TERMS OF SERVICE
MoBagel, Inc. (“Company”) licenses its scalable, cloud-based backend platform and provides related services under these terms of service (“Agreement”). This Agreement is a legal contract between you (if you use the MoBagel Cloud and Service in your capacity as an individual) or the legal entity you represent (e.g., your employer) (“You”) and Company. Read the terms of this Agreement carefully. By clicking “I agree” or using any of the MoBagel Cloud, You agree to be bound by this Agreement. If You do not agree to the terms of this Agreement, do not click “I agree” or use any of the MoBagel Cloud.
“Account” means the billing account for the Service.
“Brand Features and Marks” means Your branding, trademarks and the associated logos that are used in connection with an IoT Product.
“Content” means Your data and information accessible on or from an IoT Product.
“Confidential Information” means any proprietary data and any other information disclosed under this Agreement by one party to the other in writing and marked “confidential” or disclosed orally and, within five business days, reduced to writing and marked “confidential”. However, Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving party’s possession prior to disclosure by a party or which is independently developed by the receiving party without the use of Confidential Information.
“IoT” means Internet of Things.
“IoT Product” means an IoT hardware product that You develop to be used with the MoBagel Cloud pursuant to this Agreement.
“MoBagel Cloud” means the Company’s scalable, cloud-based backend platform (including software libraries and APIs that may be integrated into an IoT Product), which enables hardware manufacturers and designers to remotely monitor devices performance in real-time, optimize product features by analyzing usage behavior and revolutionize CRM by proactively engaging with customers rather than passively waiting for reports or complaints.
“Service” means the service that Company provides to its customers in connection with the MoBagel Cloud, which include, without limitation, analytics software and executive, R&D and sales & marketing dashboards for key ROI, KPI and other metrics, to enable a manufacturer to monitor how many IoT devices are being used at any moment by region.
“User Data” means the IoT Product data collected through the use of the Service.
The words “include” and “including” mean “including but not limited to.”
Subject to Your compliance with the terms and conditions of this Agreement, Company hereby grants You, solely during the term of this Agreement, a non-exclusive, non-transferable, revocable license, without rights to sublicense, to (i) incorporate libraries and APIs that are included in the MoBagel Cloud into Your IoT Products, (ii) reproduce and distribute such libraries and APIs together with Your IoT Products and (iii) access and use the MoBagel Cloud via the Internet, solely for use in connection with Your IoT Products.
3.1 You hereby grant Company an irrevocable, non-exclusive, royalty-free, transferable license, with rights to sublicense, to use, reproduce, modify, display, perform and create derivative works of the IoT Products, the Content and the Brand Features and Marks in connection with Your use of the MoBagel Cloud and the Service.
3.2 Company reserves the right to monitor the Content and IoT Products and to remove or disable Content or IoT Products that Company, in its sole discretion, determines to be illegal, harmful, offensive, creating liability for Company or its service providers, or otherwise in violation of this Agreement or Company’ operating policies.
4.1 As between the parties and except for the licenses granted by this Agreement, (a) You retain all right, title and interest, including all related intellectual property rights, in and to each IoT Product (excluding any Company libraries or APIs that may be contained therein), the Content and the Brand Features and Marks and (b) Company retains all right, title, and interest, including all related intellectual property rights, in and to the MoBagel Cloud.
4.2 Company retains all rights not expressly granted to you under this Agreement. You do not have any implied rights.
5. OTHER COVENANTS, TERMS AND RESTRICTIONS
5.1 The MoBagel Cloud and the Service, which includes all APIs, libraries and Company owned software and all intellectual property rights therein, is and will remain the property of Company and its affiliates. All rights in and to the MoBagel Cloud and the Service not expressly granted to You are reserved and retained by Company and its licensors, including, Company (and its affiliates’) right to sole ownership of the software for the MoBagel Cloud and the Service. Without limiting the generality of the foregoing, You agree not to (and not to allow any third party to): (a) sublicense, distribute, or use the MoBagel Cloud and the Service outside of the scope of the license granted in this Agreement; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile any software for the MoBagel Cloud or Service or otherwise attempt to discover any source code or trade secrets related to the MoBagel Cloud and the Service; (c) rent, lease, sell, assign or otherwise transfer rights in or to the MoBagel Cloud or the Service; (d) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the MoBagel Cloud or the Service; (e) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Service for any purpose without the express written consent of Company; (f) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with Company (or its affiliates) other than in the name of Company (or its affiliates, as the case may be); or (g) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the MoBagel Cloud or the Service.
