspection.com and its licensors. Licensee agrees that the Services, including related materials or documentation, and any other information identified by MobileInspection.com as confidential or proprietary are “MobileInspection.com Confidential Information.”
2.2 License Grant by Licensee. Licensee grants to MobileInspection.com, and MobileInspection.com accepts from Licensee, a limited, non-transferable, non-exclusive, worldwide and royalty free license, for the term of this Agreement, to access, store, copy, display, use and transmit on and via the Internet and the Service the Licensee Content.
2.3 MobileInspection.com Obligations.
2.3.1 Hosted Service. MobileInspection.com will make available to Licensee, or shall engage a third party to make available to Licensee on MobileInspection.com’s behalf, hosted access to the Service. The Service shall be installed and hosted at MobileInspection.com’s data centers(s) and/or at such third party data center(s), as MobileInspection.com may elect from time to time, and the Service shall be made available through the Internet for use by Licensee in accordance with the terms of this Agreement. MobileInspection.com shall be responsible, at its expense, for procuring and maintaining such data center, or such third party hosting services during the Term. In addition, during the Term, MobileInspection.com shall provide Licensee with training on the Service for a period not to exceed eight (8) person hours or such other duration as mutually agreed by the parties.
2.3.2 Technical Support. During the Term, any reasonable technical support that may be provided by MobileInspection.com shall be as described in the SLA (“Technical Support”) and subject to Licensee’s payment of the applicable Fees.
2.3.3 Communications Choices. MobileInspection.com may be required by law to send Licensee communications about the Service or third party products. Licensee agrees that MobileInspection.com may send such communications to Licensee via email.
2.4 Restrictions. Licensee agrees (on behalf of itself and its Users) not to disclose to, sell to, make any copies of, resell, rent or sublicense (including offering the Service to third parties on an applications service provider or time-sharing basis), lease, loan, redistribute, or create a derivative work of any portion of the Service, use of the Service, or access to the Service, or allow any third party to access or use the Service in whole or in part, except as expressly allowed under the terms of this Agreement. This Agreement does not authorize Licensee to make any modifications to or adaptations of any part or whole of the Service and any such modification or adaptation is expressly prohibited. Licensee agrees not to decompile, disassemble, or otherwise reverse engineer the Service. Such restrictions do not apply to Licensee Content placed on the Service, if any. Licensee agrees not to access the Service by any means other than through the interface that is provided by MobileInspection.com for use in accessing the Service, and further agrees not to send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts agents, or programs, on the Service. Licensee may not access or use the Service for purposes of monitoring Service availability, Service performance or functionality, or for any benchmarking, or competitive purpose.
3. Licensee Obligations.
3.1 Compliance with Law. Licensee is responsible for all activities conducted within User accounts in use of the Service. Licensee shall comply with all applicable local, state, federal and regional or other laws and regulations applicable in connection with use of the Service, including all those related to data privacy and the transmission of technical or personal data. Licensee shall ensure that all Licensee Content does not violate any laws or regulations or infringe any intellectual property, privacy, publicity or other proprietary right of any person.
3.2 Registration. Licensee agrees to (i) provide true, accurate, current and complete Registration Data, as applicable, and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If Licensee provides any information that is untrue, inaccurate, not current or incomplete, or MobileInspection.com has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, MobileInspection.com may suspend or terminate Licensee’s account and refuse any and all current or future use of the Service (or any portion thereof).
3.3 Password(s). Licensee agrees it and its Users shall securely manage its password(s) for access to the Service. Licensee agrees it shall notify MobileInspection.com immediately in the event of any unauthorized access or use of the Service, or of any password or account, or any other known or suspected breach of security in connection with the Service.
3.4 Copies; Distribution. Licensee agrees it shall (i) notify MobileInspection.com immediately in the event of any known or suspected attempt to copy or distribute the Service, and (ii) use reasonable efforts to stop such attempted copying or distribution.
