TERMS OF USE  FOR MOBICHORD, INC. SOFTWARE

 The following Terms of Use for Software of MOBICHORD, INC (“Terms of Use”) are the terms on which MOBICHORD, INC (“MOBICHORD,” “us,” “our” or “we”) is willing to license certain software, as more fully described in the Order Form (“Software”) and provide certain support services, as more fully described in the Order Form (“Support Services”) to you, the customer (whether you are acting in your individual capacity, or on behalf of a corporation, partnership, limited liability company, or any other enterprise (each a “Third Party”) (“Customer” or “you”). 

ONLY INSTALL OR USE THE SOFTWARE IF YOU WISH TO BE BOUND BY ALL OF THESE TERMS OF USE. BY USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THESE TERMS OF USE IN THEIR ENTIRETY. 

You are not permitted to use the Software unless and until you agree to all of these Terms of Use. 

Subject to the terms and conditions set forth herein, MOBICHORD hereby grants to you a limited, non-exclusive, non-transferrable, nonsub-licensable, right to use the Software, without regional or temporal limitation, solely for your internal business purposes, and only for the number of licenses/clients, and during the term, specified in the applicable invoice or order form entered into between MOBICHORD and you and attached hereto as the “Order Form”.  In the event of a dispute between these Terms of Use and the Order Form, the Order Form shall control.   

The Software is licensed to you and not sold. You may own the media on which the Software is recorded, but MOBICHORD and its licensors retain ownership of the Software, including all copyright, patent, trademark, trade secret and other proprietary and intellectual property rights in the Software. You may copy the Software solely as is required for using the Software in accordance with these Terms of Use (including an adequate, reasonable number of backup copies of the Software). On each backup copy you shall apply the following copyright notice: “Copyright MOBICHORD”.  To the extent you are acting on behalf of any Third Party, you shall remain liable for any acts or omissions of such Third Party with respect to its use of the Software and/or receipt of the Services.   

1. You may, from time to time, request that MOBICHORD reverse-engineer the Software into other code forms solely to the extent this is essential for creating, maintaining or running an independently developed interoperable program and if the necessary information on how to establish interoperability has not been published yet.  Additional professional services fees may apply for any such services, which MOBICHORD may agree, or refuse, to provide in its sole and absolute discretion.  You acknowledge that the Software, including but not limited to the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of MOBICHORD and its licensors.  Subject to these Terms of Use, you shall not disassemble, decompile, “hack” into, or otherwise reverse engineer the Software, in whole or in part, or permit or authorize a third party to do so, or use the Software for service bureau purposes.  You may use the Software only as expressly permitted by these Terms of Use.  

2. The number of authorized users of the Software shall be set forth on the applicable Order Form.  From time to time the parties may agree in writing by way of a written amendment to the applicable Order Form, each in their absolute discretion, to increase the number of authorized users for the Software.  Use of the Software by more than the agreed number of authorized users is not permitted and will be deemed a material breach of these Terms of Use and may constitute an infringement of MOBICHORD’s intellectual property rights.  You shall inform MOBICHORD of any such overuse immediately after discovery.  All payment terms shall be as set forth on the applicable Order Form.    

3. The Software, including the user manual, is protected by the intellectual property laws of the United States and international treaties and the copyright and other intellectual property laws of the countries in which you may use the Software.  You acknowledge that the Software, including the user manual, is subject to such laws and treaties. You shall not remove, delete, change, or in any manner alter the copyright, trademark, and other proprietary rights notices, markings, serial numbers and/or other features appearing on the Software as delivered to you and used to identify the Software.  You agree to take any and all necessary measures to prevent unauthorized third-party access to the Software, the supplied original data media and backup copies, including, without limitation, storing the same in a location that is protected against unauthorized third party access. You shall explicitly instruct your employees to comply with these Terms of Use and any applicable property and other laws and regulations.

4. You shall take reasonable and adequate technical measures to protect the Software from any usage that is not in accordance with these Terms of Use. You may not remove existing copyright protection or similar protective routines from the Software without the prior written consent of MOBICHORD, which consent may be granted or withheld in MOBICHORD’s sole and absolute discretion.  

