TERMS OF SERVICE
By creating the developer account at our website, you (the “Customer”) hereby accept to be bound by the
terms and conditions set out hereunder.
1.1. “MobStac” means MobStac Inc., located at 25 Broadway, New York, NY, United States, and its subsidiaries or affiliates.
1.2.“MobStac Solution” shall mean and include: (i) the software development kit (“SDK”) licensed to the Customer; and (ii) access to the server software application, viz. “Beaconstac”, by the Customer; so as to enable the Customer to avail of the Services;
1.3.“Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of minutes during the month in which the MobStac Solution, as applicable, was in the state of “Unavailable.” Monthly Uptime Percentage measurements exclude downtime resulting directly or indirectly from any MobStac Exclusion;
1.4.“MobStac Exclusions” shall mean any unavailability, suspension or termination of MobStac Solution performance: (i) caused by factors outside of MobStac’s reasonable control, including any force majeure event or Internet access or related problems beyond the demarcation point of the MobStac Solution; (ii) that results from any actions or inactions of the Customer or any third party, including failure to acknowledge a recovery volume; (iii) that results from the Customer’s equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within direct control of MobStac); (iv) that results from any maintenance provided; or (v) arising from MobStac’s suspension and termination of the Customer’s right to use MobStac Solution in accordance with the terms hereof;
1.5. “Party” or “Parties” shall mean the Customer and MobStac, individually or collectively, as the case may be;
1.6. “Purchase Order” shall mean the mutually acceptable purchase order placed by the Customer for the MobStac Solutions and/or additional services (as per Clause 6 below) via MobStac’s designated website;
1.7. “Terms and Conditions” shall mean the terms and conditions pertaining to the use and access of Beaconstac and the provision of the Services, as set out herein below;
1.8. “Services” shall mean the services availed by the Customer from MobStac through the MobStac Solutions; and
1.9. “Unavailable” means that MobStac servers servicing traffic either do not respond at all or respond erroneously with unexpected results.
2. SERVICE LEVEL TERMS
2.1. MobStac will use commercially reasonable efforts to ensure that the Services are available with a Monthly Uptime Percentage of at least 99.0%, in each case during any monthly billing cycle.
3. USE OF SDK
3.1. The MobStac Solution shall include the SDK to enable the Customer to avail of the Services. Accordingly, MobStac hereby licenses the Customer to use the SDK for the sole and limited purpose of integrating the Customer’s proprietary mobile application (“Application”) with Beaconstac.
4. USER GUIDELINES
4.1. The Customer agrees that it shall:
- 4.1.1. avail of the Services and ensure that the end-users of its Application do so in accordance with terms set out in this Clause 4;
- 4.1.2. not sell, resell, transfer, assign, license, sublicense, pledge, lease, rent, distribute, timeshare, or share or otherwise commercially exploit or make the Services available to or for the benefit of any third party, other than the bonafide end-users of its Application;
- 4.1.3. not modify, disassemble, decompile, “unlock,” reverse engineer or in any manner decode the MobStac Solutions, including the SDK, or use or attempt to use the SDK, directly or indirectly, for any other purpose whatsoever;
- 4.1.4. not interfere with or disrupt the integrity or provision of the Services or the data contained therein; and/or
- 4.1.5. not attempt to gain unauthorized access to the Services or its related systems or networks.
5.1. MobStac will provide such support and information as the Customer may require in the course of availing of the Services, defining specific use-cases etc.
5.2. The support shall be provided via phone and/or email, the contact details whereof shall be shared separately with the Customer.
6. ADDITIONAL SERVICES
6.1. During the term, Customer and/or MobStac may desire a change in the scope of the MobStac Solution. Customer’s and/or MobStac’s requests for changes shall be made in writing and delivered to the Customer or MobStac, as the case may be. The Parties will review the proposed change(s) and determine the effect that the implementation of the change will have on price, schedule, and other terms and conditions pertaining to the MobStac Solutions.
6.2. Upon completion of the review, any changes in price, schedule, or other terms will be documented, as the Parties select, including by way of placing a separate Purchase Order.
7. FEES & PAYMENT TERMS
7.1. In consideration of MobStac: (i) providing and licensing the SDK; and (ii) rendering the Services, through the MobStac Solutions, and the additional services, if any, the Customer hereby agrees to pay MobStac the amounts set out in the concerned Purchase Order at the time of placing the Purchase Order.
7.2. The fees payable to MobStac shall be exclusive of any and all applicable taxes, which shall be borne by the Customer, at actuals.
7.3. Each Party shall bear their respective expenses and shall not be entitled to claim any reimbursement from the other.
8.1. The Customer acknowledges that the MobStac Solutions and any information provided by MobStac to the Customer, including, but not limited to, any training materials, data models, logic diagrams, functional specifications, and instructions incorporate confidential and proprietary information developed or acquired by or licensed to MobStac (“Confidential Information”).
