This End User License Agreement and Terms of Service (this “Agreement”) sets forth the legally binding terms between MobiTech International, LLC, a Texas limited liability company (“MobiTech,” “our,” “us” or “we”), and the customer whose name appears on the registration form (“Customer” or “you”) regarding your use of MobiTech’s automotive re-conditioning service (as it may be updated from time to time, the “Service”) designed to enable end users to efficiently process small to medium automotive repairs, including the associated mobile application (the “App”).The parties hereby agree as follows.
- Provision of Service and License Grant. During the Term, and subject to the terms and conditions of this Agreement, MobiTech: (a) will provide Customer with access to the Service, and (b) hereby grants Customer a limited, non-exclusive, revocable, non-sublicensable, and nontransferable license to download, install and use the App on a single smart phone, tablet or other mobile device that Customer owns or controls, subject to the terms and conditions herein.
- Cooperation. Customer shall cooperate with MobiTech as may be reasonably required to enable the provision of the Service and the App. Customer hereby grants to MobiTech a non-exclusive license to use Customer’s trademarks, service marks, and other applicable proprietary rights (collectively, “Customer Properties”) as may be reasonably necessary or helpful in connection with the provision of the Service hereunder.
- Representations About Customer. Customer represents and warrants to us that it has the power and authority to enter into this Agreement, and that the information that it provides to us about Customer or its account in connection with the Service will be current, true, accurate, supportable and complete.
- No Reliance on Data. Customer understands and agrees that all information and data provided to Customer during its use of the App and the Services, including but not limited to, Service rates, costs, and Service times are to be treated and interpreted as guidelines only and not as a statement of fact. Customer understands and agrees that actual Service rates, costs, and times incurred by Customer may vary. MobiTech makes no representation or warranty as to the accuracy of such information, or that any such information will form the basis for payment to Customer from a third-party insurance company and that insurance company payments may vary from the suggested costs and Services time provided by MobiTech.
- Authorized Users. During the Term, Customer may allow its employees and agents (referred to as “Authorized Users” in this Agreement) to use the Service on Customer’s behalf. Examples of Authorized Users include Customer’s administrative users who have authority to manage and administer Customer’s account (“Admins”) and Customer’s automotive repair technicians and other Customer-affiliated personnel (“Basic User(s)”). Any breach of this Agreement by an Authorized User will be deemed to be a breach by Customer. Customer and Admins shall be solely responsible for managing and administering Basic User accounts, including issuing user names and passwords for Basic User accounts. Customer and Admins shall be solely responsible for the security and confidentiality of Customer’s account information, including user names and passwords, and will ensure that no third-party uses Customer’s account. Customer and Admins shall immediately notify MobiTech in the event that Customer or an Admin becomes aware of any unauthorized access to the Service or any violation of the terms of this Agreement.
- Reservation of Rights. You acknowledge and agree that the App is licensed, not sold, to you and that nothing in this Agreement grants any right, title or interest in or to the Services, the App, or any third-party materials contained therein, other than to use the App and the Service in accordance with the terms of this Agreement. We reserve all rights in and to the Service and the App and all related intellectual property not expressly granted under this Agreement. “MobiTech,” and all associated logos displayed within the Service and the App are our trademarks (unless otherwise noted). Without limiting the generality of the foregoing, subject to the limited rights granted hereunder, Customer acknowledges and agrees that, as between Customer and MobiTech, all right, title and interest, including all copyright, trademark, patent, trade secret (including all modifications, improvements, upgrades, and derivative works thereof) and other intellectual property or proprietary rights, related to the Service and the App belong exclusively to MobiTech. Customer shall honor and comply with any and all contractual, statutory or common law rights of MobiTech, as well as any applicable third parties, arising out of or relating to the provision or use of the Service or the App.
- Feedback. If Customer or any Authorized User submits comments, suggestions, materials, or other feedback regarding the Service or the App to MobiTech (“Feedback”), Customer hereby assigns to MobiTech all right, title, and interest in such Feedback, and we are free to use the Feedback for any purpose without any attribution or compensation to you.
