TERMS AND CONDITIONS
These Terms and Conditions (“Standard Terms”) are part of the Master Services Agreement between
Mobilen Communications, Inc. (“Mobilen”) and Customer, which incorporates these Standard Terms by
reference (the “Agreement”). These Standard Terms apply to the entire Agreement as of the Effective Date.
Capitalized terms used in these Standard Terms but not defined herein will have the meanings attributed
to them in the Agreement.
1. ORDERS
1.1. Orders and Order Specifications Forms. Customer may order Products and Services under the Agreement by entering into an applicable Schedule to the Agreement, or, if a Schedule for such Products or Services has already been entered by the Parties, by placing written, signed orders (each, an “Order”) in such format or via such electronic ordering system as Mobilen may require from time to time.
1.2. Submission and Acceptance of Orders. All orders are subject to acceptance by Mobilen. Mobilen may accept an order by shipping Products or commencing to perform Services. Alternatively, Mobilen may reject Orders or propose alternate terms to Customer. Accepted Orders will be governed by the terms of the Agreement even when they lack an express reference to the Agreement. When Mobilen accepts an Order, Mobilen may notify Customer of Mobilen’s estimated shipping, delivery and installation dates or service commencement dates applicable to the Order.
1.3. Cancellations. Customer may cancel accepted orders subject to the restrictions and payment of the cancellation charges indicated in the applicable Schedule.
1.4. Termination Fees. In the event that Customer terminates the Agreement or any Service Order for any reason other than Mobilen’s uncured breach earlier than the first anniversary thereof, Customer will pay to Mobilen a “Termination Fee” equal to the following: (a) the greater of the MRC (as defined in the Agreement) or the actual average amount of the monthly recurring charges applicable to the terminated Product(s) and/or Service(s), multiplied by the months remaining until the first anniversary of the Service Order(s) for such Product(s) and Service(s); and (b) any early termination fees, monthly charges, costs or other liabilities that Mobilen incurs or will incur to third parties as a result of Customer’s termination. Customer acknowledges and agrees that the Termination Fee is reasonable and necessary to compensate Mobilen for its damages due to Customer’s termination, and is not a penalty.
2. PAYMENT TERMS
2.1. Invoicing and Payment. Unless otherwise stated in a Schedule, all Fees shall be paid by Customer when due in accordance with Section 3 of the Agreement, without the necessity of a formal invoice. Notwithstanding the foregoing, Mobilen may invoice Customer for Fees and other charges applicable to the Products and Services. Customer will pay all bank charges, taxes, duties, levies and other costs and commissions associated with any bank wire transfer or other means of payment.
2.2. Late Payment. Interest will accrue on all amounts not timely paid by Customer in accordance with the Agreement. Mobilen may, as provided in the Agreement and in its sole and absolute discretion, suspend Services and/or performance of Orders if payment is overdue until the overdue amounts are paid in full. Customer will reimburse Mobilen for reasonable attorneys’ fees and any other costs associated with collecting delinquent payments.
2.3. Taxes. All Fees quoted and payable under the Agreement or any Schedule thereto exclude taxes (including by way of example and not limitation, sales taxes, use taxes and/or value added taxes) and any applicable fees assessed by regulatory authorities or pursuant to regulatory programs (including, if applicable and by way of example not limitation, state and federal Universal Service Fund contributions) (collectively, “Taxes and Regulatory Fees”). Customer will pay or reimburse Mobilen for all applicable Taxes and Regulatory Fees (excluding taxes on Mobilen’s net income) levied upon the sale and/or license of Products and/or performance or provision of Services under the Agreement. In the event Customer claims exemption from any Tax or Regulatory Fee, Customer shall provide Mobilen with a valid tax exemption certificate or other certification or documentation reasonably acceptable to Mobilen; provided, that Customer shall remain liable for all applicable Taxes and Regulatory Fees prior to the provision of the documentation required by this Section 2.3, and for any Taxes or Regulatory Fees to which such exemption does not apply.
