Subscription Service Terms and Conditions
These Mobi Subscription Service Terms and Conditions (these “Terms”), explain the relationship between MOBI SYSTEMS, INC., a Delaware corporation with a place of business at 48 Grove Street, Somerville, MA 02144 (“Mobi”), and organizations that engage Mobi’s Services (the “customers”). The parties agree as follows:
1. DEFINITIONS. Unless otherwise defined herein, all capitalized terms shall have the meanings set forth in this Section 1.
“Afiliate” means any corporation, company, partnership, joint venture or other entity directly or indirectly controlling, controlled by, or under direct or indirect common control with, another such entity, for so long as such control exists. An entity shall be deemed to control another entity if the controlling entity owns, directly or indirectly, more than 50% of any class of voting securities or ownership interests of the controlled entity or possesses decision-making authority as to the controlled entity, whether through ownership of securities, ownership interests or otherwise.
“Application” means Mobi’s applicable proprietary application software, including all related application programming interfaces (“APIs”), if applicable, that are installed on Customer’s Systems, or hosted by Mobi for Customer. Unless otherwise specifically agreed upon by the parties, the Application includes all modifications, updates, bug fixes, patches and Upgrades made thereto by Mobi and made available to other customers of the Application.
“Authorized User” means the employees, partners, or customers of Customer who are directly or indirectly authorized pursuant to Section 2.2 and the other terms and conditions of these Terms to use the Application.
“Change Control Form” has the meaning set forth in Section 3.5.
“Customer Customization” means all customized software developed and written by or on behalf of Mobi for Customer pursuant to the express terms of an Order Form. For the sake of clarity, the Customer Customizations does not include the Application. “Customer Data” means all Customer registration and account information and, if applicable, all other transaction data collected, processed and retained by Mobi for Customer in connection with providing the Application to Customer.
“Customer Information” has the meaning set forth in Section 3.3.
“Deliverable” means any work product, including any Customer Customizations, documentation or other materials, resulting directly from the Professional Services which is specifically identified in an Order Form as a “Deliverable” and delivered to Customer by Mobi.
“Documentation” means the user guides, help information and other documentation and information related to use of the Application in electronic or other form, if any, including any updates thereto made generally available to customers of the Application.
“Intellectual Property Rights” means all intangible, intellectual, proprietary and industrial property rights and all intangible embodiments and derivative works thereof, including any and all rights now known or hereafter existing in any jurisdiction throughout the world, in and to: (a) trademarks, trade names, service marks, slogans, domain names, uniform resource locators or logos; (b) copyrights, moral rights, and other rights in works of authorship; (c) patents and patent applications, patentable ideas, inventions and innovations; (d) know-how, sui generis database rights and trade secrets; and (e) registrations, applications, renewals, extensions, continuations, divisions or reissues of any of the foregoing.
“Mobi System” means the technology, including hardware and software, used by Mobi to deliver the Application to Customer in accordance with these Terms, including technology, hardware and software, owned, licensed from, or otherwise provided as part of any service by third parties.
“Professional Services” means the services (such as, for example, implementation, development, consulting or other professional services) described in the applicable Order Form.
“Project Staff” has the meaning set forth in Section 3.8.
“Security Breach” means any actual access, disclosure, misuse, damage, transfer, modification or manipulation of Customer Data, or a reasonable belief that any of the forgoing has occurred, directly or indirectly by any unauthorized person or entity, including unauthorized employees and agents of Mobi.
“Services” means provision of the Application, the Professional Services and Support Services by or on behalf of Mobi pursuant to these Terms.
“Order Form” means any written work statement executed by the parties which references these Terms. Each Order Form executed by the parties is hereby incorporated into these Terms and made a part hereof.
“Support Services” means the support and maintenance services more fully described in Section 4.
“System Go-Live Date” means the date when the Application first becomes available for use by the Customer in a live, non-test environment (i.e., following completion of acceptance testing and acceptance by Customer).
“Systems” means modems, servers, devices, software, network and communications equipment and ancillary products and services that are owned, controlled or procured by Customer.
“Term” has the meaning set forth in Section 11.1. “Title 11” has the meaning set forth in Section 2.11.
“Upgrades” means all revisions, improvements and enhancements to, and new features and functionality for the Application which Mobi makes generally available to all of its customers of the Application.
2.1 Provision of Application; Rights to Use. Subject to all terms and conditions of these Terms, Mobi hereby grants Customer a non-exclusive, non-transferable (except as expressly provided herein), worldwide, royalty free, right and license (without right to sublicense except as otherwise expressly provided in Section 2.2) to access and use, and copy, the Application, only during the Term of the applicable Order Form, for its commercial business purposes and in accordance with the Documentation, including the right and license to market and demonstrate the Application to potential Authorized Users and provide support to Authorized Users. Mobi may provide the Application to Customer directly, or indirectly using contractors or other third party vendors or service providers which Customer has approved in advance. Mobi will remain solely responsible for the performance of all parties that are contracted and/or subcontracted as if such parties were Mobi
2.2 Authorized Users. Subject to the terms and conditions of these Terms, Customer shall have the right to authorize its Authorized Users (and to have such Authorized Users authorize its Authorized Users) to access and use the Application solely for the benefit of such Authorized Users. All such access and use of the Application are restricted to the terms of these Terms. Customer shall only make the Application available to its Authorized Users under the terms and conditions Customer licenses or makes available its own applications to such Authorized Users and such terms and conditions shall be as protective of the Application as they are of Customer’s own applications.
2.3 Access Credentials. Mobi will assign access credentials necessary to use the Application to Customer. Customer may provide its Authorized Users with access credentials for the Application. Customer and its Authorized Users shall be responsible for maintaining the confidentiality and security of their respective access credentials and Customer accepts full responsibility for all activity conducted through any such credentials, and hereby releases Mobi from any and all liability concerning such activity except to the extent such activity is the result of Mobi’s failure to protect such Access Credentials.
