CIS Mobile Online Commercial Terms
Last Revised: June 3, 2020 Ver: 91205
PLEASE READ THIS AGREEMENT CAREFULLY.
These Online Commercial Terms, in connection with the Ordering Document that references this Agreement, is a legally binding contract between CIS Maxwell, LLC (dba CIS Mobile), a Delaware limited liability company (“CIS Mobile”) with offices located at 21050 Ashburn Crossing Drive, Suite 145, Ashburn, Virginia 20174 and the other legal entity named on the Ordering Document that references this Agreement (“Customer”).
CIS MOBILE PROVIDES THE PRODUCTS AND SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE “ACCEPT” BUTTON OR OTHER MEANS PROVIDED FOR ACCEPTANCE OR USING THE PRODUCTS OR SERVICES, CUSTOMER AGREES TO (A) ACCEPT THIS AGREEMENT AND AGREES THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT: (I) CUSTOMER IS OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF CUSTOMER IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, CUSTOMER HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND BIND SUCH PARTY TO ITS TERMS. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, CIS MOBILE WILL NOT AND DOES NOT LICENSE THE PRODUCTS AND SERVICES TO CUSTOMER AND CUSTOMER MUST NOT DOWNLOAD OR INSTALL THE PRODUCTS OR SERVICES.
WHEREAS CIS Mobile has developed altOS, a mobility platform for mission-centered deployments needing exceptional security, control, isolation and user anonymity on COTS smartphones;
WHEREAS Customer desires to utilize certain aspects of the Products and Services offered by CIS Mobile; and
WHEREAS Customer desires to utilize certain Professional Services and Installation and Training Services provided by CIS Mobile as detailed in Specifications.
NOW, THEREFORE, in consideration of the promises and mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby mutually acknowledged, the Parties agree as follows:
- Definitions. CIS Mobile and Customer collectively shall be referred to herein as the “Parties” and each individually as a “Party.” The following terms used in this Agreement shall have the meanings set forth in this Section 1. Unless specifically stated otherwise, capitalized terms used in Exhibits and Ordering Documents shall have the meaning set forth in this Agreement.
“Affiliate” means any corporation or other entity that controls, is controlled by, or is under common control with a Party. A corporation or other entity shall be deemed to control another if it owns or controls directly or indirectly more than fifty percent (50%) of the voting stock or other ownership interest of the corporation or entity or has the right to direct the management of such entity.
“Agreement” means these Online Commercial Terms, the attached Exhibits, and Ordering Documents.
“Deliverables” means all deliverables created by CIS Mobile pursuant to Ordering Documents for Professional Services and provided under License to Customer. Deliverables shall be considered a component of the Products or Services.
“Documentation” means the Management Server Guide documentation made available online by CIS Mobile to Customer and any succeeding changes thereto. The Documentation shall be considered a component of the Products or Services.
“End User” means an authorized employee or other individual person who is designated by Customer as being licensed to use the Products and Services.
“Exhibits” mean the documents attached hereto and incorporated by this reference. In the event of any inconsistency, the documents shall take precedence in the following order: Online Commercial Terms, Ordering Documents, all other Exhibits. Exhibits include, without limitation, the following:
Exhibit A: Maintenance and Support
Exhibit B: Open Source Software
Exhibit C: Supported Mobile Devices
Exhibit D: Required Third Party Applications
“Flashing Services” means changing the operating system on a Mobile Device as described in more detail in this Agreement and in Ordering Documents.
“Hosted Services” means online hosting services, owned, operated or controlled by CIS Mobile consisting of various infrastructure components, including but not limited to servers, networking components, system software, and internet access all as more specifically defined in the Specifications.
“Installation and Training Services” means services provided by CIS Mobile and its authorized installation and training consultants whereby CIS Mobile shall install Software and train Customer employees in accordance with the Specifications and other curriculum or training content (“Training Content”) agreed to between the Parties in Ordering Documents. Training Services may be provided in a classroom setting, via video or audio conferences, online webinars, or other formats, all as mutually agreed to between the Parties in Ordering Documents. Training Services do not include any rights to any Training Content or other written or electronic materials (whether online or otherwise) unless specifically set forth in Ordering Documents. Installation and Training Services shall be performed at such locations and at such times as set forth in Ordering Documents.
“Marks” means the trade names, trade dress, trademarks, service marks, commercial symbols, domain names, brands, designs, logos and/or any other marks used to denote the owner or licensors as the source of the products and services.
“Mobile Device” means an End User’s mobile device and enhancements associated therewith that is technically and operationally compatible with the Software. Mobile Devices may be purchased from CIS Mobile or acquired independently provided that such Mobile Devices are compatible with the Software.
“Ordering Documents” means any document that places an order for Products, Services, Flashing Services, Professional Services and/or Installation and Training Services under the terms of this Agreement. An Ordering Document may be styled as Statements of Work and/or Orders, executed quotes, task order, purchase order, or other type of authorizing agreement.
“Production Tenant” means a single Tenant of the Server Software that is used for production or operational purposes.
“Products” mean Software and Mobile Devices as described in more detail in the Specifications and in Ordering Documents. Products do not include Services.
“Server Software” means Software that is Licensed under this Agreement for use on computers or servers owned or controlled by Customer (including their authorized hosting vendors).
”Services” means (i) the Hosted Services; (ii) Flashing Services; (iii) Installation and Training Services; and (iv) Professional Services.
“Software” means CIS Mobile’s proprietary software that is Licensed under this Agreement: (i) for use on Mobile Devices; (ii) for use under the On-Premise altOS License on computers or servers owned or controlled by Customer (including authorized hosting vendors).
“Specifications” means, as appropriate (i) the specifications for the Software as set forth in the Documentation; (ii) the specifications for the Hosted Services as set forth in the Documentation and Ordering Documents; (iii) the specifications for Mobile Devices as set forth in Exhibit C (Supported Mobile Devices) and in Ordering Documents; (iv) the specifications for Deliverables developed using Professional Services as set forth in SOWs; (v) the specifications for Flashing Services set forth in the applicable Ordering Documents; and (vi) the specifications for Installation and Training Services set forth in applicable Ordering Documents.
“Staging Tenant” means a single Tenant of the Server Software that is used for testing and staging purposes only and not for production or operational purposes.
“Statement of Work” or “SOW” means a statement of work document mutually agreed to and executed by the Parties. Statements of Work define the applicable elements of an engagement which may include Products, Services, Professional Services, Installation and Training Services, and/or other deliverables to be provided under the terms of this Agreement including the Specifications, schedules, pricing, and other deliverable-specific requirements.
“Subscription Fees” means the subscription fees for the Mobile Device Software, Hosted Services, and the altOS Server Software as set forth in Ordering Documents.
“Tenant” means a single instance of the Server Software.
- Framework Agreement. This Agreement is a framework agreement that shall govern various transactions that flow from this Agreement. Ordering Documents shall document the Licenses and Specifications for Services and Products provided directly to Customer for use within its own internal operations. Ordering Documents shall also document Professional Services and Installation and Training Services. This Agreement, absent SOWs fully executed by both Parties or Orders, does not obligate Customer to License any Services or purchase any Products from CIS Mobile. All SOWs and Orders together with this Agreement shall each constitute an agreement between the Parties.
