Terms OF service
Mobilizz Inc. | Terms of Service
THE MOBILIZZ AGREEMENT IS MADE BETWEEN MOBILIZZ AND THE CUSTOMER, EACH AS DEFINED BELOW, AND TAKES EFFECT WHEN: (A) YOU SIGN THE ORDER SUMMARY, OR (B) YOU ARE PROVIDED NOTICE OF AN AMENDMENT TO YOUR PRE-VIOUS TERMS OF SERVICE IN ACCORDANCE WITH SUCH TERMS OF SERVICE AND, IN SUCH CASE, UPON THE CONCLUSION OF THE NOTICE PERIOD, OR (C) UPON TER-MINATION OF YOUR PREVIOUS TERMS OF SERVICE IN ACCORDANCE WITH SUCH TERMS OF SERVICE, AND UPON YOUR NOTICE THAT THESE TERMS SHALL GOVERN YOUR CONTINUED RELATIONSHIP WITH MOBILIZZ FOLLOWING SUCH TERMINA-TION, SHOULD YOU CHOOSE TO CONTINUE.
YOU HEREBY (A) REPRESENT AND ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE MOBILIZZ AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THE MOBILIZZ AGREEMENT ON BEHALF OF THE CUSTOMER AND TO BIND THE CUSTOMER; AND (C) ACCEPT THE MOBILIZZ AGREEMENT ON BEHALF OF THE CUSTOMER AND AGREE THAT THE CUSTOMER IS LEGALLY BOUND BY ITS TERMS. CAPITALIZED TERMS HAVE THE MEANINGS SET FORTH AT SCHEDULE A.
1. Purchase of Hardware
1.1 Mobilizz shall sell to the Customer and the Customer shall purchase from Mobilizz the Hardware. The Customer shall pay Mobilizz the Hardware Fee in accordance with section 6. The Customer acknowledges that it is solely responsible for installing the Hardware and using the Hardware in accordance with the instructions provided with the Hardware, if any. Mobilizz may provide the Customer with a list of authorized installers for the Hardware. The Customer acknowledges that such authorized installers are independent of Mobilizz, and that Mobilizz does not warrant and is not in any way liable for the ac-tivities, including the installation of the Hardware, of such authorized installers.
1.2 Subject to the Customer’s payment of the Hardware Fee and the availability of the Hard-ware, the Hardware will be delivered to the Customer Address from Mobilizz or directly from the manufacturer of the Hardware within a reasonable time after the date of the Mobilizz Agreement. Mobilizz is not liable for any delays, loss, or damage in transit or any delay in delivery, including without limitation any delay caused by the manufacturer of the Hardware or other events outside Mobilizz’s direct control.
1.3 The Customer acknowledges that all returns, repairs, warranty inquires, and related mat-ters are between the Customer and the manufacturer of the Hardware and that Mobilizz does not independently provide any warranties with respect to the Hardware or any return, repair, or related services. Notwithstanding the foregoing, Mobilizz may agree to act as an intermediary between the Customer and the Hardware manufacturer with respect to a return, repair, warranty inquiry, or related matter; however, Mobilizz is under no circum-stances obligated to provide any warranty, return, repair, or related service, or liable for any defect or deficiencies with the Hardware.
1.4 The Customer may request to purchase additional devices from Mobilizz from time to time using the purchase order form provided by Mobilizz from time-to-time. The Cus-tomer acknowledges that the prices and terms of sale of devices may change from time to time at the sole discretion of Mobilizz. The Customer is not entitled to any upgrades to the Hardware in connection with its purchase under the Mobilizz Agreement.
2. Subscription Plan
2.1 The Customer hereby subscribes to the Subscription Plan, as set out in the Cover Page, during the Subscription Term. The Customer shall pay the Activation Fee in accordance with section 6.
2.2 The Subscription Term and the first Billing Cycle begin on the earlier of the date on which a first Device is activated by the Customer or the date on which the earliest Activation Period ends with respect to any Device; provided that where a first Device was activated by the Customer under a pilot agreement with Mobilizz, the Subscription Term and first Billing Cycle begin on the date of the Mobilizz Agreement. The first Aggregate Subscrip-tion Fee is due and payable by the Customer as of the first day of such Billing Cycle. For the avoidance of doubt, any Per Device Subscription Fee or other fee owing by the Cus-tomer to Mobilizz under the Mobilizz Agreement that accrues during a Billing Cycle is immediately due and payable by the Customer to Mobilizz in accordance with section 6 of the Mobilizz Agreement and may be pro-rated at the discretion of Mobilizz. Each sub-sequent Aggregate Subscription Fee is due and payable on the first day of the subsequent Billing Cycle. The Customer shall pay Mobilizz the Aggregate Subscription Fee in ac-cordance with section 6.