2.4 Limitations. Mobi will not be responsible or liable for any failure of the Application resulting from or attributable to (a) Customer’s Systems or any failures of any third party network, telecommunications or other third party service or equipment or product failures; (b) unusually high usage volumes; (c) Customer services, negligence, acts or omissions; or (d) any decisions made or actions taken based on use of the Application by Customer or any of its Authorized Users.
2.5 Branding. Customer may add its own branding to any Application built on Mobi technology. Customer shall provide attribution to Mobi on its website and other relevant marketing materials as mutually agreed upon by the parties. In any event, Customer shall comply with the requirements of Section 5.8 herein at all times.
2.6 Systems. Customer shall obtain and operate all Systems needed to connect to, access or otherwise use the Application, and provide all corresponding backup, recovery and maintenance services corresponding to those Systems. Customer shall ensure that all Systems are compatible with the Application and comply with all configurations and specifications set forth in the Documentation. Customer shall maintain the integrity and security of its Systems (physical, electronic and otherwise). Mobi will not change the Application in any way which it knows or should have reasonably known would require material changes and/or investment in Systems after the effective date of the applicable Order Form. Notwithstanding the foregoing, Mobi reserves the right to make any change to the Application that it deems necessary to: (a) maintain or enhance the quality, performance or delivery of the Application to its customers, or (b) to comply with applicable laws or regulations, provided
that Mobi shall use commercially reasonable efforts to provide Customer with at least thirty (30) days’ prior written notice of, or as otherwise set forth in Exhibit A, and to cooperate with Customer with respect to, any such change which Mobi knows or should have reasonably known would require material changes and/or investment in Systems.
2.7 Service Level Requirements. Mobi will use commercially reasonable efforts, but no less than industry standard practices and procedures, to maintain the Mobi System and the Application operational at all times, subject to downtimes resulting from scheduled maintenance, repairs and upgrades.
2.8 Documentation. Subject to all terms and conditions in these Terms, Mobi grants to Customer a non-exclusive, non-transferable, non-sublicensable (except as otherwise expressly provided in Section 2.2) right and license to use the Documentation solely in connection with its authorized use of the Application. Customer may copy the Documentation as reasonably needed to support its authorized use of the Application provided that all such copies retain the proprietary legends contained on or in the Documentation.
2.9 Upgrades. Mobi shall from time to time, with reasonable advance notice, provide Upgrades to the Application at no additional charge to Customer during the Term of the Agreement.
2.10 Third Party Products and Services. Access to and use of the Application may require the Customer to obtain certain licenses to certain third party software applications and/or data.
2.11 Section 365(n) of Title 11 of the United States Code. All rights and licenses granted by Mobi under or pursuant to these Terms are, for all purposes of Section 365(n) of Title 11 of the United States Code (Title 11), licenses of rights to “intellectual property” as defined in Title 11. Mobi agrees that, in the event of the commencement of bankruptcy proceedings by or against Mobi under Title 11, Customer, as licensee of such rights under these Terms, shall retain and may exercise such rights and licenses under these Terms as provided under Title 11 and any foreign equivalent thereto in any country having jurisdiction over a Party or its assets.
3. PROFESSIONAL SERVICES.
3.1 Engagement. Any Professional Services provided by Mobi will be implemented through one or more Order Forms executed by the parties from time to time. This Agreement provides the terms and conditions applicable to all Order Forms.
Any express modification of these terms and conditions within an Order Form will apply only to that Order Form in which the modification is set forth.
3.2 Professional Services. If Professional Services are requested by Customer, Mobi will use commercially reasonable efforts to perform and complete such Professional Services in accordance with the descriptions and schedules specified in the applicable Order Form. The Professional Services must be performed in a competent, professional, and workmanlike manner by qualified personnel in accordance with applicable laws.
3.3 Cooperation. Customer acknowledges that the Services may be performed in cooperation with Customer personnel. To the extent applicable, Customer will furnish to Mobi in a timely manner such (a) descriptions, specifications, materials, data and other information needed for the Services and as set forth in the applicable Order Form (collectively, “Customer Information”), (b) cooperation, technical assistance, resources and support, and (c) access to Customer’s equipment, Systems and networks, as reasonably necessary or appropriate for Mobi to perform the Services. Customer hereby grants Mobi a nonexclusive and royalty-free right and license to use the Customer Information solely for the purpose of performing the
Services and for the benefit of Customer. Customer agrees that in performing the Services, Mobi (i) may use and rely primarily on the Customer Information as set forth in the applicable Order Form, and (ii) does not assume any responsibility for the accuracy or completeness of any Customer Information, and will not undertake to verify its accuracy or completeness.
3.4 Problems. If Customer (or its third party licensors or vendors) fails to materially fulfill any of its responsibilities set forth in an Order Form in a timely manner or under Section 3.3 for any reason (including without limitation, changes, errors or omissions in Customer Information), which such material failure directly delays provision of the Services or results in additional costs, then Mobi, after providing Customer written notice, may act as it reasonably deems prudent to mitigate such effects. In such event, Customer agrees (a) to in good faith consider a Change Control Form in accordance with Section 3.5 to pay Mobi its reasonable additional costs only to the extent such costs arise directly from Customer’s acts or omissions as set forth in Section 3.3, and (b) that any delivery dates, milestones or other time limits specified for Mobi’s performance shall be appropriately extended.
3.5 Change Control Procedures. Changes to any Order Form shall become effective only when a written change request (each a “Change Control Form”) is executed by authorized representatives of both parties. A Change Control Form shall include the same information as an Order Form as set forth in Exhibit C. Change requests which do not materially affect the nature of Deliverables, their performance or functionality, and which do not change on an individual basis the schedule for performance of such Services by more than 1 week or dollar amounts by more than $500 may be requested and accepted, as applicable, by each party’s project manager. For all other change requests with respect to any Order Form, the non-requesting party will promptly review each such change request and determine and advise the requesting party, in its reasonable discretion but in good faith, whether such change request is acceptable, can be accomplished by Mobi (if applicable) and whether the performance of such change request will increase the costs and/or delay the original schedule for performing the Services. Any accepted Change Control Form will be deemed to amend and become part of the applicable Order Form, and Mobi will perform the Services in accordance with such amended Order Form. Neither party shall be responsible for any changes in any Order Form unless mutually agreed upon in writing in accordance with this procedure.
