Date Last Updated: July 26, 2022
“Xerolag Platform” means Mobibi, Inc’s hosted, online software application, accessible via web browser at the URL https://app.xerolag.com/ and any other URLs as Mobibi, Inc may designate from time-to-time and any optional third party services ordered by You and provided to You through Mobibi, Inc.
“Xerolag Platform Data” means any data collected through Your use of the Xerolag Platform including Subscriber Data, Publisher Data, and usage and performance data.
“Subscriber Data” means any data that: (a) collects via Xerolag Pixel on Your properties; (b) Your proprietary data input by You or Your Authorized Users in the Xerolag Platform; (c) Your proprietary data received by the Xerolag Platform from Your Publishers; and (d) Subscriber Content that is stored or processed by the Xerolag Platform.
“Aggregated Use Data” means data concerning the use, performance, and measurement data created by, or made available through the Xerolag Platform. This data may be related to or derived from Your use of the Xerolag Platform.
“Personal Data” means any data related to an identified or identifiable individual natural person; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to its physical, physiological, mental, economic, cultural, or social identity.
“Fees” means the charges specified in an Order Form
“Order Form” means a Xerolag Platform order form that specifies the Fees, configuration, subscription period, and other details of the Xerolag Platform to be provided by Mobibi, Inc to You.
“Effective Date” means the date on which the Order Form is completed and provided to Mobibi, Inc.
“Authorized User” means Your employees, consultants, contractors, customers, and agents that have been assigned a Credential to access and use the Xerolag Platform, registered to access and use the Xerolag Platform, and agree to comply with the terms and conditions of the Agreement.
“Credential” means the user identification and password to the Xerolag Platform delivered to You by Mobibi, Inc, or set by You via the Xerolag Platform.
“Documentation” means materials provided via the Xerolag Platform in the help and support sections of the Xerolag Platform.
“Viruses” means software viruses, or other harmful computer codes, agents, scripts, files, or programs.
“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, with respect to Xerolag, data generated by or otherwise derived from Your use of Xerolag Platform and any other intellectual property rights recognized in any country or jurisdiction in the world.
“Feedback” means comments and suggestions for improvements relating to the Xerolag Platform provided voluntarily by You to Mobibi, Inc.
“Publisher(s)” means one or more third parties, who provide You or Your Authorized Users with services or accounts that may be accessed via the Xerolag Platform.
“Confidential Information” means any written, machine-reproducible, or visual materials that are labeled as proprietary, confidential, or with words of similar meaning, and all information that is orally or visually disclosed, if not so marked, if it is identified as proprietary or confidential at the time of its disclosure or in a writing provided within 30 days after disclosure. Mobibi, Inc Confidential Information includes, without limitation, the Xerolag Platform and any software used for the provision of the Xerolag Platform, whether in source or executable code, documentation, nonpublic financial information, pricing other than pricing publicly disclosed on Mobibi, Inc ’s website, business plans, techniques, methods, processes, and the results of any performance tests of the Xerolag Platform.
“Affiliate” means an entity that, directly or indirectly, through one or more intermediaries, owns or controls, is owned or controlled by, or is under common ownership or control with, a party; as used in this definition, the term “control” means the ownership of at least 50% of the equity of that entity or possessing the power to direct or cause the direction of the management of that entity.
- XEROLAG PLATFORM
2.2 Modifying and Terminating the Xerolag Platform.
Mobibi, Inc may make changes to the Xerolag Platform at any time. If You do not wish to continue to use the modified Xerolag Platform, You may elect to terminate your subscription as provided in the applicable Order Form.