2.3 The Customer may suspend, reactivate, or terminate its Subscription Plan with respect to a Device or multiple Devices by providing notice of such suspension, reactivation, or termination to Mobilizz.
(a) Such a suspension will be effective as of the first day of the next Billing Cycle and no credit or reimbursement will be issued for the Per Device Subscription Fee applicable to the Device or Devices covered by such suspension during the Billing Cycle in which it is made unless otherwise agreed to by Mobilizz in writing. In any given Billing Cy-cle, the Suspension Fee will be charged by Mobilizz and due and payable by the Cus-tomer for each suspended Device, provided that no Suspension Fee will be charged by Mobilizz with respect to a given Device during the Billing Cycle in which such Device is suspended.
(b) Such a termination will be irreversible and effective as of the first day of the next Billing Cycle and no credit or reimbursement will be issued for the Per Device Sub-scription Fee applicable to the Device or Devices covered by such termination during the Billing Cycle in which it is made unless otherwise agreed to by Mobilizz in writing.
(c) Such a reactivation will be effective immediately upon the Customer providing notice to Mobilizz and the Per Device Subscription Fee and Suspension Fee applicable to
such reactivated Device or Devices will be prorated and invoiced at the start of the next Billing Cycle. For the avoidance of doubt, there is no reactivation fee.
2.4 The Customer acknowledges that the fees charged by Mobilizz under the Mobilizz Agree-ment are subject to change at Mobilizz’s discretion upon 60 days’ notice to the Customer, provided that the Customer may terminate the Mobilizz Agreement in accordance with section 9.2 upon such notice. Such revised fees are effective as of the first day of the first full Billing Cycle following expiration of such 60-day notice period.
3. Mobilizz Services
3.1 Mobilizz may offer certain services related to the Products from time to time. Any such services are subject to a separate agreement between the parties and are not the subject of the Mobilizz Agreement.
4. Third-Party Services
4.1 The Customer may be able to use the Product in connection with certain third-party ser-vices. The Customer acknowledges that such third-party services are not offered or guar-anteed by Mobilizz and that the Customer may be required to enter a separate agreement with a third-party in order to use such services. The Customer further acknowledges that Mobilizz is in no way responsible for any harm, damages, or liability incurred by the Customer in connection with its use of any third-party services.
4.2 The Customer acknowledges that Mobilizz may require access to the Customer’s account or accounts on third-party services in order to provide certain products or services, ensure interoperability between such third-party services and the Product, or otherwise perform its obligations under the Mobilizz Agreement. The Customer shall provide Mobilizz with reasonable access to such third-party services to the extent necessary for Mobilizz to pro-vide such products or services, ensure such interoperability, or perform such obligations, and the Customer acknowledges that its failure to provide such access will relieve Mobi-lizz of its requirement to provide such products or services, ensure such interoperability, or perform such obligations. For the avoidance of doubt, Mobilizz is not required to en-sure the interoperability of any third-party service with the Product and any such require-ment is conditioned on Mobilizz’s prior written agreement. Mobilizz will not knowingly collect any personal information (as such term is defined by the Personal Information and Protection of Electronic Documents Act, as amended from time to time) of the Cus-tomer or its employees, contractors, or agents in connection with Mobilizz’s activities under this section 4. If Mobilizz becomes aware that it has received such personal infor-mation, Mobilizz will immediately and permanently delete from its records such personal information.
5. Use Restrictions
5.1 The Customer shall not:
(a) use any service provider other than Mobilizz in connection with any of the Products unless Mobilizz provides its prior written authorization and subject to the Customer’s
payment of the Transition Fee and any other amounts owing by the Customer to Mo-bilizz with respect to such Products or as a result of or in connection with the Cus-tomer’s use of another service provider, including without limitation Suspension Fees or amounts owing by the Customer to Mobilizz in connection with the Customer’s termination of the Mobilizz Agreement;
(b) make the Product or any portion of the Product available to any third-party (including, for the avoidance of doubt, any affiliate or any person not at arm’s-length to the Cus-tomer), or use or allow the use of the Product or any portion of the Product for the benefit of any such third-party unless agreed to in advance by Mobilizz in writing;
(c) sell, license, distribute, make available, rent, lease, disassemble, reverse engineer, de-compile, modify, copy, or create derivative works based on, any Product or any portion of the Product, or any feature, function, or user interface thereof;
(d) use or allow the use of the Product or any portion of the Product to store or transmit infringing, libelous, malicious, or otherwise unlawful or tortious material, or to store or transmit material in violation of any individual’s privacy rights;
(e) interfere with the performance of the Product, any usage limit or other feature of the Product, or Mobilizz’s business, or attempt to gain unauthorized access to the Product or its related systems or networks; or
(f) use or allow the use of the Product or any portion of the Product in a manner that poses a security risk to the Product or Mobilizz, may adversely impact the Product, or the networks, data, or other assets of Mobilizz and its suppliers, customers, and affiliates, or may subject Mobilizz or its suppliers, customers, or affiliates to liability, or in any manner that contravenes applicable law or the rights of any third-party.