5.2 You represent, warrant and covenant to Company that: (i) You are of an age of majority and have the power, authority or consent to enter into and perform this Agreement and grant the rights and licenses granted by this Agreement; (ii) all information provided by You to Company is truthful, accurate and complete; (iii) You are the authorized signatory of the credit or charge card provided to Company to pay the fees; (iv) you shall comply with all terms and conditions of this Agreement; (v) You have provided and will provide accurate and complete registration information, including your legal name, address and telephone number; and (vi) You own or otherwise control and have sufficient rights and consents to provide all IoT Products, Brand Features and Marks or Content for use by Company in the manner contemplated by this Agreement and none of the IoT Products, Brand Features and Marks or Content infringes, misappropriates or violates any rights of any third parties.
5.3 You will not (and You will not allow any third party to) (i) copy, modify, adapt, translate or otherwise create derivative works of the MoBagel Cloud or the Service; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the MoBagel Cloud or the Service, except as expressly permitted by the law in effect in the jurisdiction in which You are located notwithstanding this prohibition; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the MoBagel Cloud or Service; (iv) remove any proprietary notices or labels on the MoBagel Cloud or placed by the Service; or (v) gain or attempt to gain access to the account of a third party without authorization; or (vi) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the MoBagel Cloud. You will comply with all applicable laws and regulations in Your use of and access to the MoBagel Cloud and the Service.
5.4 You agree to comply with the Company’s Acceptable Use Policy available at [https://mobagel.com/acceptable-use-policy], which is incorporated herein by reference.
6. PAYMENT AND TAXES
6.1 Company charges a fee for use of the MoBagel Cloud and the Service. You agree to pay all fees charged by Company. All fees are non-refundable and, unless other stated, in US dollars. All fees and taxes and other charges will be billed to your credit card. You hereby authorize Company to charge your credit card. There will be no refunds or credits for partial months of Service, upgrades, or unused months.
6.2 Company reserves the right to deactivate your access to MoBagel Cloud and the Service for failure to pay applicable fees. You agree to promptly pay Company in the event of any refusal of your credit card issuer to pay any amount to Company for any reason. You agree to pay all costs of collection, including attorneys’ fees and costs, on any outstanding balance. In the event you fail to pay any amount when due, Company may immediately suspend or terminate Your access to the MoBagel Cloud and the Service.
6.3 Your subscription will renew automatically, unless Company terminates it or you terminate your subscription pursuant to Section 8 below. You must cancel your subscription before it renews in order to avoid billing of subscription fees for the renewal term to your credit card.
6.4 You are responsible for, and will indemnify and hold Company harmless from, payment of all taxes (other than taxes based on Company’ net income), fees, duties, and other governmental charges, and any related penalties and interest, arising from the payment of fees to Company under this Agreement or the delivery, license or use of the MoBagel Cloud or Service. You will make all payments to Company free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to Company will be Your sole responsibility, and You agree to provide Company with official receipts issued by the appropriate taxing authority, or such other evidence as Company may reasonably request, to establish that such taxes have been paid.
6.5 Company may change its fees and payment policies for the Service from time to time. The changes to the fees or payment policies are effective upon Your acceptance of those changes which will be posted at [https://mobagel.com/pricing], which is incorporated herein by reference.
6.6 Any amounts not paid when due are subject to an interest charge at a rate of 1.5% per month or the maximum rate permitted by law, whichever is less.
7. SERVICE RELATED TERMS
7.1 To register for the Service, You must complete the registration process by providing Company with current, complete and accurate information as prompted by the registration form, including Your e-mail address (username) and password. You will protect Your passwords and take full responsibility for Your own, and third party, use of Your accounts. You are solely responsible for any and all activities that occur under Your Account. You must notify Company immediately upon learning of any unauthorized use of Your Account or any other breach of security. Company (or any of its affiliate’s) support staff may, from time to time, log-in to the Service under Your customer password in order to maintain or improve service, including to provide You assistance with technical or billing issues.
7.2 Company does not warrant or guarantee that the IoT Products, MoBagel Cloud or the Service will be always available or available at any particular time, secure or free from errors or defects.