You may not transfer, sublicense, lease, lend, rent or otherwise distribute the Software, including the user manual, without MOBICHORD’s explicit prior written consent, which consent may be granted or withheld in MOBICHORD’s sole and absolute discretion.  

You may provide access to the Software, including the user manual, to third party service providers acting on your behalf; provided, however, that, in such an event, such third party service provider must agree to comply with these Terms of Use and you shall remain liable for such third party service providers’ acts or omissions in connection with their use of the Software not in accordance with the Terms of Use. Third party service providers using the Software shall count towards the number of authorized users as set forth in the Order Form.

5. ALL SOFTWARE AND SERVICES ARE PROVIDED “AS IS”. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY, PERFORMANCE, ACCURACY AND EFFECT OF THE SOFTWARE. 

6. TO THE FULLEST EXTENT PERMITTED BY LAW MOBICHORD AND ITS LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.  

The foregoing limitations will apply even if any warranty or remedy provided by MOBICHORD fails of its essential purpose.   

7. TO THE FULLEST EXTENT PERMITTED BY LAWIN NO EVENT WILL MOBICHORD’S AND ITS LICENSORS TOTAL LIABILITY TO YOU FOR ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE TO MOBICHORD HEREUNDER DURING THE 6 MONTH PERIOD PRIOR TO THE DATE OF SUCH CAUSE OF ACTION ACCRUES, AND IN NO EVENT SHALL MOBICHORD OR ITS LICENSORS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS) ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE, OMISSION OF PERFORMANCE, OR TERMINATION HEREOF WITHOUT REGARD TO THE NATURE OF THE CLAIM (E.G., BREACH OF CONTRACT, NEGLIGENCE, INDEMNIFICATION OR OTHERWISE). 

8. MOBICHORD shall provide hotline support during the hours of operation: 

Hotline Support Number  +1 (801) 895-4180 
Support e-Mail Address  support@mobichord.com 
Days of Operation  Monday – Friday 
Hours Of Operation  9:00 am – 5:00 pm 
Time Zone  GMT-7 (MST) 
Support Office Location  Salt Lake City, UT (USA) 
Language  English 

Hotline support will not be available for free / trial Software unless stated otherwise on the Other Form. Hotline support will not be available on public holidays in the United States of America. From time to time MOBICHORD may provide or make available updated versions of the Software. You may request that MOBICHORD provide additional integration, training and/or other services in addition to the hotline support (“Additional Services”).  Any such Additional Services agreed to by MOBICHORD, which agreement shall be at MOBICHORD’s sole and absolute discretion, shall be set forth in a separate statement of work which shall set forth, without limitation, the services to be provided and any additional fees to be charged by MOBICHORD with respect thereto. 

9. The initial term, and any renewal periods, during which you may use the Software and receive Support Services is set forth in the Order Form. Either party may terminate these Terms of Use at any time by providing written notice to the other: (a) where the other commits a material breach of its obligations under these Terms of Use and fails to cure such material breach within thirty days of receipt of notice from the non-defaulting party; and (b) if the other becomes insolvent or enters into bankruptcy, suspension of payments, moratorium, reorganization or any other proceeding that relates to insolvency or protection of creditors’ rights. Notwithstanding anything herein to the contrary, upon expiration or termination of these Terms of Use for any reason, you shall immediately cease all use of the Software and Support Services. 

 

