By clicking on the “PLACE ORDER” button, you unconditionally agree to subscribe to the Software as a Service services (“Services”) offered by MOBSTAC INC.(“MobStac”) with effect from the Effective Date (as defined below), upon the terms and conditions set forth hereunder.
2. ACCEPTABLE USE. While availing of the Services, you shall not: (i) transmit content that violates the privacy, intellectual property or other proprietary rights of MobStac or any other party; (ii) transmit viruses, trojan horses, worms, malicious code, or other harmful or destructive content; (iii) violate this Agreement, or any applicable law; (iv) attempt to probe, scan, test, re-engineer or violate the security features of the Services or of any associated system or network, or to obtain unauthorized access to materials or other information stored thereon; (v) attempt to 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 offerings; (vi) attempt to interfere with or disrupt the integrity or provision of the Services or the data contained therein; (vii) exploit or present minors in a sexual way, or promote adult sexual services, representing a private person offering to trade or sell drugs, firearms, or other hazardous materials, including any indication of promotion of hate speech; (viii) remove any copyright, trademark, or other proprietary notices from any portion of the Services; (ix) use meta tags, hidden text or metadata with MobStac’s trademark, logo, URL or product name without MobStac’s prior written consent; (x) use MobStac’s user information to forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered source-identifying information; (xi) share the login credentials used for availing the Services with any third party; and/or (xii) attempt to interfere with the use of the Services, whether directly or indirectly, by any other manner not expressly mentioned above.
3. COMPLIANCES. You hereby agree to comply with, and cause your users (each, an “End-User”) to comply with the terms hereof. In case of any breach of any applicable security, integrity or privacy requirements, you shall bring the same to the attention of MobStac at firstname.lastname@example.org, so that appropriate remedial action, if any, can be undertaken. You also agree to indemnify, defend and hold harmless MobStac against any misuse of the Services, either by you or by any of the End-Users, or in the event of any breach of any applicable security, integrity or privacy laws or regulations, either by you or by any of the End-Users. You shall be solely responsible for making backup copies of any and all content uploaded while availing of the Services and accordingly, MobStac shall not be liable for any loss of or damage to such content.
4. FEES. You agree to pay MobStac the fees according to the specified plan and Services being availed by you. Such fees are exclusive of all applicable taxes in any jurisdiction, which shall be borne by you at actuals. However, taxes accruing on MobStac’s income shall be borne by MobStac. All payments shall be made in advance. Delay or failure to pay the agreed fees shall be a ground for suspending or terminating the Services, without any further notice.
5. MODIFICATIONS TO SYSTEM & UPDATES. MobStac may, in its sole discretion reengineer its network components and/or change the location of its hosting centers. MobStac may also modify and/or replace technology and/or service architectures, without adversely impacting the Services. In addition thereto, MobStac may, from time to time, provide enhancements or improvements to the features/functionality of Services, which may include patches, bug fixes, updates, upgrades and other modifications (collectively, "Updates"). Such Updates may modify or delete certain features and/or functionalities of the Services. To this end, you hereby agree that MobStac has no obligation to (i) provide any Updates, or (ii) continue to provide or enable any particular features and/or functionalities of Services to you and/or the End-Users. You further agree that all Updates will be: (i) deemed to constitute an integral part of the Services, and (ii) subject to the terms of this Agreement.
6. SALE OF MOBSTAC HARDWARE. In the event you are desirous of procuring MobStac’s hardware pertaining to, including without limitation, beacon or near-field communication technology (each, a “Product”), you shall place an order on MobStac and MobStac shall supply such Products on terms and conditions mutually agreed between MobStac and you (unless otherwise specifically provided for herein). Shipments of the Products shall be made FCA (Incoterms 2010) MobStac’s or its affiliate’s facility (“Point of Origin”). Notwithstanding the foregoing, title to the Products and risk of loss will pass you upon delivery to the carrier at the Point of Origin. For shipments outside the United States of America, you shall be responsible for clearing the Product shipment for import and shall pay applicable duties, taxes and other charges, if any, upon import. You acknowledge and agree that the scheduled shipment dates mentioned in the invoice, if any, are purely indicative, and MobStac shall not liable for any loss, damage or penalty on account of such delay. If the Products supplied by MobStac do not function to according to its specifications and any documentation provided thereto, then you may contact MobStac via the contact information provided herein within 15 days of delivery of the concerned Product, failing which, the Products delivered shall be deemed accepted by you. For such non-conforming Products, MobStac may, your option, arrange for either: (i) replacement of the Products within a commercially reasonable time period; or (ii) a refund of the amounts paid for the Products, less shipping costs.
7. SDK. If you are desirous of availing of the Services in conjunction with the Products and its mobile application (“Purpose”), MobStac hereby grants to you a nonexclusive, nontransferable, royalty-free license to use the software development kit (“SDK”).
