Terms OF service
VERSION: [DATE – 2025.04.30]
Mobilizz Inc. (“Mobilizz”) | Terms of Service
THE MOBILIZZ AGREEMENT, COMPRISING THESE TERMS OF SERVICE, THE CUSTOMER AGREEMENT AND ANY PURCHASE ORDER SIGNED BY THE CUSTOMER, IS MADE BETWEEN MOBILIZZ AND THE CUSTOMER (MEANING, THE PARTY SIGNING THE CUSTOMER AGREEMENT OR, OTHERWISE, THE EXISTING CUSTOMER OF MOBILIZZ ENTERING THIS AGREEMENT IN ACCORDANCE WITH THESE TERMS), EACH AS DEFINED BELOW, AND TAKES EFFECT (SUBJECT TO MOBILIZZ’S RIGHT TO REJECT, SET FORTH BELOW): (A) WHEN CUSTOMER SIGNS THE CUSTOMER AGREEMENT AND ANY PURCHASE ORDER, OR (B) WHEN CUSTOMER IS PROVIDED NOTICE OF AN AMENDMENT TO ITS PREVIOUS TERMS OF SERVICE IN ACCORDANCE WITH SUCH TERMS OF SERVICE AND, IN SUCH CASE, UPON THE CONCLUSION OF THE NOTICE PERIOD, (C) UPON TERMINATION OF CUSTOMER’S PREVIOUS TERMS OF SERVICE OR AGREEMENT IN ACCORDANCE WITH SUCH TERMS OF SERVICE OR AGREEMENT, AND UPON NOTICE THAT THESE TERMS SHALL GOVERN CUSTOMER’S CONTINUED RELATIONSHIP WITH MOBILIZZ FOLLOWING SUCH TERMINATION, SHOULD CUSTOMER CHOOSE TO CONTINUE, OR (D) UPON ANY OTHER VALID AGREEMENT TO THESE TERMS MADE BETWEEN CUSTOMER AND MOBILIZZ. MOBILIZZ MAY, IN WRITING, REJECT ANY CUSTOMER AGREEMENT OR RELATED PURCHASE ORDER, IN WHICH CASE NO MOBILIZZ AGREEMENT SHALL BE MADE BETWEEN THE PARTIES IN RESPECT OF SUCH CUSTOMER AGREEMENT OR PURCHASE ORDER.
CUSTOMER (AND THE SIGNATORY OR OTHER PARTY BINDING CUSTOMER TO THIS AGREEMENT) HEREBY (A) REPRESENTS AND ACKNOWLEDGES THAT CUSTOMER HAS READ AND UNDERSTANDS THE MOBILIZZ AGREEMENT; (B) REPRESENTS AND WARRANTS THAT THE SIGNATORY OR OTHER PARTY BINDING CUSTOMER TO THIS AGREEMENT ON BEHALF OF THE CUSTOMER HAS 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, OR OTHERWISE AS DEFINED IN CONTEXT.
1. Purchase of Hardware
1.1 Mobilizz shall sell to the Customer and the Customer shall purchase from Mobilizz the Hardware. Title and risk of loss passes to Customer upon delivery of the Hardware to the Customer’s premises. The Customer shall pay Mobilizz the Hardware Fee in accordance with section 7. 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 activities, including the installation of the Hardware, of such authorized installers.
1.3 The Customer may request to purchase additional devices from Mobilizz from time to time using the Purchase Order form attached to the Customer Agreement or provided by Mobilizz from time-to-time (which may be an additional Purchase Order) or in such other manner as Mobilizz may prescribe or agree to (and such additional devices shall thereafter be deemed Hardware under the terms of the Mobilizz Agreement). The Customer 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. Absent written agreement to the contrary, any subsequent purchase of Hardware shall be deemed to be subject to the terms of the Mobilizz Agreement, and this Mobilizz Agreement shall be deemed amended to include such Hardware.