- Restrictions On Use Of The Service. Customer and the Authorized Users may use the Service, and the App solely for their respective intended purpose in accordance with this Agreement. Customer shall not, directly or indirectly, and shall not permit any Authorized User to: (i) rent, lease, lend, sell, redistribute, reproduce or sublicense the Service or the App (ii) copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Service or the App, or any part thereof; (iii) integrate the Service or the App with other technology, other than as is expressly contemplated by our pertinent documentation; (iv) remove any proprietary notices from the Services or App; or (v) use the Services or App in any manner that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. If for some reason these restrictions are prohibited by applicable law or by an agreement we have with one of our licensors, then the activities are permitted only to the extent necessary to comply with such law or licenses. Customer shall not exploit the Service or the App in any unauthorized way whatsoever, including, but not limited to, (i) by trespass, (ii) by burdening network capacity or consuming a disproportionate share of the resources on which the Service or the App relies (e.g. compute time, disk storage, and network bandwidth), or (iii) by utilizing the Service or the App in a way that unnecessarily interferes with the normal operation thereof.
- Limitations on Availability. The Service and the App, or some aspects thereof may not be available in all languages or in all countries. We make no representation that the Service or the App is available or permitted in any particular location. Use of the Service and the App is void where prohibited. Customer uses the Service and the App at Customer’s own initiative and is responsible for compliance with any applicable laws. We may also impose limits on the use or access to the Service or the App as required by law.
- Third-Party Materials. The App and Service may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials“). Customer acknowledges and agrees that we are not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. We do not assume and will not have any liability or responsibility to Customer or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
- Fees. In exchange for use of and access to the Service, Customer agrees to pay MobiTech the monthly fees per unique Authorized User (the “Fees”) set forth on our [pricing page], without offset or deduction; provided, that if Customer registers for a Trial Service, the Service will be offered to Customer free of charge for a period beginning on the Effective Date and ending 14 days thereafter. From time to time, we may increase our Fees by providing Customer not less than 60 days’ notice prior to the date on which the Fee increase is scheduled to begin. Fees are due each month, in advance, and are based on the number of Authorized Users in the preceding month. Customer authorizes MobiTech to charge the credit card (or other electronic payment method) on file with Customer’s account for all Fees. If Customer pre-pays for the entire 12-month initial Term or applicable renewal Term, MobiTech will provide Customer with a discount equal to 2 free months of service and such payment will lock in price of Service for the entirety of such year. Fees are payable in United States dollars and are exclusive of applicable sales, excise, use or similar taxes, Customer shall pay all such taxes directly or to us, as required by applicable law. Should Customer not pay any amount when due, MobiTech may (at its discretion and in addition to other remedies it may have) suspend Customer’s and Authorized Users’ access to the Service until such amounts are paid in full.
- Free Trial. If Customer registers for a free trial, MobiTech will make the Service available on a trial basis free of charge (“Trial Service”) until the earlier of (i) the end of the free trial period, or (ii) the start date of any paid subscription to the Service. In addition to the disclaimers of warranty set out in this Agreement, Customer expressly acknowledges and agrees that all use of any Trial Service is at Customer’s sole risk. MobiTech reserves the right to terminate any Trial Service at any time.
- Support, Maintenance and Updates. During the Term of this Agreement, MobiTech will use commercially reasonable efforts to provide Customer with email support related to the Service and the App. Scheduled system maintenance shall take place from time to time, and during such time, the Service may be unavailable. Emergency maintenance may be required at other times in the event of system failure. We make no guarantees about uptime. MobiTech may, but is not required to develop and provide App updates from time to time, which may include upgrades, bug fixes, patches and other corrections or new features (collectively, “Updates”). Updates may also modify or delete in their entirety certain features or functionality. You agree that MobiTech has not obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on the settings of your mobile device, when your device is connected to the Internet the App will automatically download and install available Updates, or you will be prompted to download and install available Updates. You acknowledge and understand that the App or any of its features may not operate properly if you fail to install Updates. You further agree that all Updates will be deemed part of the App and subject to the terms of this Agreement.
