MAIN SERVICES AGREEMENT
Last Updated on: April 26, 2024
This Main Services Agreement (“Main Services Agreement”) provides the terms under which MOBLY, INC., a Delaware corporation (the “Company”), will provide services (“Services”) to an entity or individual (“Customer” or “you”) pursuant to a purchase order, statement of work or other written services agreement, whether electronic or otherwise (“Services Agreement”), entered into by Company and Customer, which expressly refers to or incorporates the underlying terms and conditions. By clicking “Agree” to these Terms when prompted, Customer hereby agrees as follows: (1) that you are at least 18 years of age and are legally authorized to sign on behalf of and have authority to bind the Customer, and (2) you agree to be bound by all terms and conditions set forth herein (the “Terms”). Both Company and Customer may be referred to as a “Party” and collectively as the “Parties.”
Terms & Conditions
The “Effective Date” of this Main Services Agreement is the date upon which you agree to be bound by these Terms.
1. General. Each Services Agreement and this Main Services Agreement, the Terms (including the documents incorporated by reference) (collectively, the “Agreement”) comprise the entire agreement between the Parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement expressly limits acceptance to the terms stated herein. Any
additional or different terms or conditions, whether in a quotation, acknowledgement, acceptance, invoice or otherwise, are rejected and will not apply to the applicable Services Agreement unless expressly assented to in writing by an authorized representative of the Parties, notwithstanding any contrary language that the acceptance or use of, or payment for, the purchase of Services or any other act or failure to act by Company, constitutes acceptance of any different or additional terms or conditions. Fulfillment of part or all of the applicable Services Agreement constitutes acceptance of these Terms. All capitalized terms used herein but not otherwise defined herein shall have the respective meanings given to them in the
applicable Services Agreement.
2. Services. Company will perform its obligations to Customer in accordance with the specifications set forth in the applicable Services Agreement, which will set forth the Services provided under this Agreement.
3. Access to the Services.. Upon mutual execution, each Services Agreement shall be incorporated into and form a part of the Agreement. For each Services Agreement, subject to Customer’s compliance with the terms of this Agreement (including any limitations and restrictions set forth on the applicable Services Agreement), Company grants Customer a nonexclusive, limited, personal, nonsublicensable, nontransferable right to access and use the Company’s Service(s) described in such Services Agreement during the term set forth in such Services Agreement. Customer may only use the Services for its internal business purposes and only in accordance with Company’s applicable official user documentation (the "Documentation").
4. Fees; Payment. Customer shall pay Company the fees applicable to the subscription selected by Customer via the Subscription Page (the “Subscription”) or the fees otherwise set forth in each Services Agreement (the “Fees”). Customer shall provide Company with valid and updated credit card information. Customer authorizes Company to charge such credit card for all Services listed in the Services Agreement for the initial subscription term and any renewal subscription term(s) as set forth in the section titled “Term; Termination.” Such charges shall be made in advance in accordance with the Subscription or with any different billing frequency stated in the applicable Services Agreement. If the Services Agreement specifies that payment will be by a method other than a credit card, Company will invoice Customer in advance and otherwise in accordance with the relevant Services Agreement. Payments will be payable in U.S. dollars and are due within thirty (30) days from the invoice date (if applicable). Company currently uses third party service payment processors, and, by using the Services, Customer agrees to be bound by such third party payment processor’s terms and conditions, if any. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer shall be responsible for all taxes associated with the Services (excluding taxes based on Company’s net income). All Fees paid are non-refundable and are not subject to set-off. Company reserves the right to amend the Fees upon renewal of the then-current term by providing notice to Customer. Customer’s continued use of the Services following the effective date of such amendment to the Fees constitutes acceptance of the amended fees. If Customer does not agree to the amended Fees, then Customer may not use the Services.
5. Customer Intellectual Property and Data. For purposes of this Agreement, “Customer Data” shall mean all data, information and materials provided, uploaded, or submitted by Customer to the Services. Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer acknowledges and agrees that Company may use and display Customer Data for to provide the Services and perform under this Agreement. In the event that, during the performance of Services hereunder, the Company receives, observes or otherwise comes into possession of personal information that is protected by any applicable privacy laws, the Company agrees to fully comply with such laws, as they may be applicable to the Company based on the nature of the Services, including without limitation, maintaining the confidentiality of any protected information, and that, whether or not such laws apply to the Company based on the nature of the Services, the Company will not (i) use such information other than as necessary to perform the Services or as otherwise directed by Client or (ii) disclose such information to any third party, unless otherwise permitted in the applicable SOW.