- Term and Renewal. This Agreement shall commence as of the date set forth on the Ordering Document to start use of the Products and Services, or if no such start date is specified on the Ordering Document, then the Agreement shall commence on the date of the Ordering Document. The initial term shall be for the initial period set forth on the Ordering Document unless no such period is specified in which case the initial period shall be for one year (the “Initial Term”). Unless terminated in accordance with the termination provisions of this Agreement, the Agreement shall automatically renew for successive one (1) year terms unless either Party provides advance written notice of its intention not to renew this Agreement at least sixty (60) days prior to the end of the Initial Term or any subsequent Term. The Initial Term and any and all renewal terms shall collectively be referred to as the “Term”.
- CIS Mobile’s Appointment as Service Provider. Customer hereby appoints CIS Mobile, and CIS Mobile hereby accepts appointment, as Customer’s service provider solely for purposes of implementing this Agreement and providing the Hosted Services set forth in Ordering Documents.
- Not for Resale. Unless the Parties otherwise agree in writing, Customer’s license access to the Services or purchase of the Products indicated in Ordering Documents shall be for Customer’s own internal use and not for resale to third parties. This appointment is limited to Customer only and may not be assigned or transferred by Customer or otherwise extended to any other party except as set for in Section 24.5 (Assignment) of the Agreement.
- Subject to the terms and conditions of this Agreement including any payment obligations, CIS Mobile grants to Customer, and Customer accepts, strictly during the Term of this Agreement the following licenses (collectively, the “Licenses”):
- Software License Grant for Mobile Devices. If so specified in an Ordering Document, CIS Mobile grants Customer, subject to Customer’s payment of the Subscription Fees, a limited, nontransferable (except for Intra-Account Transfers), nonexclusive, revocable (upon Customer’s uncured breach of this Agreement) to use, execute, and copy the Software for Mobile Devices (but not create derivative works thereof) on the number of Mobile Devices set forth in the Ordering Documents (“Mobile Device Software License”). Mobile Device Software Licenses may be moved from one Mobile Device to another Mobile Device under Customer’s account, provided that the same Mobile Device Software License may not be used on more than one Mobile Device at a time (an “Intra-Account Transfer”).
- License Grant for On-Premise altOS Server Software. If so specified in an Ordering Document, CIS Mobile grants Customer, subject to Customer’s payment of the Subscription Fees for use of the altOS Server Software, a limited, nontransferable, nonexclusive, revocable (upon Customer’s uncured breach of this Agreement) to use and execute the Server Software (but not create derivative works thereof) on up to the number of Tenants specified in Ordering Documents on computers or servers owned or controlled by Customer (“On-Premise altOS License”). Customer may make one backup copy of the Server Software for recovery and/or archival purposes only.
- Hosted Access Grant for altOS. If so specified in an Ordering Document, CIS Mobile grants Customer, subject to Customer’s payment of the Subscription Fees for the Hosted Services, a limited, nontransferable, nonexclusive license access the altOS Server Software that is operated on computers or servers owned or controlled by CIS Mobile (“Hosted altOS License”).
- Limitations on Use. No license is given to Customer to the source code to the Software. Without the express written authorization from CIS Mobile, Customer shall not (nor through any third party): (i) use, copy, duplicate or reproduce all or any portion of the Software (including the Documentation) for any purpose other than as specified in this Agreement and Ordering Documents; (ii) decompile, disassemble, re-program, analyze, reverse engineer any of the Software (in whole or in part) or otherwise attempt to reconstruct, identify or discover any underlying ideas, underlying user interface techniques or algorithms, or source code, or disclose any of the foregoing (except to the extent such restriction is prohibited by law); (iii) except as expressly authorized herein, sell, rent, lease, license, sublicense or in any way redistribute any or all of the Software; (iv) use the Software to create a service bureau, timesharing arrangement, or application service provider; (v) modify, adapt, translate, prepare derivative works of all or any portion of the Software or attempt to do so; (vi) remove, obscure or alter CIS Mobile’s or its licensors’ product identification, copyright notices, CIS Mobile Marks or other proprietary rights notices affixed to or contained within the Software or Documentation; (vii) permit the Products or Services or Documentation to be used, examined, reviewed or inspected by others, other than by Customer’s employees, auditors or governmental agencies as required by law; (viii) disclose the results of any benchmark or evaluation of the Products or Services to any third party (whether or not obtained with CIS Mobile’s assistance) without CIS Mobile’s prior express written consent; (ix) use the Products or Services, Documentation or any information contained therein or otherwise provided by CIS Mobile or its licensors for the purposes of developing, or having developed, any products or services competitive with the Products or Services; (x) incorporate, link, or distribute the Software with any code or software licensed under the GNU General Public License (“GPL”), Lesser General Public License (“LGPL”), Mozilla, or any other open source license, in any manner that could cause or could be interpreted or asserted to cause the Software (or any modifications thereto) to become subject to the terms of the GPL, LGPL, Mozilla or such other open source license. Customer shall not authorize, or acquiesce in, any other person engaging in any of the foregoing activities, or attempting to do so.
- Open Source. The Software contains certain Open Source Software referenced in Exhibit B (Open Source Software). Usage of the Software by Customer is subject to certain rights and responsibilities with respect to the Open Source Software and is governed according to the terms of the applicable Open Source License referenced in Exhibit B. “Open Source Software” means software made available to others under the terms of an Open Source License; “Open Source License” means a software license that includes, but is not limited to, terms that: (a) permit distribution or redistribution of the software, including free of charge and for sale, by others without royalty or fee and allows for such distribution/redistribution to include source code and compiled code; (b) permits modifications, compilations, and derived works be created from the software and be distributed under the same terms as the original software; or (c) attach to the software and applies to all persons, entities, groups, organizations and institutions (the “Recipients”) to whom the software is distributed and/or who redistribute the software without the need for the Recipients to execute or otherwise acquire an additional license. In the event of any conflict between this Agreement and any Open Source License, the Open Source License controls. The licensors of certain Open Source Software may provide certain notices in documentation, readme files or notice files in connection with such Open Source Software.
- End User License Agreement. Customer’s use of the Products or Services by End Users is subject to the terms and conditions of the End User license accompanying the Products or Services, including the applicable end user license agreement set forth at [EULA website] (the “EULA”).
- No License to Affiliates. Unless specified otherwise in an Ordering Document, any and all Licenses are granted to Customer and not, by implication or otherwise, to any Affiliate of Customer.
- Reserved Rights. CIS Mobile reserves all rights not expressly granted under this Agreement.
- Hosted Services. If so specified in an Ordering Document, CIS Mobile will implement the Hosted Services in accordance with the Specifications. CIS Mobile will not be responsible for implementation delays or service degradations that are not within its control including, without limitation, implementation delays or service degradations caused by Customer, End Users, or third-party service providers or any interconnecting communications carrier. Title to any communications equipment and computer hardware installed by CIS Mobile in connection with the performance of the Hosted Services will remain with CIS Mobile.
- Maintenance and Support
- Support to Customer. CIS Mobile shall make maintenance and support for the Software directly used by Customer in accordance with the terms and conditions described in Exhibit A (Maintenance and Support) to this Agreement.
- Software Upgrade Policy. CIS Mobile provides two types of software upgrades for the Software: Maintenance Releases and Major Enhancement Releases.
- “Maintenance Releases” combine defect resolution and modifications to the existing core features of the Software licensed by Customer. Maintenance Releases may include, but are not limited to, improvements in functionality, performance, bug fixes and upgrades to imbedded or integrated components. Customer shall be entitled to receive each new Maintenance Release at no additional charge, when and as it is made generally available to other customers, accompanied by such Documentation concerning the Maintenance Release. Each new Maintenance Release shall be considered integral to the Software for purposes of this Agreement from the time such Maintenance Release is first delivered to the Customer.