3.5 False Information. Licensee agrees (i) it shall not, and shall cause its employees and contractors to not, impersonate any other User of the Service or provide false identity information in order to gain access to or to use the Service; and (ii) in the event that Licensee becomes aware of or suspects such impersonation or use of false information to gain access to or use the Service, Licensee (a) shall immediately notify MobileInspection.com of such actions and (b) shall use reasonable efforts to stop such improper access to or use of the Service.
3.6 Updates. MobileInspection.com may update the Service periodically with tools, utilities, improvements, third party applications, or general updates to improve and enhance the features and performance of the Service. Licensee agrees to receive such updates automatically as part of the Service.
4.1 All MobileInspection.com Confidential Information, the Service, and any materials furnished to Licensee by MobileInspection.com and any information or materials which are designated in writing to be the property of MobileInspection.com shall remain the sole property of MobileInspection.com. Any information related to MobileInspection.com, or its business activities (including, but not limited to, all pricing, rates, fee schedules and MobileInspection.com Content, if any), that is made available to, received, observed or otherwise obtained by Licensee in connection with this Agreement shall be treated by Licensee as MobileInspection.com Confidential Information and shall not be used, disclosed or further disseminated by Licensee. Licensee agrees that any unauthorized disclosure of the MobileInspection.com Confidential Information would cause irreparable harm to MobileInspection.com, and that in the event of any breach or threatened breach of the confidentiality obligations, MobileInspection.com shall be entitled to seek equitable relief in addition to any other remedy.
4.2 To the extent that Licensee provides any information to MobileInspection.com, arising from Licensee’s use of the Service, Licensee warrants that (i) Licensee is providing only Licensee’s own information or the information of others which Licensee is authorized to provide on their behalf to third parties; and (ii) the use of such information by MobileInspection.com will not infringe or misappropriate the intellectual property rights or otherwise violate the rights of any third parties.
4.3 Confidential Information shall not include, or shall cease to include, as applicable, information or materials that (i) were generally known to the public on the execution date of this Agreement; (ii) become generally known to the public after the execution date, other than as a result of the act or omission of the receiving party; (iii) were rightfully known to the receiving party prior to its receipt thereof from the disclosing party; (iv) the receiving party lawfully received from a third party without that third party’s breach of agreement or obligation of trust; or (v) are independently developed by the receiving party.
4.4 Either Party may disclose or report Confidential Information in limited circumstances where such Party believes, in good faith, that disclosure is required under the law. For example, MobileInspection.com may be required to disclose Confidential Information to cooperate with regulators or law enforcement authorities, to comply with a legal process such as a court order, subpoena, search warrant, or a law enforcement request.
4.5 Screening, Removal & Risk of Licensee Content.
4.5.1 MobileInspection.com does not pre-screen Licensee Content, but MobileInspection.com and its designees, contractors or subsidiaries shall have the right (but not the obligation) in their sole discretion to refuse or to remove any Licensee Content that is available via the Service. Without limiting the foregoing, and without notice, MobileInspection.com and its designees shall have the right to remove any Content that is deemed objectionable by MobileInspection.com in its sole discretion. Unless the Licensee Content is illegal material or represents, in MobileInspection.com’s reasonable discretion, inappropriate or objectionable content, MobileInspection.com will make commercially reasonable efforts to notify Licensee prior to such removal. Any Licensee Content removed under this Section 4 will be stored by MobileInspection.com for a reasonable period of time and MobileInspection.com will provide Licensee with prompt notice of such removal and the reasons therefore.
4.5.2 Licensee shall evaluate and bear all risks associated with the use of any Licensee Content including any reliance on the accuracy, completeness, or usefulness of such Licensee Content.