9. ACCOUNT ACCESS. To enable the provision of the Services, you and/or End-User shall register for and maintain an active account (“Account”). Each End-User must be at least 18 years of age. MobStac shall, in no manner whatsoever, be liable for any violation of the foregoing. You and/or End-User shall be responsible for all activity that emanates from your Account and End-User’s Account, as the case may be.
10. YOUR/END-USER REQUIREMENTS & CONDUCT. You hereby agree to not modify, create derivative works of, decompile or otherwise attempt to extract the underlying source code and object code pertaining to the Software. You shall ensure that you and your End-Users will not upload, share, or otherwise distribute any electronic data, text, messages or other materials, including personal data of such End User submitted in connection with your use and/or End-User’s use of the Service(s) (“Service Data”) in violation of Clause 2 above. MobStac has the right at its sole discretion to remove any Service Data of any kind that, in its judgment, does not comply with the terms hereof and/or any other rules of user conduct, or is otherwise harmful, objectionable, or inaccurate. MobStac shall not be responsible for any failure or delay in removing such content.
11. SUPPORT. By creating an Account, you agree that MobStac may send you and/or the End-Users email communications necessary to give effect to the terms hereof. You and/or the End-User may opt-out of receiving such communication by writing to MobStac at email@example.com. You acknowledge that opting out of such communication may impact your and the End-Users use of the Services. MobStac shall provide such support and information as you and/or the End-User may require in the course of availing of the Services, defining specific use-cases. The support may be provided via phone and/or email, the contact details whereof shall be shared separately with you and each End-User.
12. INTELLECTUAL PROPERTY RIGHTS. MobStac and/or its licensors own worldwide intellectual property rights in the: (a) Software and user interfaces used for providing the Services; (b) Products; (c) SDK; and (b) all trademarks, service marks and logos of MobStac (“MobStac IP”). Except for the right to access the Services as expressly set forth herein and/or the Purpose, no right or license is granted hereunder with respect to the MobStac IP. Further, you shall not, and shall not permit a third party to: (a) use, copy, adapt, modify or create derivative works of the MobStac IP; (b) where applicable, reverse-engineer, disassemble, or decompile the MobStac IP or otherwise attempt to determine its underlying source code; (b) sell, lease, sublicense, rent, lend or provide any portion of the MobStac IP to any third party or allow the use of the MobStac IP by, or for the benefit of any person other than your End-Users.
13. OWNERSHIP OF CLIENT DATA. MobStac may collect personal information about you and/or End-Users (“Client Data”) for the sole purpose of providing the Services. Subject to the provisions of this Clause 12, you or the End-User (as the case may be) retain ownership of and control over the Client Data MobStac collects through the provision of the Services, and in no event whatsoever shall MobStac share such Client Data, or use such Client Data for the benefit of, MobStac’s other customers. You hereby expressly grant, and you represent and warrant that you have all rights necessary to grant, to MobStac a nonexclusive, royalty-free, worldwide license during the subsistence of this Agreement to use, transmit, distribute, modify, reproduce, display, and store the Client Data for the purposes of: (i) providing the Services as contemplated herein; and (ii) enforcing MobStac’s rights hereunder.
14. USE OF CLIENT DATA. Notwithstanding anything to the contrary herein, you hereby specifically agree that MobStac may collect, analyze, and use Client Data and data derived thereof, including de-identified, aggregated or anonymized Client 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 Client Data, such data will be aggregated or anonymized to reasonably avoid identification of a specific End-User. You hereby further agree that MobStac will have the right, both during and after the subsistence of this Agreement, to use, store, transmit, distribute, modify, copy, display, sublicense, and create derivative works of the anonymized, aggregated data.
15. 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. Such usage data: (a) is not Client Data; (b) does not include any personal information about you or the End-Users; and (c) is owned by MobStac.
17. WARRANTY DISCLAIMER. Mobstac hereby disclaims all express and implied warranties, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, non-infringement or any warranty arising from the course of performance or course of dealing. mobstac does not warrant that the services and/or usage of the products will be free of interruptions, errors, bugs, viruses or security problems or that they will meet your and/or the end-user’s requirements. you agree that the entire risk arising out of your and the end-user’s use of the services and/or products, and any service requested in connection therewith, remains solely with you, to the maximum extent permitted under applicable law.
18. INDEMNITY. You hereby agree to defend, indemnify and hold MobStac, its affiliates, subsidiaries, directors, officers, employees, agents, partners and licensors (each, an “Indemnified Party”) harmless from and against any claim, disputes or demand, including reasonable attorneys’ fees, made by a third party, relating to, or arising from: (A) violation by you and/or the End User of any applicable law and/or third party right, including without limitation to any right to privacy, publicity rights or intellectual property rights; and/or (B) wrongful or improper use of the Services and/or the Products by you and/or the End User. The indemnification obligation set forth above will survive the termination or expiration of this Agreement.
