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This Agreement was last modified on December 18, 2015.
1.1. “Affiliate” means any entity controlling or controlled by or under common control with a party, where “control” is defined as the ownership of more than 50% of the equity or other voting interests of such entity.
1.2. “Agreement” means this MSA, and the acceptable use policy (“AUP”), available at https://www.neumob.com/aup
1.3. “Neumob” means Neumob, Inc., its Affiliates, or a Neumob authorized sub-contractor.
1.4. “Customer” means the entity that orders the Services and is responsible for the payment of fees under, and compliance with, the Agreement.
1.5. “Service(s)” means services or products ordered by a customer pursuant to the Service Order.
1.6. Other capitalized terms used are defined as set forth below or in the Service Order.
Customer and its Affiliates may order Services by executing a Service Order. A Service Order becomes effective when fully executed by both parties. The Services ordered are provided subject to the Agreement. The terms and conditions of the Agreement also apply to any and all subsequent Service Orders executed by the parties, even when the terms and conditions are not explicitly referenced.
3.1. Neumob shall provide the Services as set forth in the Agreement. All rights in the Services are reserved to Neumob.
3.2. Each party shall perform its obligations as set forth in the Agreement. Except as expressly permitted in a particular Service Order, Customer shall not resell the Services to a third party nor enter into any similar relationship with a third party to enable the purchase or use of the Services through Customer. For purposes of the foregoing, end-users accessing Customer’s mobile App are not considered to be using the Services. When using the Services, Customer shall comply with Neumob’s AUP.
4. PAYMENT TERMS
4.1. Customer shall pay for the Services within thirty (30) days of invoice date or the Payment Term set forth in the Service Order.
4.2. All prices are, and all payments shall be, in the currency set forth in the Service Order.
4.3. All taxes (other than taxes assessed on the net income of Neumob) are the responsibility of Customer. There shall be no deduction in respect of any such taxes, or any offset against payment for any taxes; and all payments shall be grossed up to take account of any withholding taxes.
4.4. Customer shall pay a late charge of one percent (1%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts not paid within thirty (30) days of invoice date or the Payment Term set forth in the Service Order, plus all costs, including reasonable legal fees, incurred to collect any unpaid amounts.
4.5. Unless prohibited by applicable law or regulation, all invoiced amounts not disputed in writing within thirty (30) days of invoice date are deemed accepted.
4.6. Neumob reserves the right to reasonably require payment assurance.
5. TERM AND TERMINATION
5.1. The term of the Services is set forth in the Service Order as the period from the Contract Start Date to the Contract End Date (the “Term”). The Agreement shall apply as long as the Service Order continues to be effective. Termination of an individual Service Order shall not terminate any other Service Orders.
5.2. Either party may terminate a Service Order if: (a) the other party materially breaches the Agreement and such breach continues unremedied for thirty (30) days following notice or such other period designated herein or (b) the other party materially breaches the Agreement and it is not possible to remedy such breach. For the purposes of this section, in order for it to be possible to remedy a breach it must be possible to take steps so as to put the other party in the position it would have been in if the breach had never occurred.
5.3. Except for a termination by Customer as expressly permitted in the Agreement, if a Service Order is terminated prior to the end of the Term for any reason, Customer shall pay Neumob a termination charge (which Customer acknowledges reflects a reasonable measure of actual damages and not a penalty) equal to 100% of the fees that would have become due for the remainder of the Term, in addition to all fees outstanding at the date of termination.
5.4. Neumob may immediately suspend all Service Orders for undisputed payments not received within thirty (30) days of invoice date or the Payment Term set forth in the Service Order, until Neumob receives all outstanding payments.
6. CONFIDENTIAL INFORMATION
6.1. Any information that a receiving party knows or has reason to know to be confidential or proprietary (because such information is identified by the disclosing party orally or in writing as such or is not generally known in the relevant industry), is “Confidential Information” and shall remain the sole property of the disclosing party.