- Term. This Agreement will commence on the Effective Date and will continue on a month-to-month basis until terminated as set forth below, provided that Customer may elect to have a one-year term in exchange for a discount on the Fees, as described above (the “Term”). If Customer elects for a one-year Term, at the expiration of the initial Term, this Agreement will automatically renew for successive one-year renewal Terms, unless either party provides written notice (email sufficing) not less than 30 days prior to the expiration of the then-current term.
- Termination. Subject to the notice requirement of Section 13, Customer may cancel its subscription to the Service and terminate this Agreement by providing notice to MobiTech and such termination will be effective immediately upon receipt of such notice. Notwithstanding anything to the contrary in this Agreement, MobiTech reserves the right to suspend Customer’s access to the Service or terminate this Agreement at any time upon notice to Customer if Customer violates the terms of this Agreement. In no event shall termination relieve Customer of the obligation to pay any Fees payable to MobiTech for the period prior to the effective date of termination. If Customer prepaid any Fees, MobiTech will refund to Customer the prepaid Fees covering the remainder of the Term after the effective date of termination; provided that if Customer received a prepayment discount, the amount refunded will be less any applicable discount for the periods prior to the effective date of termination. MobiTech will have no liability for any damage, liabilities, losses, or other consequences that Customer or any Authorized User may incur as a result of such termination or suspension of service.
- Effect of Termination. Upon termination of this Agreement: (i) all license and other rights granted to you under this Agreement will terminate, and (ii) Customer must cease all use of the Service and destroy all copies of the App. Sections 5-7, 9 (as to amounts owed as of termination) and 14-25 shall survive any termination or expiration. All other rights and obligations shall be of no further force or effect.
- Data Ownership and License. As between MobiTech and Customer, Customer shall own all right, title, and interest in and to any data that is collected by MobiTech from Customer and its Authorized Users in connection with their use of the Service and the App (“Data”). To the fullest extent permissible under applicable law, Customer grants and agrees to grant to MobiTech a non-exclusive, worldwide, irrevocable, transferable, sublicensable, royalty free license to reproduce, distribute, and otherwise use Data in order to provide the Service and the App to Customer and its Authorized Users and as necessary to monitor and improve the Service and the App. Additionally, Customer grants and agrees to grant to MobiTech a perpetual, non-exclusive, transferable, sublicensable, royalty free license to use Data to collect, develop, create, extract or otherwise generate statistics and other information and to otherwise compile, synthesize and analyze such Data (“Blind Data”). Notwithstanding anything in this Agreement to the contrary, to the extent that MobiTech collects or generates Blind Data, such Blind Data will be owned solely by MobiTech and may be used for any lawful business purpose without a duty of accounting or obligation, provided that such Data is not personally identifiable and does not identify the source of such Data.
- Backup. IT IS CUSTOMER’S SOLE RESPONSIBILITY TO BACK-UP ITS DATA DURING THE TERM. MOBITECH HAS NO OBLIGATION OR LIABLITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF ANY DATA. CUSTOMER AGREES AND ACKNOWLEDGES THAT POST-TERMINATION OR EXPIRATION, IT MAY NOT HAVE ACCESS TO THE DATA VIA THE SERVICE.
- Confidentiality. Customer acknowledges that the Service, the App, the terms of this Agreement, and any other proprietary or confidential information provided to Customer by MobiTech (“MobiTech Confidential Information”) constitutes valuable proprietary information and trade secrets of MobiTech. MobiTech acknowledges that the Data provided to MobiTech by Customer (“Customer Confidential Information”) is the sole proprietary property of Customer. Each party agrees to preserve the confidential nature of the other party’s Confidential Information by retaining and using the Confidential Information in trust and confidence, solely for its internal use except as provided herein, and by using the same degree of protection that such party uses to protect similar proprietary and confidential information, but in no event less than reasonable care. Each party shall have the right to obtain an injunction (without having to post a bond) to prevent any breach or continued breach of this section.