- From time to time, CIS Mobile will introduce a “Major Enhancement Release”. Major Enhancement Releases include new product offerings or significantly new feature sets that improve the Software. Major Enhancement Releases shall be made available to Customer and Customer shall be entitled to sublicense Major Enhancement Releases provided that Customer pays CIS Mobile for the then-current fees for new Major Enhancement Release.
- Flashing Services.
CIS Mobile shall provide Flashing Services as specified in Ordering Documents. Customer shall be aware of all the information in this Section about the Flashing Services. The Flashing Services will change the operating system on the Mobile Device in accordance with the Specifications. All applications, data, and information on the Mobile Device will be removed and permanently deleted, and CIS Mobile will not retain any deleted applications, data or information. Customer shall be responsible for backing up all applications, data, and information on the Mobile Device before sending the Mobile Device in for flashing and restoring all applications, data, and information on the Mobile Device after it has been flashed. Flashing the Mobile Device may void the Mobile Device’s warranty from the manufacturer and the owner of the Mobile Device assumes this risk by agreeing to the Flashing Services. If the Mobile Device is lost or damaged while Flashing Services are being performed, CIS Mobile will repair the Mobile Device or replace it with an equivalent Mobile Device, which at CIS Mobile option may be new or refurbished. CIS Mobile technicians will not browse through any personal, private or Confidential Information (collectively, “Personal Data”), however, technicians may inadvertently see Personal Data during the course of their work. The owners of the Mobile Device agree that any Personal Data should be removed from the Mobile Device prior to having the Flashing Services performed on the Mobile Device. The password or pattern code must be available to CIS Mobile or deactivated upon submission of the Mobile Device for Flashing Services. Customer hereby releases CIS Mobile for any and all actions, suits, losses, liabilities, claims, expenses, damages, and costs of every kind and description including reasonable legal fees stemming from the Flashing Services that are disclosed or disclaimed within this Section. Customer shall be responsible for all shipping charges to CIS Mobile’s location and back to the owners of the Mobile Devices and Customer shall bear all risk of loss to Mobile Devices during transit.
- Professional Services
- Professional Services Defined. During the Term of this Agreement and upon the request of the Customer, CIS Mobile or its authorized agents may provide certain professional services to Customer as set forth in SOWs (“Professional Services”). As part of the Professional Services, CIS Mobile may develop Deliverables in accordance with the terms of each SOW. Notwithstanding anything herein to the contrary, such Professional Services shall be performed by individuals as employees or agents of CIS Mobile, an independent contractor, and not as employees of Customer. Unless otherwise specified in a SOW or other document signed by CIS Mobile and Customer: (a) CIS Mobile (or its licensors) shall retain all Intellectual Property Rights to the Deliverables, including, without limitation, all information, ideas, concepts, software, source and object code provided during, or resulting from, the provision of the Professional Services except for any pre-existing Intellectual Property Rights of Customer; and (b) all Deliverables created under this Agreement shall not be considered “works made for hire” and are provided solely as a component of the Products and Services. Customer’s use and access to Deliverables created hereunder is subject to the same rights, obligations, and limitations set forth in the Licenses for Products and Services granted hereunder.
- Acceptance Testing. Deliverables provided by CIS Mobile shall be considered accepted by Customer upon notice of successful completion by CIS Mobile of the Completion Criteria (“Acceptance” or “Accepted”). “Completion Criteria” means the acceptance criteria specified in the SOW, or in the event that the SOW does not contain specific acceptance criteria, then Completion Criteria shall mean that the Deliverables meet the requirements as set forth in the Specifications. If Customer believes that CIS Mobile has not met the Completion Criteria, Customer must notify CIS Mobile in writing within ten days after receiving CIS Mobile’ notice of completion of installation of the Deliverables, specifying any parts of the Completion Criteria not met by CIS Mobile. CIS Mobile shall promptly correct any such deficiencies or obtain the Customer’s written agreement to a plan to correct such deficiencies. Upon CIS Mobile’ correction of the deficiencies, CIS Mobile shall again provide notice of completion. If Customer fails to provide a deficiency notice within the aforementioned ten day period, then the Deliverables shall thereupon be considered Accepted. If Customer deploys the Deliverables for use in actual operations at any time following its delivery by CIS Mobile, such Deliverable shall be considered Accepted by Customer.
- Provider of Installation and Training Services
- Training Services. If so specified in an Ordering Document, CIS Mobile shall provide Customer at a location to be mutually agreed upon or via an Internet-based webinar, Training Services for Customer’s employees, with training in provisioning, use and application of Products or Services, subject to availability of such training courses. Customer may use material provided to conduct courses for End Users provided that CIS Mobile’s copyright notices are retained thereon.
- Installation Services. If so specified in an Ordering Document, CIS Mobile shall provide Installation Services to Customer at a location to be specified in an Ordering Document. CIS Mobile shall perform the Installation Services in accordance with the Specifications.
- Cancellation of Installation or Training Services. Once Customer has agreed to an Ordering Document for Installation or Training Services, if the Customer cancels, Customer is responsible for all non-refundable expenses incurred, including but not limited to, travel, lodging, facility rental, courseware, development, and publishing and Customer will pay (a) 50% of the total fees set forth in the applicable Ordering Document for the cancelled Installation or Training Services if the requested cancellation is received in writing by CIS Mobile fourteen (14) days or more prior to the start date of the Installation or Training Services as set forth in the Ordering Document; or (b) 100% of the total fees set forth in the applicable Ordering Document for the Installation or Training Services if cancellation is received less than fourteen (14) days prior to the start date of the Installation or Training Services set forth in the Ordering Document.
- Customer Obligations
- Access and Passwords. After the Hosted Services are ready for use by Customer, CIS Mobile shall issue (a) a link to Customer that will enable Customer to access the Hosted Services; and (b) a password to access the Hosted Services. Customer and its End Users are responsible for accessing the Hosted Services in accordance with the terms of this Agreement and maintaining the confidentiality of all passwords at all times and for ensuring that issued passwords are used only by the authorized End User(s). Customer is entirely responsible for all activities that occur under Customer’s account and all charges incurred in connection with use of the Hosted Services using Customer’s passwords. Customer shall immediately notify CIS Mobile of any unauthorized use of Customer’s account, including, without limitation, each password of an End User accessing the Hosted Services by means of Customer’s account, or any other breach of this Agreement or any security breach known to Customer. CIS Mobile shall have no liability for any loss or damage arising from Customer’s failure to comply with these requirements.
- Cooperation and Assistance. Customer shall provide CIS Mobile with access to technical personnel and information in connection with performance of the Products and Services and will furnish all information and assistance required to be provided by Customer under the Ordering Document. Customer will promptly notify CIS Mobile in sufficient detail of any defect, deficiency or error known to or discovered in the Products and Services by Customer in sufficient detail to enable CIS Mobile to duplicate the condition.
- Export Compliance. All Products, Services, deliverables, documents, technical data, and any other materials delivered under this Agreement are subject to U.S. export control laws and may be subject to export or import regulations in other countries. Customer agrees to comply strictly with these laws and regulations and acknowledges that it has the responsibility to obtain any licenses to export, re-export, or import as may be required by law. Any delays attributable to CIS Mobile’s ability to secure appropriate export licenses or other required export documentation shall not be considered a breach of this Agreement.