5. Intellectual Property Ownership.
5.1 The Service. MobileInspection.com owns all right, title and interest, including all intellectual property rights, in and to the Service and its technology. Licensee acknowledges and agrees that Licensee may be providing and submitting feedback, suggestions and ideas (“Feedback”) relating to the features and functionality of the Service to MobileInspection.com which MobileInspection.com may use in future modifications and/or subsequent versions of the Service, if any, multimedia works and/or advertising and promotional materials relating thereto. Licensee hereby assigns to MobileInspection.com a perpetual, worldwide, fully transferable, sub-licensable, non-revocable, fully paid-up, royalty free license to use, modify, create derivative works from, distribute, display and otherwise exploit any information it provides to MobileInspection.com in the Feedback. Notwithstanding the foregoing sentence, the parties agree that nothing in this Agreement is intended to assign or transfer to a party, nor will have the effect of assigning or transferring to a party, any Licensee Confidential Information, any right to any existing copyright, patent, trade secret, moral right, or any other existing intellectual property right of the other party.
5.2 MobileInspection.com Name and Logo. MobileInspection.com’s name and logo, and all MobileInspection.com product and services names, including the name of the Service and any product or service associated with the it, are trademarks of MobileInspection.com or its licensors, and no right or license to use such materials is granted in this Agreement.
5.3 MobileInspection.com Content. Licensee acknowledges and agrees that any and all MobileInspection.com Content, including copyrights, trademarks, database rights and other intellectual property contained in such MobileInspection.com Content are owned by MobileInspection.com. Any access to MobileInspection.com Content which Licensee may have is only incidental to Licensee’s access to the Service in a manner that is in accordance with the license set forth in Section 2 above, and is therefore subject to the terms of the Agreement. Licensee does not obtain any right, title or interest in any MobileInspection.com Content.
5.4 Limited Use of Licensee Marks. Licensee grants MobileInspection.com the right to use Licensee’s name and logo in connection with marketing collateral produced for publicity about the Service. MobileInspection.com agrees to provide to Licensee such marketing collateral for Licensee’s review and approval prior to release by MobileInspection.com.
5.5 Reservation of Rights. Except for the license expressly granted in this Agreement, MobileInspection.com grants no other rights, licenses or privileges to Licensee. No implied licenses are granted by MobileInspection.com with respect to any intellectual property owned or controlled by MobileInspection.com.
6. Fees and Payment.
6.1 Fees. Licensee shall pay all fees in accordance with the pricing and invoicing terms as stated in the signed proposal document (collectively, the “Fees”), incorporated herein by reference. All payment obligations are non-cancelable and all Fees and other amounts paid are nonrefundable, in whole or in part, regardless of any SLA Default or whether the Service is suspended, cancelled, or transferred prior to the end of any current Term of the Agreement. Licensee is responsible for payment of all Fees regardless of whether its Users actually access or use the Service. The number of Seats may be increased or decreased following execution of this Agreement by the true-up mechanism described in Exhibit A and/or otherwise by written amendment and, in all cases, by payment of the applicable Fees. Any such additional Seats shall be coterminous with the then-current license Term, and payment for such additional Seats is required to be made in full and in advance before any such additional Users are permitted access to or use of the Service. MobileInspection.com reserves the right to modify its pricing and Fees annually, in its sole discretion upon notice to Licensee.
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6.3 Taxes. All fees and costs payable under this Agreement are net amounts and are payable in full, without deduction for taxes or duties of any kind. Licensee will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use and withholding taxes), if any, associated with this Agreement or Licensee’s receipt or use of the Service, except for taxes based on MobileInspection.com’s net income. In the event that MobileInspection.com is required to collect or pay any tax for which Licensee is responsible, Licensee will pay such tax directly to MobileInspection.com. If Licensee pays any withholding taxes that are required to be paid under applicable law, Licensee will furnish MobileInspection.com with written documentation of all such tax payments, including receipts.