1.5 If Customer timely notifies Mobilizz of any Non-Conforming Hardware, Mobilizz shall, in its sole discretion, (i) replace such Non-Conforming Hardware with conforming Hardware, or (ii) credit or refund the Customer for such Non-Conforming Hardware. Customer shall ship or return the Non-Conforming Hardware as reasonably requested by Mobilizz. If Mobilizz exercises its option to replace Non-Conforming Hardware, Mobilizz shall, after receiving Customer’s Non-Conforming Hardware, ship to Customer the replaced Hardware.
1.6 Notwithstanding the foregoing, any liability of Mobilizz for non-delivery of Hardware shall be limited to replacing the Hardware within a reasonable time or adjusting the invoice respecting such Hardware to reflect the actual quantity delivered. Customer acknowledges and agrees that the remedies set forth in this section are Customer’s exclusive remedies for the non-delivery of Hardware or delivery of Non-Conforming Hardware. Except as provided in this section, all sales of Hardware to Customer are made on a one-way basis and Customer has no right to return Hardware purchased under the Mobilizz Agreement to Mobilizz.
2. Subscription Plan
2.1 The Customer hereby subscribes to the Subscription Plan, as may be set out in the initial Purchase Order, during the Subscription Term. The Customer shall pay the Activation Fee in accordance with section 7.
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. Unless otherwise agreed in writing, the term of any provision of subscription software or services pursuant to each Purchase Order shall be the Subscription Term. The first Aggregate Subscription 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 Customer 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 7 of the Mobilizz Agreement and may be pro-rated at the discretion of Mobilizz. Each subsequent 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 accordance with section 7.
(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 Cycle, the Suspension Fee will be charged by Mobilizz and due and payable by the Customer 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) At Mobilizz’s election, 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 Subscription 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. The Customer shall be entitled to terminate no more than 10% of the total number of Devices that have been subject to the Subscription Plan in the present Subscription Term (meaning, for clarity, if 100 Devices are activated on the Subscription Plan pursuant to a first Purchase Order during the Subscription Term, and an additional 100 Devices are activated pursuant to a second Purchase Order during the same Subscription Term, thereafter the Customer shall be entitled to terminate up to 20 Devices during such Subscription Term, or during any subsequent Subscription Term during which such 200 total Devices remain activated under the Subscription Plan).
(c) Reactivation of a suspended Device will be effective as soon as reasonably practicable following 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 for reactivation of a suspended Device, but an Activate Fee may apply to the reactivation of a previously terminated Device.
(d) Any modification to a Subscription Plan (including any Customer act contemplated by this section 2.3) shall not be effective until the Billing Cycle commencing at least five (5) business days from Mobilizz’s receipt of notice in respect of same. Changes to a Subscription Plan are subject to Mobilizz’s discretion, and may require an additional or replacement Purchase Order.
2.4 The Customer acknowledges that the fees charged by Mobilizz under the Mobilizz Agreement 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 10.3 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. Third Party Products
3.2 For the avoidance of doubt, MOBILIZZ MAKES NO REPRESENTATIONS, CONDITIONS, OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) CONDITION OR WARRANTY OF MERCHANTABILITY; (b) CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) CONDITION OR WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
3.3 The Customer acknowledges that all returns, repairs, warranty inquires, and related matters are between the Customer and the manufacturer, maker or supplier of Third Party Product and that, unless a warranty is explicitly offered in writing by Mobilizz in respect of any Hardware, Mobilizz does not independently provide any warranties with respect to Third Party Product or any return, repair, or related services. Notwithstanding the foregoing, Mobilizz may, at its sole discretion, agree to act as an intermediary between the Customer and the Third Party Product manufacturer, maker or supplier with respect to a return, repair, warranty inquiry, or related matter or offer customer support; however, unless a warranty is explicitly offered in writing by Mobilizz in respect of any Hardware, Mobilizz is under no circumstances obligated to provide any warranty, return, repair, or related service, nor liable for any defect or deficiencies with the Hardware, and Customer hereby releases and shall hold harmless Mobilizz from and against all liability in respect of same.
