By signing the Order Form, you (the “Customer”) accept to be bound by the terms and conditions given hereunder;
i. MOBSTAC means MobStac Inc., located at 340 S Lemon Ave #6342, Walnut, CA, 91789, United States, and its subsidiaries or affiliates.
ii. The Customer and MOBSTAC shall hereinafter be individually referred to as “Party” and collectively as “Parties”.
iii. “MobStac Solution” shall mean the set of client and server software applications licensed to the Customer by MOBSTAC.
iv. “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 (as defined below).
v. “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 result from any actions or inactions of the Customer or any third party, including failure to acknowledge a recovery volume; (iii) that result 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 result 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 Order Form (collectively, the “MobStac Exclusions”).
vi. “Unavailable” means that MobStac servers servicing traffic either do not respond at all or respond erroneously with unexpected results.
Any word which has not expressly been defined in these Terms and Conditions shall have the meaning ascribed to it in the Proposal and/or the relevant Order Form.
i. The MobStac Solution shall be subject to acceptance testing by the Customer to verify that it satisfies the acceptance criteria mutually agreed to by MOBSTAC and the Customer in writing before work commences, where possible, but no later than twenty (20) business days in advance of the date identified for completion of the MobStac Solution in the Proposal.
ii. Acceptance testing for the MobStac Solution shall commence within five (5) business days of the date on which MOBSTAC notifies the Customer that MobStac Solution has been completed and is ready for acceptance testing by the Customer, failing which MobStac Solution shall be deemed to be accepted by the Customer.
iii. Acceptance testing shall continue for the period of time specified in the acceptance criteria or, if no such time period has been agreed upon by the parties, for a period of fifteen (15) business days (“the Initial Acceptance Period”) from the date of commencement of the testing.
iv. Customer will give MOBSTAC detailed written notification of the deficiency or non-conformance within the Initial Acceptance Period, failing which MobStac Solution shall be deemed to be accepted by the Customer. MOBSTAC then shall, within ten (10) business days of receipt of such written notification, either correct the deficiency or non-conformance or provide Customer with a plan acceptable for correcting the deficiency or non-conformance.
C. SERVICE LEVEL TERMS
MOBSTAC will use commercially reasonable efforts to make MobStac Solution available with a Monthly Uptime Percentage of at least 99.0%, in each case during any monthly billing cycle.
D. ADDITIONAL SERVICES
i. 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 and MOBSTAC. The parties will review the proposed change and determine the effect that the implementation of the change will have on price, schedule, and other terms and conditions of the relevant Order Form in question.
ii. Upon completion of the review, any changes in price, schedule, or other terms will be documented, as the Parties select, either by an amendment to or a sequentially numbered replacement of the relevant Order Form in question.
iii. No change to any Service Terms shall be binding on the Parties unless the change order has been signed by authorized representatives of each Party.
E. TERM AND TERMINATION
i. Any Order Form shall continue for the Initial Term set forth in such Order Form unless terminated earlier in accordance with this Clause E.
ii. Either party may terminate an Order Form at any time by providing a prior written notice of ninety (90) days to the other party, provided however that in the event, the Customer terminates an Order Form before completion of the Initial term of that Order Form, the Customer shall pay MOBSTAC all fees due under that Order Form for the remaining term of the Order Form. Such payment shall be made immediately after termination if the fees due for the remaining term of the relevant Order Form is lesser than $10,000, else it shall be payable in installments as agreed upon by the Parties.
iii. Each party may terminate an Order Form if the other party breaches a material provision of these Terms and Conditions or of the that Order Form and fails to cure such breach within thirty (30) days of receipt of written notice of the breach. Notwithstanding the foregoing, an Order Form may be terminated immediately by either party in the event of (a) breach of clauses F and G 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.
i. Neither Party shall disclose to any third party, any Confidential Information that a Party discloses (“Discloser”), in writing, orally, visually or in any other medium, to the other Party (“Recipient”) or to which Recipient obtains access and that relates to Discloser. Confidential Information shall mean all data, trade secrets, business information and other information of any kind whatsoever and includes, without limitation, the financial records of the Discloser, its customer information and its consumer information. (“ Confidential Information”)
ii. This obligation of confidentiality shall not apply to information which (a) is published by the Discloser or otherwise becomes available to the public other than by a breach of an Order Form, (b) is rightfully received by the Recipient from a third party not under an obligation of confidentiality,(c) is known by the Recipient prior to disclosure, or independently developed by the recipient at any time, or (d) is required to be disclosed pursuant to a lawful summons from a court of competent jurisdiction or in response to a valid request by a governmental agency, so long as the Recipient uses reasonable efforts to notify the owner prior to such disclosure.
iii. Upon expiration or termination of an Order Form for any reason or at the written request of either Party during the term of an Order Form, the other Party shall promptly return or destroy all the Confidential Information.