6. Company Intellectual Property. As between the Parties, Company retains all right, title, and interest in and to (a) the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Company for the purposes of this Agreement, including any copies and derivative works of the foregoing and (b) Company’s Confidential Information (as defined below). No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer may (but is not obligated to) provide suggestions, comments or other feedback to Company with respect to the Services (“Feedback”) and Company may freely use and exploit such Feedback. Company may derive from the use and operation of the Services volumes, frequencies, bounce rates, performance metrics and other data that does not identify any natural person (“Usage Data”), and may use and disclose Usage Data to analyze and improve the Services and for other lawful business purposes.
7. Customer Responsibilities. Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Services; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (iv) use the Services for the benefit of a third party, except with respect to Customer’s clients as contemplated by the Services; (v) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (vi) use the Services to build an application or product that is competitive with any Company product or service; (vii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (viii) bypass any measures Company may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Service); or (ix) “crawl,” “scrape,” or “spider” any page, data, or portion of or relating to the Services (or any information, data or content made available through the Services), whether through use of manual or automated means. Customer is solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data. Customer shall ensure (and is solely responsible for ensuring) that it has given all notices, and obtained all rights, permissions and consents, as are necessary to use the Services and to provide Customer Data to Company for use as contemplated by this Agreement. Customer is solely responsible for all of Customer’s activity in connection with the Services and all activity associated with the Services’ user accounts provisioned to Customer, including but not limited to uploading Customer Data onto the Services. Customer shall use the Services in compliance with this Agreement and all applicable local, state, national and foreign laws, treaties and regulations and all applicable rules and professional standards in connection with Customer’s use of the Services (including those related to email marketing, data privacy, international communications, export laws and the transmission of technical or personal data laws). Customer shall not use the Services in a manner that is harmful, deceptive, threatening, harassing or obscene or that violates any third party intellectual property, contractual or other proprietary rights. Customer shall ensure that Customer Data do not contain any of the following categories of sensitive data (a) social security number, passport number, driver’s license number, or similar identifier (or any portion thereof); (b) credit or debit card number (other than the truncated (last four digits) of a credit or debit card), financial information, banking account numbers or passwords; (c) employment, financial, genetic, biometric or health information; (d) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation; (e) account passwords, mother’s maiden name, or date of birth; (f) criminal history; (g) any other information or combinations of information that falls within the definition of “special categories of data,” “sensitive data” or “sensitive personal information” or any applicable law or regulation relating to privacy or data protection; or (h) personal information of children under the age of 16. Customer shall defend, indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including reasonable attorneys’ fees) in connection with any claim or action that arises from any violation of the foregoing or otherwise from Customer’s use of Services.
8. Confidentiality. The Parties acknowledge and agree that each Party (the “Receiving Party”) may have access to certain confidential information (“Confidential Information”) of the other Party (the “Disclosing Party”). “Confidential Information” means all information provided by the Disclosing Party to the Receiving Party hereunder that is (i) proprietary and/or non-public information related to the business activities of the Disclosing Party, its subsidiaries, and its affiliates, including any business plans, strategy, pricing, or financial information; (ii) the terms of this Agreement; and/or (iii) any other information that is designated as confidential by the Disclosing Party. Confidential Information of Company shall also include the Services and Usage Data, and Confidential Information of Customer shall also include Customer Data. Confidential Information does not include any information that is or was, at the time of the disclosure: (a) generally known or available to the public; (b) rightfully disclosed to the Receiving Party by a third party; (c) already in Receiving Party’s possession prior to the date of receipt from Disclosing Party without restriction; (d) independently developed by the Receiving Party without reference to or use of Disclosing Party’s Confidential Information, provided in each case that such information was not obtained by the Receiving Party as a result of any unauthorized or wrongful act or omission, or breach of this Agreement, or breach of any legal, ethical or fiduciary obligation owed to the Disclosing Party, or (e) anonymized and de-identified from its original form. At all times, the Receiving Party shall: (1) use the same standard of care to protect the Confidential Information as it uses to protect its own confidential information of a similar nature, but not less than a commercially reasonable standard of care, (2) not use the Disclosing Party’s Confidential Information other than as permitted under this Agreement, and (3) not disclose, distribute, or disseminate the Confidential Information to any third party, except as permitted by this Agreement or to the extent necessary to comply with applicable law.