6.4 Payment. MobileInspection.com shall bill all Fees in advance, on the first day of the month, each month. Licensee shall pay MobileInspection.com all expenses within thirty (30) days of the date of MobileInspection.com’s invoice. If Licensee fails to timely pay any amount due under this Agreement, whether by acceleration or otherwise, Licensee, upon demand, shall pay, in addition, interest at the rate of two percent (2%) per month, but not to exceed the maximum allowed by law, on such delinquent amount from the due date thereof until the date of payment. All payments must be sent to: MobileInspection.com Inc., PO Box 283, Hinckley, OH 44233, or such other location designated by MobileInspection.com. Without limiting the foregoing, if Licensee fails to pay any amount when due, MobileInspection.com reserves the right, with written notice of 15 days, to suspend all or part of Licensee’s (and its Users’) access to the Service and Licensee Content and any related technical support and training, terminate the Service and any related technical support and training, and/or terminate this Agreement. Licensee may withhold, set-off or delay payment due to MobileInspection.com’s failure to meet SLA’s, as described in Exhibit B.
7. Representations and Warranties; Warranty Disclaimer.
7.1 Each party to this Agreement represents and warrants that: (i) it has the legal authority to enter into and perform in connection with this Agreement; and (ii) it shall comply with all laws and regulations applicable to the performance of its obligations hereunder and shall obtain all applicable permits and licenses required of it in connection with its obligations hereunder.
7.2 MobileInspection.com represents and warrants that: it owns the Services or otherwise has the rights to grant the licenses granted to Licensee hereunder; and will exercise reasonable efforts to avoid the introduction of code that is known to disrupt, damage or interfere with any Licensee use or Licensee’s computer and communications facilities or equipment (“Harmful Code”). “Harmful Code” shall include, without limitation, any code containing viruses, Trojan horses, worms or like destructive code or code that self-replicates.
7.3 Licensee represents and warrants that: (i) it and its Users will not violate the license terms or restrictions for the Service, (ii) it will not resell use of or access to the Service, (iii) it owns or controls the Licensee Content and has the right to exercise and grant any rights with respect thereto, (iv) all information provided in connection with Licensee’s registration is accurate and reliable, (v) it will be responsible for its own backup and storage of Licensee Content that is maintained outside of the Service, and (vi) it and its Users will not introduce any Licensee Content or other material that violates any law, right of any person or the terms of the Agreement.
7.4 LICENSEE’S ACCESS TO AND USE OF THE SERVICE IS AT LICENSEE’S AND ITS USERS’ SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. MOBILEINSPECTION.COM AND ITS SUPPLIERS MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET LICENSEE’S REQUIREMENTS OR RESULT IN REVENUES OR PROFITS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE TIMELY, ACCURATE OR RELIABLE, AND (iv) THE QUALITY OF ANY PRODUCTS, SERVICE, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY LICENSEE THROUGH THE SERVICE WILL MEET LICENSEE’S EXPECTATIONS. WHILE MOBILEINSPECTION.COM WILL USE COMMERCIALLY REASONABLE EFFORTS TO PREVENT UNAUTHORIZED ACCESS TO DATA ENTERED INTO “RESTRICTED FIELDS” (DEFINED FOR PURPOSES OF THIS AGREEMENT AS FIELDS ACCESSIBLE ONLY VIA LICENSEE-ENABLED AND CONTROLLED PERMISSIONS) WITHIN THE SERVICE, MOBILEINSPECTION.COM AND ITS SUPPLIERS MAKE NO WARRANTY THAT SUCH RESTRICTED FIELDS WILL BE SECURE AGAINST SUCH UNAUTHORIZED ACCESS OR OTHER SECURITY BREACHES. MOBILEINSPECTION.COM AND ITS SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, UNLESS SUCH REPRESENTATIONS AND WARRANTIES ARE NOT LEGALLY EXCLUDABLE. MOBILEINSPECTION.COM EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT LICENSEE’S USE OF THE SERVICE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED OR OBTAINED AT LICENSEE’S OWN DISCRETION AND RISK AND LICENSEE WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO LICENSEE’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY LICENSEE FROM MOBILEINSPECTION.COM OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
THE SERVICE MAY BE SUBJECT TO DELAYS, FAILURES, LIMITATIONS, AND OTHER PROBLEMS CONNECTED WITH USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. MOBILEINSPECTION.COM IS NOT RESPONSIBLE FOR, AND SHALL NOT BE LIABLE FOR, ANY SUCH DELAYS, FAILURES OR DAMAGE RESULTING THEREFROM.