You and Your Authorized Users shall not
- knowingly permit access to the Xerolag Platform by anyone other than Your Authorized Users;
- attempt to disassemble, duplicate, copy, modify, decompile, frame, mirror, create derivative works from, reverse engineer, or distribute any portion of the Xerolag Platform or permit any third party to do so;
- use the Xerolag Platform to transmit any unsolicited commercial communications unless permitted by law;
- use the Xerolag Platform to send, store, or transmit data that may violate the intellectual property rights of any third party, or which have been unlawfully obtained;
- send, store, or transmit materials or data into the Xerolag Platform containing Viruses, or use the Xerolag Platform to transmit Viruses to third parties;
- use the Xerolag Platform to store, transmit, or process data that: (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (ii) facilitates illegal activity; (iii) depicts sexually explicit images; (iv) promotes unlawful violence; (v) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability; or (vi) is otherwise illegal or causes damage or injury to any person or property; and
- except as permitted herein, share with any third parties, any Credentials, account numbers, and account profiles for the Xerolag Platform.
Mobibi, Inc reserves the right, without liability or prejudice to any other rights, to immediately disable Your access to Xerolag Platform if Mobibi, Inc reasonably believes You have violated this Section 2.3.
- PROPRIETARY RIGHTS
You hereby grant to Mobibi, Inc a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, fully paid-up license to use, modify, and incorporate Your Feedback into the Xerolag Platform and to further market, distribute, and sell the Xerolag Platform with Your Feedback incorporated therein.
3.3 Subscriber Data.
You shall exclusively own all rights, title, and interest in and to the Subscriber Data. You hereby grant to Mobibi, Inc a non-exclusive, worldwide, royalty-free, fully paid-up license during the Term and the follow-on period to: (i) collect, analyze, use, store, and transmit the Xerolag Platform Data; (ii) combine and aggregate the Xerolag Platform Data with other data to perform the Xerolag Platform; and (iii) to disclose the Xerolag Platform Data as required by law. You grant Mobibi, Inc a worldwide, irrevocable, non-exclusive, transferable, fully paid-up, and royalty-free license to aggregate, use, display, reproduce, distribute, and analyze Aggregated Xerolag Platform Data in any format and through any applicable channels for any legal purposes.
3.4 Aggregated Use Data.
- PRIVACY AND DATA SECURITY.
4.1 Personally Identifiable Data.
You may not transfer, or cause to be transferred, or input Personal Data into the Xerolag Platform without notifying Mobibi, Inc in writing. To the extent that Xerolag Platform Data is collected by, or on behalf of, You or Your customers from end users by the Xerolag Platform, You represent and warrant that all appropriate consents and waivers have been or will be obtained from such end-user(s).
4.2 Privacy Policies and Opt-outs.
4.3 Data Security and Storage.
Mobibi, Inc shall maintain commercially reasonable, industry standard security practices to transmit, store, and process Xerolag Platform Data. In the event of Xerolag Platform Data loss or corruption, Mobibi, Inc will use commercially reasonable efforts to restore such lost or corrupted data from the latest backup of Xerolag Platform Data maintained by Mobibi, Inc. Mobibi, Inc shall not be responsible for any loss, destruction, alteration, unauthorized disclosure, or corruption of Xerolag Platform Data not directly under the control of Mobibi, Inc.
MOBIBI, INC’S EFFORTS TO RESTORE LOST OR CORRUPTED XEROLAG PLATFORM DATA PURSUANT TO THIS SECTION, SHALL CONSTITUTE MOBIBI, INC ’S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF XEROLAG PLATFORM DATA. Mobibi, Inc reserves the right to modify its data storage practices, so long as those modifications do not reduce or diminish those storage practices in effect as of the Effective Date.
- YOUR OBLIGATIONS.
5.1 Marketing Support.
During the Term, You grant Mobibi, Inc the right to publish Your corporate logo on its website and in marketing materials that include examples of Mobibi, Inc customers and publicly acknowledge You as a Mobibi, Inc customer in a press release, the content of which, Mobibi, Inc and You shall mutually approve in advance. Subject to Your agreement, You may participate in a Mobibi, Inc customer case study, provided that Mobibi, Inc covers the costs of Your participation.