3. CUSTOMER COOPERATION
3.1. Cooperation. Customer will cooperate with Mobilen as reasonably necessary for Mobilen’s delivery of Products and performance of Services in a timely manner. This cooperation may include things such as: (i) providing Mobilen with access to all facilities, hardware, software, work space, and office support (telephone, internet access, etc), (ii) ensuring that the premises are safe, free of any hazardous materials that affect Mobilen’s performance and have installed necessary power and climate control facilities; (iii) ensuring that Customer has obtained connection to and all necessary permissions or consents from any public or private telephone network to which the Products are connected and any necessary permissions from government authorities and holders of real property rights; (iv) providing Mobilen with designated points of contact, (v) providing necessary telephone numbers and passwords to enable remote access to the Products or Services and notifying Mobilen promptly of any changes made to such numbers or passwords; and (vi) Items that may be identified in a Schedule or statement of work. Customer is responsible for ensuring that any of Customer’s networks and systems that connect with the Services or on which Products are used are adequately secured against unauthorized intrusion or attack and regularly backing up its data and files in accordance with good computing practices. All items to be provided by Customer are at Customer’s expense.
3.2. Third Party Products. It is Customer’s responsibility to obtain any consents and licenses of third parties that may be necessary for Customer to access or use such third parties’ software, hardware, services or products that Customer may use with or access using the Products or Services.
3.3. Failure to Cooperate. If Customer fails to meet its cooperation obligations under this Section or as otherwise provided in the Agreement, Mobilen may delay or suspend its performance and charge Customer for resulting reasonable out-of-pocket expenses. If the failure continues for thirty (30) days following Mobilen’s written request to Customer to meet these obligations, in addition to the remedies above Mobilen may treat the applicable Schedule or Order as if Customer cancelled the same after delivery.
4. CONFIDENTIALITY
4.1. Confidential Information. The term “Confidential Information” means all software (in object and source code form), documentation, any technical information related to Products or Services, any work product and deliverables of Services, the terms (but not the existence) of the Agreement,
financial data, business plans, pricing and discounts and any other information or data, regardless of whether in tangible, electronic or other form, that is not generally available to the public and that the party disclosing designates as confidential. Information communicated verbally will qualify as Confidential Information if designated as confidential or proprietary at the time of disclosure and summarized in writing within thirty (30) days after verbal disclosure. Confidential Information does not include materials or information that (i) is generally known by third parties as a result of no act or omission of the receiving party; (ii) subsequent to its disclosure was lawfully received from a third party having the right to disseminate the information and without restriction on disclosure, (iii) was already known by the receiving party prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality; (iv) was independently developed by the receiving party without use of Confidential Information of the disclosing party; or (v) is required to be disclosed by law, regulation, court or regulatory agency order or other government action, but only to the extent so ordered, and provided that law, regulation, order or action compelling disclosure permits, the receiving party promptly notifies the disclosing party of the pending disclosure in writing so that the disclosing party may attempt to obtain a protective order. In the event of a potential disclosure in the case of subsection (v) above, the receiving party will provide reasonable assistance to the disclosing party where the disclosing party attempts to obtain a protective order.
4.2. Protection of Confidential Information. Each party will protect the secrecy of all Confidential Information received from the other party with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than a reasonable degree of care. Neither party will use or disclose the other party’s Confidential Information, except as permitted in this Section or for the purpose of performing obligations under the Agreement. The confidentiality obligations of each party under the Agreement will survive any expiration or termination of the Agreement or of any Schedule or Order. Upon termination of the Agreement, each party will cease all use of the other party’s Confidential Information and will promptly return, or at the other party’s request destroy, all Confidential Information in tangible form and all copies of Confidential Information in that party’s possession or under its control, and will destroy all copies of Confidential Information on its computers, disks and other digital storage devices. Upon request, a party will certify in writing its compliance in this Section.
5. SOFTWARE LICENSE TERMS
5.1. License Grant.
5.1.1. License. Subject to Customer’s payment of all applicable Fees and compliance with the terms of this Section 5 (“Software License Terms”) and any other license terms and restrictions in the applicable Schedule or Order, Mobilen grants Customer a non-sublicenseable, non-exclusive, non-transferable license to use software provided under the Agreement (“Software”) for Customer’s internal business purposes at the indicated capacity levels and locations in the United States, unless the manufacturer’s End User License Agreement otherwise provides.