8.1 Licensee Indemnity. Licensee agrees to indemnify, defend and hold harmless MobileInspection.com, its subsidiaries and Affiliates, and its and their directors, officers, agents, assigns and employees (“Indemnitees”), from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of or related to any Licensee Content; Licensee’s use (and its Users’) use, misuse of or access to the Services; Licensee’s connection to the Service; Licensee’s and/or its Users’ violation of this Agreement or the applicable Terms of Service; or Licensee’s violation of any proprietary or other rights of a third party or any User; or Licensee’s or Users’ violation of applicable law. Indemnitees are not liable or responsible in any way for any errors, omissions or any other actions arising out of or related to Licensee’s and/or User’ use of or access to the Services or the Licensee Content. If Licensee is a registered entity and permits Licensee’s Affiliates, subsidiaries, employees, and/or any third party to access and/or use the Service and/or Licensee Content, Licensee shall be solely responsible for (i) their acts and/or omissions in connection with their access and/or use of the Service and (ii) ensuring that their access and/or use of the Service is in compliance with this Agreement, and any and all applicable local laws, rules and regulations. Licensee agrees to fully indemnify MobileInspection.com and its affiliates, subsidiaries, licensors, and online service providers (collectively, “Representatives”) for any liability, fines, penalties, costs, claims and/or damages incurred by MobileInspection.com and/or the Representatives in connection with any claim related to the access and/or use of the Service and/or Licensee’s Content by Licensee, Licensee’s Affiliates, subsidiaries, employees or any third-party authorized by Licensee.
9. Limitation of Liability. MOBILEINSPECTION.COM AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF MOBILEINSPECTION.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICE RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF LICENSEE TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.
MOBILEINSPECTION.COM WILL NOT BE LIABLE FOR ANY (a) INTERRUPTION OF BUSINESS, (b) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THIS SITE OR THE WEB SITE(S) LICENSEE ACCESSES THROUGH THIS SERVICE; (c) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; (d) UNAUTHORIZED ACCESS TO DATA ENTERED IN, OR BREACH OF ANY SECURITY MECHANISMS UTILIZED IN THE SERVICE OR IN ANY RESTRICTED FIELD THEREIN; OR (e) EVENTS BEYOND MOBILEINSPECTION.COM’S REASONABLE CONTROL.
IN NO EVENT SHALL MOBILEINSPECTION.COM’S MAXIMUM AGGREGATE LIABILITY EXCEED THE AMOUNT PAID BY LICENSEE TO MOBILEINSPECTION.COM FOR THE SERVICE, TO A MAXIMUM AMOUNT EQUAL TO THE FEES PAID TO MOBILEINSPECTION.COM BY LICENSEE DURING THE SIX (6) MONTHS PRECEEDING THE OCCURRENCE RESULTING IN SUCH LIABILITY.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO LICENSEE.
THE PARTIES AGREE THAT THE FOREGOING PROVISIONS REPRESENT A FAIR AND EQUITABLE ALLOCATION OF RISK WITHOUT WHICH THEY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT.