- Compliance with Third Party Applications. Use of the Software requires that Customer license and install certain third party applications as more specifically set forth in Exhibit D (Required Third Party Applications) and in Ordering Documents (“Third Party Applications”). Customer shall comply with all licensing and other requirements provided by the licensor of the Third Party Applications (“Third Party Providers”). Any violation of any Third Party Applications licensing or other agreement shall constitute a material breach of this Agreement.
- Changes to Products or Services; End-Of-Life
- End-Of-Life Notice. During the Term, CIS Mobile shall make commercially reasonable efforts to provide Customer with ninety (90) days prior written notice of any termination of support for specific Products or Services (“End-Of-Life”). Such notice shall be posted on CIS Mobile’s website and shall contain the details of the last order by dates.
- Products or Services Changes. CIS Mobile in its sole discretion may alter the design of the Products or Services provided that the alteration: (i) does not result in any material deviation from the Specifications for such Products or Services; or (ii) is required to avoid infringement of any third party intellectual property; or (iii) such alteration is required to conform with laws or applicable governmental regulations.
- Customer Internal Use Prices. In consideration for Customer’s internal use and access to the Services and purchase of the Products, Customer shall pay the prices (“Prices”) for such Products or Services in the price lists set forth in Ordering Documents (the “Price List”) during the period of performance specified in the Ordering Document.
- Price Changes. The Price List is subject to changes by providing Customer with a revised Price List which shall become effective sixty (60) days after delivery unless Customer has not provided written notice to CIS Mobile of its intention to terminate this Agreement based on the change in Prices.
- Taxes are not included in Prices. Customer shall pay or reimburse CIS Mobile for taxes. In addition, Customer shall pay all applicable sales, use, property, withholding, value-added, excise and any other taxes or duties imposed under the authority of any foreign, federal, state or local taxing jurisdiction, except any tax assessed upon CIS Mobile’s net income. Customer shall not reduce any fees or charges owed to CIS Mobile as a result of any such taxes.
- Process for Orders
- Placing Orders. Customer shall place orders for Products and Services (“Orders”) purchased from CIS Mobile on CIS Mobile’s then-current Orders form which shall specifically include a reference to this Agreement. By placing Orders, Customer makes an offer to license access to the Services or purchase or license the Products listed in Orders pursuant to the terms and conditions of this Agreement. Such Orders may include the quantity of Products and Services purchases or licensed, the requested delivery date, the unit price for each of the Products and Services consistent with the Price Lists, the billing address, and the delivery location but no other terms or conditions including but not limited to references to Customer’s standard purchasing terms and conditions on purchase orders unless otherwise agreed to in writing by CIS Mobile. In the event Customer’s Orders (or other communications of any kind including purchase orders) contain any additions or variations made to the terms and conditions of this Agreement, they are void and have no effect and this Agreement governs. CIS Mobile’s failure to object to provisions contained in any communication from Customer shall not be deemed a waiver of the provisions herein. An inadvertent omission of a reference to this Agreement in Orders shall not affect the application of this Agreement to Orders.
- CIS Mobile Acceptance of Orders. Orders shall not be binding on CIS Mobile until accepted or acknowledged (“Acknowledgement”) in writing by CIS Mobile. Acknowledgment of Customer’s Orders is expressly conditioned upon Customer’s acceptance of these terms and conditions. CIS Mobile shall use commercially reasonable efforts to fill all Orders, but shall not be obligated to provide Acknowledgement of any Orders, particularly Orders which contain delivery dates, special requirements or other fulfillment terms that CIS Mobile, through reasonable commercial efforts, is unable to meet. In any of the foregoing events, CIS Mobile and Customer shall work cooperatively to determine the most appropriate delivery schedule. In addition, CIS Mobile shall not be obligated to provide Acknowledgement of any Orders should Customer fail to comply with the material terms of this Agreement, including meeting payment terms of previous Orders or due to the general financial condition of Customer, as interpreted by CIS Mobile’s credit department.
- Invoicing, Payment and Billing
- Calculation and Timing of Charges. Unless specified otherwise in an Ordering Document, the timing for the calculation of charges to be billed by CIS Mobile to Customer are as follows (the “Charges”)
- Subscription Billing. CIS Mobile shall calculate the Charges for Subscription Fees on an annual basis, in advance of services. The Charges for the first year shall be calculated upon Acknowledgement of each of the Orders and on the anniversary of such date thereafter for all multi-year Orders. CIS Mobile shall Charge Customer consistent with the Prices set forth in Ordering Documents. Mobile Devices added to an existing Subscription Fee plan during an annual billing cycle will be Charged on the date of the Acknowledgement of the Orders adding the Mobile Devices and pro-rated based on the number of calendar days remaining in the existing Subscription Fee plan so that all Mobile Devices under each Subscription Fee plan all terminate on the same day.
- Mobile Device Billing. CIS Mobile shall calculate the Charges for Mobile Devices upon shipment or delivery based on the Prices set forth in Ordering Documents.
- Flashing Services Billing. CIS Mobile shall calculate the Charges for Flashing Services upon completion and return of the Mobile Devices based on the Prices set forth in Ordering Documents.
- Time and Materials Professional Services Billing. CIS Mobile shall calculate the Charges for all Professional Services performed during the prior month for which the Parties have agreed in an Ordering Document to be billed on a time and materials basis.
- Fixed Price Professional Services Billing. CIS Mobile shall calculate the Charges for all Professional Services for which the Parties have agreed in an Ordering Document to be billed at fixed price upon execution of the Ordering Document for such Professional Services.
- Installation and Training Services Billing. CIS Mobile shall calculate the Charges for all Installation and Training Services performed during the prior month in arrears.
- Payment Terms and Method. The method of payment shall be from one of the following methods as specified in Ordering Documents:
- Payment By Credit Card or ACH. If Customer has selected credit cards or ACH as a payment method, then Customer hereby authorizes CIS Mobile to either (a) automatically bill the credit card Customer provided or (b) automatically debit (charge) Customer’s checking account electronically via ACH on the date the Charges are calculated (the “Due Date”) unless specified otherwise in Ordering Documents. “ACH” means the automated clearing house, which is the nationwide network of banking institutions that process electronic payments automatically between bank accounts. Customer agrees that CIS Mobile may receive updated information about Customer’s account from the financial institution issuing Customer’s credit card. CIS Mobile shall submit to Customer on the Due Date a list of a detailed items included in the Charges.
- All Charges shall be invoiced on the date the Charges are calculated. All payments reflected on invoices are net thirty (30) days after the date of Customer’s receipt of the invoice (the “Due Date”). CIS Mobile may provide invoices electronically via email to Customer.
- Travel Expenses. Unless otherwise specified in Ordering Documents, Customer shall reimburse CIS Mobile for reasonable and ordinary travel expenses actually incurred by CIS Mobile while traveling onsite in connection with work related to the Products, Services, and Professional Services, Installation and Training Services, including transportation costs, hotel accommodations and meals (the “Travel Expenses”), provided however: (a) to the extent applicable, such expenses must be in compliance with the Customer travel policy if provided to CIS Mobile; (b) for those expenses not specifically addressed in the accepted travel policy, CIS Mobile must first obtain Customer’s pre-approval of all such expenses.
- Unless specified otherwise in Ordering Documents, all Prices and all payments made to CIS Mobile shall be in United States dollars.