8.2. The Customer will take all reasonable precautions necessary to perpetually keep confidential and safeguard the confidentiality of the Confidential Information, including: (i) those taken by it to protect its own confidential information; and (ii) those which MobStac may reasonably request from time to time. Confidential Information does not include: (i) information already known or independently developed by the Customer, as shown by documents and other competent evidence in its possession; (ii) information in the public domain through no wrongful act of the Customer; or (iii) information received by the Customer from a third party who lawfully in possession of such information and was free to disclose it.
8.3. Upon expiration or termination of a Purchase Order for any reason or at the written request of MobStac during the term of a Purchase Order, the Customer shall promptly return or destroy all the Confidential Information.
9. INTELLECTUAL PROPERTY
9.1. Subject to Clause 9.2 below, each Party acknowledges that ownership of all Intellectual Property Rights existing prior to the date of a Purchase Order or acquired independent of its obligations under a Purchase Order and any additions, modifications or enhancements made thereto will remain with the actual owner or licensor of such intellectual property rights (“Pre-existing Rights”). “Intellectual Property Rights” shall mean and include copyrights, patents, mask works, trademarks, service marks, trade secrets, inventions (whether or not patentable), know how, authors’ rights, rights of attribution, and other proprietary rights and all applications and rights to apply for registration or protection of such rights anywhere in the world.
9.2. Except for any Pre-existing Rights, the Customer understands and agrees that MobStac is the sole and exclusive owner of all the Intellectual Property Rights used in rendering the MobStac Solution and arising in connection with the solutions and Services provided under a Purchase Order. The Customer agrees that it shall not have any right, title or interest in such Intellectual Property Rights.
10. OWNERSHIP OF CUSTOMER DATA
10.1. CUSTOMER DATA. MobStac may collect personal information about the Customer or end-users of the Services (“Customer Data”) for the sole purpose of providing the Services. Subject to the provisions of this Clause 10, the Customer retains ownership of and control over the Customer Data MobStac collects through the provision of the Services, and in no event whatsoever shall MobStac share such Customer Data, or use such Customer Data for the benefit of, MobStac’s other customers.
10.2. CUSTOMER DATA LICENSE GRANT. The Customer hereby expressly grants, and the Customer represents and warrants that the Customer has all rights necessary to grant, to MobStac a nonexclusive, royalty-free, worldwide license during the subsistence of these Terms and Conditions to use, transmit, distribute, modify, reproduce, display, and store the Customer Data for the purposes of: (i) providing the Services as contemplated herein; and (ii) enforcing MobStac’s rights hereunder.
10.3. CUSTOMER’S REPRESENTATION & WARRANTY. In connection with the Customer Data, as of the date hereof, the Customer, during the subsistence of these Terms and Conditions, represents, warrants and agrees that:
- 10.3.1. it has obtained the Customer Data lawfully, and the Customer Data does not and will not violate any applicable laws or a third party’s proprietary, privacy or intellectual property rights or any provision of these Terms and Conditions; and
10.4. CUSTOMER DATA USE. Notwithstanding anything to the contrary herein, the Customer hereby specifically agrees that MobStac may collect, analyze, and use Customer Data and data derived thereof, including de-identified, aggregated or anonymized Customer Data, for purposes of operating, analyzing, improving, or marketing the Services. If MobStac shares or publicly discloses information (e.g., in marketing materials, or in application development) that is derived from Customer Data, such data will be aggregated or anonymized to reasonably avoid identification of a specific customer, user or individual. The Customer hereby further agrees that MobStac will have the right, both during and after the subsistence of these Terms and Conditions, to use, store, transmit, distribute, modify, copy, display, sublicense, and create derivative works of the anonymized, aggregated data.
10.5. SERVICE USAGE DATA. For the sole purpose of providing and improving the Services, MobStac may collect and use data relating to the usage of the Services, including without limitation monitoring and analyzing usage and traffic patterns of its websites and Services. This usage data is: (a) not Customer Data; (b) does not include any personal information about the Customer or the end-users of the Services; and (c) is owned by MobStac.
11. REPRESENTATIONS & WARRANTIES
11.1. Each Party represents and warrants to the other Party that, as of the date of the relevant Purchase Order that:
- 11.1.1. It has full authorisation and power to execute and perform its obligations under the Purchase Order;
- 11.1.2. It has all licences, authorisations, consents, approvals and permits required by all applicable laws to perform its obligations under the Purchase Order; and
- 11.1.3. It shall comply with all applicable laws in performing its obligations under the Purchase Order.
