Effective Date: 1 February, 2020
This “Scalefusion (formerly MobiLock Pro)” Terms of Service Agreement (the “Agreement”) is between you and ProMobi Technologies Pvt Ltd (India - U74900PN2014PTC150210) (“ProMobi”). If you are agreeing to this Agreement not as an individual but on behalf of your company, then “Customer” or “you” means your company, and you are binding your company to this Agreement. ProMobi may modify this Agreement from time to time, subject to the terms in Section 16.7 (Changes to this Agreement) below.
By clicking on the “I agree” (or similar button/link/checkbox) that is presented to you at the time of your Order, or by using or accessing ProMobi products, you indicate your assent to be bound by this Agreement.
The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to any Service (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement.
As used in this Agreement, “ProMobi” means (a) ProMobi Technologies Pvt. Ltd., an Indian corporation with registered office at 303, Welworth Classic PLNo:2+3, SNo: 22/2, Wadgaonsheri, Pune, MH 411014, India.
ProMobi Products: This agreement governs (A) ProMobi’s software subscriptions to online software-as-a-service products
Revisions to this agreement: From time to time, ProMobi may modify this Agreement. Unless otherwise specified by ProMobi, changes to this term will be effective upon renewal of Customer’s current Subscription Term (as defined below) or entry into a new purchase order form. ProMobi will use reasonable effort to inform Customer of the changes through communications via Customer’s account, email or other means. In some cases Customer may be required to click to accept the new terms or otherwise agree to the modified agreement before renewing the Subscription Term or entering into a new purchase order form, and in any event continued use of the ProMobi’s products or services after the updated terms of this Agreement goes into effect will constitute Customer’s acceptance of such updated terms. If ProMobi specifies that changes to the new terms will take effect prior to Customer’s next renewal or purchase order (due to legal compliance or product change reasons) and Customer objects to such changes, Customer may terminate the applicable Subscription Term and receive as its sole remedy a refund of any fees Customer has pre-paid for use of the applicable Services for the terminated portion of the Subscription Term.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE ANY SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT. THIS AGREEMENT CONTAINS MANDATORY ARBITRATION PROVISIONS THAT REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS. PLEASE READ IT CAREFULLY.
“Scalefusion (formerly MobiLock)” or “Scalefusion (formerly MobiLock Pro)” means a proprietary Enterprise Mobility Management solution developed, owned and marketed by ProMobi as software-as-a-service solution. In this agreement it will further be referred as “Scalefusion” only.
“Affiliate” means any entity under the control of Customer where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity.
“AUP” means ProMobi’s Acceptable Use Policy.
“Contractor” means an independent contractor or consultant who is not a competitor of ProMobi.
“Customer Data” means any data of any type that is submitted to the Services by or on behalf of Customer, including without limitation: (a) data submitted, uploaded or imported to the Services by Customer (including from Third Party Platforms) and (b) data provided by or about People (including chat and message logs) that are collected from the Customer use of the Services.
“Customer Properties” means Customer’s devices, apps, files owned and operated by (or for the benefit of) Customer through which Customer uses the Services to manage their account and devices.
“Dashboard” means Scalefusion’s user interface for accessing and administering the Services that Customer may access via the web or the Scalefusion Apps.
“Documentation” means the technical user documentation provided with the Services.
“Feedback” means comments, questions, suggestions or other feedback relating to any ProMobi product or service.
“ProMobi App” means any mobile application or desktop client software included in the applicable Service that is made available by ProMobi.
“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.
“People” (in the singular, “Person”) means Customer’s end user customers, potential customers, and other users of and visitors to the Customer Properties.
“Permitted User” means an employee or Contractor of Customer or its Affiliate who is authorized to access the Service.
“Sensitive Personal Information” means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”); or (iii) any other personal data of an EU citizen deemed to be in a “special category” (as identified in EU Data Protection Directive 95/46/EC or any successor directive or regulation).
“Taxes” means any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of ProMobi.
“Third-Party Platform” means any software, software-as-a-service, data sources or other products or services not provided by ProMobi that are integrated with Services as described in the Documentation.
2.1. Services Overview: ProMobi’s Services are a suite of mobility software-as-a-service solutions offered through a single platform. The Services are designed to enable Customer to manage their corporate owned devices and to provide a Dashboard for accessing and managing Customer Data regarding those devices. Customer may import and export Customer Data between the Services and certain Third-Party Platforms through supported integrations. The Services also include ProMobi Apps or Code deployed on Customer Properties (i.e devices) to enable management functionality.