3.6 Customer Acceptance Testing. Customer shall have a period of fourteen (14) days (or longer if set forth in the applicable Order Form, the “Acceptance Period”) from the date of delivery to verify that the Application (or any Deliverable) functions in material compliance with the Documentation and other applicable specifications that have been mutually agreed upon by the parties in the applicable Order Form. If the Application or Deliverable does not perform in material compliance with such specifications, then (a) Customer shall notify Mobi in writing within such period identifying all non-conformities with reasonable specificity, and (b) Mobi shall use its reasonable commercial efforts to resolve such failure at no additional cost as promptly as possible but in any event within thirty (30) days following receipt of such notice and resubmit such Application or Deliverable for testing in accordance with the above. Following any such resubmission, Customer shall accept or reject the applicable Application or Deliverable in accordance with the acceptance procedures and within the timeframe noted above. If Customer gives no notice of acceptance or rejection within the Acceptance Period, the Application and/or Deliverables will be deemed accepted. Upon completion of such testing, Mobi shall propose a date for the Application to go live, which if accepted by Customer, shall be the System Go-Live Date. Any acceptance testing of a Deliverable by Customer will occur in accordance with the acceptance terms (if any) set forth in the applicable Order Form. If Customer reasonably determines that Mobi will be unable to correct all nonconformities in the Application or Deliverable in a reasonable period of time, Customer will have the option to terminate the Order Form only with respect to the nonconforming deliverable and receive a refund for the fees attributable to that deliverable; terminate the entire Order Form and receive a full refund; or accept the nonconforming deliverable and receive a partial refund that will represent the reduction in value caused by the nonconformity.
4. SUPPORT SERVICES.
4.1 Mobi Obligations. Subject to payment of the Application support fee specified in the applicable Order Form, Mobi will provide the support and maintenance services described within the applicable Order Form.
4.2 Customer Obligations. Customer shall use commercially reasonable efforts to do the following:
a. The Support Services contacts (and 1 backup for each) identified by Customer in writing to Mobi will be the sole contacts for the coordination and receipt of the Support Services, and such persons shall be trained and knowledgeable about how the applicable Application is being used.
b. Maintain internet access and an internet address for electronic mail communications with Mobi.
c. Provide reasonable supporting data (including written descriptions of problems) as requested by Mobi, and to otherwise aid Mobi in identifying reported problems.
d. Provide convenient remote access to its Systems for use by Mobi in providing the Support Services. When providing the
Support Services on Customer’s premises or via access to Customer’s Systems, Mobi’s personnel will comply with Customer’s security, supervision and other standard procedures applicable to and made known in advance to such personnel in writing. Customer agrees to be solely responsible for protecting and backing up its equipment, software and data prior to any such access.
e. If applicable, cause any vendors that Customer uses with the applicable Application to provide Mobi with reasonable remote access to Customer’s account as reasonably necessary to perform the Support Services.
5. PROPRIETARY RIGHTS.
5.1 Ownership of Materials. Each party shall retain ownership of its pre-existing work product, intellectual property, and data. To the extent Mobi provides Customer any materials that are incorporated into the Deliverables but were not developed by Mobi for the benefit of Customer, Mobi grants to Customer a non-exclusive, perpetual, unlimited license to use, copy or modify such materials.
5.2 Customer Information. Customer agrees, as between the parties, Customer bears all responsibility and liability for the accuracy, completeness, possession and use of Customer Information in connection with the Services. Except for the limited rights and licenses expressly granted hereunder concerning the Customer Information, no other license is granted, no other use is permitted and Customer shall retain all right, title and interest in and to all Customer Information (including all Intellectual Property Rights therein).
5.3 Customer Data. As between the parties, Customer shall own all Customer Data. Mobi shall not disclose to third parties or use any Customer Data except for the benefit of Customer as reasonably necessary to provide the Services or to comply with or as permitted by any legal, regulatory, law enforcement or similar requirement or investigation. However, Mobi may use, disclose and otherwise exploit aggregate measures of Application usage and performance derived from Customer Data so long as such aggregate measures do not disclose Customer or any Authorized Users. Customer agrees to grant and hereby grants to Mobi a nonexclusive, royalty-free right and license during the Term to: (a) use and disclose the Customer Data solely for the purpose of providing the Applications and Services to Customer in accordance with these Terms, and (b) create, and use, disclose and otherwise exploit, aggregate measures of Application usage and performance derived from Customer Data (“ Aggregated Data ” ). Each party shall adhere to all applicable laws concerning data privacy, data protection and the transmission of personal data, including in providing the Services pursuant to these Terms.
5.4 General Learning. Customer agrees that Mobi is free to reuse all generalized knowledge, experience, know-how and technologies (including ideas, concepts, processes and techniques) related to the Deliverables or acquired during performance of the Services (including without limitation, that which it could have acquired performing the same or similar services for another customer).
5.5 Restrictions. Except as expressly permitted in these Terms, Customer shall not directly or indirectly (a) use any Mobi Confidential Information to create any software or documentation that contains features or functionality that is similar to the Application or any Deliverable, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code or underlying ideas, algorithms or organization of the Application (except and only to the extent these restrictions are expressly prohibited by applicable statutory law), (c) encumber, sublicense (except as allowed under these Terms including Section 2.2), transfer, sell, export, re-export, distribute, or otherwise commercially exploit the Application or other Mobi Confidential Information for the benefit of any third party other than Authorized Users (e.g., any time sharing or service bureau arrangement), (d) copy, create derivative works of or otherwise modify the Application or any other Mobi Confidential Information, or (e) permit any third party to do any of the foregoing. Customer will promptly notify Mobi in writing of any unauthorized use, reproduction or distribution of the Application or any Deposit Materials.