19. MOBSTAC INDEMNITY. MobStac hereby agrees to defend, indemnify and hold you, your directors, officers and/or employees harmless from and against any claims, disputes or demands, including reasonable attorneys’ fees, made by a third party, relating to, or arising from MobStac’s violation of any third party’s intellectual property right (“Third Party IP Claim”). Notwithstanding the foregoing, MobStac shall have no liability or obligation hereunder with respect to any Third Party IP Claim arising directly or indirectly from: (a) any modification or unauthorized use of the deliverables provided by MobStac in connection with the Services (“Deliverables”); or (b) any breach of this Agreement by you and/or End-User(s). If the provision of the Services/Deliverables/Products become the subject matter of any Third Party IP Claim that does not fall within the aforesaid exclusions, MobStac may, at its option: (i) obtain for you the right to continue using the affected portion of the Deliverables/Services/Products; or (ii) replace or modify the affected portion of the Deliverables/Services/Products. If either of the aforesaid options are not reasonably available, MobStac may immediately terminate this Agreement by giving a prior written notice of 15 (fifteen) days to you. This paragraph states MobStac’s sole and exclusive liability with respect to any infringement (whether actual or alleged) of intellectual property rights by the provision of Services and/or use of the Deliverables and/or Products.
20. EXCLUSION & LIMITATION OF LIABILITY. In no event will mobstac or its affiliates, licensors or subcontractors be liable, whether in contract, tort (including negligence), breach of a statutory duty or otherwise, for any: (i) pure economic loss; (ii) loss of actual or anticipated profits; (iii) loss of business; (iv) loss of anticipated savings; (v) loss of business opportunity; (vi) loss of reputation, depletion of brand value, loss of goodwill or like loss; (vii) loss, theft or corruption of data; or (viii) indirect, special and consequential losses arising out of or in connection with the services, even if advised of the possibility of such losses. mobstac’s entire liability arising out of or in connection with the services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, is limited to and shall not exceed: (a) the fees actually paid to mobstac for the services for a period of 3 (three) months prior to the date on which the claim arose; or (b) the price paid for the non-conforming products wherefrom a claim arose.
21. TERM, RENEWAL & TERMINATION. The Services shall commence from the date of receipt of your payment to MobStac (“Effective Date”) and will continue to be in effect for the term mentioned in the specified plan or Services availed by you (including any auto-renewed term thereof) unless otherwise terminated or cancelled by you or MobStac. You or MobStac may terminate this Agreement at any time by providing a prior written notice of 30 days to the other party. MobStac may suspend or terminate the Services for non-payment of fees, or violation of the terms of this Agreement, or if your and/or an End-User’s use of the Services and/or Products poses a risk to or will be damaging or disrupting to the systems or data of MobStac or other users/client. Upon termination for any reason, (i) MobStac shall disable your and/or the End-User’s access to the Services and destroy any of your data that may be in the systems providing the Services; (ii) any amounts due and payable by you to MobStac shall be payable forthwith; and (iii) MobStac shall not be liable to refund any amounts paid by you as advance for the Services and/or Products.
22. MISCELLANEOUS PROVISIONS
22.1 FORCE MAJEURE. Neither you nor MobStac will be in default if your or its failure to perform any obligation hereunder (other than any payment obligation) is caused by supervening conditions beyond your or its 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 calendar days, then either you or MobStac may terminate this Agreement without incurring additional liability.
22.2 ASSIGNMENT. Neither you nor MobStac 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.
22.3 NOTICES. In any case where a notice or another form of communication is to be given or made pursuant to any provision of this Agreement, such notice or communication shall be issued to the email provided by you in the your order and to firstname.lastname@example.org in case of MobStac. Either party may, at any time change, the abovementioned address by giving written notice of such change of address to the other parties.
22.4 SURVIVAL. Your or MobStac’s obligations under this Agreement, which by their nature would continue beyond the termination, cancellation or expiration of this Agreement shall survive termination, cancellation or expiration of this Agreement.
22.5 WAIVER. Your or MobStac’s failure to exercise any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of any such rights.
22.6 ENTIRE AGREEMENT. This Agreement is the entire agreement between you and MobStac as to the matters set forth herein and supersedes any such prior agreement or communication. Any subsequent waiver or modification of this Agreement, or any part of it, shall only be effective if reduced to writing and signed and dated by you and MobStac.
22.7 SEVERABILITY. If any provisions of this Agreement become invalid, the validity of the remaining provisions shall not be affected.
22.8 GOVERNING LAW & JURISDICTION. The Agreement shall be governed by and construed in accordance with the substantive laws of the State of New York and the courts at New York City shall have exclusive jurisdiction.