10. Service Modifications. MobileInspection.com reserves the right at any time and from time to time to modify the Service (or any part thereof) with or without notice and without altering the material functionality of the Service. Such modifications would be made to correct errors, improve performance, etc. In the event MobileInspection.com reasonably believes that any such modification could adversely affect all then-current licensees of the Service then MobileInspection.com will inform Licensee of such planned modification in advance and make such modification in a manner to minimize any such adverse effect. Should MobileInspection.com choose to permanently discontinue the Service, MobileInspection.com (i) will exercise its right to terminate this Agreement for convenience pursuant to Section 12.2.3 below, and (ii) will post notification of such decision on the Service web site thirty (30) days prior to such discontinuance. MobileInspection.com will not be liable to Licensee or to any User or third party for any modification, suspension or discontinuance of the Service, or for any resulting loss or destruction of any Licensee Content that Licensee placed on the Service after the date of such notice. MobileInspection.com may specify in writing from time to time the version(s) of related products required in order to use the Service (e.g., supported browser versions etc.).
11. Term, Termination & Post Termination.
11.1 Term. The “Initial Term” of this Agreement shall commence on the Effective Date and continue for a period of one (1) month, following which the Agreement shall automatically renew for additional one (1) month periods (“Renewal Term”) indefinitely, unless earlier terminated by either party pursuant to this Section 12, or as otherwise set forth in any Exhibit or Schedule under this Agreement.
11.2 Termination by Either Party.
11.2.1 Termination for Cause. (a) Either party may terminate this Agreement upon ten (10) days’ written notice if the other party breaches this Agreement and fails to cure such breach within ten (10) days after receiving written notice thereof from the non-breaching party. (b) In addition, Licensee may terminate this Agreement for cause upon thirty (30) days’ written notice to MobileInspection.com in the event of a SLA Default (as defined in the SLA, Exhibit B).
11.2.3 Termination for Convenience. Either party may terminate this Agreement for any or no reason, after the initial term, upon thirty (30) days written notice to the other party subject to Section 12.5 and Licensee’s fulfillment of its payment obligations through the end of the then-current Term.
11.3 Suspension. MobileInspection.com may, in its sole discretion, suspend or terminate Licensee’s account and/or deny access to, use of, or submission of Licensee Content for, all or part of the Service, without liability, obligation, notice or otherwise, if Licensee engages in any conduct that MobileInspection.com reasonably believes: (i) violates any provision of this Agreement or any law, (ii) violates the rights of MobileInspection.com or third parties, or (iii) is otherwise inappropriate for continued access and use of the Service. In addition, MobileInspection.com reserves the right to terminate any account if that account has been inactive for greater than three hundred and sixty-five (365) days. Lastly, MobileInspection.com reserves the right to suspend or terminate Licensee’s account and/or deny access to, use of, or submission of Licensee Content for, all or part of the Service, without liability, obligation, notice or otherwise, pursuant to Section 6.4 above.
11.4 Responsibilities Upon Termination. Upon any termination of this Agreement, and without limiting any other provision hereof: (i) all of MobileInspection.com’s obligations to host and otherwise provide access to the Licensed Software and the Service shall fully and finally cease and MobileInspection.com shall have no further obligations in that respect after the 30-day transition period that begins on the day notice is given, (ii) each party shall destroy the other party’s Confidential Information, or return it at the other party’s request and expense; (iii) Licensee shall pay to MobileInspection.com all unpaid Fees and expenses due MobileInspection.com; (iv) any and all licenses granted under this Agreement shall immediately and automatically terminate; (v) Licensee shall (and shall require its Users to) cease use of and access to the Service after the 30-day transition period; (vi) except in the event of insolvency of Licensee, Licensee shall, at MobileInspection.com’s election, either promptly return to MobileInspection.com or destroy all Confidential Information, copies of any software, or third party software, if any, and all other materials, whether tangible or intangible, furnished by MobileInspection.com pursuant to this Agreement, (viii) Licensee will pay all such amounts due MobileInspection.com in full, and (ix) MobileInspection.com shall not be liable to Licensee, its Users or any third party for any suspension or termination of access to the Service. Notwithstanding the foregoing, if MobileInspection.com terminates this Agreement for convenience pursuant to Section 12.2.3, Licensee shall only be responsible for the payment of any and all Fees and expenses due through the effective date of such termination.