2.2. Provision of Services: Each Service is provided on a subscription basis for a set term designated on the purchase order form (each, a “Subscription Plan”). ProMobi may also offer Professional Services (as defined in Section 11) related to certain Services. Customer will purchase and ProMobi will provide the specific Services and related Professional Services (if any) as specified in the applicable purchase order form.
2.3. Access to Services: Customer may access and use the Services solely for its own benefit and in accordance with the terms and conditions of this Agreement, the Documentation and any scope of use restrictions designated in the applicable purchase order form (including without limitation the number of devices managed). Use of and access to the Services is permitted only by Permitted Users. If Customer is given API keys or passwords to access the Services on ProMobi’s systems, Customer will require that all Permitted Users keep API keys, user ID and password information strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. If Customer is accessing the Services using credentials provided by a third party (e.g., Google), then Customer will comply with all applicable terms and conditions of such third party regarding provisioning and use of such credentials. Customer will be responsible for any and all actions taken using Customer’s accounts and passwords. If any Permitted User who has access to a user ID is no longer an employee (or Contractor, as set forth below) of Customer, then Customer will immediately delete such user ID and otherwise terminate such Permitted User’s access to the Service. The right to use the Services includes the right to deploy ProMobi Apps and Code on Customer Properties in order to enable device management, monitoring and similar functionality and to collect Customer Data for use with the Services as further described below.
2.4. ProMobi Apps: To the extent ProMobi provides ProMobi Apps for use with the Services, subject to all of the terms and conditions of this Agreement, ProMobi grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to use the object code form of the ProMobi Apps internally, but only in connection with Customer’s use of the Service and otherwise in accordance with the Documentation and this Agreement.
2.5. Deployment of ProMobi Apps: Subject to all of the terms and conditions of this Agreement, ProMobi grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to deploy the ProMobi Apps in the form provided by ProMobi on Customer Properties solely to support Customer’s use of the Service and otherwise in accordance with the Documentation and this Agreement. Customer must install ProMobi Apps on the Customer Properties in order to enable features of the Services. Customer will deploy all ProMobi Apps in strict accordance with the Documentation and other instructions provided by ProMobi. Customer acknowledges that any changes made to the Customer Properties after initial deployment of ProMobi Code may cause the Services to cease working or function improperly and that ProMobi will have no responsibility for the impact of any such Customer changes.
2.6. Contractors and Affiliates: Customer may permit its Contractors and its Affiliates’ employees and Contractors to serve as Permitted Users, provided Customer remains responsible for compliance by such individuals with all of the terms and conditions of this Agreement, and any use of the Services by such individuals is for the sole benefit of Customer.
2.7. General Restrictions: Customer will not (and will not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party; (b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party; © reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to ProMobi); (d) copy or modify the Services or any Documentation, or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Services (including without limitation (i) the “Powered by Scalefusion” designation that may appear as part of the deployment of the Services on Customer Properties and (ii) notices on any reports or data printed from the Services); or (f) publicly disseminate information regarding the performance of the Services.
2.8. Scalefusion APIs: If ProMobi makes access to any APIs available as part of the Services, then ProMobi reserves the right to place limits on access to such APIs (e.g., limits on numbers of calls or requests). Further, ProMobi may monitor Customer’s usage of such APIs and limit the number of calls or requests Customer may make if ProMobi believes that Customer’s usage is in breach of this Agreement or may negatively affect the Services (or otherwise impose liability on ProMobi).
2.9. Trial Subscriptions: If Customer receives free access or a trial or evaluation subscription to the Service (a “Trial Subscription”), then Customer may use the Services in accordance with the terms and conditions of this Agreement for a period of fourteen (14) days or such other period granted by ProMobi (the “Trial Period”). Trial Subscriptions are permitted solely for Customer’s use to determine whether to purchase a paid subscription to the Services. Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription Term. If Customer does not enter into a paid Subscription Term, this Agreement and Customer’s right to access and use the Services will terminate at the end of the Trial Period. ProMobi has the right to terminate a Trial Subscription at any time for any reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ProMobi WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.
3.1. Rights in Customer Data: As between the parties, Customer will retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to ProMobi. Subject to the terms of this Agreement, Customer hereby grants to ProMobi a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Services to Customer.
3.2. Storage of Customer Data: ProMobi does not provide any long term archiving service. ProMobi agrees only that it will not intentionally delete any Customer Data from any Service prior to termination of Customer’s applicable Subscription Term. ProMobi expressly disclaims all other obligations with respect to storage.
