Code9 Mobile

Code9 Mobile Terms of Service (20-Jan-2012)

READ CAREFULLY BEFORE PROCEEDING

ATTENTION: THIS CODE9 MOBILE END USER LICENSE AGREEMENT IS A LEGAL CONTRACT THAT DEFINES WHAT YOU MAY DO WITH THE CODE9 MOBILE SUBSCRIPTION, THE INFORMATION INCLUDED WITH THE CODE9 MOBILE SUBSCRIPTION, AND ALL RELATED EXPLANATORY MATERIALS WHETHER INCLUDED IN THE MATERIALS YOU ARE VIEWING, ACCESSING, FOUND ELSEWHERE ONLINE, OR SUBSEQUENTLY ACCESSED BY YOU AND DELIVERED IN PRINTED FORM. THE CONTRACT ALSO CONTAINS LIMITATIONS ON WARRANTIES AND/OR REMEDIES. CODE9 MOBILE, THE CODE9 MOBILE SUBSCRIPTION, THE INFORMATION INCLUDED WITH THE CODE9 MOBILE SUBSCRIPTION AND ALL RELATED EXPLANATORY MATERIALS ARE COPYRIGHTED AND LICENSED (NOT SOLD). PLEASE READ THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT CAREFULLY BEFORE CONTINUING TO ACCESS THE CODE9 MOBILE SUBSCRIPTION. BY CLICKING THE “I ACCEPT” BUTTON BELOW, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTOOD AND ACCEPTED THE TERMS AND CONDITIONS BELOW. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS YOU SHOULD CLICK THE “I DO NOT ACCEPT” BUTTON AND YOUR ACCESS TO THE CODE9 MOBILE SUBSCRIPTION WILL END.

CODE9 MOBILE© End user license AGREEMENT

This Code9 Mobile End User License Agreement (the “License Agreement” or “Subscription Agreement” or “Agreement” herein) is made by CODE9 MOBILE LLC, a Delaware corporation with offices at 1700 Research Boulevard, Suite 240, Rockville, MD 20850-3119 (“Code9 Mobile”), and the person or entity identified on the prior screen (“Licensee”).

Recitals

Licensee hereby enters into an agreement with Code9 Mobile for the purchase of a Code9 Mobile subscription and associated configuration and technical support (the “License Agreement”). In order to activate the rights associated with the License Agreement, Licensee hereby accepts and consents to the terms of this Agreement as described herein. This Agreement shall be effective upon the date of acceptance and consent to the terms of this Agreement by Licensee (the “Effective Date”). Therefore, in consideration of the mutual promises, covenants, and conditions contained in this Agreement, the sufficiency of which is hereby acknowledged, Code9 Mobile and Licensee agree as follows.

Agreement

  • 1. Definitions.

    • 1.1. Adaptation

      is a specific version of Code9 Mobile services configured for Licensee by Code9 Mobile with a specific functionality as described in the License Agreement.
    • 1.2. Confidential Information

      means the proprietary and confidential information of either party, including, without limitation, all information, know-how, marketing and development plans, techniques and materials, client names and other information related to clients, price lists, pricing policies and financial information, and methods of production, use, operation and application: (i) which are not generally known to the public; and (ii) in which such person or its suppliers or clients has rights. Notwithstanding the foregoing, no information shall be deemed to be Confidential Information if such information:
      • was disclosed to the other party receiving the same under this Agreement at any time by a third party without the imposition of any obligation;
      • became known to the general public without the imposition of any obligation of confidentiality by either party to this Agreement;
      • was developed by any partner or employee of the party receiving the same under this Agreement who had no access to any information disclosed to such party under this Agreement;
      • was previously known by either party; or
      • was disclosed pursuant to a judicial or other governmental order, provided that the party making such disclosure (i) gives the other party reasonable notice prior to such disclosure to allow it a reasonable opportunity to seek a protective order or equivalent, and (ii) discloses only that portion of such Confidential Information which it is legally required to disclose.
    • 1.3. Code9 Mobile Services

      include a mobile app that operates on Android and Blackberry smart phones and includes a website, to connect parents to their kids' mobile lives, that offers such features as identification of their child's phone's current location, set curfew hours during which incoming text messaging is limited only to authorized phone numbers, filtering of text messages for specific words or slang, and provide certain activity reports for the child's phone. Website for parents to utilize these features is also included in the Code9 Mobile Services.
  • 2. License.