5.6 No Implied License. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted from one party to the other and Mobi and Customer (and their respective licensors) hereby reserves all right, title and interest in and to the Customer Information, Customer Data, Applications, Deliverables, Documentation and Deposit Materials (including all Intellectual Property Rights embodied in the foregoing). Each party agrees not to take any action inconsistent with such title and ownership.
5.7 Markings. Except as may be agreed to in this Order Form, Customer shall not obscure, alter or remove any patent or other proprietary or legal notice affixed to or contained on or in the Applications, Documentation, any Deliverable, or any Deposit Materials (including any on-screen notice). The Mobi name and logo are trademarks of Mobi and no right or license is granted to use them, except that Customer may use the Mobi name as necessary to meet its obligations under Section 2.5 and as necessary to exercise its license rights under Sections 2.1 and 2.2.
6.1 Scope. During the course of performance of these Terms, each party may disclose to the other party Confidential Information. "Confidential Information" means information that is not generally known to the public, including ideas, know how, designs, data, procedures, formulas and specifications belonging to or in the possession of either party, and their respective agents, officers and employees, as well as the provisions of these Terms. Information will be deemed Confidential Information of a party, whether disclosed in written, electronic, oral, visual or other form, if at the time of disclosure the receiving party is informed, or should reasonably understand, it to be proprietary or confidential, or it is marked or designated as “confidential” or with similar language.
6.2 Excluded Information. The term "Confidential Information" does not include information that: (i) has become generally available to the public by the act of one who has the right to disclose such information without violating any rights of the owner of such information; (ii) is known to the receiving party prior to its disclosure by the disclosing party; (iii) is rightly furnished to the receiving party by a third party without restriction on disclosure; or (iv) is developed by a party independently of any of the Confidential Information received in confidence from the other party.
6.3 Ownership. As between the parties, each party acknowledges that the disclosing party shall at all times be and remain the sole owner of its Confidential Information.
6.4 Confidentiality. The receiving party shall not possess, access, use or disclose any of the other party’s Confidential Information for any purpose other than performing its obligations, or exercising its rights, under these Terms, or as otherwise authorized in writing by the disclosing party. The receiving party shall use reasonable care, including that which it employs in protecting its own Confidential Information, to protect the other party’s Confidential Information, but in no event using less than a reasonable degree of care under the circumstances. Each party shall be responsible for any breach of confidentiality by its employees and contractors including Project Staff. Promptly after any expiration or termination of these Terms (or at the disclosing party’s request at any other time), the receiving party shall return all of the other’s tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records and materials developed therefrom. Each party may disclose only the general nature, but not the specific terms, of these Terms without the prior consent of the other party; provided, either party may provide a copy of these Terms or otherwise disclose its terms in connection with any financing transaction or due diligence inquiry or legal or regulatory requirement under terms of confidentiality at least as restrictive as those set forth herein.
6.5 Security of Customer Data. The recipient of any Confidential Information shall use efforts consistent with the manner in which it protects its own Confidential Information but in no case less than commercially reasonable efforts to preserve the confidentiality of any Confidential Information of the other party.
7. PAYMENTS; INSURANCE.
7.1 Fees and Expenses. Customer agrees to pay Mobi the fees for the Applications and related Support Services in the amounts and at the times specified in the applicable Order Form. Unless otherwise expressly stated herein, all fees payable under these Terms which accrue and become due are non-cancellable and non-refundable (except as expressly set forth herein). Subject to provision of reasonable documentation, Customer agrees to reimburse Mobi for its costs and expenses reasonably incurred in providing the Professional Services as agreed to in an Order Form. Any work which is not authorized and documented in a mutually-executed Order Form shall not be entitled to compensation under any legal theory, and Mobi hereby waives any compensation for any such work.
7.2 Payment Terms. Unless specified otherwise in the applicable Order Form, all amounts which become due hereunder shall be paid within thirty (30) days after the date of issuance of the invoice in US dollars at Mobi’s address. Any amount not paid when due shall bear a late payment charge, until paid, at the rate of 1% per month or the maximum amount permitted by law, whichever is less, if such amount remains unpaid 10 days after notice from Mobi of such late payment.
7.3 Taxes. All payments required by these Terms are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Customer agrees to be responsible for the payment of all such charges, excluding taxes based upon Mobi’s net income. Mobi shall invoice Customer for all such taxes and pay all taxes collected from Customer to the appropriate taxing authority. Mobi, and not Customer, shall be obligated to pay any applicable interest, penalties and attorneys' fees associated with the failure to pay taxes timely invoiced and timely paid by Customer.
7.4 Insurance. Mobi shall obtain and keep in force during the term of these Terms: (A) Workers’ Compensation and Employers’ Liability Insurance policies as required by all applicable state jurisdictions; (B) an “occurrence” CGL insurance policy including but not limited to coverage for bodily injury, property damage, personal injury, advertising injury, products and completed operations, and contractual liability on an occurrence form with limits of not less than one million dollars ($1,000,000) “per occurrence”, where said policy shall include Customer, its subsidiaries, directors, officers and employees as “additional insured” with respect to their vicarious liability arising from the Mobi’s provision of Services on a primary and non-contributory basis including ongoing and completed operations; (C) a Cyber-Network Security & Privacy Liability Insurance policy including but not limited to coverage for liabilities arising from (i) systems attack, (ii) denial or loss of service, (iii) introduction, implantation or spread of malicious software code, inclusive of ransomware or other cyber extortion code, (iv) security breach and unauthorized access and use of computer systems and related devices (v) privacy liability (liability arising from the loss or disclosure of confidential information) and (vi) media liability with software copyright infringement, with a limit of not less than five million dollars ($5,000,000); and (D) a Technology Products and Services Errors and Omissions Insurance policy including but not limited to coverage for liabilities arising from any and all actual or alleged acts, errors, and omissions in the rendering of or failure to render computer, information technology, internet services, database design and maintenance, telecommunication services, and the like, with limits of not less than five million dollars ($5,000,000).
