KOBITON SERVICE SUBSCRIPTION AGREEMENT
You should carefully read the following terms and conditions before accessing or using the Kobiton™ mobile device cloud service available through http://kobiton.com (“Kobiton Service”) provided by Kobiton, Inc. (“Kobiton”). By clicking the [“Accept”] button and proceeding to use the Service, you acknowledge your acceptance of the terms and conditions of this Kobiton Service Subscription Agreement (“Agreement”). Clicking the [“Accept”] button is a legally valid way to create a binding contract and constitutes your electronic signature to this Agreement.
If you are entering into this Agreement on behalf of a corporation or other legal entity (“organization”), then (i) except as indicated, all references to “you” in this Agreement after this paragraph mean the organization, and (ii) by clicking the [“Accept”] button you represent and warrant (x) that you are currently employed by the organization and have the authority and legal ability to enter into this Agreement on behalf of the organization, and (y) the organization agrees to be bound by all of the terms of this Agreement.
If you do not agree to the terms and conditions of this Agreement, then do not access or use the Kobiton Service.
Copies of this agreement are available for download and printing by using current web browser software and going to http://kobiton.com.
This is a license and not a sale. The Kobiton Service may be used by you under the following terms and conditions. This Agreement comprises the entire agreement between you and Kobiton, and supersedes any other agreement, terms or promises, oral or written, with respect to the subject matter of this Agreement.
KOBITON SERVICE. Subject to the terms and conditions of this Agreement, Kobiton grants you a nonexclusive, nontransferable, nonsublicensable license to use the Kobiton Service solely to conduct internal test execution and management operations on your mobile device applications (“Apps”). The Kobiton Service allows you to manage the number and type of mobile devices with which you may conduct your App testing. You may also access and use the documentation that accompanies the Kobiton Service (the “Documentation”) solely in connection with your use of the Kobiton Service. You acknowledge that Kobiton may use third party service providers for some or all of the operations that make available the Kobiton Service.
USE YOUR OWN DEVICE. If you participate in the “use your own device” service as part of the Kobiton Service (the “UYOD Service”), then the additional terms in this Section apply.
(a) You may use the Kobiton Service with the number and type of mobile devices controlled by you or your organization and approved by Kobiton (“Your Devices”). You are responsible for all telecommunications service (telephone, data, Internet and any other such service) with respect to Your Devices. Kobiton is not responsible for data usage or any other charges between you and your carrier or service provider that you may incur using Your Device with the Kobiton Service.
(b) You may download and install one or more copies of Kobiton’s desktop application which enables communication between Your Devices and the Kobiton Service (“Desktop Application”). Subject to the terms and conditions of this Agreement, Kobiton grant you a nonexclusive, nontransferable, nonsublicensable license to use Desktop Application solely in connection with your permitted use of the UYOD Service under this Agreement.
(c) You may not use the UYOD Service with Your Devices that in Kobiton’s opinion are in poor operating condition, that interfere with the operation of the Kobiton Service, that generate excessive traffic to the Kobiton Service’s network, or that are used for activities other than typical testing. In addition to its other remedies, without notice to you Kobiton may block any of Your Devices which do not comply with the foregoing or any other provisions of this Agreement.
(d) You represent, warrant and covenant the following:
(i) you own or have sufficient rights in Your Devices to permit them to be used with the Kobiton Service and your use pursuant to this Agreement does not violate any agreement with any third party; and
(ii) you will comply with all Documentation and other instructions of Kobiton with respect to any of Your Devices that you use with the UYOD Service.
LIMITATIONS. The Documentation contains limitations on the Kobiton Service, including the size of the Apps you may test and the number and types of mobile devices available for testing. Your use is subject to the limitations in the Documentation and any other limitations on the Kobiton Service that Kobiton communicates to you, such as the number of minutes allowed as part of your use. You shall not use the Kobiton Service in a manner that violates any laws, infringes the rights of anyone, or damages any person or property. You may not access the Kobiton Service if you are or become Kobiton’s direct competitor, except with Kobiton’s prior written consent. In addition, you may not use the Kobiton Service for purposes of monitoring the Kobiton Service’s performance or functionality or for any other benchmarking or competitive purposes. You acknowledge and agree that the Kobiton Service (including any software or systems used to operate the Kobiton Service) and all Documentation and the information in them are Kobiton’s confidential and proprietary information. You agree to keep all such information confidential by exercising the necessary care required to prevent disclosure and not to disclose or use such information for any purpose whatsoever other than as expressly authorized by this Agreement.
TRIAL PERIOD AND SUBSCRIPTION TERM.
(a) Upon your registration, you will have a 15-day trial period within which you may use the Kobiton Service under this Agreement at no charge (“Trial Period”). As part of your registration for the Kobiton Service, you may elect purchase a yearly subscription to the Kobiton Service; if you do not elect to purchase a yearly subscription, then the Kobiton Service will be provided on a monthly basis. The “Subscription Term” will begin automatically at the end of the Trial Period unless you cancel the Kobiton Service at that time, and will continue for the initial period you elected as part of your registration. The Subscription Term will automatically renew for additional yearly periods if you purchased a yearly subscription, or otherwise on a month-to-month basis, unless cancelled by either party with at least 15 days’ advance notice to the other.