7.3 If You use the Service on behalf of a third party or a third party otherwise uses the Service through Your Account, whether or not such use has been authorized by Company, then You represent and warrant that (a) You are authorized to act on behalf of, and bind to this Agreement, the third party to all obligations that You have under this Agreement, (b) Company may share with the third party any User Data that is specific to the third party’s IoT Product, and (c) You will not disclose the third party’s User Data to any other party without the third party’s consent.
8. PRIVACY AND RIGHTS TO DATA
9. TERM AND TERMINATION
This Agreement begins upon your registration. This Agreement will automatically terminate if you fail to comply with its term. Additionally, either party may terminate this Agreement at any time for any reason or no reason whatsoever. To terminate this Agreement, you must use the online MoBagel Cloud account cancellation forms. Without limiting the foregoing, You acknowledge that Company may discontinue all or part of the MoBagel Cloud or Service at any time. In the event of termination or expiration of this Agreement: (a) You will not be entitled to any refunds of any usage fees or any other fees; (b) any (i) outstanding balance for Service rendered until the date of termination, and (ii) other unpaid payment obligations which relate to the Service and/or this Agreement will be immediately due and payable in full; (c) all User Data and other data will no longer be available to You; (d) all of the licenses granted to You hereunder will terminate; and (e) Company will stop providing to You, and You must cease using, the Service. The definitions and rights, duties and obligations of the parties that by their nature continue and survive, including Your obligation to pay all fees and amounts to Company, shall survive any termination or expiration of this Agreement.
10. GOVERNMENT RESTRICTIONS
You may not export or re-export any of the MoBagel Cloud or IoT Product except in compliance with the United States Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if applicable. The foregoing and all accompanying documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying, or disclosing of the foregoing by the U.S. government is governed solely by the terms of this Agreement.
11. NO WARRANTY
11.1 THE MOBAGEL CLOUD AND SERVICES (INCLUDING ALL APIs, SDKs AND LIBRARIES) ARE PROVIDED TO YOU “AS IS” AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND COMPANY HEREBY DISCLAIMS AND EXCLUDES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND SATISFACTORY QUALITY.
11.2 Company does not warrant that any of the MoBagel Cloud or Service will meet your needs or requirements or be error-free or always available or available at any particular time or that any errors or defects will be corrected. Company does not warrant or guarantee any amount of money that You will receive or earn in connection with an IoT Product.
11.3 NONE OF THE MOBAGEL CLOUD AND SERVICES IS FAULT TOLERANT. THEY ARE NOT DESIGNED, MANUFACTURED, LICENSED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT MACHINES, WEAPONS SYSTEMS OR ANY OTHER APPLICATION IN WHICH ITS FAILURE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR PHYSICAL OR ENVIRONMENTAL DAMAGE.
12. LIMITATION OF LIABILITY AND INDEMNITY
12.1 IN NO EVENT WILL COMPANY BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER, COST OF PROCUREMENT OF SUBSTITITUE GOODS, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY), OR OTHERWISE.
12.2 COMPANY’S LIABILITY UNDER THIS AGREEMENT WILL NOT, IN ANY EVENT, EXCEED THE FEES, IF ANY, PAID BY YOU TO COMPANY UNDER THIS AGREEMENT. THE FOREGOING LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
12.3 You shall indemnify and hold harmless Company and its officers, directors, employees and agents (the “Company Indemnified Parties”) from and against liabilities, costs, losses, damages, judgments, expenses (including attorneys’ fees and costs of experts and costs of appeals) arising out of or in connection with any and all of the following: (a) any allegation that any of the IoT Products, Brand Features and Marks or Content infringe, misappropriate or violate any intellectual property right, (b) any violation of this Agreement, including any breach of any representations or warranties contained herein, (c) your provision or distribution of the IoT Product or any Content, (d) your use of any of the MoBagel Cloud or the Service, (e) any activity relating to your account, (f) any violation of a third party app store’s contracts, policies or procedures; (g) Your violations of applicable laws, rules or regulations in connection with the Service; (h) any failure of You to have all necessary rights and licenses; (i) any representations and warranties made by You concerning any aspect of the Service or MoBagel Cloud to any third party; or (j) violations of Your obligations of privacy to any third party.