3.4 Customer shall cooperate with Mobilizz in all matters relating to the Products including providing access and customer materials or information as may be required to provide the Products in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects.
4. Mobilizz Services
4.1 Mobilizz may provide Services from time to time, as may be set out in a Purchase Order. The Customer shall pay the Services Fees in accordance with section 7. Mobilizz shall provide the Services in accordance with the terms and subject to the conditions set forth in this Mobilizz Agreement. Mobilizz warrants that it shall perform the Services in a workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
4.2 To any extent Mobilizz provides Services at the Customer’s premises, during the Subscription Term and for at least one year following the Subscription Term, Customer shall, at its own expense, maintain and carry insurance in full force and effect with financially sound and reputable insurers, that includes, but is not limited to, commercial general liability with reasonable coverage limits given the size and industry of the Customer, including bodily injury and property damage and completed operations. Upon Mobilizz’s request, Customer shall provide Mobilizz with a certificate of insurance from Customer’s insurer evidencing the insurance coverage specified in this Mobilizz Agreement. The certificate of insurance shall name Mobilizz as an additional insured. Customer shall provide Mobilizz with thirty (30) days’ advance written notice in the event of a cancellation or material change in Customer’s insurance policy. Except where prohibited by law, Customer shall require its insurer to waive all rights of subrogation against Mobilizz’s insurers and Mobilizz.
4.3 The details of the method and manner for performance of the Services by Mobilizz shall be under its own control, Customer being interested only in the results thereof. Mobilizz shall be solely responsible for supervising, controlling, and directing the details and manner of the completion of the Services. Nothing in this Mobilizz Agreement shall give Customer the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. Mobilizz is for all purposes hereunder an independent contractor and in no event will Mobilizz be considered an agent or employee of Customer or any of its subsidiaries or affiliates for any purpose.
5.1 The Customer may be able to use the Product in connection with certain third-party services that are not sold to the Customer under the Mobilizz Agreement. The Customer acknowledges that such third-party services are not offered or guaranteed 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.
5.2 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 provide such products or services, ensure such interoperability, or perform such obligations, and the Customer acknowledges that its failure to provide such access will relieve Mobilizz 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 ensure the interoperability of any third-party service with the Product and any such requirement 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 Customer or its employees, contractors, or agents in connection with Mobilizz’s activities under this section 5. If Mobilizz becomes aware that it has received such personal information, Mobilizz will immediately and permanently delete from its records such personal information.
6.1 The Customer shall not:
(a) use any service or software 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 Mobilizz under the Mobilizz Agreement, including with respect to such Products, or as a result of or in connection with the Customer’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 commercially available to any third party (including, for the avoidance of doubt, any affiliate or any person not at arm’s-length to the Customer), 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. For clarity, the restrictions in this section are intended to limit conduct such as resale to a third party or cost-sharing of Mobilizz Products with a third party, but not limit the Customer’s own use for legitimate commercial purposes;
(c) sell, license, distribute, make available, rent, lease, disassemble, reverse engineer, decompile, modify, copy, or create derivative works based on, any Product or any portion of the Product, or any feature, function, or user interface thereof, including the use of Products for the purpose of training machine learning or artificial intelligence systems or software, or building datasets in connection with same;
(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.
7.1 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. It is the Customer’s sole responsibility to review the invoice and inform Mobilizz of any perceived inaccuracies within 60 days of customer’s receipt of an invoice from Mobilizz.
7.3 If the Customer fails to pay an invoiced amount with the period set out in section 7.2 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 the greater of a) a $50.00 administrative fee or b) the actual costs incurred by Mobilizz for any form of payment that bounces or fails to be deposited to Mobilizz as a result of insufficient funds. This section 7.3 is without limitation to any other rights or remedies available to Mobilizz.