- Disputed Invoices. If Customer disputes any part of any invoice, credit card or ACH charge, Customer must provide CIS Mobile with written notice of the dispute containing a detailed description of the request for each specific item disputed by the Due Date if invoiced or within net thirty (30) after of the date of the credit card or ACH charge (“Disputed Item”). If Customer fails to provide CIS Mobile with such written notice of the dispute within such timeframe, then CIS Mobile shall not be obligated to investigate or revise the invoice.
- Failure to Pay. Failure to pay any fees or other charges or amounts (including Taxes) due, less Disputed Items, to CIS Mobile on or before the Due Date and after written notification by CIS Mobile shall be a breach of this Agreement (“Failure to Pay”). Notwithstanding anything else contained in this Agreement, in the event that a Failure to Pay is not cured within fifteen (15) days, CIS Mobile may suspend access to the Services and/or terminate this Agreement for default. Any suspension may be continued until the Failure to Pay has been cured. CIS Mobile shall be entitled to recover reasonable attorney’s fees and costs incurred by CIS Mobile in collecting all unpaid amounts hereunder following a Failure to Pay.
- No Setoffs or Accord and Satisfaction. Customer is solely responsible for the payment of all Prices, fees, charges and other amounts as set forth in this Agreement. Customer shall not set off or withhold any amount from CIS Mobile, except for Disputed Items. Customer shall not place any condition or restrictive legend, such as “Paid in Full”, on any check or instrument used to make a payment. The Parties agree that the negotiation of any such check or instrument so inscribed shall not constitute an accord and satisfaction or novation, and Customer waives its right to assert any such defense.
- Calculation and Timing of Charges. Unless specified otherwise in an Ordering Document, the timing for the calculation of charges to be billed by CIS Mobile to Customer are as follows (the “Charges”)
- Intellectual Property Rights
- CIS Mobile Intellectual Property Rights. Customer acknowledges and agrees that the intellectual property rights underlying the Products, Services, Training Content, Flashing Services, and Deliverables (collectively, “CIS Mobile IP”) are owned by, and shall remain the sole property of CIS Mobile and its licensors, that the CIS Mobile IP contains, embodies and is based upon worldwide patented or patentable inventions, trade secrets, copyrights and other intellectual property rights (collectively, “Intellectual Property Rights”) owned or licensed by CIS Mobile and its licensors, and that CIS Mobile and its licensors shall continue to be the sole owner of all Intellectual Property Rights in and to the CIS Mobile IP worldwide including, without limitation, any derivative works. This Agreement does not convey to Customer title or ownership of the Intellectual Property Rights underlying the CIS Mobile IP, but only a right of limited use in accordance with this Agreement. Customer acknowledges that the CIS Mobile IP provided by CIS Mobile pursuant to this Agreement is entitled to protection under applicable copyright and other intellectual property laws and constitute valuable assets, trade secrets and proprietary rights of CIS Mobile or its licensors.
- Customer Intellectual Property Rights. CIS Mobile acknowledges and agrees that the intellectual property rights underlying any intellectual property provided by Customer to CIS Mobile hereunder (“Customer IP”) are owned by, and shall remain the sole property of Customer and its licensors, that the Customer IP contains, embodies and is based upon worldwide patented or patentable inventions, trade secrets, copyrights and other intellectual property rights (collectively, “Intellectual Property Rights”) owned or licensed by Customer and its licensors, and that Customer and its licensors shall continue to be the sole owner of all Intellectual Property Rights in and to the Customer IP worldwide including, without limitation, any derivative works. This Agreement does not convey to CIS Mobile title or ownership of the Intellectual Property Rights underlying the Customer IP, but only a right of limited use in accordance with this Agreement. CIS Mobile acknowledges that the Customer IP provided by Customer pursuant to this Agreement is entitled to protection under applicable copyright and other intellectual property laws and constitute valuable assets, trade secrets and proprietary rights of Customer or its licensors.
- Many of CIS Mobile’s changes to user interfaces, features, functionality, and other aspects of the Products and Services come as a result of suggestions made by customers and partners, whether in the form of suggestions, enhancement requests, recommendations, or other feedback, with regard to the Products and Services (all of the foregoing, collectively, “Suggestions”). All customers benefit from CIS Mobile incorporating Suggestions in future releases of the Products and Services. Customer grants to CIS Mobile an irrevocable, worldwide, royalty-free, perpetual license to use as CIS Mobile deems appropriate any Suggestions that Customer, or any person or entity under the direction or control of Customer, provides to CIS Mobile, to incorporate such Suggestions in any form into the Products and Services (or any other products or services), and to exercise any other rights with respect to such Suggestions. CIS Mobile shall be entitled to use any Suggestions without restriction and without obligation to Customer or any third party.
- “Confidential Information” means all such information, material and data received by one Party (the “Receiving Party“) from the other Party (the “Disclosing Party“) or its clients, whether disclosed in writing or verbally, (i) that is labeled or designated in writing as confidential or proprietary, (ii) which Receiving Party is advised is proprietary or confidential or (iii) which, in view of the nature of such information or the circumstances of its disclosure, Receiving Party knows or reasonably should know is confidential or proprietary. Confidential Information includes the terms and conditions of this Agreement. Confidential Information shall not include information which (a) is or becomes publicly available through no act or omission of the Receiving Party; (b) is rightfully received from a third party without an obligation of confidence; (c) is independently developed by the Receiving Party without reference to Confidential Information; or (d) is required to be disclosed in accordance with a judicial or governmental order or decree, provided that the Receiving Party provides prompt notice of the order or decree to the Disclosing Party and reasonably cooperates with the Disclosing Party to limit the disclosure and use of the Confidential Information.
- Use of Confidential Information. The Receiving Party will hold any Confidential Information in strict confidence for a period of three (3) years from termination of this Agreement, except that the obligation of the Receiving Party to maintain the confidentiality of trade secrets and personally identifiable data shall survive indefinitely. The Receiving Party will use such Confidential Information only in accordance with the terms of this Agreement. The Receiving Party shall limit the use of, and access to, the Confidential Information to its employees or agents whose use of or access to the Confidential Information is necessary to carry out the intent of this Agreement. The Receiving Party shall, by appropriate means, prevent the unauthorized disclosure, publication, display or use of any Confidential Information. Without limiting the generality of the foregoing, the Receiving Party shall require all employees, agents or contractors who shall have access to the Confidential Information to execute, prior to such access, a non-disclosure agreement providing for at least the same protection of the Confidential Information as is provided for by this section.
- Destruction or Return of Confidential Information. Upon expiration or termination of this Agreement for any reason, the Receiving Party shall promptly return to the Disclosing Party, or, if requested, destroy all copies of the Disclosing Party’s Confidential Information in its possession. All copies, notes or other derivative material relating to the Confidential Information shall be promptly retrieved or destroyed, as agreed, and no such material shall be retained or used by the Receiving Party in any form or for any reason.
- CIS Mobile Systems and Security Obligations. CIS Mobile will employ security measures in accordance with applicable law and industry practice.
- Data Breach Procedures. CIS Mobile maintains a data breach plan in accordance with applicable law and industry practice.
- Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems“); (b) the security and use of Customer’s access credentials to the Hosted Services; and (c) all access to and use of the Hosted Services directly or indirectly by or through the Customer Systems including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
- Mutual Warranties. Each Party represents and warrants that it has the full corporate or organizational power to enter into and perform this Agreement, and that the execution and performance hereof has been duly authorized by all necessary corporate or other organizational action.