8. WARRANTY AND DISCLAIMERS.
8.1 Application. Mobi warrants to Customer that: (a) the Application, as initially delivered by Mobi to Customer, functions in material compliance with the Documentation and specifications therefor that have been mutually agreed upon by the parties in the applicable Order Form, for one hundred and eighty (180) days after System Go-Live Date; (b) to Mobi’s knowledge, the Application and Work Product, as delivered by Mobi to Customer, does not contain any Trojan horses, worms, computer virus, time bomb, trap door, spyware or other destructive code or undocumented disabling devices; and (c) it has scanned the Application delivered by Mobi to Customer for known viruses using commercially reasonable virus detection techniques. Mobi’s warranties in this Section 8.1(a) shall not extend to problems that result from: (i) Customer’s failure to implement all Upgrades issued by Mobi during the warranty period to the extent implementing such Upgrades remedies the problems; (ii) any alterations or additions to the Application not performed by or at the direction of Mobi; (iii) failures in operation of the Application that are not reproducible by Mobi and Customer; (iv) an Application operated in violation of these Terms or not in accordance with the Documentation therefor to the extent such operation causes such problems; or (v) failures which are caused by Customer’s software or other software, hardware, products or services not licensed or provided hereunder unless such is required as part of the System. For any Application not in conformance with this Section 8.1, Mobi will, at its discretion and cost, either repair or replace the Application promptly.
8.2 Services. Mobi warrants that it will perform the Services and prepare all Deliverables in a professional and workmanlike manner by qualified and competent Project Staff in accordance with commercially reasonable and applicable professional and technical standards and will comply with all statutes, ordinances, and regulations of all federal, state, county and municipal or local governments (including, without limitation, the U.S. Foreign Corrupt Practices Act, 15 U.S.C. Section 78dd-1 and 78dd-2 and any other applicable anti-corruption laws) applicable to the carrying on of its business and performance of the Services. Any warranty claim under this Section 8.2 must be made in writing within ninety (90) days after performance of the nonconforming Service or the delivery of the non-conforming Deliverable or when such non-conformity in such Deliverable could have reasonably been known if later. Mobi’s obligation is to reperform the nonconforming Service or the preparation of the non-conforming Deliverable or, at Mobi’s sole discretion, to terminate these Terms in respect of the nonconforming Service or non-conforming Deliverable and refund to Customer the fees paid therefor, in which case Customer may terminate the entire Order Form for such non-conforming Service if and only if such non-conforming Service is necessary to the operation or delivery of other Services or Deliverables under such Order Form and receive a full refund of fees paid or for pre-paid fees under such Order Form.
8.3 Customer Customizations. Mobi warrants that: (a) as delivered, the Customer Customizations will substantially comply with the specification described in the applicable Order Form for a period of one hundred and eighty (180) days following delivery of such Customer Customizations to Customer (the ”Customer Customizations Warranty Period ”); (b) to Mobi’s knowledge, the Customer Customizations, as delivered by Mobi to Customer, does not contain any Trojan horses, worms, computer virus, time bomb, trap door, spyware or other destructive code or undocumented disabling devices; and (c) it has scanned the Customer Customizations delivered by Mobi to Customer for known viruses using commercially reasonable virus detection techniques. Any warranty claim under this Section 8.3 (a) must be made in writing within the Customer Customizations Warranty Period. Mobi's obligation in respect thereof is to use reasonable efforts to revise, repair or replace the nonconforming Customer Customization or, at Mobi's sole discretion, to accept return of the nonconforming Customer Customization and refund to Customer the fees paid for such Customer Customization.
8.4 Disclaimers. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS SPECIFICALLY STATED IN THIS SECTION 8, THE APPLICATIONS, THE DOCUMENTATION, THE DELIVERABLES AND ALL SERVICES ARE PROVIDED WITHOUT WARRANTY OF ANY KIND. MOBI DOES NOT WARRANT THAT THE SERVICES OR DELIVERABLES OR DOCUMENTATION OR APPLICATIONS WILL MEET CUSTOMER'S REQUIREMENTS; OPERATION OF THE SERVICES OR DELIVERABLES OR THE APPLICATIONS WILL BE UNINTERRUPTED OR ERROR-FREE; OR ANY ISSUES WHICH MAY BE CONTAINED IN THE SERVICES OR DELIVERABLES OR DOCUMENTATION OR THE APPLICATIONS CAN OR WILL BE FIXED. TO THE FULLEST EXTENT PERMITTED BY LAW, MOBI HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE APPLICATIONS, THE DOCUMENTATION, THE DELIVERABLES AND SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, ACCURACY, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. MOBI MAKES NO, AND HEREBY DISCLAIMS, ANY WARRANTIES REGARDING ANY THIRD PARTY PRODUCTS AND SERVICES (INCLUDING WITHOUT LIMITATION, SOFTWARE AND DATA) PROVIDED UNDER THIS AGREEMENT. MOBI EXPRESSLY DISCLAIMS ALL GUARANTEES AND
WARRANTIES THAT THE APPLICATIONS WILL ACHIEVE ANY RESULT OR OUTCOME.