5.3 Telecommunications and Internet Services.
You understand that Your Authorized Users’ use of the Xerolag Platform is dependent upon Your access to telecommunications and internet services. You must acquire and maintain at Your own expense such telecommunications and internet services, including, without limitation, any and all fees and taxes of any kind related to the foregoing. Mobibi, Inc shall not be responsible or liable for any data loss or corruption, lost communications, or any other losses or damages caused by Your telecommunications and internet service providers or due to Your utilizing telecommunications and internet services.
5.4 Third Party Interactions.
You or Your Authorized Users may maintain accounts with Publishers that may be accessed via the Xerolag Platform. Any such accounts shall be subject to the terms and conditions of Your arrangements with such Publishers, and Mobibi, Inc hereby disclaims any and all responsibilities and liabilities related thereto.
- FEES AND PAYMENT.
6.1 Fees. In consideration for Mobibi, Inc providing access to the Xerolag Platform, You shall pay to Mobibi, Inc those Fees described in the applicable Order Form.
You agree to provide Mobibi, Inc with complete and accurate billing and contact information when creating Your account during the registration process. The Fees shall commence on the Billing Start Date defined on the applicable Order Form. Fees will be due even if You do not use the Xerolag Platform during a particular month. At the end of each month, Mobibi, Inc will automatically issue an invoice to You, or bill Your credit card for the Xerolag Platform. Mobibi, Inc will invoice You in accordance with the Order Form and will either (i) bill You in advance for the Fees and bill You at the end of each month for any Fees in excess of the Fees, or (ii) issue You with a single invoice at the end of each month for all Fees. Each invoice is due and payable as described on the Order Form (the “Due Date”).
6.3 API Costs.
If You incur third-party API costs through Your use of the Xerolag Platform and such API costs are billed to Mobibi, Inc by Your Publishers, Mobibi, Inc will invoice You the applicable API costs at no additional mark up and You agree to pay Mobibi, Inc for such API costs. Mobibi, Inc will provide You with notice if such API costs are imposed on You.
6.4 Disputes and Overdue Payments.
If You believe in good faith that Your invoice is incorrect, You must contact Mobibi, Inc in writing within 10 days of Your receipt of the invoice and describe (in reasonable detail) the amount of the disputed charges and the reason for Your good faith disagreement. If Mobibi, Inc has not received payment within 10 days after the Due Date, interest shall accrue on the past due amounts at the rate of 1.5% per month, but in no event greater than the highest rate of interest allowed by law, calculated from the Due Date until the date that payment is received by Mobibi, Inc. You shall reimburse Mobibi, Inc for the reasonable costs of collection, including reasonable attorneys’ fees and costs. If Your account is 30 days or more past due, in addition to any of its other rights or remedies, Mobibi, Inc reserves the right to suspend the Xerolag Platform, without liability to You, until such amounts are paid in full.
6.5 Bank Fees.
Mobibi, Inc shall not be responsible for any fees Your financial institution may impose upon You in the payment of Your invoice (including without limitation any transfer fees).
Fees are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT if applicable) (collectively, “Taxes”). You shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Mobibi, Inc’s net income.
7.1 Definition and Exclusions.
By virtue of this Agreement, the parties may have access to each other’s Confidential Information. Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence.
7.2 Use and Nondisclosure.
8.1 Warranty for XEROLAG PLATFORM.
Mobibi, Inc warrants that the Xerolag Platform shall perform materially in accordance with the Documentation, which may be updated from time to time by Mobibi, Inc, and the Xerolag Platform will not contain or transmit to You any Viruses, worms, time bombs, Trojan horses, or other harmful or malicious code, files, scripts, agents or programs.