- Hosted Services Warranty. CIS Mobile warrants during the period of performance for Hosted Services set forth in any applicable Ordering Documents that the Hosted Services will be provided in accordance with the Specifications for Hosted Services. Customer’s sole remedy for any claims under this Section 2 shall be to correct such failures at no charge to Customer.
- Mobile Device Warranty.
- Pass Through Warranty Offered by Manufacturers. CIS Mobile is not the manufacturer of the Mobile Devices. To the extent that the manufacturer of the Mobile Device offers a warranty for the Mobile Device, CIS Mobile shall provide to Customer a pass through of the warranties provided by the Mobile Device manufacturer.
- Mobile Devices Warranty From CIS Mobile. CIS Mobile makes no additional warranties with respect to the Mobile Devices. Excluding any manufacturer’s warranty that might be provided, CIS Mobile disclaims all warranties with respect to the Mobile Devices and CIS Mobile provides the Mobile Devices under this Agreement on as “AS IS” basis and “with all faults.”
- RMA Process. Prior to returning any Mobile Devices to CIS Mobile for repairs or replacement, Customer must obtain a Return Merchandise Authorization number (“RMA#”) from CIS Mobile by calling CIS Mobile’s Customer Care group or emailing CIS Mobile at Support@CISMobile.com. In addition to providing an RMA#, CIS Mobile shall provide the ship-to address for the returned Mobile Device. Mobile Devices shipped to CIS Mobile without an RMA# will be returned to Customer at Customer’s expense. Customer agrees to pay all shipping and freight charges, FOB CIS Mobile offices, for all Mobile Devices sent to CIS Mobile. After repairing or replacing the Mobile Device, CIS Mobile shall pay all shipping and freight charges, FOB CIS Mobile offices, to return the Mobile Device back to Customer unless (i) Customer has sent a Mobile Device to CIS Mobile that is out of warranty; or (ii) the Mobile Device sent to CIS Mobile is in working condition and not in need of repair or replacement; or (iii) the Mobile Device was sent to CIS Mobile without an RMA# issued by CIS Mobile. Under the preceding conditions, Customer agrees to pay CIS Mobile a $200 evaluation fee. Customer acknowledges that it is solely responsible for backing-up and safeguarding any data stored on the Mobile Devices at all times including before shipment to CIS Mobile. If Customer ships any Mobile Device to CIS Mobile or its designee, CIS Mobile is only responsible for any loss or damage that occurs (a) while at the site of CIS Mobile or its designee and (b) where the loss or damage is caused by the negligence or willful misconduct of CIS Mobile or its designee. In that case, Customer’s only remedy and CIS Mobile’ sole liability to Customer shall be to repair or replace the lost or damaged Mobile Devices.
- Software Warranty.
- CIS Mobile represents and warrants as of the Effective Date and thereafter throughout the Term of this Agreement that CIS Mobile owns or has the legal right to license the Software licensed under this Agreement. CIS Mobile further represents and warrants that to its best knowledge and belief no Software delivered to Customer contains any (i) back door, time bomb, or other software routine designed to disable a computer program automatically with the passage of time or under the positive control of CIS Mobile; or (ii) any virus, Trojan horse, worm, or other software routine or hardware component designed to permit unauthorized access to, disable, erase, modify or otherwise harm any software, hardware or data.
- CIS Mobile warrants that during the term of the Subscription period the Software will operate in all material respects as described in the Specifications (the “Software Warranty Period”) provided that (a) any Mobile Device deployed by Customer but not purchased from CIS Mobile to operate the Mobile Device Software meets the minimum Specifications for Mobile Devices (“Customer Mobile Device”); and (b) any servers deployed by Customer (or its authorized hosting provider) to operate the Server Software meets the minimum Specifications for Server Software (“Licensed Servers”). Customer must notify CIS Mobile in writing of any Software warranty deficiencies within the Software Warranty Period. During the Software Warranty Period, CIS Mobile will correct material defects in the Software at no charge to Customer consistent with Exhibit A (Maintenance and Support).
- Software Warranty Exclusions. Notwithstanding Sections 4.1 and 19.4.2, CIS Mobile does not warrant the Software against material deviations in performance from the Specifications or claims of infringement caused by: (i) modifications made to the Software or any portion of it by anyone other than CIS Mobile; (ii) the combination, operation or use of the Mobile Device Software with any software or equipment other than Mobile Devices purchased from CIS Mobile or Customer Mobile Devices unless specifically authorized by CIS Mobile in writing; (iii) the combination, operation or use of the Server Software with any software or equipment other than Licensed Servers unless specifically authorized by CIS Mobile in writing; or (iv) Customer’s failure to use any new or corrected versions of the Software made available by CIS Mobile.
- Notwithstanding Section 21 (Limitation of Liability) of this Agreement, if, during the Software Warranty Period, the Software does not perform as warranted in this Section 4 (Software Warranty), CIS Mobile’ sole obligation will be to correct or modify the Software to make it perform as warranted. If, after a reasonable opportunity to correct or modify the Software, CIS Mobile is unable to make the Software perform as warranted, Customer will be entitled to terminate this Agreement and receive a refund of the amounts prepaid for the period from when the Software Warranty claim was received by CIS Mobile until the end of the prepaid subscription period. CIS Mobile may provide its warranty correction services remotely.
- Flashing Services Warranty. CIS Mobile warrants during the Flashing Services will be provided in accordance with the Specifications for Flashing Services. This warranty shall be subject to the provisions of Section 4.3 (Software Warranty Exclusions). Customer’s sole remedy for any claims under this Section 19.5 shall be to correct such failures at no charge to Customer.
- Professional Services Warranty. CIS Mobile warrants that (a) the Professional Services will be performed in a workmanlike manner; and (b) the Deliverables delivered to Customer is warranted to materially conform to the Specifications for a period of Ninety (90) days after completion of the Professional Services (the “Professional Services Warranty Period”). Customer must notify CIS Mobile in writing of any Professional Services warranty deficiencies during the Professional Services Warranty Period. Customer’s sole remedy for any claims under this Section 6 shall be to correct such failures at no charge to Customer.
- Training Services Warranty. CIS Mobile warrants that the Training Services will be performed (a) in material accordance with the Specifications for such Training Services; and (b) to the best of its ability and in a good, workmanlike manner with the highest standards of care, skill, and diligence used by persons who are skilled, trained and experienced with respect to the type of Training Services being provided. Customer must notify CIS Mobile in writing of any Training Services warranty deficiencies within Ten (10) days following completion of the Training Services. Customer’s sole remedy for any claims under this Section 7 shall be to either correct such failures at no charge to Customer or refund the payment for the deficient portion of the Training Services, at CIS Mobile’s sole discretion.
- WARRANTY DISCLAIMER. THE FOREGOING WARRANTIES ARE IN LIEU OF, AND THE PARTIES EXPRESSLY DISCLAIM, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. CIS MOBILE SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE PRODUCTS AND SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
- Sole Remedy. Customer’s sole remedy and CIS Mobile’s sole obligation for any warranty claims under this Section 19 shall be as set forth in this Section.