6.2. The terms of any Services Orders shall also constitute Confidential Information.
6.3. Neither party shall disclose, use, modify, copy, reproduce or otherwise divulge Confidential Information of the other, except as required by law. This section shall not apply to information known to or independently developed by the receiving party, disclosed in published materials, generally known to the public, or lawfully obtained from any third party.
7.1. Neumob shall defend, indemnify and hold Customer harmless from and against any claim made, or any suit or proceeding brought against Customer, but only to the extent it is based on an allegation that a Service furnished hereunder directly infringes an issued patent or other intellectual property right in a country in which the Service is actually provided to Customer. If a Service is held to infringe and the use enjoined, Neumob shall have the option, at its own expense, to procure for Customer the right to continue using the Service; or replace same with a non-infringing service; or modify such Service so that it becomes non-infringing. If Neumob is unable to provide one of the foregoing remedies, Customer may terminate the applicable Service without termination charge upon written notice to Neumob. Neumob shall have no liability for any infringement of patents, copyrights, or other intellectual property rights resulting from Customer Content, use of the Service other than as specified in relevant Neumob documentation, the use or combination of the Service with any hardware, software, products, applications, data or other materials not specified or provided by Neumob, or to the extent the claims arise from products or services not supplied by Neumob.
7.2. Customer is solely responsible for all content and applications, including any third party content or applications, provided to Neumob for delivery by the Services (“Customer Content”). Customer retains all right, title and interest in its Customer Content and Customer Content shall not be deemed part of any Service. Customer acknowledges that Neumob does not assume and should not be exposed to Customer s business and operational risks associated with Customer Content. Customer shall defend, indemnify, and hold Neumob harmless as a result of any claim by a third party against Neumob with respect to any Customer Content or misuse of a Service by Customer.
7.3. The indemnified party shall (a) promptly notify the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, and (b) allow the indemnifying party solely to control the defense of any claim, suit or proceeding. The indemnifying party shall not enter into any settlement that imposes liability or obligations on the indemnified party without obtaining the indemnified party’s prior written consent.
8. WARRANTY DISCLAIMER
EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, THE SERVICES, NEUMOB TECHNOLOGY, NEUMOB NETWORK, AND ALL OTHER DATA AND MATERIALS PROVIDED IN CONNECTION WITH THE AGREEMENT BY NEUMOB ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, NEUMOB, ON BEHALF OF ITSELF AND ITS CONTRACTORS, SUPPLIERS AND LICENSORS, HEREBY DISCLAIMS ALL WARRANTIES REGARDING THE SERVICES, THE NEUMOB TECHNOLOGY, NEUMOB NETWORK, AND ANY OTHER MATERIALS AND SERVICES, WHETHER EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. NEUMOB DOES NOT WARRANT THAT THE NEUMOB TECHNOLOGY, NEUMOB NETWORK, OR SERVICES WILL BE COMPATIBLE WITH ANY EQUIPMENT, SOFTWARE OR TECHNOLOGY NOT PROVIDED BY NEUMOB, OR ANY RESULTS TO BE ACHIEVED THROUGH THE USE THEREOF, OR WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, VIRUS-FREE, ACCESSIBLE, ACCURATE OR SECURE. NEUMOB DISCLAIMS ANY RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF INFORMATION OBTAINED THROUGH ITS SERVICES, THE USE OF WHICH IS AT CUSTOMER’S OWN RISK. NEUMOB SHALL NOT BE RESPONSIBLE FOR ANY PROBLEMS WITH THE SERVICES RELATING TO (I) THE PUBLIC INTERNET INFRASTRUCTURE OR CUSTOMER’S ABILITY TO CONNECT TO THE INTERNET; OR (II) SITES, NETWORKS, EQUIPMENT, SERVICES OR RESOURCES OF CUSTOMER, ANY CLIENT OF CUSTOMER, OR ANY OTHER THIRD PARTY. NEUMOB SHALL NOT BE RESPONSIBLE FOR LOSS OR CORRUPTION OF DATA, OR DAMAGE TO HARDWARE AND CONNECTED EQUIPMENT.