9. Third-Party Services. Customer acknowledges and agrees that the Services may operate on, with or using application programming interfaces (APIs) and/or other services operated or provided by third Parties (collectively, “Third-Party Services”), including without limitation through integrations or connectors to such Third-Party Services that are provided by Company. Except as expressly provided in this Agreement, Company is not responsible for the operation of any Third-Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third-Party Services. Company does not make any representations or warranties with respect to Third-Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.
10. Term; Termination. Unless earlier terminated as provided in this Agreement, this Agreement shall begin on the date of the first Services Agreement and end as of the expiration of the last active Services Agreement. For each Services Agreement, unless otherwise provided therein or earlier terminated as provided in this Agreement, the term of such Services Agreement shall begin as of the date of such Services Agreement and shall continue until the end of the term set forth in such Services Agreement, and shall automatically renew for successive renewal terms of equal duration to the initial term unless either Party provides notice of non-renewal prior to the end of the then-current term, or, in the case of a term longer than one month, at least thirty (30) days prior to the end of the then-current term. Either Party may terminate this Agreement for the other Party’s material breach that remains uncured thirty (30) days (ten (10) days in the case of a one-month term) after the terminating Party provides the breaching Party notice of such breach. Without limiting the foregoing, Company may suspend Customer’s access to the Services if Customer’s account is more than sixty (60) days past due. All provisions of this Agreement that by their nature should survive termination shall survive termination, including without limitation accrued payment obligations, ownership provisions, warranty disclaimers, indemnification obligations and limitations of liability. 11. Indemnification . Each Party (“Indemnitor”) shall defend, indemnify, and hold harmless the other Party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim that (a) in the case of Customer as Indemnitor, the Customer Data or Customer’s use of the Services infringes, violates, or misappropriates any third party intellectual property or proprietary right or violates any applicable law, or (b) in the case of Company as Indemnitor, the Services infringe, violate, or misappropriate any third party intellectual property or proprietary right. Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (i) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnification obligations if the Indemnitor is materially prejudiced by such failure); (ii) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (iii) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). The foregoing obligations of Company do not apply with respect to the Services or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by Company (including without limitation any Customer Data), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by Company, (iv) combined with other products, processes or materials not provided by Company (where the alleged Losses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Services is not strictly in accordance herewith.
12. Warranty; Disclaimer. Company will provide the Services and any other services provided hereunder in a professional and workmanlike manner. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND PROFESSIONAL SERVICES (IF ANY) ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. OUTPUTS MAY CONTAIN INACCURATE OR INCOMPLETE INFORMATION AND COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES AND PROVIDES NO INDEMNITIES WITH RESPECT THERETO; CUSTOMER AND ITS END USERS ARE RESPONSIBLE FOR ALL DECISIONS MADE, ADVICE GIVEN, ACTIONS TAKEN, AND FAILURES TO TAKE ACTION BASED ON THEIR USE OF THE SERVICES. CUSTOMER IS ADVISED TO SAFEGUARD CUSTOMER DATA AND ITS OTHER DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE SERVICES OR DOCUMENTATION.
13. Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND FOR CUSTOMER’S BREACH OF THE SECTION TITLED “RESTRICTIONS,” IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (A) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), OR (B) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO COMPANY HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
14. Paid Pilot or Opt Out Period(s). If Customer signed up for the Services under a paid pilot (any Services plan authorizing use by Customer for no more than thirty (30) days), such Services shall expire on the last day of such paid pilot period or opt out period specified in the Services Agreement. If Customer signed up for the Services under a normal Services plan with an opt out period, unless Customer has terminated this Agreement on or prior to the last day of such opt out period, this Agreement shall automatically continue in accordance with the terms of this Agreement and Company may charge Customer for the Services in accordance with the payment terms set forth under this Agreement. Additional terms and conditions may appear on the Services Agreement. Any such additional terms and conditions are hereby incorporated into this Agreement by reference and are legally binding. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, DURING THE PAID PILOT OR OPT OUT PERIOD(S), THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY AND COMPANY SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE PAID PILOT OR OPT OUT PERIOD(S) UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE COMPANY’S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE PAID PILOT OR OPT OUT PERIOD(S) SHALL NOT EXCEED THE ACTUAL AMOUNT PAID BY CUSTOMER. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO COMPANY AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SERVICES DURING THE PAID PILOT OR OPT OUT PERIOD(S), ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER. CUSTOMER SHALL REVIEW THE APPLICABLE SERVICES AGREEMENT DURING THE PAID PILOT OR APPLICABLE OPT OUT PERIOD(S) TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SERVICES BEFORE MAKING A PURCHASE.