3.3. Customer Obligations
a) In General Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to ProMobi that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Data as contemplated in this Agreement (including granting ProMobi the rights in Section 3.1 (Rights in Customer Data)) and that no Customer Data will violate or infringe (i) any third party intellectual property, publicity, privacy or other rights, (ii) any Laws, or (iii) any terms of service, privacy policies or other agreements governing the Customer Properties or Customer’s accounts with any Third-Party Platforms. Customer further represents and warrants that all Customer Data complies with the AUP. Customer will be fully responsible for any Customer Data submitted to the Services by any Person as if it was submitted by Customer.
b) No Sensitive Personal Information. Customer specifically agrees not to use the Services to collect, store, process or transmit any Sensitive Personal Information. Customer acknowledges that ProMobi is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that the Services are neither HIPAA nor PCI DSS compliant. ProMobi will have no liability under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein.
c) Compliance with Laws. Customer agrees to comply with all applicable Laws in its use of the Services. Without limiting the generality of the foregoing, Customer will not engage in any unsolicited advertising, marketing, or other activities using the Services, including without limitation any activities that violate the Telephone Consumer Protection Act of 1991, CAN-SPAM Act of 2003 or any other anti-spam laws and regulations.
3.4. Indemnification by Customer: Customer will indemnify, defend and hold harmless ProMobi from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to any Customer Data or breach or alleged breach by Customer of Section 3.3 (Customer Obligations). This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of ProMobi at Customer’s expense. Notwithstanding the foregoing sentence, (a) ProMobi may participate in the defense of any claim by counsel of its own choosing, at its cost and expense and (b) Customer will not settle any claim without ProMobi’s prior written consent, unless the settlement fully and unconditionally releases ProMobi and does not require ProMobi to pay any amount, take any action, or admit any liability.
3.5. Aggregated Anonymous Data: Notwithstanding anything to the contrary herein, Customer agrees that ProMobi may obtain and aggregate technical and other data about Customer’s use of the Services that is non-personally identifiable with respect to Customer (“Aggregated Anonymous Data”), and ProMobi may use the Aggregated Anonymous Data to analyze, improve, support and operate the Services and otherwise for any business purpose during and after the term of this Agreement, including without limitation to generate industry benchmark or best practice guidance, recommendations or similar reports for distribution to and consumption by Customer and other ProMobi customers. For clarity, this Section 3.5 does not give ProMobi the right to identify Customer as the source of any Aggregated Anonymous Data.
ProMobi agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of any Service or Customer Data. However, ProMobi will have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond ProMobi’s control. Visit ProMobi’s security practices here.
The Services may support integrations with certain Third-Party Platforms. In order for the Services to communicate with such Third-Party Platforms, Customer may be required to input credentials in order for the Services to access and receive relevant information from such Third-Party Platforms. By enabling use of the Services with any Third-Party Platform, Customer authorizes ProMobi to access Customer’s accounts with such Third-Party Platform for the purposes described in this Agreement. Customer is solely responsible for complying with any relevant terms and conditions of the Third-Party Platforms and maintaining appropriate accounts in good standing with the providers of the Third-Party Platforms. Customer acknowledges and agrees that ProMobi has no responsibility or liability for any Third-Party Platform or any Customer Data exported to a Third-Party Platform. ProMobi does not guarantee that the Services will maintain integrations with any Third-Party Platform and ProMobi may disable integrations of the Services with any Third-Party Platform at any time with or without notice to Customer. For clarity, this Agreement governs Customer’s use of and access to the Services, even if accessed through an integration with a Third-Party Platform.
6.1. Scalefusion Technology_: This is a subscription agreement for access to and use of the Services. Customer acknowledges that it is obtaining only a limited right to the Services and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that ProMobi or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services and all Documentation, professional services deliverables and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, “Scalefusion Technology”). Except as expressly set forth in this Agreement, no rights in any Scalefusion Technology are granted to Customer. Further, Customer acknowledges that the Services are offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of any of the Services, except for ProMobi Code and the ProMobi Apps in the format provided by ProMobi.
6.2. Feedback. Customer, from time to time, may submit Feedback to ProMobi. ProMobi may freely use or exploit Feedback in connection with any of its products or services.
7.1. Subscription Term and Renewals: Unless otherwise specified on the applicable purchase order, each Subscription Term will have to be renewed explicitly, you will receive an email notification about the expiry of your Subscription Term at least thirty (30) days prior to expiration of the then-current Subscription Term.