7.4 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 information about the Customer’s credit history from credit reporting agencies and credit grantors. 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. Notwithstanding 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 payable by the Customer under the Mobilizz Agreement in advance of delivery of the Product or any part thereof. If the Customer fails to pay an invoiced amount within the period set out in section 7.2, Mobilizz may, without limitation, retain a collections agency and/or assign amounts owing by the Customer to a third party, and may take any reasonable and lawful steps to report Customer’s delinquency to credit agencies and any other entities that document, track and report business reputation and/or creditworthiness.
7.5 The Customer is solely responsible for any taxes or other charges (including without limitation 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.
8. Mutual Representations
8.1 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 hereunder will not bring such party into violation or default of any duty or obligation of such party or any applicable law.
9. Indemnity
9.1 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.
10.1 The Mobilizz Agreement commences on the date indicated on the Customer Agreement and will continue in effect for the Subscription Term unless terminated in accordance with this section 10. At the end of each Subscription Term, the Mobilizz Agreement will automatically renew for an additional period equal to the length of the Subscription Term (each such subsequent period also a “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.
10.2 Where a Customer has not signed a Customer Agreement and/or Purchase Order (e.g. because they have entered into this agreement following the amendment or termination of a previous agreement with Mobilizz), the Subscription Term shall be deemed to run from January 1 to December 31 of each calendar year, and the Mobilizz Agreement will automatically renew for an additional calendar year Subscription Term (each such subsequent period also a “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.
10.3 The Customer may terminate the Mobilizz Agreement at any time by providing Mobilizz with 60-days’ notice. Immediately upon termination under this section 10.3, any outstanding amounts owed by the Customer to Mobilizz will become due and payable to Mobilizz and any Early Termination Fee for each shall become due and payable.
10.4 Mobilizz may immediately terminate the Mobilizz Agreement if the Customer:
(a) breaches any term or condition of the Mobilizz Agreement, including without limitation the use restrictions set out in section 6, and, to the extent such breach is curable, fails to cure such breach within 10 days of receiving notice of such breach from Mobilizz;
(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 competent jurisdiction to take charge of or sell any material portion of its property or business; or
(c) terminates the Subscription Plan with respect to the Hardware (meaning, for the avoidance of doubt, all of the Devices) in accordance with section 2.3.
10.5 Mobilizz may, at its sole discretion, suspend all or part of the Mobilizz Agreement and any rights granted or Products or Services provided hereunder during any Customer cure period or during any period in which Customer has breached its obligations under section 7.
10.6 Mobilizz may make reasonable amendments to the Mobilizz Agreement by providing the Customer at least 60 days’ notice of such amendments, and the Customer’s continued use of the Products 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.
10.7 Immediately upon termination under section 10.4, any outstanding amounts owed by the Customer to Mobilizz will become due and payable to Mobilizz.
11. Limitation of Liability
11.1 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, INCIDENTAL, 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 TO MOBILIZZ IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11.2 MOBILIZZ MAKES NO CONDITION OR WARRANTY WHATSOEVER WITH RESPECT TO THE HARDWARE OR ANY SOFTWARE INCLUDED IN THE SUBSCRIPTION PLAN, 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 DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. MOBILIZZ 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 PARTICULAR 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.
11.3 MOBILIZZ (a) MAKES NO WARRANTIES EXCEPT AS SET OUT IN SECTION 4.1 ABOVE; AND (b) DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND FREE AND CLEAR TITLE. Mobilizz’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of the limited warranty set out in this Section shall be for Mobilizz to use commercially reasonable efforts to cure any such breach.
12. Miscellaneous
12.1 Notice. Any notice to be delivered by one party to the other under the Mobilizz Agreement must be in writing and delivered in accordance with this section 12.1. A notice provided under this section 12.1 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 provided 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 12.1. The Customer’s address for notices is the Customer Address. Either party may change its address for notices by delivering a notice of such change to the other party in accordance with this section 12.1.
Notices to Mobilizz must be delivered to:
2 St. Clair Avenue West, 18th Floor
Toronto, ON M4V 1L5
Email: [email protected] or [email protected]
12.2 Force Majeure. Any delay or failure of Mobilizz to perform its obligations under the Mobilizz 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, embargoes, explosions, riots, wars, acts of terrorism, strikes, labour stoppages or slowdowns or other industrial or technological disturbances, and shortage of adequate power or transportation facilities).