6. Payment Terms
6.1 Mobilizz will invoice the Customer for amounts due by the Customer to Mobilizz under the Mobilizz Agreement at the beginning of each Billing Cycle and in accordance with Mobilizz’s typical billing practices; however, the Hardware Fee and Activation Fee are immediately due and payable by the Customer as of the date of the Mobilizz Agreement. It is the Customer’s sole responsibility to review the invoice and inform Mobilizz of any perceived inaccuracies.
6.2 The Customer shall pay any and all amounts it owes to Mobilizz under the Mobilizz Agreement within 30 calendar days of the Customer’s receipt of an invoice from Mobi-lizz. The Customer acknowledges that it is responsible for providing complete and accu-rate billing and contact information to Mobilizz and promptly notifying Mobilizz of any changes to such information, and that the Customer’s failing to receive an invoice because of outdated billing or contact information will not relieve the Customer of its obligation to pay such invoice within 30 calendar days. 6.3 If the Customer fails to pay an invoiced amount with the period set out in section 6.2 and unless otherwise determined by Mobilizz in its sole discretion, such invoiced amount will
accrue interest at the lower of 1.5% per month or the maximum rate permitted by law. Mobilizz may, in its sole discretion, charge the Customer a $50.00 administrative fee for any form of payment that bounces or fails to be deposited to Mobilizz as a result of insuf-ficient funds. This section 6.3 is without limitation to any other rights or remedies avail-able to Mobilizz.
6.4 Mobilizz may, in its sole discretion, perform credit verifications on the Customer and the Customer hereby authorizes, and shall authorize as necessary, Mobilizz to obtain infor-mation about the Customer’s credit history from credit reporting agencies and credit gran-tors. The delivery by Mobilizz of the Product or any part thereof is subject Mobilizz’s approval of the Customer’s credit or Mobilizz’s waiver of its right to do so. Notwithstand-ing any other provision of the Mobilizz Agreement, Mobilizz may, upon its review of the Customer’s credit and in its sole discretion, require the Customer to pay any amount pay-able by the Customer under the Mobilizz Agreement in advance of delivery of the Product or any part thereof.
6.5 The Customer is solely responsible for any taxes or other charges (including without lim-itation all goods and services, harmonized sale, sales, service, use, and excise taxes, and duties, import, and export fees) arising from its purchase of or subscription to the Product under the Mobilizz Agreement and shall promptly reimburse Mobilizz for any such taxes Mobilizz incurs on the Customer’s behalf.
7. Mutual Representations
7.1 Each party represents and warrants to the other that:
(a) it has validly entered into the Mobilizz Agreement and has the legal power to do so; and
(b) its entering into of the Mobilizz Agreement and its performance of its obligations here-under will not bring such party into violation or default of any duty or obligation of such party or any applicable law.
8. Indemnity
8.1 The Customer shall indemnify and hold harmless Mobilizz and its affiliates, directors, officers, agents, representatives, employees, and contractors from and against any and all claims losses, damages, harm, or other liabilities of any kind, including reasonable legal fees, arising from or as a result of the Customers (a) breach of the Mobilizz Agreement, (b) wilful misconduct, negligent act or omission, or unlawful act, (c) infringement of any third-party’s intellectual property or other rights, or (d) breach of any applicable law.
9. Term and Termination
9.1 The Mobilizz Agreement commences on the date indicated on the Order Form and will continue in effect for the Subscription Term unless terminated in accordance with this section 9. At the end of each Subscription Term, the Mobilizz Agreement will automati-cally renew for an additional Subscription Term unless a party delivers a written notice
of non-renewal to the other party at least 60 days prior to the end of the then-current Subscription Term.
9.2 The Customer may terminate the Mobilizz Agreement at any time by providing Mobilizz with 60-days’ notice. Immediately upon termination under this section 9.2, any outstand-ing amounts owed by the Customer to Mobilizz, including any outstanding balance of the Minimum Commitment for the then-current Subscription Term, will become due and pay-able to Mobilizz.