9.1 By Mobi.
a. Infringement. Mobi agrees to (a) defend Customer its affiliates, and their respective officers, directors, agents and employees, and Company’s Authorized Users, from and against any claim by a third party: (i) that the Application, Documentation, Customer Customizations or any Deliverable infringes a patent or any copyright or misappropriates any trade secret or other Intellectual Property Right of such third party, except to the extent any such infringement or misappropriation relates to any Customer Information or Customer Data; (ii) arising from breach of Mobi’s warranties in Section 8; or (iii) arising from breach of Mobi’s obligations under Sections 6.2 or 6.3, and (b) indemnify Customer itsaffiliates, and their respective officers, directors, agents and employees, and Company’s Authorized Users for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys' fees) finally awarded and arising out of such claims. If the Application becomes, or in Mobi’s opinion, is likely to become, the subject of any injunction preventing its use as contemplated herein, Mobi may, at its option (i) obtain for Customer the right to continue using the allegedly infringing Application or portion thereof, as applicable, or (ii) replace or modify the allegedly infringing Application or portion thereof, as applicable, so that it becomes non-infringing without substantially compromising its principal functions. If (i) and (ii) are not reasonably available to Mobi, then it may (iii) terminate these Terms upon written notice to Customer and, after return of the Application, refund to Customer any pre-paid license fees for the Application that has not yet been earned and realized.
b. Exclusions. Mobi shall have no liability or obligation to Customer hereunder with respect to any claim to the extent based upon (a) any use of the Application not strictly in accordance with the Documentation or these Terms, (b) use of the Application in an application or environment or on a platform or with devices for which it was not designed, (c) alterations, combinations or enhancements of the Application not created by or on behalf of Mobi, (d) Customer's continuing allegedly infringing activity after being notified thereof or its continuing use of any version of the Application after being provided modifications at no additional charge that would have avoided the alleged infringement and Customer was notified of same, or (e) any Intellectual Property Rights in which Customer or any of its affiliates have a controlling interest.
c. Entire Liability. The foregoing states the entire liability of Mobi, and Customer's exclusive remedy, with respect to any actual or alleged third party claims of violation of Intellectual Property Rights by the Application, Documentation, Customer Customizations or any Deliverable, or any part thereof, or by its use or operation.
9.2 By Customer. Customer agrees to (a) defend Mobi against any claim by a third party that any Customer Information or Customer Data as used in accordance with these Terms, infringes any copyright or misappropriates any trade secret or other Intellectual Property Right of such third party or any claim excluded under Section 9.1(b) and (b) indemnify Mobi for settlement amounts and damages, liabilities, penalties, costs and expenses (including reasonable attorneys' fees) finally awarded and arising out of such claim. The foregoing states the entire liability of Customer, and Mobi’s exclusive remedy, with respect to third party claims alleging such infringement by the Customer Information or Customer Data.
9.3 Procedure. In claiming any indemnification under this Section 9, the indemnified party shall promptly provide the indemnifying party with notice of any claim that the indemnified party believes is within the scope of the obligation to indemnify. The indemnified party may, at its own expense, assist in the defense if it so chooses, but the indemnifying party shall have sole control of the defense and all negotiations relative to the settlement of any such claim. The indemnified party will provide the indemnifying party with reasonable assistance, at the indemnifying party’s request and expense, in the defense, negotiations and settlement of any claims. Any settlement intended to bind the indemnified party that does not include the full and unconditional release of the indemnified party or imposes any obligation upon the indemnified party shall not be final without the indemnified party’s written consent, which consent shall not be unreasonably withheld, conditioned or delayed.
10. LIMITATION OF LIABILITY.
EXCEPT TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, OR IN THE CASE OF (I) BREACH OF CONFIDENTIALITY (SECTION 6), (II) BREACH OF ANY PROPRIETARY RIGHT (SECTION 5), (III) AMOUNTS OWED TO THIRD PARTIES IN CONNECTION WITH EACH PARTY’S INDEMNITY OBLIGATIONS (SECTIONS 9.1 AND 9.2) OR AMOUNTS OWED BY CUSTOMER TO MOBI PURSUANT TO SECTION 7, IN NO EVENT SHALL EITHER PARTY BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OF DATA, LOSS OR INTERRUPTION OF USE OF THE APPLICATIONS, DELIVERABLES OR SERVICES, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL OR (C) AGGREGATE DAMAGES IN EXCESS OF THE FEES PAID TO MOBI BY CUSTOMER UNDER THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
11. TERM AND TERMINATION
11.1 Term. Unless otherwise terminated as expressly provided herein, these Terms shall commence upon the Effective Date of the first Order Form and continue in effect for one year after the expiration or termination of all Order Forms (“ Term ”).
11.2 Cause. This Agreement may be earlier terminated (in whole, or in respect of the applicable or Order Form) by either
a. the other party materially breaches a provision of these Terms or applicable Order Form and fails to cure such breach within thirty (30) days (ten (10) days in the case of any non-payment) after receiving written notice of such breach from the non-breaching party;
b. any proceeding in bankruptcy or in reorganization or for the appointment of a receiver or trustee or any other proceedings under any law for the relief of debtors shall be instituted by the other party, or if such a proceeding is brought involuntarily against the other party and is not dismissed within a period of thirty (30) days from the date filed, or if the other party shall make an assignment for the benefit of creditors; or
a. The other party commits any act of fraud, gross negligence or willful misconduct in connection with the Services rendered hereunder. If the Agreement is terminated pursuant to this Section 11.2, then any and all outstanding Order Forms shall terminate concurrently with the termination of these Terms.
11.3 Effects of Termination. Upon expiration or termination of an Order Form for any reason, all rights, obligations and licenses of the parties thereunder shall cease, except that (a) in the event of termination for Customer’s uncured breach, or termination of an Order Form by Customer without cause, Customer's liability to pay for licenses provided and Services performed (and non-cancelable expenses incurred) prior to the termination date shall not be extinguished, and shall become due and payable on the expiration or termination date, (b) all other obligations that accrued prior to the effective date of expiration or termination and remedies for breach of these Terms shall survive any expiration or termination and (c) the parties shall return or destroy all Confidential Information of the other party and any and all derivatives thereof.