5.1.2. Time Limitations. If the parties agree on any time limitations on the licenses in the applicable Schedule or Order, then Customer’s licenses will automatically expire at the end of the specified license term. Otherwise, such licenses will expire upon the expiration or termination of the Agreement, or the applicable Schedule or Order.
5.1.3. All Rights Reserved. Except for the limited license rights expressly granted in these Software License Terms, Mobilen reserves all rights in and to all Software and any modifications thereto, including title, ownership, intellectual property rights, and any other rights and interests. Customer will own only the physical media on which the Software is stored, if any.
5.2. License Restrictions.
5.2.1. Standard Restrictions. To the extent permissible under applicable law, Customer agrees not to: (i) decompile, disassemble, or reverse engineer the Software, (ii) modify or create any derivative works (including, without limitation, translations, transformations, adaptations or other recast or altered versions) based on the Software, or alter the Software, (iii) merge the Software with any other software other than as expressly set forth in the Documentation; (iv) use, copy, sell, sublicense, lease, rent, loan, assign, convey or otherwise transfer the Software except as expressly authorized by the Agreement; (v) distribute, disclose or allow use of the Software, in any format, through any timesharing service, service bureau, network or by any other means, to or by any third parties, (vi) enable any Software features or capacity (e.g. additional storage hours, agents, ports or mailboxes) which Mobilen licenses as separate products without Mobilen’s prior written consent, (vii) violate any obligations with regard to Mobilen’s Confidential Information; or (viii) permit or encourage any third party to do any of the foregoing. To the extent that Customer is expressly permitted by applicable mandatory law to undertake any of the activities listed in the preceding sentence, Customer will not exercise those rights until Customer has given Mobilen twenty (20) days written notice of Customer’s intent to exercise any such rights.
5.2.2. Backup Copies. Customer may create a reasonable number of archival backup copies of the Software on the condition that and as long as Customer (i) stores backup copies separately from any actively used computer programs; (ii) keeps a written record of all backup copies indicating the location of the storage; and (iii) provides such record to Mobilen upon request. Customer will not remove any product identification, trademark, copyright or other proprietary rights notices from the Software and will duplicate and display all names, logos and notices of Mobilen and its licenses on each copy of the Software and Documentation made by Customer.
5.2.3. Compliance. Customer will make the Software available only to employees, contractors, or consultants with a need to know, who are obligated to comply with all license restrictions contained in the Agreement and to maintain the secrecy of the Software and all other Confidential Information. Customer will be responsible for the compliance of all users with those obligations.
5.2.4. Third-Party Software. Any third-party software provided by Mobilen to Customer shall be subject to the license terms and conditions of the owner or licensor of such software. In the event of a conflict between the terms of this Agreement and the license terms and conditions of such third-party software, the license terms and conditions of the owner or licensor shall control.
5.3. Termination of License. Mobilen may terminate the Agreement and the Software licenses granted under it and exercise all available rights by giving written notice, effective immediately, in the event of termination of the Agreement or an applicable Schedule in accordance with the Agreement or these Standard Terms.
6. WARRANTY LIMITATIONS AND DISCLAIMERS
6.1. Warranties and Limitations. Specific warranties for Products and Services, if any, are provided in the applicable Schedules. Except as expressly stated in the applicable Schedule, any warranties are subject to and limited in accordance with this Section 6.
6.1.1. Warranty Exclusions. The warranties do not extend to any damages, malfunctions, or nonconformities caused by (i) Customer’s use of Products in violation of any license granted under the Agreement or in a manner inconsistent with any applicable documentation provided with such Product; (ii) use of non-Mobilen furnished equipment, software, or facilities with Products or Services, (iii) Customer’s failure to follow Mobilen’s installation, operation or maintenance instructions; (iv) Customer’s failure to permit Mobilen timely access, remote or otherwise, to Products; (v) failure to implement all new updates to Software provided under the Agreement; (vi) Products that have had their original manufacturer’s serial numbers altered, defaced or deleted, (vii) Products that have been serviced or modified by a party other than Mobilen.
6.1.2. Products from Other Parties. Customer’s decision to acquire or use products from other parties is Customer’s sole responsibility, even if Mobilen helps Customer identify, evaluate or select them. MOBILEN IS NOT RESPONSIBLE FOR, AND WILL NOT BE LIABLE FOR, THE QUALITY OR PERFORMANCE OF SUCH PRODUCTS OR THEIR SUPPLIERS.
