Free Services Agreement_2.12
AGREEMENT FOR FREE SERVICES
IMPORTANT: PLEASE READ THIS MOBILITY CENTRAL AGREEMENT FOR FREE SERVICES (“AGREEMENT”) CAREFULLY. BY CLICKING ON THE “I AGREE” BUTTON BELOW AND USING THE MOBILITY CENTRAL SERVICES (“FREE SERVICES”) YOU HEREBY ACCEPT AND CONSENT TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT FOR YOURSELF AND ON BEHALF OF THE COMPANY WHO WILL DERIVE THE BENEFIT OF THE FREE SERVICES (COLLECTIVELY “CLIENT”). VISAGE MOBILE, INC. (“VISAGE”) IS WILLING TO GRANT CLIENT ACCESS TO USE THE FREE SERVICES ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN VISAGE IS UNWILLING TO GRANT CLIENT ACCESS TO THE FREE SERVICES AND YOU MUST IMMEDIATELY (1) CLICK ON THE “I DECLINE” BUTTON BELOW, AND (2) CEASE USING THE FREE SERVICES.
- USE OF THE FREE SERVICES.
- Right to Access and Use Free Services. Subject to the terms of this Agreement and the eligibility guidelines for the Free Services posted at the URL: http://visagemobile.com/warm-up-agreement, Visage grants Client a non-exclusive, non-transferable, right to access, via the internet, the Free Services solely for Client’s internal management of up to 10,000 unique wireless device lines as represented by a unique mobile directory number appearing in a wireless carrier billing statement (“Subscriber Line”). Client may add and replace Subscriber Lines as necessary to reflect personnel changes provided that the number of Subscriber Lines does not exceed the number of total Subscriber Lines in the preceding sentence at any time.
- Reserved Rights. All rights not expressly granted by Visage to Client concerning the Free Services pursuant to this Agreement are reserved by Visage. Client acknowledges and agrees that Visage may at any time elect to discontinue the availability of Free Services, modify the cirteria for eligibility guidelines to use the Free Services, or change, add or remove any feature or function made available as part of the Free Services. If Client exceeds the eligibility guidelines for Free Services (for example, a particular number of Subscriber Lines), Client may be required to pay, and agrees to pay, the applicable fees and taxes for such excess usage as a condition to retaining its eligibility to receive Free Services.
- Use of the Free Services. Client is responsible for all activity occurring under its Free Services account. Client shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with its use of the Free Services, including those related to data privacy, international communications and the transmission of technical or personal data, and including the export laws and regulations of the United States. Client shall notify Visage immediately of any unauthorized use of any password or account or any other known or suspected breach of security. Client will not use the Free Services: (a) for any unlawful, infringing, defamatory, libelous, fraudulent, obscene or pornographic purpose; (b) to send unsolicited e-mail of any kind; (c) to send any virus, worm, trojan horse or other harmful code or attachment; or (d) to alter, steal, corrupt, disable, destroy, trespass, circumvent or violate any security or encryption of any computer file, database, or network. If Visage in its sole discretion determines that Client has violated any of the foregoing prohibitions, Visage may upon notification to Client immediately suspend the Free Services and/or terminate this Agreement without further liability or obligation to Client.
- Subscriber Data. In transmitting and processing any information associated with a Subscriber Line, including without limitation, device handset type, mobile service plan, call detail records, and any other usage records associated therewith (collectively, “Subscriber Data”), Visage will comply with all applicable privacy and data protection laws. Visage agrees to safeguard such Subscriber Data in accordance with applicable laws and best industry practices (and in all events by the exercise of reasonable diligence and care to avoid disclosure to unauthorized third parties). Client hereby grants Visge a limited, terminable, royalty-free license to use and transmit the Subscriber Data solely as necessary to provide the Free Services to Client, and as expressly permitted by this Agreement. Client is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and right to use all Subscriber Data provided or submitted to the Free Services in the course of using the Free Services. Visage is under no obligation to monitor or review Subscriber Data. Visage may use Subscriber Data for anonymous statistical purposes, including to compile aggregate performance or use data that relates to a group or category of services or customers, from which any personally-identifiable information has been removed (“Aggregate Data”). Visage may use Aggregate Data without any obligation of confidence and for any lawful business purposes, provided that such information does not incorporate any personally-identifiable Subscriber Data. Visage retains all intellectual property rights in the Aggregate Data. ANY SUBSCRIBER DATA ENTERED INTO THE FREE SERVICES, AND ANY REPORTS BASED ON THE SUBSCRIBER DATA MADE TO THE SUBSCRIBER DATA BY OR FOR YOU DURING YOUR FREE SERVICES TERM MAY BE PERMANENTLY LOST UNLESS CLIENT PURCHASES A SUBSCRIPTION TO THE SERVICES, PURCHASES UPGRADED SERVICES, OR EXPORTS ITS SUBSCRIBER DATA BEFORE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT.
- Advertising. In its sole discretion and as a way of supporting the Free Service, Visage may present Internet Advertising (“Advertising”) to Client and its personnel, administrators, subscribers and any other individuals associated with Client or to whom Client gives access to the Free Services, in accordance with guidelines developed and maintained by Visage in pertaining to the Advertising, In the event that Visage places Advertising in the Free Service, it may place such adertising in such locations and according to such guidelines as determined by Visage in its sole discretion. All revenues and consideration received by Visage from the placement of the Advertising in the Free Service will belong exclusively to Visage.