    • Subject to the terms and conditions of this Agreement and in exchange for the payment of certain monthly or annual fees to Code9 Mobile, during the term of this Agreement as described in Section 10 herein, Code9 Mobile will provide Licensee access to installation and activation of Code9 Mobile Services, and Licensee agrees it will use access to Code9 Mobile Services only as set forth in the License Agreement.
  • 3. Operation of Code9 Mobile.

    • 3.1 Operation.

      • 3.1.1
        Code9 Mobile Services will be available through a website operated by Code9 Mobile, and will be configured, maintained and hosted as provided in this License Agreement. Code9 Mobile will operate Code9 Mobile services according to reasonable commercial standards of operation, network stability, security and service. Code9 Mobile's obligations are subject in all cases to the availability of third-party services utilized by Code9 Mobile for Code9 Mobile such as network access, IT platform products and services, etc. Licensee and its authorized users will access Code9 Mobile services via the Internet, utilizing a link from Licensee's systems. Code9 Mobile is not responsible for the network performance of third-party intermediaries serving Licensee or Code9 Mobile.
      • 3.1.2
        Code9 Mobile will maintain an availability uptime level of 98.5% (as calculated on average during any rolling three (3) month period) for Code9 Mobile Services exclusive of its own scheduled downtime and downtime attributable to services provided by third parties. The current Code9 Mobile planned maintenance downtime for Code9 Mobile is Friday 9 AM to 11 AM Eastern Standard Time and is subject to change without notice.
      • 3.1.3
        Code9 Mobile will not retain Licensee's credit card information in its possession. Such information for all credit card charge transactions shall be retained and maintained by a third-party chard card processor. Code9 Mobile shall verify that any such third-party chard card processor shall be certified for information security at the then prevailing standards for credit card information security. Licensee hereby agrees that s/he will not hold Code9 Mobile liable for any hacking incidents at, or security lapses caused by, the third-party charge card processor.
    • 3.2 Improvements and Additions.

      • Code9 Mobile may, at its sole discretion, make available to Licensee at no additional charge those updates and improvements it makes generally available to other licensees of Code9 Mobile. Code9 Mobile may also make new services or features optionally available in addition to standard updates and improvements at a price to be published to Licensee.
  • 4. Intellectual Property, Trademarks and Information.

    • 4.1 Code9 Mobile Property.
      • To the best of Code9 Mobile's knowledge, Code9 Mobile owns all intellectual property rights in and to Code9 Mobile and all modifications, enhancements and upgrades to the foregoing created exclusively by Code9 Mobile.
    • 4.2 Licensee Data.
      • Code9 Mobile may use any non-Confidential Information collected by Code9 Mobile for analytic and summary purposes, including modeling, benchmarking and providing aggregate information to third parties.
  • 5. Publicity.

    • Licensee hereby grants Code9 Mobile a right to display any of Licensee's comments on Code9 Mobile's web site and brochure for the purpose of identifying Licensee as a user of Code9 Mobile during the Term.
  • 6. Warranties.

    • 6.1 Code9 Mobile Warranties.
      • CODE9 MOBILE PROVIDES ITS SERVICES TO LICENSEE “AS-IS”, WITHOUT ANY WARRANTIES WHATSOEVER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CODE9 MOBILE EXPRESSLY DISCLAIMS, AND LICENSEE EXPRESSLY WAIVES, ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NOT IN LIMITATION OF THE FOREGOING, CODE9 MOBILE DOES NOT WARRANT THAT CODE9 MOBILE WILL MEET LICENSEE'S REQUIREMENTS, OPERATE EITHER WITHOUT INTERRUPTION OR FREE FROM ERROR, OR THAT ANY ERRORS WILL BE CORRECTED. CODE9 MOBILE DOES NOT WARRANT THAT ANY INFORMATION GENERATED BY CODE9 MOBILE IS ACCURATE AND ASSUMES NO LIABILITY FOR LICENSEE'S USE, OR ANY THIRD PARTY'S USE OF SUCH INFORMATION. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO LICENSEE. THIS WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS AND LICENSEE MAY ALSO HAVE OTHER LEGAL RIGHTS WHICH VARY FROM STATE TO STATE.
    • 6.2 Licensee Warranties.
      • Licensee warrants that: (a) it is not engaged in business activities that include the development of software that is substantially similar to that of Code9 Mobile, (b) it will not engage in, or enable or support any third party in, reverse engineering of Code9 Mobile or the intellectual property related thereto.
  • 7. Indemnities.