11.2. EXCEPT AS SET FORTH HEREIN, MOBSTAC DOES NOT WARRANT THAT THE MOBSTAC SOLUTIONS AND THE SERVICES WILL BE FREE OF ERRORS OR WILL BE UNINTERRUPTED, OR THAT THE SAME WILL MEET CUSTOMER’S REQUIREMENTS. THE MOBSTAC SOLUTION AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND MOBSTAC SPECIFICALLY DISCLAIMS ALL WARRANTIES AND INDEMNITIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY ARISING FROM THE USE THEREOF.
12. INDEMNITY & LIMITATION OF LIABILITY
12.1. Each Party agrees to indemnify and hold harmless the other Party, its directors, employees, officers and agents from and against any and all claims, costs, damages, fines, attorney fees and similar expenses of whatsoever kind or character, to the extent due to any negligence or willful misconduct of such Party’s personnel and/or on account of any breach of the terms hereof and/or any applicable laws by such Party.
12.2. In no event will either Party be liable to the other for any indirect, consequential, incidental, special or exemplary damages, or any lost profits or opportunities arising out of or in connection with the provision of the MobStac Solutions and the Services or the use or inability to avail of the same, loss of data, theft of data by third parties, the breach of any express or implied warranty, or otherwise in connection with these Terms and Conditions, even if MobStac or the Customer, as the case may be, has been advised of the possibility of such damages.
12.3. In no event will either Party’s liability for any direct damages exceed the fees paid by the Customer to MobStac.
13. TERM & TERMINATION
13.1. Any Purchase Order shall continue for the term set forth therein unless terminated earlier in accordance with this Clause 13.
13.2. Either Party may terminate a Purchase Order at any time by providing a prior written notice of 60 (sixty) days to the other Party, provided however that in the event, the Customer terminates a Purchase Order prior to the expiry of the term of the concerned Purchase Order, the Customer shall pay MobStac all fees due under that Purchase Order for the remaining term thereof.
13.3. Either Party may terminate a Purchase Order, if the other Party breaches a material provision of these Terms and Conditions and/or the concerned Purchase Order and fails to cure such breach within 30 (thirty) days of receipt of written notice of the breach. Notwithstanding the foregoing, a Purchase Order may be terminated immediately by either Party in the event of: (a) breach of Clauses 8 and 9 of these Terms and Conditions; (b) sale by either Party of all or substantially all of the assets, or transfer of a controlling interest to an unaffiliated third party; or (c) insolvency.
13.4. Notwithstanding the termination of a Purchase Order, the Services due under any pending Purchase Order shall be provided in accordance with the terms hereof (and the concerned Purchase Order) unless each such Purchase Order is specifically terminated by the Parties in the manner provided for herein.
14.1. FORCE MAJEURE. Neither Party will be in default if its failure to perform any obligation hereunder (other than any payment obligation) is caused by supervening conditions beyond that Party’s reasonable control, including without limitation, acts of God, civil commotion, strikes, labour disputes, internet service disruptions or slowdowns, vandalism or “hacker” attacks, or governmental demands or requirements, and if such event continues for at least 10 (ten) calendar days, then the other Party may terminate the concerned Purchase Order without incurring additional liability.
14.2. AMENDMENT. Any change in the terms and conditions herein and/or in a Purchase Order, shall be effective only if the same has been mutually agreed to by the Parties in writing.
14.3. ASSIGNMENT. Neither Party shall assign or transfer any of the rights or responsibilities set forth herein without the prior written consent of the other Party hereto, and any purported attempt to do so shall be deemed void.
14.4. NOTICES. In any case where a notice or another form of communication is to be given or made pursuant to any provision hereunder, such notice or communication shall be issued to the Party at the addresses communicated to the other Party separately. Either Party may, at any time change, the address by giving written notice of such change of address to the other Party.
14.5. INDEPENDENT CONTRACTOR. MobStac is an independent contractor, and not an employee, agent, or partner of the Customer. Each Party is solely responsible for the payment of all remuneration, taxes, benefits, and expenses of its employees, agents, and sub- contractors.
14.6. WAIVER. Any failure or delay in enforcing rights or remedies by a Party shall not be deemed a waiver unless the waiving Party states it as a waiver in writing.
14.7. SEVERABILITY. In the event that any provision of these Terms and Conditions is declared illegal or unenforceable by a competent court or administrative agency, the Parties shall in good faith try to promptly mutually agree on a substitute provision which accomplishes the same objectives as the original provision.
14.8. SURVIVAL. Rights and obligations hereunder, which by their nature should survive the termination or expiry and the Customer’s payment obligations shall survive expiry or termination of the concerned Purchase Order.
14.9. GOVERNING LAW. These Terms and Conditions shall be governed by and interpreted in accordance with the laws of the State of New York, USA.
14.10. JURISDICTION. Any dispute arising in connection hereunder shall be subject to the sole and compulsory jurisdiction of the courts in the State of New York, USA.