- Acknowledgements Regarding App Marketplace Providers. You acknowledge that this Agreement is between you and MobiTech and not with Apple, Inc., Google Inc. or any sponsor or provider of any application marketplace (each a “Provider”) and that MobiTech (not the applicable Provider) is responsible for the App and the Service. YOU ACKNOWLEDGE AND AGREE THAT NO PROVIDER MAKES ANY WARRANTIES WHATSOEVER UNDER THIS AGREEMENT OR HAS ANY WARRANTY OBLIGATIONS WITH RESPECT TO THE APP OR THE SERVICE. You acknowledge that Providers have no obligation whatsoever to furnish any maintenance and support services with respect to the App or for addressing any claims relating thereto or your possession and/or use thereof, including, but not limited to (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You further acknowledge that Providers have no responsibility for the investigation, defense, settlement or discharge of any third party intellectual property claims that the App or your use thereof infringes intellectual property rights. If you install the App on an iOS-based device, Apple, Inc. and its subsidiaries, are third party beneficiaries of this Agreement and will have the right to enforce this Agreement against you.
- Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE AND THE APP ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND WE HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT THERETO, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. WE DO NOT WARRANT AGAINST INTERFERENCE WITH CUSTOMER’S ENJOYMENT OF THE SERVICE AND THE APP, THAT THE FUNCTIONS CONTAINED IN OR THE SERVICES PERFORMED OR PROVIDED BY THE SERVICE OR THE APP WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE OPERATION OF THE SERVICE OR THE APP WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICE OR THE APP WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE THAT WE GIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY.
- Limitation of Liability. IN NO EVENT WILL MOBITECH BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE FOR ANY FOR ANY INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO CUSTOMER’S USE OF OR INABILITY TO USE THE SERVICE OR THE APP, HOWEVER CAUSED, AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event WILL MOBITECH’S AGGREGATE liability to CUSTOMER for damages SERVICE EXCEED THE LESSER OF $50 OR THE AMOUNT CUSTOMER PAID FOR THE SERVICE, IF ANY, IN THE SIX (6) MONTHS PRECEDING THE CLAIM. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY OR EXCLUSION OF CERTAIN DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO CUSTOMER.
- Export and Other Restrictions. Customer may not, directly or indirectly, use or otherwise export or re-export the Service, the App or elements thereof except as authorized by United States law and the laws of the jurisdiction in which the Service was accessed or obtained. In particular, but without limitation, the Service may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Service, Customer represents and warrants that it is not located in any such country or on any such list. Customer also agrees that it will not use the Service or the App for any purposes prohibited by applicable law.
- Reference. MobiTech may include the name, logo of and success stories Customer in MobiTech’s website, press releases, promotional and sales literature, and lists of customers, in each case in accordance with Customer’s standard trademark usage guidelines. Furthermore, Customer shall use commercially reasonable efforts to cooperate with MobiTech with regard to the publication of at least one (1) press release regarding Customer’s use of the Service and at least one (1) case study discussing the benefits of the Service.
- Force Majeure. Neither party shall be liable to the other or be deemed in default for failing to perform any obligation hereunder, other than the payment of monies, if such failure is caused solely by acts of God, civil commotion, strikes, terrorism, failure of third party networking equipment, illegal acts of third parties, failure of the public Internet or changes in the accessibility of third party websites, power outages, labor disputes or governmental demands or restrictions or any similar supervening conditions beyond the parties’ respective control (“Force Majeure Event”).
- Governing Law and Venue. The laws of the State of Texas, excluding its conflicts of law rules, govern this Agreement and Customer’s use of the Service and the App. Venue and jurisdiction of any lawsuit involving this Agreement exists exclusively in the state and federal courts in Travis County, Texas, unless MobiTech seeks injunctive relief that, in MobiTech’s judgment, would not be effective unless obtained in some other venue.
Miscellaneous. This Agreement constitutes the entire agreement between us regarding the subject matter hereof. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement operates to the fullest extent permissible by law. This Agreement will not be changed, modified, or amended except by a writing executed by both parties or if you electronically accept a subsequent agreement or amendment delivered via the Service or the App. We may freely transfer or assign this Agreement and any of our rights or obligations hereunder. Customer may not transfer or assign this Agreement or any of its rights or obligations hereunder without our prior written consent, and any attempt to do so shall be null and void. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions. This Agreement may be executed in counterparts and electronic signatures shall be binding.