13. CONFIDENTIALITY AND FEEDBACK
13.1 Neither party will use or disclose the other party’s Confidential Information without the other’s prior written consent except for the purpose of exercising rights under or performing this Agreement or if required by law, regulation or court order; in which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing the Confidential Information. Upon termination of this Agreement, the parties will, to the extent practicable, promptly either return or destroy (including delete) all Confidential Information and, upon request, provide written certification of such.
13.2 To the extent you provide Company with any suggestions, information, ideas, or feedback concerning any of the MoBagel Cloud or Service, including but not limited to, a report of any errors which you discover while using an IoT Product or the MoBagel Cloud or any related documentation (“Feedback”), such Feedback will be the property of Company. You agree to assign, and hereby assign, all right, title and interest worldwide in the Feedback, and the related intellectual property rights, to Company and agree to assist Company in perfecting and enforcing these rights.
You may not transfer or assign Your rights under this Agreement, in whole or in part, without the prior written consent of Company. Any attempted assignment in violation of the foregoing is void. Company may freely transfer or assign its rights under this Agreement. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.
15. COPYRIGHT POLICY
15.1 Company takes claims of copyright infringement seriously. Company will respond to notices of alleged copyright infringement that comply with applicable law. If You believe any materials accessible on or from MoBagel Cloud or the Service infringe Your copyright, You may request removal of those materials (or access thereto) from MoBagel Cloud and the Service by submitting written notification to our Copyright Agent (designated below). In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:
(a) Your physical or electronic signature.
(b) Identification of the copyrighted work You believe to have been infringed or, if the claim involves multiple works on MoBagel Cloud or the Service, a representative list of such works.
(c) Identification of the material You believe to be infringing in a sufficiently precise manner to allow Company to locate that material.
(d) Adequate information by which Company can contact You (including Your name, postal address, telephone number and, if available, e-mail address).
(e) A statement that You have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent or the law.
(f) A statement that the information in the written notice is accurate.
(g) A statement, under penalty of perjury, that You are authorized to act on behalf of the copyright owner.
15.2 Our designated Copyright Agent to receive DMCA Notices is:
MoBagel Copyright Agent
444 Castro Street
Mountain View, CA 94041
15.3 If You fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, Your DMCA Notice may not be effective.
15.4 Please be aware that if You knowingly materially misrepresent that material or activity on MoBagel Cloud or the Service is infringing Your copyright, You may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
15.5 It is Company’s policy in appropriate circumstances to disable and/or terminate the accounts of users who are repeat infringers.
The laws of the State of California govern all matters arising out of this Agreement, without regard to conflict of law principles. The United Nations Convention for the International Sale of Goods shall not apply. Any disputes that may arise concerning the formation, interpretation or performance of this Agreement shall be finally settled by arbitration administered by JAMS in San Francisco California. This Agreement is the entire agreement between us with respect to the subject matter hereof, and supersedes the terms of any purchase orders and any other communications or advertising with respect to such subject matter. If any provision of this Agreement is held invalid, that provision will be deemed amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of this Agreement will continue in full force and effect. Company has no liability for any failure of performance or equipment due to causes beyond its reasonable control, including, but not limited to, the following: acts of God, fire, flood, earthquake, tsunami, storm, or other catastrophes; any law, order, regulation, direction, action, or request of any governmental entity or agency, or any civil or military authority; national emergencies, insurrections, riots, wars or acts of terrorism; unavailability of rights-of-way or materials; or strikes, lock-outs, work stoppages, or other labor difficulties; or failure of the Internet or any telecommunications, hosting or service provider. This Agreement may be modified only by a written agreement that is signed by authorized representatives of both parties and identifies itself as an amendment to this Agreement. No term or provision hereof will be considered waived by Company, and no breach excused, unless the waiver or consent is in writing signed by Company. No consent by Company to, or waiver of, a breach, whether express or implied, will constitute a consent to, waiver of, or excuse of any other, different or subsequent breach. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such paragraph or in any way affect such section.
If the above arbitration clause is not enforceable, any disputes that may arise concerning the formation, interpretation or performance of this Agreement, shall be brought by You in the courts of San Francisco California.
17. CONTACT INFORMATION
If you have any questions about this Agreement, or if you want to contact Company for any reason, please direct all correspondence to: MoBagel, Inc. [444 Castro Street, Mountain View, CA 94041] or email email@example.com.
MoBagel and [list trademark names and logos here] are trademarks and/or registered trademarks of Company Corporation or its affiliates in the United States and/or various jurisdictions.