    • 7.1 Infringement.
      • Subject to Section 9, Code9 Mobile, at its own expense, shall indemnify, defend and hold Licensee harmless from and against any claim of infringement of any U.S. registered patent or copyright with respect to any software, program, service and/or other materials provided or developed by Code9 Mobile under this Agreement (a “Claim”) provided that: (a) Licensee furnishes to Code9 Mobile prompt written notice of any Claim; (b) Licensee grants Code9 Mobile immediate and complete control over the defense and settlement of any such Claim; and (c) Licensee provides Code9 Mobile, at Code9 Mobile's expense, all reasonable assistance in the defense and settlement of such Claim. Licensee may elect to participate in any such action with an attorney of its own choice and at its own expense.
    • 7.2 Remedies.
      • Subject to Section 9, in the event Code9 Mobile becomes the subject of a Claim, Code9 Mobile may, at its option and expense, either: (a) procure for Licensee the right to continue to use Code9 Mobile at no additional cost to Licensee; or (b) modify Code9 Mobile so that it becomes non-infringing, provided that substantially the same function is performed by the modified Code9 Mobile; or (c) in the event that it is not commercially reasonable for Code9 Mobile to perform (a) or (b) above, Code9 Mobile may provide Licensee with a prorated refund of any pre-paid fees. If Code9 Mobile selects subsection (b), Licensee shall immediately refrain from use of the unmodified Code9 Mobile. If Code9 Mobile selects subsection (c), Licensee shall immediately refrain from use of Code9 Mobile.
    • 7.3 Indemnity by Licensee
      • Licensee agrees to use Code9Mobile Services securely by adhering strictly to all prevailing and applicable laws of jurisdictions to which he or she is subject. Specifically, Licensee shall not violate the privacy of any individual by using Code9 Mobile Services without their consent. Licensee shall indemnify, defend, and hold harmless Code9 Mobile and its affiliates, distributors, subsidiaries, shareholders, directors, officers, employees and representatives from and against any and all actions, claims, damages, expenses (including, without limitation, reasonable attorneys' fees) and liabilities that may be incurred or sustained by any of the foregoing arising from any breach by Licensee either of this Agreement or any applicable laws or any act or omission of Licensee or of any of its family members, friends, agents, partners, principals, joint venturers, affiliates, directors, officers, employees, and representatives (as applicable), in connection with the performance of activities hereunder.
    • 7.4 Entire Obligation and Liability.
      • The foregoing provisions of Section 7 state Code9 Mobile's entire obligation and liability to Licensee with respect to any Claims.
  • 8. Non-Disclosure of Confidential Information.

    • Each party shall use the Confidential I efforts (by instruction, agreement or otherwise).
  • 9. Limitation of Liability.

    • IN NO EVENT WILL THE TOTAL LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE) OF CODE9 MOBILE EXCEED THE AMOUNT PAID TO CODE9 MOBILE BY LICENSEE IN THE IMMEDIATELY PRECEDING SIX MONTHS IN CONNECTION WITH THE LICENSE SUBSCRIPTION. CODE9 MOBILE WILL NOT BE LIABLE TO LICENSEE FOR LOST PROFITS, CREDIT LOSSES, OR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, EVEN IF IT HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES.
  • 10. Term and Termination.

    • 10.1
      This Agreement shall commence on the Effective Date and continue indefinitely through the term for which Licensee has rendered payment.
    • 10.2
      Code9 Mobile may terminate this Agreement immediately (a) in the event Licensee fails to pay Code9 Mobile with a credit card charge payment when due; (b) in the event Licensee commits a material breach of this Agreement and fails to remedy that breach within thirty (30) days of receipt of notice of material breach; or (c) in the event this Agreement is terminated by Licensee or Code9 Mobile. Licensee may terminate this Agreement in the event Code9 Mobile commits a material breach of this Agreement and fails to remedy that breach within thirty (30) days of receipt of notice of such material breach.
    • 10.3
      In the event that either party becomes liquidated, dissolved, bankrupt or insolvent, whether voluntarily or involuntarily, or shall take any action to be so declared, the other party shall have the right to immediately terminate this Agreement.
    • 10.4
      Upon termination of this Agreement, Licensee and its authorized users shall have no further right to access Code9 Mobile. Sections 4.1, 4.2, 6.1, 6.2, 7, 8, 9 and 11 of this Agreement shall survive the termination of this Agreement for any reason.
  • 11. General.