10. Each party to these Terms of Use shall (a) keep the Confidential Information of the other party confidential and unavailable in any form to any third party without the consent of the disclosing party, and (b) use the Confidential Information of the other (disclosing) party only for purposes relating to the recipient party’s performance under this Agreement.  For purposes of these Terms of Use, Confidential Information shall mean (i) any information received by one party from the other about the disclosing party’s business, business plans, customers, suppliers, strategies, trade secrets, operations, records, finances, assets and technologies (including without limitation the Software) and (ii) any other confidential or proprietary information either designated as such in writing by the disclosing party or which could reasonably be expected to be considered as confidential.  Each party may make reasonable and necessary disclosure of relevant Confidential Information to its officers, employees, agents, contractors and subcontractors, who have a need to know such information pursuant to their duties, provided that it takes all reasonable precautions to prevent further disclosure or duplication of such Confidential Information.  The Parties acknowledge and agree that each believes its Confidential Information constitutes valuable proprietary information, the improper disclosure of which may cause irreparable injury to it.  Accordingly, the Parties agree that in the event of a violation or threatened violation by the receiving party of its confidentiality obligations hereunder, the disclosing party will be entitled to seek injunctive relief.  Nothing in this Agreement will prohibit or limit a party’s use of information (a) previously known to it, (b) independently developed by it, (c) acquired by it from a third party which was not, to the receiving party’s knowledge, under an obligation to the disclosing party not to disclose such information, or (d) which is or becomes publicly available through no breach by the receiving party of this Agreement or (e) which is required to be publicly disclosed pursuant to law or a securities exchange,.  In the event a party receives a subpoena or other validly issued administrative or judicial process requesting Confidential Information of another party, to the extent permitted by law it will provide prompt notice to such other party of such receipt.  The party receiving the subpoena shall thereafter be entitled to comply with such subpoena or other process to the extent permitted by law unless timely limited or quashed.

11. You agree to comply with applicable export and import and use restrictions, including the U.S. Department of Commerce, Export Administration Regulations.  You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. Each of the parties shall comply with all applicable local, state and federal laws and regulations applicable to such party’s performance (“Applicable Law”) in connection with these Terms of Use.  Your failure to use the Software in accordance with Applicable Law shall constitute a material breach of these Terms of Use.  

12. In the event that one or more of the provisions in these Terms of Use shall, for any reason, be held by a court of competent jurisdiction to be invalid, void or unenforceable in any respect, such holding shall not affect any other provisions of these Terms of Use, which shall remain in full force and effect unless such continuance will deprive one of the parties of a material benefit hereunder or frustrate the main purpose(s) of these Terms of Use.   

13. This Agreement, together with all exhibits, schedules or attachments, constitutes the entire and exclusive agreement between the parties relating to the transactions contemplated by these Terms of Use and supersedes any and all oral or written representations, understandings, or agreements relating thereto.  Any other terms or conditions included in any quotes, purchase orders, “click-through” agreements, acknowledgements, bills of lading, or other documents utilized or exchanged between the parties shall not be binding upon either party unless and only to the extent that a written agreement signed by an authorized representative thereof expresses the intent of such party to be bound thereby. 

14. Neither party may assign, in whole or in part, these Terms of Use without the prior written consent of the other party such consent not to be unreasonably delayed or withheld; provided, however that the MOBICHORD may assign these Terms of Use in connection with a change of control and/or sale of all or substantially all of its assets.  

15. Any modification or amendment of these Terms of Use will not be binding on the parties unless set out in writing and signed by authorized representatives of each of the parties.  No waiver regarding any breach of these Terms of Use shall constitute a waiver of any other breach.  Any delay by a party in exercising in any respect any right provided for in these Terms of Use, shall not be deemed a waiver of the subject right or any further right under these Terms of Use.  

16. The relationship between the parties under these Terms of Use is non-exclusive.  The parties shall at all times be independent contractors in the performance of these Terms of Use.  Nothing contained in these Terms of Use shall be construed to give either party the power to direct and control the day-to-day activities of the other party or to constitute a partnership, joint venture, or employment relationship between the parties.  Neither party has any right or authority to incur, assume or create, in writing or otherwise, any warranty, liability or other obligation of any kind, express or implied, in the name of or on behalf of the other party. 

17. The interpretation, validity and enforcement of these Terms of Use, and all legal actions brought under or in connection with the subject matter of these Terms of Use, shall be governed by the law of the State of New York, USA (except that any conflicts-of-law principles of such state that would result in the application of the law of another jurisdiction shall be disregarded).  Any legal action brought under or in connection with the subject matter of these Terms of Use shall be brought only in the state or District Courts located in New York, New York, USA.  Each party submits to the exclusive jurisdiction of these courts and agrees not to commence any legal action under or in connection with the subject matter of these Terms of Use in any other court or forum.  EACH PARTY ALSO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO, AND SHALL NOT REQUEST, A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ONE PARTY AGAINST THE OTHER ARISING OUT OF OR RELATED TO THESE TERMS OF USE. 

Version: May 2018