- Indemnification by Customer. If the Customer is a federal, state, or local government, this Section 1 does not apply. Customer (the “Indemnifying Party”) shall defend, indemnify and hold harmless CIS Mobile, and each of its officers, directors, owners, employees, agents or licensors (each, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against all third party actions, suits, losses, liabilities, claims, expenses, damages, and costs of every kind and description including reasonable legal fees (collectively, “Losses“) arising out of or in connection with: (i) any use of the Products or Services that is outside of the intended use of the Products or Services as set in the Specifications; (ii) claims that Customer IP infringes any trademark, patent, copyright or misappropriates any trade secret enforceable in the United States (an “IP Claim”); (iii) any violation by Customer of any licensing and other requirements provided by the licensor of the Third Party Applications; (iv) any resale or distribution of the Products or Services that is not authorized under this Agreement; .
- Indemnification by CIS Mobile. CIS Mobile (the “Indemnifying Party”) shall defend, indemnify and hold harmless Customer and its officers and directors, owners, employees or agents (each, an “Indemnified Party” and, collectively, the “Indemnified Parties”) from and against all third party actions, suits, losses, liabilities, claims, expenses, damages, and costs of every kind and description including reasonable legal fees (collectively, “Losses“) arising out of or in connection with any specific third-party claim, suit, or allegation that the Software provided by CIS Mobile under this Agreement specifically causes an infringement of a patent, trademark, copyright or other proprietary right of such third party that is enforceable in the United States (collectively the “IP Claim”). CIS Mobile shall not be liable for: (i) any costs or expenses incurred by Customer without CIS Mobile’s prior written authorization; (ii) designs, instructions, data, materials, or any other intellectual property provided by Customer; (iii) infringement caused from unauthorized modifications to the Software; (iv) Customer’s combination of the Software with other products or services and the infringement would have been avoided but for such combination; (v) CIS Mobile’s implementation of a Customer originated design or modification where infringement is due to such specified design or modification; or (vi) Customer’s use of the Software other than in accordance with the Specifications.
- Indemnity Procedure. The Indemnified Party shall provide the Indemnifying Party with (i) prompt written notice of any claims under this Section 20 for which it seeks indemnification hereunder; (ii) full information and assistance in settling and/or defending the claims; and (iii) full authority and control of the defense and/or settlement of any such claims.
- IP Claim Infringement Remedy. In the event of an IP Claim, the Indemnifying Party shall, at Indemnifying Party’s option and at no expense to the Indemnified Party: (a) by license or other release from claim of infringement, obtain for the Indemnified Party any rights to that it has under this Agreement to the product or service in question; (b) substitute an equivalent non-infringing product or service reasonably acceptable to the Indemnified Party, which meets the Specifications, and extend this indemnity thereto; or (c) modify the product or service to make it non-infringing but continue to meet the Specifications therefore, and extend this indemnity thereto.
- Exclusive Remedy for Indemnification. The remedies set forth in this Section 20 (Indemnification) shall be the exclusive remedies of the Parties with reference to any claims for indemnification and IP Claims.
- Limitation of Liability.
- LIMITATION ON INDIRECT DAMAGES. NEITHER OF THE PARTIES NOR THEIR LICENSORS SHALL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, PUNITIVE, CONSEQUENTIAL, ECONOMIC, SPECIAL, INCIDENTAL OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF BUSINESS REVENUE OR EARNINGS, LOST DATA, DAMAGES CAUSED BY DELAYS, OR A FAILURE TO REALIZE EXPECTED SAVINGS) DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, WHETHER OR NOT SUCH DAMAGES COULD REASONABLY BE FORESEEN OR THEIR LIKELIHOOD HAS BEEN DISCLOSED TO EITHER PARTY OR THEIR LICENSORS.
- LIMITATION ON DIRECT DAMAGES. BOTH PARTIES SHALL BE LIABLE TO THE OTHER PARTY FOR DIRECT DAMAGES ONLY, IN AN AMOUNT NOT TO EXCEED, IN THE AGGREGATE FOR ALL CLAIMS, THE TOTAL AMOUNT OF REVENUE GENERATED UNDER THE APPLICABLE ORDERING DOCUMENT FROM WHICH THE CLAIM AROSE IN THE MOST RECENT TWELVE (12) MONTH PERIOD FROM WHEN THE CLAIM AROSE.
- Upon CIS Mobile’s reasonable belief that criminal or otherwise improper activity may be associated with Customer’s use of the Hosted Services, CIS Mobile may, without incurring any liability, temporarily suspend or discontinue Customer’s use of the Hosted Services.
- Termination By Either Party. A non-breaching Party may terminate this Agreement for cause by written notice to breaching Party upon the occurrence of any of the following events: (i) the material breach by breaching Party of any term, provision, representation or warranty of this Agreement that remains uncured thirty (30) days after the non-breaching Party provides written notice thereof; (ii) a material breach of any of its intellectual property or confidentiality obligations; or (iii) Party becomes insolvent or subject to any proceeding under the federal bankruptcy laws or other similar laws for the protection of creditors, and such event continues for ninety (90) days after the non-breaching Party provides written notice thereof.
- CIS Mobile Termination. CIS Mobile may terminate this Agreement for cause by written notice to Customer upon Customer’s failure to pay any amounts due to CIS Mobile within fifteen (15) days following a Failure to Pay.
- Customer Termination. Customer may terminate this Agreement pursuant to the provisions of Section 13.2 (Price Changes) by providing CIS Mobile with notice of such termination prior to the effective date of the increase in the Prices.
- Rights Upon Termination. Upon termination of this Agreement by either Party:
- all Licenses granted hereunder shall terminate immediately
- each Party will promptly cease using and destroy or return to the other Party all items that contain any Confidential Information of the other Party;
- CIS Mobile shall immediately invoice Customer for any outstanding sums which may be owing and Customer immediately shall pay such invoices; and
- termination or expiration of this Agreement shall not release either party from: (i) any liability which has already accrued to the other Party hereto at the time of termination or expiration; (ii) any liability which thereafter may accrue with respect to any act or omission prior to termination or expiration; or (iii) any obligation which is expressly stated herein to survive termination or expiration.
- General Provisions
- Governing Law. This Agreement shall be governed by the laws of the Commonwealth of Virginia without regard to its conflict of laws provisions.
- Any dispute, controversy, or claim arising out of, relating to, or having any connection with the Agreement will be exclusively and finally be settled by binding arbitration in accordance with the Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association “Arbitration Organization”) that are then in effect (“Arbitration Claim”). The Parties shall attempt to agree upon the selection of a single arbitrator who is unrelated to either Party and has demonstrable experience in the area of the dispute. In the event the Parties are unable to select a mutually acceptable arbitrator, the arbitrator shall be appointed by the Arbitration Organization. Unless mutually agreed otherwise by the Parties, or prohibited by the Arbitration Organization, the arbitration shall be conducted via teleconference, preferably using video conferencing. In the event that teleconferences are not utilized then all arbitration proceedings shall be held in Loudoun County, Virginia. The arbitrator’s costs shall be borne equally by the Parties and each Party shall be responsible for its own preparation, discovery, and internal and external costs incurred to prosecute or defend the Arbitration Claim. The arbitrator shall be bound by the express provisions of this Agreement in deciding any Arbitration Claim. The determination of the arbitrator shall be final, and except as provided by law, shall not be subject to appeal or judicial review. Any court of competent jurisdiction may enforce any award or determination rendered by the arbitrator. The arbitrator shall not have the authority to award damages for lost profits or consequential damages, or special, punitive, or other exemplary damages of any sort.