15. Changes to Terms & Conditions . Company reserves the right, in its sole discretion, to update, change or replace any part of these Terms. The most current version of these Terms is posted at https://www.getmobly.com/termsofuse and it is Customer’s responsibility to check Company’s website periodically for changes. If the changes include material changes that affect Customer’s rights or obligations, Company will notify Customer of the changes by reasonable means, which could include notification through the Services or via email. Customer’s continued use of the Services following the effective date of any changes to these Terms constitutes acceptance of those changes. If Customer does not agree to the new Terms, then Customer may not use the Services.
16. How to Contact Company. Please contact Company at support@getmobly.com with any questions or concerns about the Services or these Terms & Conditions.
17. Miscellaneous. This Agreement represents the entire agreement between Customer and Company with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Company with respect thereto. In the event of a conflict between these Terms & Conditions and any Services Agreement, such Services Agreement shall govern. The Agreement shall be governed by and construed in accordance with the laws of the State of Utah, excluding its conflicts of law rules, and any dispute between the Parties related to the subject matter of this Agreement will be resolved by binding arbitration in the English language in the State of Utah under the rules of JAMS; the decision of the arbitrator will be enforceable in any court. All notices under this Agreement will be sent via email. All notices to Company must be sent to support@getmobly.com, and all notices to Customer must be sent to the email address set forth in the applicable Services Agreement, or in each case, at such other Conditions and any Services Agreement, such Services Agreement shall govern. The Agreement shall be governed by and construed in accordance with the laws of the State of Utah, excluding its conflicts of law rules, and any dispute between the Parties related to the subject matter of this Agreement will be resolved by binding arbitration in the English language in the State of Utah under the rules of JAMS; the decision of the arbitrator will be enforceable in any court. All notices under this Agreement will be sent via email. All notices to Company must be sent to support@getmobly.com, and all notices to Customer must be sent to the email address set forth in the applicable Services Agreement, or in each case, at such other Conditions and any Services Agreement, such Services Agreement shall govern. The Agreement shall be governed by and construed in accordance with the laws of the State of Utah, excluding its conflicts of law rules, and any dispute between the Parties related to the subject matter of this Agreement will be resolved by binding arbitration in the English language in the State of Utah under the rules of JAMS; the decision of the arbitrator will be enforceable in any court. All notices under this Agreement will be sent via email. All notices to Company must be sent to support@getmobly.com, and all notices to Customer must be sent to the email address set forth in the applicable Services Agreement, or in each case, at such other email address as may be given in writing by either Party to the other in accordance with this Section. Notice will be treated as given on receipt, as confirmed by written or electronic records. Except as otherwise provided herein, no modification or amendment of any provision of this Agreement shall be effective unless agreed by both Parties in writing, and no waiver of any provision of this Agreement shall be effective unless in writing and signed by the waiving Party. Except for payment obligations, neither Party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such Party’s reasonable control, including without limitation the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; pandemics; epidemics; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither Party may assign any of its rights or obligations hereunder without the other Party’s consent; provided that (i) either Party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such Party’s business relating to this Agreement, and (ii) Company may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither Party has any authority of any kind to bind the other in any respect. Customer agrees to allow Company to use and display Customer’s name and logo on Company’s website and in Company’s promotional materials to identify Customer as a customer. In any action or proceeding to enforce rights under this Agreement, the prevailing Party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. The failure of either Party to act with respect to a breach of this Agreement by the other Party shall not constitute a waiver and shall not limit such Party’s rights with respect to such breach or any subsequent breaches.