9.3 Mobilizz may immediately terminate the Mobilizz Agreement if the Customer:
(a) breaches any term or condition of the Mobilizz Agreement, including without limita-tion the use restrictions set out in section 5, and, to the extent such breach is curable, fails to cure such breach within 10 days of receiving notice of such breach from Mo-bilizz. Mobilizz may, at its sole discretion, suspend the Mobilizz Agreement and any rights granted or products or services provided hereunder during such cure period;
(b) becomes insolvent, declares bankruptcy or becomes subject to any proceeding under insolvency laws, admits its inability to pay its debts generally as they become due, is dissolved or liquidated, makes a general assignment for the benefit of creditors, or has a receiver, trustee custodian or similar agent appointed by order of any court of com-petent jurisdiction to take charge of or sell any material portion of its property or busi-ness; or
(c) terminates the Subscription Plan with respect to the Hardware (meaning, for the avoid-ance of doubt, all of the Devices) in accordance with section 2.3.
9.4 Mobilizz may amend the Mobilizz Agreement by providing the Customer at least 60 days’ notice of such amendments, and the Customer’s continued use of the Products or Sub-scription Plan following such notice period will be subject to the Mobilizz Agreement as so amended. Mobilizz may terminate the Mobilizz Agreement by providing the Customer at least 60 days’ notice of such termination. 9.5 Immediately upon termination under section 9.3, any outstanding amounts owed by the Customer to Mobilizz, including any outstanding balance of the Minimum Commitment for the then-current Subscription Term, will become due and payable to Mobilizz.
10. Limitation of Liability
10.1 IN NO EVENT WILL MOBILIZZ BE LIABLE TO THE CUSTOMER OR TO ANY THIRD-PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR ANY LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCI-DENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT MOBILIZZ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL MOBILIZZ’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE MOBILIZZ
AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNT PAID OR PAYABLE TO MOBILIZZ IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10.2 MOBILIZZ MAKES NO CONDITION OR WARRANTY WHATSOEVER WITH RE-SPECT TO THE HARDWARE, INCLUDING ANY CONDITION OR WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD-PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEAL-ING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. MOBI-LIZZ MAKES NO REPRESENTATIONS, CONDITIONS, OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT OR SERVICE, INCLUDING ANY CONDITION OR WARRANTY OF MERCHANTABILITY, FITNESS FOR A PAR-TICULAR PURPOSE, TITLE, OR AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD-PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
11. Miscellaneous
11.1 Notice. Any notice to be delivered by one party to the other under the Mobilizz Agree-ment must be in writing and delivered in accordance with this section 11.1. A notice pro-vided under this section 11.1 will be deemed to have been delivered (a) on the day the notice is hand delivered or delivered by courier, (b) on the fifth business day after the notice is mailed by first-class, registered, or certified mail, return receipt requested, properly stamped with the required postage, or (c) on the day the notice is emailed pro-vided such email is sent prior to 4:00 pm local time at the place of receipt and otherwise, the next business day. Mobilizz’s address for notices is set forth in this section 11.1. The Customer’s address for notices is the Customer Address. Either party may change its ad-dress for notices by delivering a notice of such change to the other party in accordance with this section 11.1.
Notices to Mobilizz must be delivered to:
2 St. Clair Avenue West, 18th Floor
Toronto, ON M4V 1L5 Email: [email protected] or [email protected]
11.2 Force Majeure. Any delay or failure of Mobilizz to perform its obligations under the Mo-bilizz Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond Mobilizz’s control, without Mobilizz’s fault or negligence, and that by its nature could not have been foreseen by Mobilizz or, if it could have been foreseen, was unavoidable (such events may include natural disasters, epidemics, pandemics, em-bargoes, explosions, riots, wars, acts of terrorism, strikes, labour stoppages or slowdowns or other industrial or technological disturbances, and shortage of adequate power or trans-portation facilities).
11.3 Publicity. The Customer hereby grants Mobilizz the right to reproduce, display, and use the Customer’s trademarks, trade names, and other identifying brand names, logos, or phrases for the purposes of identifying the Customer as a customer of Mobilizz, including without limitation on Mobilizz’s website.
11.4 Entire Agreement; Amendment. The Mobilizz Agreement, including its schedules and all attachments hereto, contains the entire agreement of the parties and supersedes any and all prior agreements, written or oral, between the parties relating to the subject matter of the Mobilizz Agreement and, except as otherwise expressly provided for in the Mobilizz Agreement, may not be amended unless agreed to in writing by both parties.