G. INTELLECTUAL PROPERTY
i. Subject to Clause G (ii) below, each party acknowledges that ownership of all Intellectual Property Rights existing prior to the date of an Order Form or acquired independent of its obligations under an Order Form and any additions, modifications or enhancements made thereto will remain with the 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;
ii. 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/or services provided under an Order Form. The Customer agrees that it shall not have any right, title or interest in such Intellectual Property Rights.
iii. The Customer agrees that all applications created or developed by MOBSTAC specifically for the Customer pursuant to an Order Form along with any derivatives, additions, upgrades, modifications or enhancements made thereto (the “Applications”), together with any associated copyright and other Intellectual Property Rights, shall be the sole and exclusive property of MOBSTAC. The same shall be licensed to the Customer with a restricted right to sub-license it to the end users of the MobStac Solution for the sole purpose of using such Applications to access and use the Customer’s online content services and solely for the term of the relevant Order Form.
iv. The Customer shall have the option of purchasing the Applications at any time from MOBSTAC at a price mutually agreed upon by the parties.
H. REPRESENTATIONS AND WARRANTIES
i. Each party represents and warrants to the other party that, as of the date of the relevant Order Form that:
a. It has full authorisation and power to execute and perform its obligations under the Order Form;
b. It has all licences, authorisations, consents, approvals and permits required by all applicable laws to perform its obligations under the Order Form; and
c. It shall comply with all applicable laws in performing its obligations under the Order Form.
ii. EXCEPT AS SPECIFICALLY SET FORTH IN THIS CLAUSE H, MOBSTAC DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND THOSE ARISING FROM A COURSE OF DEALING.
i. MOBSTAC shall indemnify, defend, and hold harmless the Customer from and against any damages arising out of any claim that the MobStac Solution infringes any patent, copyright, trademark, or trade secret of a third party, provided the Customer provides prompt notice of such claim and allows MOBSTAC sole control of the defence or settlement of such claim.
ii. For the avoidance of doubt, MOBSTAC shall have no liability under this Clause I for any claim arising in connection with any information, software, content, designs, details, specifications or other data provided to MOBSTAC by the Customer.
J. LIMITATION OF LIABLITY
i. THE CUSTOMER AGREES, TO THE FULLEST EXTENT PERMITTED BY LAW, THAT NOTWITHSTANDING ANYTHING TO THE CONTRARY ELSEWHERE CONTAINED, THE MAXIMUM AGGREGATE LIABILITY OF MOBSTAC, UNDER ANY THEORY OF LAW, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY OR IN TORT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, WILL BE LIMITED TO THE AMOUNT OF FEES PAID UNDER THE ORDER FORM TO WHICH THE CLAIM RELATES IN THE IMMEDIATE TWELVE (12) MONTHS PRECEDING THE CLAIM.
ii. NOTWITHSTANDING ANYTHING TO THE CONTRARY ELSEWHERE CONTAINED, MOBSTAC SHALL NOT BE LIABLE IN RESPECT OF ANY CLAIM FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL LOSSES OR DAMAGES OR OTHER COSTS OR LIABILITIES (WHETHER FORESEEABLE OR UNFORESEEABLE), INCLUDING BUT NOT BE LIMITED TO LOSS OF PROFIT, LOSS OF DATA, LOSS OF CONTRACTS OR LOSS OF BUSINESS.
i. Independent Contractor. MOBSTAC is an independent Contractor, and not an employee, agent, or partner of the Customer. MOBSTAC is solely responsible for the payment of all remuneration, taxes, benefits, and expenses of its employees, agents, and sub- contractors.
ii. Waiver. Any failure or delay in enforcing rights or remedies by a party hereto shall not be deemed a waiver unless the waiving party states it as a waiver in writing.
iii. 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.
iv. Survival. Rights and obligations under an Order Form, which by their nature should survive the termination or expiry of an Order Form, including Clauses E (ii), F, G, H, J and Customer’s payment obligations shall survive expiry or termination of an Order Form.
v. Governing Law. These Terms and Conditions shall be governed by and interpreted in accordance with the laws of the State of California, USA.
vi. Jurisdiction. Any dispute arising in connection with an Order Form shall be subject to the sole and compulsory jurisdiction of the courts in the State of California, USA.