7.2. Fees and Payment: All fees are as set forth in the applicable purchase order and will be paid by Customer within thirty (30) days of invoice, unless (a) Customer is paying via Credit Card (as defined below) or (b) otherwise specified in the applicable purchase order. Except as expressly set forth in Section 9 (Limited Warranty) and Section 14 (Indemnification), all fees are non-refundable. The rates in the purchase order and/or invoices are valid for the initial twelve (12) month period of each Subscription Term and thereafter may be subject to an automatic adjustment increase of up to ten percent (10%) per year. Customer is responsible for paying all Taxes, and all Taxes are excluded from any fees set forth in the applicable purchase order. If Customer is required by Law to withhold any Taxes from Customer’s payment, the fees payable by Customer will be increased as necessary so that after making any required withholdings, ProMobi receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such withholdings been made. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
7.3. Payment Via Credit Card: If you are purchasing the Services via credit card, debit card or other payment card (“Credit Card”), the following terms apply:
7.4. Suspension of Service. If Customer’s account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), ProMobi reserves the right to suspend Customer’s access to the applicable Service (and any related services) without liability to Customer until such amounts are paid in full. ProMobi also reserves the right to suspend Customer’s access to the Services without liability to Customer if Customer’s use of the Services is in violation of the AUP.
7.5. Subscription Downgrade. Customer cannot downgrade their plan in the middle of an existing active subscription. However, customers can downgrade their plan at the renewal of their existing subscription. The newly chosen plan will be effective only after the renewal. Customers can choose to downgrade to the then-available subscription plan while renewal.
7.6. Subscription Plan. ProMobi reserves the right to change its offering of subscription plans, including by limiting or ceasing to offer any subscription plans, including any associated features as well, upon sending a written notice to Customer, which may be by email. Subscription plans may not be available to all customers and regions.
8.1. Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.
8.2. Termination for Cause. Either party may terminate this Agreement (including all related purchase orders) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or © seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
8.3. Effect of Termination. Upon any expiration or termination of this Agreement, Customer will immediately cease any and all use of and access to all Services (including any and all related Scalefusion Technology) and delete (or, at ProMobi’s request, return) any and all copies of the Documentation, any Scalefusion passwords or access codes and any other ProMobi Confidential Information in its possession. Provided this Agreement was not terminated for Customer’s breach, Customer may retain and use internally copies of all reports exported from any Service prior to termination. Customer acknowledges that following termination it will have no further access to any Customer Data input into any Service, and that ProMobi may delete any such data as may have been stored by ProMobi at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
8.4. Survival. The following Sections will survive any expiration or termination of this Agreement: 2.7 (General Restrictions), 2.9 (Trial Subscriptions), 3.2 (Storage of Customer Data), 3.4 (Indemnification by Customer), 3.5 (Aggregated Anonymous Data), 6 (Ownership), 7.2 (Fees and Payment), 7.3 (Payment Via Credit Card), 8 (Term and Termination), 9.2 (Warranty Disclaimer), 12 (Limitation of Remedies and Damages), 13 (Indemnification), 14 (Confidential Information) and 16 (General Terms).
9.1. Limited Warranty: ProMobi warrants, for Customer’s benefit only, that each Service will operate in substantial conformity with the applicable Documentation. ProMobi’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty will be, at no charge to Customer, for ProMobi to use commercially reasonable efforts to correct the reported non-conformity, or if ProMobi determines such remedy to be impracticable, either party may terminate the applicable Subscription Term and Customer will receive as its sole remedy a refund of any fees Customer has pre-paid for use of such Service for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section 9.1 will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) to use provided on a no-charge, trial or evaluation basis.
9.2. Warranty Disclaimer: EXCEPT FOR THE LIMITED WARRANTY IN SECTION 9.1, ALL Services and PROFESSIONAL SERVICES ARE PROVIDED “AS IS”. NEITHER PROMOBI NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. ProMobi does not warrant that Customer’s use of THE Services will be uninterrupted or error-free, nor does ProMobi warrant that it will review the Customer Data for accuracy or that it will preserve or maintain the Customer Data without loss OR CORRUPTION. PROMOBI SHALL NOT BE LIABLE FOR THE RESULTS OF ANY COMMUNICATIONS SENT OR ANY COMMUNICATIONS THAT WERE FAILED TO BE SENT USING THE SERVICES. ProMobi SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD-PARTY PLATFORMS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF ProMobi. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
During the Subscription Term of each Service, ProMobi will provide end user support in accordance with ProMobi’s Support Policy (“Support Policy”).
ProMobi may provide the professional consulting services (“Professional Services”) purchased in the applicable purchase order. The scope of Professional Services will be as set forth in a Statement of Work (“SOW”) referencing this Agreement and executed by both parties describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information (“SOW”). Unless Professional Services are provided on a fixed-fee basis, Customer will pay ProMobi at the per-hour rates set forth in the Purchase Order Form (or, if not specified, at ProMobi’s then-standard rates) for any excess services. Customer will reimburse ProMobi for reasonable travel and lodging expenses as incurred. Customer may use anything delivered as part of the Professional Services in support of authorized use of the Services and subject to the terms regarding Customer’s rights to use the Service set forth in Section 2 (ProMobi Services) and the applicable SOW, but ProMobi will retain all right, title and interest in and to any such work product, code or deliverables and any derivative, enhancement or modification thereof created by ProMobi (or its agents).