11.5 Waiver. No waiver of any provisions of the Mobilizz Agreement is valid unless in writing and signed by the party providing such waiver. A valid waiver of any provision of the Mobilizz Agreement does not constitute a waiver of any other provision of the Mobilizz Agreement, and such valid waiver is effective only in the instance for which it was pro-vided and does not constitute a waiver of the same or any other right on any other occa-sion. No delay or omission by either party in exercising any right under the Mobilizz Agreement will operate as a waiver of that or any other right.
11.6 Governing Law; Forum. The Mobilizz Agreement shall be governed by and interpreted in accordance with the laws of the province of Ontario. Any dispute as to the interpreta-tion or rights of either party under the Mobilizz Agreement, including a breach of the Mobilizz Agreement, will be submitted to the courts of the province of Ontario, and the parties agree to attorn to the jurisdiction of such courts.
11.7 Assignment. The Customer shall not assign, transfer, delegate, or subcontract any of its rights or obligations under the Mobilizz Agreement without the prior written consent of Mobilizz. Any purported assignment or delegation in violation of this section 11.7 will be null and void. No assignment or delegation will relieve the Customer of any of its obligations hereunder. Mobilizz may at any time assign, transfer, or subcontract any or all of its rights or obligations under the Mobilizz Agreement without the Customer’s con-sent.
11.8 Successors and Assigns. The Mobilizz Agreement is binding upon and inures to the ben-efit of the parties and their respective successors and permitted assigns.
11.9 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing in the Mobilizz Agreement is intended to be construed as creating any agency, partnership, franchise, business opportunity, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party has the authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity between the parties is intended to be construed from the Mobilizz Agreement.
11.10 No Third-Party Beneficiaries. Except for the parties, their successors and permitted as-signs, there are no third-party beneficiarie
11.11 Severability. In the event that any one of the provisions contained in the Mobilizz Agree-ment are found to be invalid, illegal, or unenforceable in any respect by a court of com-petent jurisdiction, the validity, legality, and enforceability of the remaining provisions of the Mobilizz Agreement will not in any way be affected or impaired by such a finding.
11.12 Further Assurances. Each party, upon request by the other party, shall sign or cause to be signed all further documents, or do or cause to be done all further acts, and provide all reasonable assurances as may reasonably be necessary or desirable, to give effect to the terms of the Mobilizz Agreement.
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Schedule A | Definitions
1. Definitions. For the purposes of the Mobilizz Agreement, the following definitions apply:
1.1 “Activation Fee” means the activation fee indicated in the Order Summary.
1.2 “Activation Period” means the activation period indicated in the Order Summary.
1.3 “Aggregate Subscription Fee” means, in any given Billing Cycle, the aggregate of (a) the Per Device Subscription Fee multiplied by the number of active Devices in such Bill-ing Cycle; and (b) the Suspension Fees, if any.
1.4 “Billing Cycle” means a 1-month period (or such other period as Mobilizz may specify in writing to the Customer from time to time). 1.5 “Cure Period” has the meaning set forth in section 9.2.
1.6 “Customer Address” means the address of the Customer indicated in the Order Sum-mary.
1.7 “Device” means each product indicated in the Order Summary.
1.8 “Hardware” means all of the products, collectively, indicated in the Order Summary.
1.9 “Hardware Fee” means the Hardware fee indicated in the Order Summary.
1.10 “Minimum Commitment” means, for a given Subscription Term and as calculated based on the then-current Billing Cycle, the lump sum amount of all Aggregate Subscription Fees for the remaining Billing Cycles in such Subscription Termthe minimum commit-ment indicated in the Order Summary. 1.11 “Notice Period” has the meaning set forth in section 9.3.
1.12 “Order Summary” means the customer purchase and subscription order summary pro-vided to the Customer by Mobilizz and signed by the Customer.
1.13 “Per Device Subscription Fee” means the per Device subscription fee indicated in the Order Summary.
1.14 “Product” means the Hardware, Subscription Plan, and any other products or services purchased by the Customer under the Mobilizz Agreement.
1.15 “Subscription Plan” means the subscription plan purchased by the Customer under the Mobilizz Agreement, as described in rows 7 through 12 of the Order Summary.
1.16 “Subscription Term” means the subscription term indicated in the Order Summary.
1.17 “Suspension Fee” means the suspension fee indicated in the Order Summary.
1.18 “Mobilizz Agreement” means these terms of service together with the Order Summary.
1.19 “Transition Fee” means CA$200.00 per Device, or such other amount communicated to the Customer by Mobilizz from time to time.