11.5 Survival. The provisions of Sections 1 (“Definitions”), 2.4 (“Restrictions”), 4 (“Confidentiality; Licensee Content; Disposition of Licensee Content upon Termination”), 5 (“Intellectual Property Ownership”), 6 (“Fees, Invoicing and Payment”), 7 (“Representations and Warranties; Warranty Disclaimer”), 8 (“Indemnification”), 9 (“Limitation of Liability”), 10 (“Service Modifications”), 11.4 (“Responsibilities Upon Termination”), this Section 11.5 (“Survival”), 12 (“General Provisions”), and any exhibit, addenda or attachment that, by its nature, survives termination, shall survive any termination or expiration of this Agreement.
12. General Provisions.
12.1 Choice of Law. This Agreement shall be governed in all respects by the internal laws of the State of Ohio excluding its conflicts or choice of law provisions and Licensee agrees to submit to personal jurisdiction in the State of Ohio, County of Medina.
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12.3 Severability. In the event of any invalidity of any provision of this Agreement, the parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement, and further agree to substitute for the invalid provision a mutually-agreeable valid provision which most closely approximates the intent of the invalid provision.
12.4 Headings. The headings in this Agreement are for the convenience of reference only and have no legal effect.
12.5 No Third Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party (including Users). Only the parties to this Agreement may enforce it.
12.6 Assignment. Licensee may not assign, sublicense, delegate or transfer any portion of its rights or responsibilities under this Agreement by operation of law or otherwise to any subsidiaries or affiliates thereof, or to any other party, even in connection with a sale of this business.
MobileInspection.com may assign, sublicense, delegate or transfer all or any portion of its rights or responsibilities under this Agreement by operation of law or otherwise to any subsidiaries, affiliate, or buyer thereof. Any assignment of this Agreement by MobileInspection.com in connection with a sale of this business shall relieve MobileInspection.com from any further liability hereunder. All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns.
12.7 Relationship. Each party hereto is an independent contractor, and neither party is, nor will claim to be, a legal representative, partner, franchisee, agent or employee of the other. This Agreement sets forth MobileInspection.com’s entire liability and Licensee’s exclusive remedies relating to this Agreement and the Service provided to Licensee under this Agreement. Licensee’s use of any third party’s services or content accessed through the Service shall be governed by any agreement entered into between Licensee and such third party, and MobileInspection.com shall have no liability relating thereto.
12.8 Force Majeure. MobileInspection.com shall not be liable to the Licensee for a failure or delay in its performance of any of its obligations under this Agreement to the extent that such failure or delay is caused by circumstances beyond its reasonable control or by events such as fire, riot, flood, labor disputes, natural disaster, regulatory action, internet or telecommunications failures, terrorist acts, or other causes beyond such party’s reasonable control, provided that the non-performing party gives notice of such condition and continues or resumes its performance of such affected obligation to the maximum extent and as soon as reasonably possible, and provided further, that either party may terminate this Agreement upon delivery of written notice to the other party if such condition continues for a period in excess of sixty (60) days.
12.9 Export Restrictions. Licensee acknowledges and agrees that the Services are based on licensed software that is subject to restrictions and controls imposed by the Export Administration Act of 1979, as amended, and the Export Administration Regulations there under (“the Acts”). Licensee agrees and certifies that neither the licensed software nor any direct product thereof, including the Services, is being or will be used for any purpose prohibited by the Acts. Licensee further agrees and certifies that neither the licensed software nor any direct product thereof, including the Services, will be exported to (i) the following countries which are currently subject to U.S. trade embargoes: Cuba, Iran, Libya, North Korea, Sudan and Syria or (ii) persons or entities on the U.S. “Denied Persons List”, “Specially Designated Nationals List” and “Entities List”. In addition, Licensee certifies that Licensee is not a citizen or permanent resident of any of the above listed countries and that Licensee is not on the U.S., “Denied Persons List”, “Specially Designated Nationals List” or the “Entities List”.