6.2. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN THE APPLICABLE SCHEDULE, ALL PRODUCTS, SERVICES AND SOFTWARE ARE PROVIDED “AS-IS” WITH NO WARRANTIES OR INDEMNITIES OF ANY KIND. NEITHER MOBILEN NOR ITS LICENSORS OR SUPPLIERS MAKES ANY REPRESENTATIONS OR WARRANTIES WITH REGARD TO ANY PRODUCTS OR SERVICES, OR OTHERWISE RELATED TO THE AGREEMENT. MOBILEN DOES NOT WARRANT UNINTERRUPTED OR ERROR FREE OPERATION OF PRODUCTS OR SERVICES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MOBILEN DISCLAIMS ALL WARRANTIES IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE WARRANTY REMEDIES EXPRESSLY PROVIDED IN THE AGREEMENT WILL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES.
7. LIMITATION OF LIABILITY
7.1. Scope. THE LIMITATIONS OF LIABILITY IN THIS SECTION WILL APPLY TO ANY DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE TO THE PARTIES FAIL OF THEIR ESSENTIAL PURPOSE. THE LIMITATIONS OF LIABILITY WILL NOT APPLY, HOWEVER, IN CASES OF WILFUL MISCONDUCT, PERSONAL INJURY OR BREACHES OF MOBILEN’S LICENSE RESTRICTIONS.
7.2. Excluded Types of Damages. IN NO EVENT WILL EITHER PARTY OR ITS RESPECTIVE LICENSORS OR SUPPLIERS HAVE ANY LIABILITY FOR ANY INCIDENTAL, SPECIAL, STATUTORY, INDIRECT OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, DATA, OR COST OF COVER.
7.3. Aggregate Liability. THE LIABILITY OF EITHER PARTY FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH ANY PRODUCTS OR SERVICES PROVIDED UNDER THIS AGREEMENT WILL NOT EXCEED AN AMOUNT EQUAL TO THE AMOUNT OF THE FEES PAID OR PAYABLE FOR THE PRODUCTS OR SERVICES MOST DIRECTLY RELATED TO THE CLAIM FOR THE TWELVE MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
8. INJUNCTIVE RELIEF
8.1. In the event of any violation or threatened violation of the provisions hereof regarding Confidential Information and Software licensing, the aggrieved party may, at its option and at any time during the dispute resolution process, seek injunctive relief in any court of competent jurisdiction (including but not limited to preliminary injunctive relief). The parties acknowledge that each of them has a vital interest in enjoining any violation of confidentiality obligations, including unauthorized use of the Software, because damages would not adequately compensate a party for any infringements of that party’s intellectual property rights.
8.2. No Withholding of Undisputed Amounts. Disputes will not be a basis for withholding payment of any undisputed amounts due under the Agreement or offsetting other amounts due whether or not the disputed Item is on the same order or invoice, nor will any amount be retained in anticipation of a dispute for which notice has not been received.
9. FORCE MAJEURE
Mobilen will not have liability for delays, failure in performance or damages due to fire, explosion, power failures, pest damage, lighting or power surges, strikes or labor disputes, water, acts of God, war, civil disturbances, terrorism, acts of civil or military authorities, inability to secure raw materials, transportation facilities, fuel or energy shortages, performance or availability of communications services or network facilities, or other causes beyond the party’s reasonable control. The foregoing will not apply to payments of Fees for Products delivered or installed, as applicable, or for Services performed.
10. MISCELLANEOUS
10.1. Compliance. Products and any technical information provided under the Agreement are subject to the export laws and regulations of the United States by executing the Agreement, Customer represents that it is not a resident or citizen of any country currently embargoed by the United States (a list of embargoed countries, denied persons and other restrictions is available from the US Department of Commerce). Customer will observe all applicable laws when using the Products and work product of any Services. Customer will indemnify and hold Mobilen and its suppliers harmless from any and all costs, expenses, liabilities and claims based upon Customer’s failure to comply with this Section.
10.2. Non-exclusivity. Unless expressly agreed by the Parties to the contrary, nothing in the Agreement will prevent or restrict either party from entering into agreements for the provision of products and services of the same or similar nature as those provided under the Agreement with any third party.