11.4 Survival. Notwithstanding any statement to the contrary contained herein, the following Sections shall survive any termination or expiration of the Agreement: Sections 1 (Definitions), 2.2 (Authorized Users, the last two (2) sentences only), 2.4 (Limitations), 5 (Proprietary Rights), 6.1 and 6.2 (Confidentiality), 7 (Payments) (only with respect to Customer’s payment obligations thereunder), 8.4 (Disclaimers), 9 (Indemnification), 10 (Limitation of Liability), 11.3 (Effects of Termination), 12 (General Provisions) and this Section 11.5 (Survival).
12. GENERAL PROVISIONS.
12.1 Entire Agreement. This Agreement (including any applicable Order Forms constitutes the entire agreement between the parties with regard to, and supersedes all prior negotiations, understandings or agreements (oral or written) between the parties relating to, the subject matter of these Terms (and all past dealing or industry custom). Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed by the parties after the date hereof, shall have no force or effect under these Terms. This Agreement may be executed in one or more counterparts, each of which is an original, but together constituting one and the same instrument. Delivery of a copy of these Terms bearing an original signature by facsimile transmission (whether directly from one facsimile device to another by means of a dial-up connection or whether mediated by the worldwide web), by electronic mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, shall have the same effect as physical delivery of the paper document bearing the original signature. No changes, modifications or waivers may be made to these Terms unless in writing and signed by both parties. The failure of either party to enforce its rights under these Terms at any time for any period will not be construed as a waiver of such rights. Except as specifically provided otherwise, each right and remedy in these Terms is in addition to any other right or remedy, at law or in equity, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of these Terms is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable.
12.2 Publicity. Mobi may include Customer’s name in its customer listings that may be published as part of Mobi’s marketing efforts. Customer agrees that Mobi may use the Customer's name and logo, along with a corporate description, in print and online materials, including on the Mobi website. Mobi shall use Customer’s name and logo in accordance with any written quality control standards and guidelines provided to Mobi in advance by Customer.
12.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflicts of law provisions. The parties further consent to and agree upon exclusive jurisdiction and venue in either the federal courts sitting in the United States District Court for the district of Delaware, unless no federal subject matter jurisdiction exists, then in the Delaware Chancery Court. In any action or proceeding to enforce or interpret these Terms, the prevailing party will be entitled to recover the costs and expenses (including reasonable attorneys' fees) that it incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
12.4 Relief. Each party agrees that, in the event of any breach or threatened breach of Section 5 or 6, the non-breaching party may suffer irreparable damage for which it may have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain, temporarily or permanently, such breach or threatened breach, without the necessity of posting any bond or surety. Such remedies shall be in addition to any other remedy that the non-breaching party may have at law or in equity.
12.5 Notices. All notices under these Terms will be in writing, in English and provided on a server and shared via hyperlink listed on all Order Forms to the parties. Notices will be deemed to have been duly given upon the delivery of the applicable Order Form.
12.6 Assignment. Mobi shall not assign, delegate or transfer these Terms or any right, interest or benefit under these Terms, or allow these Terms to be assumed by, any third party without the prior written consent of Customer and any such assignment, delegation, transfer or assumption without Customer’s prior consent shall be wholly void and invalid. Notwithstanding the foregoing, without the consent of, but with prior written notice to, Customer, Mobi may assign these Terms to an Acquiror of Mobi, or allow these Terms to be assumed by such Acquiror so long as: (a) Acquiror agrees to be fully bound by the terms and conditions set forth in these Terms, (b) Mobi is not released from liability for full performance of its obligations hereunder that accrued prior to such assignment, and (c) Acquiror has the necessary financial and other resources necessary to fully perform Mobi’s obligation hereunder. Customer may transfer its rights and obligations under these Terms, without obtaining Mobi’s consent, but with prior written notice to Mobi, to any Acquiror of Customer or to a Customer Affiliate, and in the event of any such transfer and/or the assumption by the transferee of the obligations of Customer hereunder, Customer will be released from any further liability or obligation under these Terms (but for the sake of clarity, not released from any liability or obligation that accrued prior to such transfer). As used herein, “Acquiror” shall mean a third party that acquires all or substantially all of the outstanding capital stock of a Party or a third party that purchases all or substantially all of the assets and on-going business of a Party to which these Terms relates. Any attempted transfer in violation hereof will be void and of no effect. This Agreement will be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties.
12.7 Independent Contractors. The parties shall be independent contractors in their performance under these Terms, and nothing contained herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint ventures or partners for any purpose. Neither Mobi nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
12.8 Non Solicitation. During the Term of these Terms and for 1 year thereafter, neither party will directly or indirectly recruit, employ or retain any employee of the other party, or otherwise solicit, induce or influence any employee to leave their employment with the other party, or attempt to do so. The foregoing limitation does not prohibit mass media advertising not specifically directed toward employees of either party.
12.9 Force Majeure. If any circumstance beyond the reasonable control of either party occurs, which delays or renders impossible the performance of certain of that party’s obligations under these Terms (other than payment obligations) on the dates herein provided (“ Force Majeure ” ), such obligations shall be postponed for such time as such performance necessarily has had to be suspended or delayed on account thereof, provided such party shall notify the other party in writing as soon as practicable. In such event, such party who fails because of an event of Force Majeure to perform its obligations hereunder shall upon the cessation of the Force Majeure event take all reasonable steps within its power to resume with the least possible delay compliance with its obligations. Events of Force Majeure shall include, without limitation, war, revolution, invasion, insurrection, riots, mob violence, sabotage, or other civil disorders, acts of God, laws, regulations or rules of any government or governmental agency, any delay or failure in manufacture, production or supply by third parties of any goods or services, and any failure of a computer system.
12.10 Consideration. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
LICENSE SUPPORT POLICY
This Support Policy details Mobi’s Support Services for the Application described in these Terms:
Capitalized terms used in this Support Policy and not otherwise defined shall have the respective meaning assigned thereto in the Agreement.
“Authorized Contact” has the meaning assigned thereto in Section 2.6(e) of this Support Policy.
“Error” means an error in the Application, which significantly degrades use of the Application as contemplated by the Agreement.