12.3. 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.
12.4 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.
12.5 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 provided and does not constitute a waiver of the same or any other right on any other occasion. 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.
12.6 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 interpretation 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.
12.7 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 12.7 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 consent.
12.8 Successors and Assigns. The Mobilizz Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns.
12.9 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.
12.10 No Third-Party Beneficiaries. Except for the parties, their successors and permitted assigns, there are no third-party beneficiaries under the Mobilizz Agreement.
12.11 Severability. In the event that any one of the provisions contained in the Mobilizz Agreement are found to be invalid, illegal, or unenforceable in any respect by a court of competent 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.
12.12 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 Onboarding Fee indicated in the applicable Purchase Order.
1.2 “Activation Period” means the activation period indicated in the Customer Agreement.
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 Billing 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 “Customer Agreement” means the customer agreement referencing and incorporating these Terms of Service that is signed by the Customer.
1.6 “Cure Period” has the meaning set forth in section 10.3.
1.7 “Customer Address” means the address of the Customer indicated in the Customer Agreement.
1.8 “Device” means each individual Hardware product indicated in a Purchase Order or otherwise purchased by a Customer pursuant to the Mobilizz Agreement.
1.9 “Early Termination Fee” means the Per Device Early Termination Fee indicated in the Purchase Order, or if there is no Purchase Order, a fee of $200 plus applicable taxes per Device.
1.10 “Inspection Period” has the meaning set forth in section 1.4.
1.11 “Hardware” means all of the hardware products (including all Devices), collectively, indicated in the applicable Purchase Order(s), or if there is no Purchase Order, all of the hardware products sold by Mobilizz to the Customer intended to be covered by the Mobilizz Agreement.
1.12 “Hardware Fee” means the Hardware fee indicated in the Purchase Order or otherwise paid by the Customer pursuant to the Mobilizz Agreement.
1.13 “Non-Conforming Hardware” has the meaning set forth in section 1.4.
1.14 “Notice Period” has the meaning set forth in section 10.4.
1.15 “Per Device Subscription Fee” means the per Device subscription fee indicated in the Purchase Order, or if there is no Purchase Order, the subscription fee being charged per device prior to the Mobilizz Agreement taking effect.
1.16 “Product” or “Products” means the Hardware, Subscription Plan, Services, and any other products or services purchased by the Customer under the Mobilizz Agreement.
1.17 “Purchase Order” means the customer purchase order for hardware and/or software provided to the Customer by Mobilizz and signed by the Customer, including in the form attached at Schedule “A” to the Customer Agreement.
1.18 “Services” means all of the services indicated in the applicable Purchase Order(s), or if there is no Purchase Order, all of the services provided by Mobilizz to the Customer intended to be covered by the Mobilizz Agreement.
1.19 “Services Fees” means the fees charged by Mobilizz in connection with the Services and corresponding fees / fee basis indicated in the Purchase Order or otherwise paid by the Customer pursuant to the Mobilizz Agreement.
1.20 “Subscription Plan” means a software subscription plan purchased by the Customer under the Mobilizz Agreement, as may be indicated on the Purchase Order (or, where a Customer has an existing subscription plan prior to entering into this Mobilizz Agreement, such subscription plan).
1.21 “Subscription Term” means the subscription term indicated in the Customer Agreement, or if there is no Customer Agreement, a period of time equal to one calendar year beginning January 1 and ending on December 31, provided that the Subscription Term shall not be less than 12 months unless agreed in writing.
1.22 “Suspension Fee” means the suspension fee indicated in the Purchase Order.
1.23 “Mobilizz Agreement” means these terms of service together with any applicable Customer Agreement and Purchase Order.
1.24 “Third Party Product” has the meaning set forth in section 3.1.
1.25 “Transition Fee” means CA$200.00 per Device, or such other amount communicated to the Customer by Mobilizz from time to time.