- Neither Party shall issue a press release or make any similar public announcement without the other Party’s prior written consent to the specific language and intended distribution of such press release or announcement. Notwithstanding the foregoing, the Parties agree to issue a joint press release so that both Parties can make reference to this in marketing and promotional material. CIS Mobile may use Customer’s name and logo in CIS Mobile’s customer lists which may be posted on CIS Mobile’s website.
- Force Majeure. Neither Party shall be liable to the other Party or shall be subject to termination of the Agreement by the other Party for any delay, nonperformance, loss or damage (other than for failure to pay any amount when due) because of reasons beyond its reasonable control including, but not limited to, acts of God, natural casualties, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, labor or material shortages, strikes, communication systems failures, internet service provider failures or delays, or denial of service attacks, war, riots, power failures, transportation conditions or other causes beyond the reasonable control of the respective Party or not anticipated by the respective Party in its business judgment (each a “Force Majeure Event”). The Party seeking relief from the Force Majeure Event will notify the other Party in a timely fashion if it is unable to perform due to a Force Majeure Event. The other Party agrees that the Party seeking relief shall not be responsible or liable in any way for any delay or non-performance due to a Force Majeure Event (other than for failure to pay any amount when due).
- This Agreement and the rights and obligations hereunder may not be assigned, delegated, sublicensed or transferred without the prior written consent of the other Party. Notwithstanding the foregoing, either Party shall be free to assign its rights and obligations hereunder (in whole or in part) to a successor or affiliate at any time or to a third party in connection with a sale by such Party of a part of its business to that third party provided that the assignee: (a) agrees to be bound by the terms and conditions of this Agreement and (b) is not a competitor of the other Party.
- Subcontractors Permitted. CIS Mobile may engage subcontractors to perform all or any portion of its duties under this Agreement provided that any such subcontractor agrees in writing to be bound by confidentiality obligations at least as protective as the terms of this Agreement regarding confidentiality, and provided further that CIS Mobile remains responsible for the performance of such subcontractors.
- This Agreement may be updated from time-to-time by CIS Mobile by its posting changes thereto on its website, located at https://cismobile.com/commercial-terms, provided that no such changes shall impact any pre-existing Ordering Documents. If Customer does not agree to the amended terms, Customer shall not provide CIS Mobile with any additional Ordering Documents. Except as set forth in this Section, no modification of these Terms and Conditions is authorized and no modification shall be binding on CIS Mobile, unless in writing and signed by an authorized officer or director of CIS Mobile.
- Compliance with Laws. Each Party agrees to abide by all local, state, national, and international laws and regulations applicable to such Party’s performance under this Agreement, including, without limitation, all intellectual property and privacy laws.
- Non-Solicitation. No member of either Party’s personnel shall during the Term of this Agreement and for one year thereafter, without the prior written consent of the other Party, solicit the employment of any employee, former employee (separated less than 6 months), or consultant or subcontractor of the other Party or hire any employee, former employee, or consultant or subcontractor of the other Party who has been involved in the negotiation, operation or performance under this Agreement or any amendment or extension thereof.
- Attorneys’ Fees. In the event that either Party breaches the terms of this Agreement and arbitration is brought for any breach and/or enforcement thereof, then the arbitrator shall award the prevailing Party reasonable attorney’s fees and related costs.
- US Government Rights. The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if Customer is the US Government or any contractor therefor, Customer shall receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
- Miscellaneous Provisions. A failure or delay of either Party to this Agreement to enforce any of the provisions of this Agreement shall in no way be construed to be a waiver of such provisions. In the event that any provision of this Agreement shall be held to be invalid, the remaining provisions of this Agreement shall be unimpaired and the invalid provisions shall be replaced by a mutually acceptable provision. The Parties agree that where the context of any provision indicates an intent that it shall survive the termination of this Agreement, then it shall so survive. This Agreement shall not create, or in any way be interpreted as a joint venture, partnership or formal business organization of any kind. Except as set forth in this Agreement, neither Party has the right to make commitments of any kind for the other Party. Under no circumstances shall any personnel of either Party be considered to be an employee or agent of the other Party. There are no intended third party beneficiaries of any provision of this Agreement. Damages may be an inadequate remedy in the event of a breach by either Party to this Agreement and that any such breach by either Party may cause the other Party great and irreparable injury and damage. Accordingly, both Parties agree that the Party claiming breach shall be entitled, without posting a bond or waiving any additional rights or remedies otherwise available to it at law or in equity or by statute, to injunctive and other equitable relief. This Agreement constitutes the entire understanding between the Parties concerning the subject matter hereof and supersedes all prior discussions, agreements and representations, whether oral or written and whether or not executed by the Parties. This Agreement will not be construed in favor of or against either Party solely on the basis of a Party’s drafting or participation in the drafting of any portion of this Agreement. All notices required hereunder shall be in writing and transmitted to CIS Mobile at its address as first set forth in these terms and conditions, and to Customer’s address as set forth in the applicable Ordering Document unless Customer provides CIS Mobile with a different address (except for Orders and Acknowledgements which shall be handled as provided in Section 14 (Process for Orders)). Notices shall be effective upon the date of confirmed delivery or at such time as delivery is refused by addressee upon presentation. Email communications are acceptable methods of communication for any provision under this Agreement that requires the mutually written agreement of the Parties. The preamble hereto shall form an integral part of this Agreement. The headings in this Agreement are for convenience only and are in no way intended to describe, interpret, define, or limit the scope, extent, or intent of this Agreement or any of its provisions. All personal pronouns used in this Agreement, whether used in the masculine, feminine or neuter gender, shall include all other genders, the singular shall include the plural, and vice versa, as the context may require.
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MAINTENANCE AND SUPPORT
- Defined Terms. All capitalized terms used in this Exhibit shall be as defined in the Agreement unless such capitalized term is defined herein, in which case the meaning set forth in this Exhibit shall prevail.
- Contacting CIS Mobile. CIS Mobile shall provide support directly to Customer (but not its End Users) using one of the following methods:
- By Phone Call: +1-703-996-0500
- By Email: Support@CISmobile.com
- By Slack: Customer may utilize Slack to commute with CIS Mobile provided that the Parties mutually agree to configure and commute using Slack.
OPEN SOURCE SOFTWARE
All capitalized terms used in this Exhibit shall be as defined in the Agreement unless such capitalized term is defined herein, in which case the meaning set forth in this Exhibit shall prevail.
Open Source for Software Residing on Mobile Devices:
The Software that resides on Mobile Devices contains certain Open Source Software. A listing of such Open Source Software can be found on the Mobile Device under “About phone” -> “Legal Information” -> “Other open source licenses”.
Open Source for Server Software Residing on Customer’s Servers:
The Server Software that resides on servers owned or operated by Customer (including authorized hosting vendors other than CIS Mobile) contains certain Open Source Software. A listing of such Open Source Software for Server Software can be found in the Documentation for the Server Software.
SUPPORTED MOBILE DEVICES
All capitalized terms used in this Exhibit shall be as defined in the Agreement unless such capitalized term is defined herein, in which case the meaning set forth in this Exhibit shall prevail.
The Mobile Device Software is supported on the following list of Mobile Devices. Other Mobile Devices may be supported by either updating this Exhibit or by expressly including support the other Mobile Devices in an Ordering Document.
List of Supported Mobile Devices:
- Google Pixel 3a
- Google Pixel 3a XL
- Google Pixel 3
- Google Pixel 3 XL
- Google Pixel 4
- Sonim XP8
REQUIRED THIRD PARTY APPLICATIONS
— Required Third Party Applications to be provided in Ordering Documents —