- Service Administrators. Client will identify one or more technical administrators employed by Client who will be provided functional access to the Free Services by Client (“Service Administrators“) to serve as Client’s contact(s) to Visage for standard techical support. Client shall ensure that: (a) the Service Administrator account is established and maintained with accurate information; and (b) Service Administrator password and name are not shared except in the event of personnel reassignment.
- PRIVACY, TITLE AND INTELLECTUAL PROPERTY. Visage does not acquire any right, title or interest in or to the any Subscriber Data except for the limited rights expressly granted by Client herein. Visage and its third-party licensors own and retain all right, title and interest in and to all portions of the Free Services, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client relating to the Free Services.
- TERM AND TERMINATION. This Agreement and Client’s access to the Free Services will terminate in their entirety upon the earlier of (i) number of days agreed upon by Visage and Client from acceptance of this Agreement, (ii) the start date of any paid Services ordered by Client, or (iii) the date on which either Visage or Client terminate this Agreement for any reason or no reason by written notice to the other party. Section 2, 4, 5, 6 and 7 will survive termination of this Agreement.
- WARRANTY DISCLAIMER. Visage does not warrant or represent that: (A) THE USE OF THE FREE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) ANY REPORTS BASED ON SUBSCRIBER DATA WILL BE ACCURATE, RELIABLE, COMPLETE, OR VIRUS-FREE; OR (C) ERRORS OR DEFECTS IN THE FREE SERVICES SOFTWARE WILL BE CORRECTED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VISAGE DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE RELATED TO THE FREE SERVICES AND CLIENT’S USE THEREOF.
- LIMITATION OF LIABILITY. VISAGE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST DATA OR LOST PROFITS, HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. VISAGE’S AGGREGATE LIABILITY FOR ANY DIRECT DAMAGES ARISING OUT OF THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL IN NO EVENT EXCEED $5,000. THE PARTIES AGREE TO THE ALLOCATION OF LIABILITY RISK SET FORTH IN THIS SECTION.
- NONDISCLOSURE OBLIGATIONS. “Confidential Information” means all proprietary and confidential information disclosed by one party (“Discloser“) to the other party (“Recipient“) directly or indirectly, in writing, orally, or electronically that is either identified as confidential information or should be reasonably understood to be confidential information. Recipient shall protect Discloser’s Confidential Information with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which Recipient utilizes for its own confidential information that it does not wish to be disclosed to the public. Recipient may provide access to and use of Discloser’s Confidential Information only to those employees, consultants and agents that: (i) have a need to use and access Discloser’s Confidential Information; and (ii) have agreed to substantially similar non-disclosure obligations imposed by Recipient as those contained herein. This Agreement imposes no obligation upon Recipient with respect to information which Recipient can establish by legally sufficient evidence that: (a) was in the possession of, or was rightfully known by, Recipient without an obligation to maintain its confidentiality prior to receipt from Discloser; (b) is or becomes generally known to the public without violation of this Agreement; or (c) is obtained by Recipient in good faith from a third party having the right to disclose it without an obligation of confidentiality. Disclosure of Confidential Information that was required to be disclosed by applicable law shall not be considered a breach of this Agreement; provided that Recipient notifies Discloser of such requirement prior to disclosure, and provided further that Recipient makes diligent efforts to limit disclosure.
- GENERAL. This Agreement is made in and shall be governed by the laws of the State of California, excluding its conflicts of laws provisions. The Uniform Computer Information Transactions Act or similar federal or state laws or regulations shall not apply to this Agreement. Visage may assign this Agreement together with all rights and obligations under this Agreement, without Client’s consent, to a wholly-owned subsidiary or affiliate, or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. All other assignments shall require the consent of the non-assigning party, not to be unreasonably conditioned, delayed or withheld. Except for routine business notifications, and notice of suspension, modification, discontinuation or termination of the Free Services, which may be delivered by means of a general notice on the Free Services, or by electronic mail to Client’s e-mail address on record in Visage’s account information, all other legal notices required or permitted under this Agreement will be in writing, will reference this Agreement and will be deemed given when: (i) delivered personally; (ii) upon receipt or refusal of receipt after having been sent by registered or certified mail, return receipt requested, postage prepaid. If any provision of this Agreement is held to be unenforceable, this Agreement shall be construed without such provision, and the parties agree to amend this Agreement so that the original intent is maintained as much as possible. The failure by a party to exercise any right hereunder shall not operate as a waiver of such party’s right to exercise such right or any other right in the future. This Agreement constitutes the entire agreement between the parties concerning the Free Services, and replaces and supersedes any prior verbal or written understandings, communications, and representations between the parties concerning the Free Servces. Nothing in this Agreement is intended to create or to be construed as the existence of a partnership, joint venture, or agency relationship between the parties. The parties have agreed for this Agreement to be written in, and interpreted in, English only. Each party in its performance of its obligations pursuant to this Agreement shall comply with all applicable laws, including without limitation, all applicable export laws, data privacy laws, and laws regarding personal data.