9. LIMITATION OF LIABILITY
NEUMOB WILL NOT BE LIABLE FOR BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF PROFITS, OR OTHER SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE USE OF THE SERVICES OR RELATED MATERIALS, HOWEVER ARISING AND REGARDLESS OF THEORY OF LIABILITY, EVEN IF NEUMOB HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. NEUMOB’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING ANY SERVICE ORDER), WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO NEUMOB DURING THE PRECEDING SIX (6) MONTHS UNDER THE APPLICABLE SERVICE ORDER UNDER WHICH THE LIABILITY PRINCIPALLY ARISES.
10.1. Independent Contractor. The relationship of Neumob and Customer established by the Agreement is that of independent contractors, and nothing contained in the Agreement shall be construed to deem the parties to be acting as partners, joint venturers, co-owners or otherwise as participants in a joint undertaking.
10.2. Notices. Any notice required or permitted hereunder shall be in writing and shall be delivered as follows (with notice deemed given as indicated): (i) by personal delivery when delivered personally; (ii) by established overnight courier upon written verification of receipt; (iii) by facsimile transmission when receipt is confirmed orally; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt; or (v) by email upon delivery confirmation. All notices must be sent to the contact person for notices at the address listed on the Service Order.
10.3. Assignment. Customer may not, without the prior written consent of Neumob, assign the Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so shall be a material default of the Agreement and shall be void; provided, that any change in control of Customer resulting from a merger, consolidation, stock transfer or asset sale shall not be deemed an assignment or transfer for purposes of this Agreement. Neumob’s rights and obligations, in whole or in part, under the Agreement may be assigned or transferred by Neumob.
10.4. Third Party Beneficiaries. The Agreement is solely for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or remedies on any other person or entity.
10.5. Governing Law. The Agreement shall be interpreted according to the laws of the state of California without regard to or application of choice-of-law rules or principles. All disputes arising under the Agreement shall be brought in the Superior Court of California in Santa Clara County. Each party consents to exclusive jurisdiction in such courts.
10.6. Entire Agreement. The Agreement (including the signature page and any Service Order hereto) is the entire agreement between Neumob and Customer with respect to the subject matter hereof and all prior agreements, representations, and statements with respect to such subject matter are superseded hereby. The Service Order shall govern in case of any conflicts with this Agreement. The Agreement may be changed only by written agreement signed by both parties. No failure of either party to exercise or enforce any of its rights under the Agreement shall act as a waiver of subsequent breaches; and the waiver of any breach shall not act as a waiver of subsequent breaches.
10.7. Severability. In the event any provision of the Agreement is held by a court of other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law, and the other provisions of the Agreement will remain in full force and effect.
10.8. Force Majeure. If either party is prevented from performing any of its obligations under the Agreement due to any cause beyond the party’s reasonable control, including, without limitation, an act of God, fire, flood, explosion, war, strike, embargo, government regulation, civil or military authority, acts or omissions of carriers, transmitters, providers, vandals, or hackers (a “force majeure event”) the time for that party’s performance will be extended for the period of the delay or inability to perform due to such occurrence; provided, however, that Customer will not be excused from the payment of any sums of money owed by Customer to Neumob.
10.9. Counterparts. The Agreement or any related Service Order may be executed in any number of counterparts, each of which, when so executed and delivered, shall be deemed an original, and all of which shall constitute one and the same agreement.
10.10. Construction. There shall be no presumption or inference against the party drafting the Agreement in construing or interpreting the provisions hereof. The section headings used in the Agreement are intended solely for convenience of reference and shall not in any manner expand, limit, modify or otherwise be used in the interpretation of any of the provisions hereof.
10.11. Remedies. Except as provided herein, the rights and remedies of the parties set forth in the Agreement are not exclusive and are in addition to any other rights and remedies available to it at law or in equity.
10.12. Binding effect. The Agreement shall be binding upon and shall inure to the benefit of the respective parties hereto, their respective successors-in-interest, legal representatives, heirs and assigns.