    • 11.1 Governing Law, Dispute Resolution.
      • This Agreement will be governed by the laws of the State of Maryland law excluding its choice of law principles. In no event will the United Nations Convention on Contracts for the International Sale of Goods or any adopted version of the Uniform Computer Information Transactions Act apply to, or govern, this Agreement. In the event either party initiates an action in connection with this Agreement or any other dispute between the parties, the exclusive jurisdiction of such action shall be in the state and federal courts in Baltimore, Maryland. Notwithstanding the foregoing, either party may enforce any judgment rendered by such court in any court of competent jurisdiction. Notwithstanding the foregoing, Code9 Mobile may seek injunctive or other equitable relief in any jurisdiction in order to protect its intellectual property rights.
    • 11.2 Severability.
      • If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or invalid, the remaining provisions will remain in full force and effect. The unenforceable or invalid provision will be changed and interpreted so as to best accomplish the parties' original objectives to the extent possible within the limits of applicable law.
    • 11.3 Modifications.
      • Any modification, amendment, supplement or other change to this Agreement must be in writing and signed by duly authorized representatives of the parties.
    • 11.4 Assignment.
      • Licensee may not assign this Agreement without Code9 Mobile's prior written consent. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the successors, legal representatives and assignees of the parties hereto. Any purported assignment in violation of this provision shall be void and without effect.
    • 11.5 Waiver.
      • All waivers must be in writing. The failure of either party to insist upon strict performance of any provision of this Agreement, or to exercise any right provided in this Agreement, will not be considered a waiver for the future of such provision or right. No waiver of any provision or right will affect the right of the waiving party to enforce any other provision or right in this Agreement.
    • 11.6 Force Majeure.
      • Code9 Mobile will not be responsible for any failure to fulfill its obligations in this Agreement due to causes beyond its reasonable control, including without limitation, acts or omissions of government, military authority or other third parties, acts of God, shortages of materials, transportation delays, fires, floods, labor disturbances, riots or wars.
    • 11.7 Notices and Other Communications.
      • Any notice or communication permitted or required by this Agreement will be in writing and delivered in person or by courier or mailed by certified or registered mail, postage prepaid, return receipt requested, addressed as set forth on the last page of this Agreement or to such other facsimile number or address as either party may provide to the other. If notice is given in person, by courier or by fax, it will be effective upon receipt; and if notice is given by mail or email, it will be effective three (3) business days after deposit in the mail or email. Unless having opted out, Licensee shall be enrolled to receive electronic communications from Code9 from time to time bearing specific offers or surveys about customer experience.
    • 11.8 Relationship between Parties.
      • This Agreement does not create a partnership or joint venture and the parties do not intend to create one. Neither party has the right, power or authority to obligate or bind the other in any manner whatsoever, except as otherwise agreed to in writing.
    • 11.9 Government End Users.
      • To the extent any software is acquired by or on behalf of a unit or agency of the United States Government hereunder, this provision applies. Code9 Mobile: (a) was developed at private expense, is existing computer software and no part of it was developed with government funds, (b) is a trade secret of Code9 Mobile, or its licensors, for all purposes of the Freedom of Information Act, (c) is "restricted computer software" submitted with restricted rights in accordance with subparagraphs (a) through (d) of the Commercial Computer Software Restricted Rights clause at 52.227 19 and its successors, (d) in all respects is proprietary data belonging solely to Code9 Mobile or its licensors, and (e) is unpublished and all rights are reserved under the copyright laws of the United States. For units of the Department of Defense (DoD), the Program is licensed only with "Restricted Rights" as that term is defined in the DoD Supplement to the Federal Acquisition Regulation, 252.227 7013(c)(1)(ii), Rights in Technical Data and Computer Software and its successors, and use, duplication or disclosure is subject to restrictions as set forth in subdivision (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at 252.227 7013. Contractor/manufacturer is Code9 Mobile Corporation, 1700 Research Blvd., Suite 240, Rockville, MD 20850.
    • 11.10 Entire Agreement.
      • This Agreement is the entire agreement between the parties with respect to its subject matter. It supersedes all prior agreements between the parties, written or oral, relating to the same subject matter.