8.2 Disclaimer of Warranties.
- TERM AND TERMINATION
9.2 Termination for Cause.
Either party may terminate this Agreement upon written notice: (A) if the other party materially breaches this Agreement and fails to correct the breach within 30 days following written notice specifying the breach; (B) if there is an adjudication of bankruptcy of any party under any bankruptcy or insolvency law; or (C) if a receiver for business or property of the other property is appointed or the other party makes any general assignment for the benefit of its creditors. Mobibi, Inc may terminate a trial account or free account at any time in its sole discretion.
9.3 Rights and Obligations Upon Expiration or Termination.
(A) Upon expiration or termination of this Agreement: (i) Your and Your Authorized Users’ right to access and use the Xerolag Platform shall immediately terminate; (ii) You and Your Authorized Users shall immediately cease all use of the Xerolag Platform; and (iii) the parties will make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party.
(B) Mobibi, Inc will destroy or dispose of Your Xerolag Platform Data in its possession unless Mobibi, Inc receives, no later than 30 days after the expiration or termination date, a written request to deliver to You the then-most recent back-up of Your Xerolag Platform Data. Mobibi, Inc shall make commercially reasonable efforts to deliver the back-up copy to You within 30 days of receipt of such request. If requested by Mobibi, Inc, You shall pay reasonable expenses incurred by Mobibi, Inc in returning any data to You. You agree and acknowledge that Mobibi, Inc has no obligation to retain and may delete Your Xerolag Platform Data after 30 days from the expiration or termination date of the Agreement. Mobibi, Inc may retain all Aggregated Subscriber Data upon termination or expiration of the Agreement.
(C) Notwithstanding the foregoing, if the Agreement is terminated as a result of Your breach, Mobibi, Inc shall have no obligation to deliver any copy of the Xerolag Platform Data to You, and may delete such Xerolag Platform Data at any time after termination of the Agreement.
(D) Upon expiration or termination of this Agreement, Mobibi, Inc shall stop using Your corporate logo; provided, however, (i) Mobibi, Inc shall have a reasonable time to remove Your corporate logo from Mobibi, Inc’s website as well as from any promotional materials, (ii) Mobibi, Inc shall be entitled to distribute all of the promotional materials printed during the Term that include Your corporate logo, name, and related information, and (iii) Mobibi, Inc shall not be required to remove any such printed materials from circulation.
Section 7 shall survive any expiration or termination of this Agreement for so long as either of the parties has any rights, duties or obligations thereunder. Sections 2.3, 3, 7, 9.3, 9.4, 10, 11, and 12.1 shall survive any expiration or termination of this Agreement
- LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR LIABILITY ARISING FROM A PARTY’S BREACH OF ITS OBLIGATIONS HEREIN REGARDING CONFIDENTIAL INFORMATION, A BREACH OF SECTION 2.3 (RESTRICTIONS), OR IN CONNECTION WITH THE INDEMNIFICATION OF THIRD PARTY CLAIMS RELATING TO INFRINGEMENT OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS, (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE, OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, AND (B) IN NO EVENT SHALL MOBIBI, INC’S AGGREGATE LIABILITY TO YOU AND ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR YOUR ACCESS TO AND USE OF THE XEROLAG PLATFORM EXCEED THE TOTAL MONTHLY SUBSCRIPTION FEES PAID OR PAYABLE BY YOU IN THE 12-MONTH PERIOD PRECEDING THE CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, or of damages for personal injury, so the above limitations or exclusions of damages may not apply to You.
12.1 Governing Law.
12.2 Waiver and Severability.
12.3 Force Majeure.
Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of Fees due) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
12.4 Compliance with Laws.
Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, the applicable export laws and regulations of the United States.
12.5 Relationship Between the Parties.
Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
12.7 Entire Agreement.
12.9 Equitable Relief.
12.10 No Third-Party Beneficiaries.
Unless specified otherwise in the Agreement, no third party shall have any rights or obligations under the Agreement.
Mobibi, Inc may give notice to You by email to Your email address on record in Mobibi, Inc’s account information. You may give notice to Mobibi, Inc by sending an email to legal@Xerolag.com.