“Fix” means the repair or replacement of an object or executable code within the Application to remedy an Error.
“Service Hours” means 9 AM to 9 PM ET Monday through Friday other than federal holidays. Notwithstanding the foregoing, Mobi shall make support available 24/7/365 for Severity 1 and 2 issues.
“Severity 1” means that the Application is non-operational and there is no known Workaround.
“Severity 2” means a problem with the Application that causes a serious disruption which cannot be solved (temporarily) by a Workaround.
“Severity 3” means a non-critical problem in the Application where the Customer is able to continue to use the Application and a Workaround is available.
“Severity 4” means a non-Severity 1, 2 or 3 Error.
“Support Services” means (a) the provision of Updates related to the Application; (b) assistance by telephone or internet with respect to the use of the Application including without limitation (i) clarification of functions and features of the Application, (ii) clarification of the Documentation, and/or (iii) guidance in the operation of the Application; and (c) Error verification, analysis and correction.
“Support Call” means a telephone call or email notification from Customer to Mobi in respect of a Severity 1, Severity 2, Severity 3 or Severity 4 Error.
“Support Reply Time” means the elapsed time during Service Hours between the receipt of a Support Call and the target time within which Mobi begins Support Services as verified by a verbal or email confirmation to Customer.
“Update” means an update, enhancement, modification, bug-fix, patch or Error correction, that Mobi makes generally available to end users of the Application to whom Mobi owes a support obligation, but excludes hardware, software or services for which Mobi would generally charge an additional fee. Updates shall be deemed to be Upgrades for purposes of the Agreement.
“Workaround” means a change in the procedures followed or data supplied by Customer to avoid an Error without substantially impairing Customer’s use of the Application.
2. SUPPORT SERVICES. For so long as Customer has an agreement with Mobi for Application support and subject to the terms and conditions of the Agreement including the payment of fees, and including without limitation, this Support Policy, Customer will receive Support Services as specified herein.
2.1. Customer Support Center. Mobi shall receive Support Calls from an Authorized Contact and assign an Error priority level to the request during Service Hours, provided however, that Mobi shall provide a method for Customer to report and receive an Error priority for Severity 1 and 2 issues 24/7/365.
2.2. Support Call Logging. Mobi shall acknowledge receipt of Support Calls by telephone or the same method that the
Support Call was received with a tracking number within the Support Reply Times.
2.3. Support Reply Times. Support for the Application is available during Service Hours with the following target Support Reply Times:
Where Mobi does not acknowledge receipt of a Support Call within the applicable Support Reply Times, the following escalation contact protocol shall apply:
Where Mobi does not acknowledge receipt of a Support Call within the applicable Support Reply Times, the following escalation contact protocol shall apply:
2.4. Response. Following acknowledgement by Mobi in response to a Support Call in respect of a Severity 1 or 2 Error, Mobi will work uninterrupted using reasonable best commercial efforts to provide Customer with a Workaround or Fix. Following acknowledgement of a Severity 3 Error, Mobi will work using reasonable commercial efforts during the Service Hours to provide Customer with a Workaround or Fix. Following acknowledgement of a Severity 4 Error, Mobi will use reasonable commercial efforts to incorporate any necessary changes with the next release of the Application, or provide a Fix or Workaround thereto, in its sole discretion.
2.5. Exclusions. If Mobi believes that a problem reported by Customer may not be due to an Error in the Application, Mobi will notify Customer. Support Services do not include services requested as a result of, or with respect to, causes which are not attributable to Mobi or the Application (“Excluded Services”). Excluded Services will be billed to Customer at Mobi’s then-current rates: $350/hr for CEO, CTO and Chief Scientists, $200/hr for directors and senior or lead engineers and $100/hr for support. Causes which are not attributable to Mobi or the Application include, but are not limited to: (i) modifications made by Customer, other than modifications made by Mobi, to Customer’s operating environment, third party software or hardware other than the Systems that adversely affects the Application; (ii) any alterations or additions to the Application not performed by Mobi; (iii) failures in operation of the Application that are not reproducible in standalone form; (iv) an Application that is otherwise operated in violation of these Terms or other than in accordance with the Documentation and specifications therefor; (v) failures which are caused by Customer or Customer’s software or other software, hardware or products not licensed hereunder except for the Systems; or (vi) unless otherwise specifically mutually agreed upon by the parties in writing, failures arising in connection with Customer Customizations.
2.6. Customer Responsibilities. Mobi’s provision of Support Services to Customer is subject to the following.
(a) Customer is responsible for providing sufficient information and data to allow Mobi to readily reproduce all reported Errors.
(b) Customer shall provide Mobi with necessary access to the Application, personnel and equipment during Service Hours. This access includes the ability to remotely access the Application, subject to Customer’s applicable security procedures that have been provided to Mobi on or prior to the date of this Order Form.
(c) Customer shall document and promptly report all detected Errors to Mobi. At Mobi’s direction, Customer shall take all steps necessary to carry out procedures for the rectification of Errors within a reasonable time after such procedures have been received from Mobi.
(d) Customer shall properly train its personnel in the use and application of the Application.
(e) Customer shall appoint a reasonable number of trained individuals to serve as primary contacts between Customer and
Mobi regarding the registry and report of Support Calls (each an “Authorized Contact”). All of Customer’s Support Calls and Support inquiries shall be initialized through the Authorized Contacts. Customer may assign 1 backup for each Authorized Contact.
THIS SUPPORT POLICY DEFINES A SERVICE ARRANGEMENT AND NOT A PRODUCT WARRANTY. THE APPLICATION AND MATERIALS AND SERVICES RELATED THERETO ARE SUBJECT EXCLUSIVELY TO THE WARRANTIES SET FORTH IN THE AGREEMENT. THIS SUPPORT POLICY DOES NOT CHANGE OR SUPERSEDE ANY TERM OF ANY SUCH AGREEMENT.