12.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
12.2. Liability Cap. PROMOBI’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO PROMOBI DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT.
12.3. Excluded Claims. “Excluded Claims” means any claim arising (a) from Customer’s breach of Section 2.7 (General Restrictions); (b) under Section 3.3 (Customer Obligations) or 3.4 (Indemnification by Customer); or © from a party’s breach of its obligations in Section 15 (Confidential Information) (but excluding claims arising from operation or non-operation of any Service).
12.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 13 apply regardless of the form of action, whether in contact, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
ProMobi will defend Customer from and against any claim by a third party alleging that a Service when used as authorized under this Agreement infringes a U.S. patent, U.S. copyright, or U.S. trademark and will indemnify and hold harmless Customer from and against any damages and costs finally awarded against Customer or agreed in settlement by ProMobi (including reasonable attorneys’ fees) resulting from such claim, provided that ProMobi will have received from Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for ProMobi to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. If Customer’s use of a Service is (or in ProMobi’s opinion is likely to be) enjoined, if required by settlement or if ProMobi determines such actions are reasonably necessary to avoid material liability, ProMobi may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using such Service; or if (a) and (b) are not commercially reasonable, © terminate this Agreement and refund to Customer the fees paid by Customer for the portion of the Subscription Term that was paid by Customer but not rendered by ProMobi. The foregoing indemnification obligation of ProMobi will not apply: (1) if such Service is modified by any party other than ProMobi, but solely to the extent the alleged infringement is caused by such modification; (2) if such Service is combined with products or processes not provided by ProMobi, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of such Service; (4) to any action arising as a result of Customer Data or any third-party deliverables or components contained within such Service; (5) to the extent the alleged infringement is not caused by the particular technology or implementation of the Service but instead by features common to any similar product or service; or (6) if Customer settles or makes any admissions with respect to a claim without ProMobi’s prior written consent. THIS SECTION 13 SETS FORTH ProMobi’s AND ITS SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Scalefusion Technology, performance information relating to any Service, and the terms and conditions of this Agreement will be deemed Confidential Information of ProMobi without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for ProMobi, the subcontractors referenced in Section 17.8 (Subcontractors)), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 14 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 14. The Receiving Party’s confidentiality obligations will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
At the request of ProMobi, Customer may agrees to participate in other reasonable marketing activities that promote the benefits of the Services to other potential customers and to use of Customer’s name and logo on ProMobi’s web site and in ProMobi promotional materials. Customer agrees that ProMobi may disclose Customer as a customer of ProMobi.
16.1. Assignment: This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 16.1 will be null and void.
16.2. Severability: If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
16.3. Entire Agreement: This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that the Services are on-line, subscription-based products, and that in order to provide improved customer experience ProMobi may make changes to the Services, and ProMobi will update the applicable Documentation accordingly. The support terms described in the Support Policy may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices (but the modifications will not materially decrease ProMobi’s obligations as compared to those reflected in such terms as of the Effective Date).
16.4. Force Majeure: Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
16.5. Subcontractors: ProMobi may use the services of subcontractors and permit them to exercise the rights granted to ProMobi in order to provide the Services under this Agreement, provided that ProMobi remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of the Services as required under this Agreement.
16.6. Subpoenas: Nothing in this Agreement prevents ProMobi from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but ProMobi will use commercially reasonable efforts to notify Customer where permitted to do so.
16.7 Changes to this Agreement. We may update or modify this Agreement from time to time, including any referenced policies and other documents. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (by, for example, sending an email to the billing or technical contact you designate in the applicable purchase Order, posting on our blog, through your ProMobi account, or in the Product itself). If we modify the Agreement during your License Term or Subscription Term, the modified version will be effective upon your next renewal of a License Term, Support and Maintenance term, or Subscription Term, as applicable. In this case, if you object to the updated Agreement, as your exclusive remedy, you may choose not to renew, including cancelling any terms set to auto-renew. With respect to No-Charge Products, accepting the updated Agreement is required for you to continue using the No-Charge Products. You may be required to click through the updated Agreement to show your acceptance. If you do not agree to the updated Agreement after it becomes effective, you will no longer have a right to use No-Charge Products. For the avoidance of doubt, any purchase Order is subject to the version of the Agreement in effect at the time of the Order.
16.8. Counterparts: This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.