(b) You must use the cancellation option in your profile page in the Kobiton Service in order to cancel the Kobiton Service, and cancellation will be effective as of the date Kobiton receives your cancellation. Kobiton will notify you of cancellation via the email address in your account profile, and cancellation will be effective at the end of the then-current Subscription Term. No fees will be refunded upon cancellation
(c) The Subscription Term ends on the earlier of (a) the effective date of cancellation by either party as provided above or (b) termination under the “TERMINATION” section below.
FEES AND PAYMENT.
In consideration for use of the Kobiton Service, you shall pay Kobiton the following fees:
(a) Base Fees. Base fees entitle you to a maximum number of minutes of usage of the Kobiton Service per month (“Monthly Minute Allowance”). These fees will be indicated as part of your registration and will be billed in advance of each year of the Subscription Term if you have elected to purchase a yearly subscription to the Kobiton Service. Otherwise, these fees will be billed in advance of each month during the Subscription Term.
(b) Overage Fees. Additional fees will be billed at the rates indicated as part of your registration for each minute per month that you exceed the Monthly Minute Allowance. These fees are billed at the end of each month in which the overage occurs.
(c) UYOD Service Fees. If you purchase UYOD Services, there is a fee which entitles you to a maximum number of Your Devices. The fees are billed at the then-current per-device rates in effect and are in addition to the other fees described above. These fees are billed in advance either yearly or monthly per your selected subscription.
KMS may increase the fees above at any time by posting notice as part of the Kobiton Service. The new fees only apply to new subscriptions or to renewals of expired subscriptions.
As part of the registration, you may elect to pay by credit card and enter your credit card information. If you are paying by credit card, you authorize Kobiton to bill the fees to the credit card you provide when they are due. Kobiton’s acceptance of a credit card does not relieve you from any obligation to pay for the use of the Kobiton Service. Kobiton may invoice you for amounts due if credit card payment is not effective for any reason. If Kobiton will invoice you for fees, then you shall pay any invoice within 30 days of the date of invoice. You shall pay interest in the greater of 1.5% per month or the highest amount allowed by law on any amounts not received when due. The fees are exclusive of all taxes, and you shall pay all taxes, duties or charges of any kind imposed by any taxing authority for the amounts due under this Agreement, excluding taxes based solely on Kobiton’s income. All fees are nonrefundable.
RESERVATION OF RIGHTS. Except for the limited rights expressly granted above in this Agreement, Kobiton reserves all rights, title and interest in and to the Kobiton Service and Desktop Application, including all related intellectual property rights. No rights are granted to you other than as expressly set forth above in this Agreement. Without limiting the generality of the foregoing, you may not (a) distribute, sublicense, copy, modify, or publicly display the Kobiton Service or Desktop Application, (b) use on behalf of any third party, or permit any third party to use, the Kobiton Service or Desktop Application, (c) decompile or reverse engineer the Desktop Application or any other software used to provide Kobiton Service; (d) remove any proprietary rights notices on the Desktop Application, Documentation or any displays of any portions of Kobiton Service (e.g., screen shots), or (e) attempt to gain unauthorized access to the Kobiton Service or circumvent any security measures within the Kobiton Service or Desktop Application.
APPS AND DATA. “Session Information” means the records and other data you create and store in the Kobiton Service related to the tests you conduct on your App, and may include the information contained in your App and records of your test outcomes such as device screen shots. Session Information does not include any Usage Data, any information regarding the functionality or performance of the Kobiton Service or its underlying technology, or any other confidential information of Kobiton. You grant Kobiton the worldwide, nonexclusive right to copy, display, modify, store, process and otherwise use your Session Information, and permit Kobiton’s service providers to do so, during and after the term of this Agreement in order to provide the Kobiton Service and make your Session Information available to you. You own and retain all rights in the Session Information. Kobiton will implement commercially reasonable safeguards intended to protect the confidentiality of your Session Information.
As a part of the Kobiton Service, Kobiton and its service providers may collect, process, store, modify, aggregate and otherwise use statistics and other data regarding your use of the Kobiton Service, such as the number and types of devices tested, the timing and duration of tests, App storage, and the like (“Usage Data”). If you use Your Devices as part of your use of the Kobiton Services, then Usage Data may also include information about the computer on which you have installed the Desktop Application (such as the manufacturer, OS, and machine capacity), and Your Devices (such as the manufacturer, model, OS and device capacities). Usage Data does not include your Session Information or the information you provide as part of registration. Kobiton owns and retains all rights in the Usage Data.
You grant Kobiton the worldwide, nonexclusive right to copy, display, otherwise use your Apps, and permit Kobiton’s service providers to do so, during and after the term of this Agreement in order to provide the Kobiton Service to you. You own and retain all rights in your Apps. At the end of each testing session, you are responsible for removing your Apps and data from the Kobiton Device. For public devices, at the end of each testing session, if you have not removed your App and data at the end of each testing session, Kobiton will make commercially reasonable attempts to remove your Apps and Session Information left on service devices. Kobiton may periodically remove user apps (including your Apps) left on service devices but is not obligated to do so.
You represent and warrant (a) that you have the right to use and permit the Kobiton Service to use Session Information and Apps and Your Devices (if applicable) and (b) none of Session Information will contain personal information protected by law, including without limitation any protected health information (PHI) or nonpublic personal information.
Kobiton may transfer Session Information, Apps and the Usage Data to a third party in connection with (a) a permitted assignment of this Agreement or (b) a delegation of hosting, transmission or other duties, as long as the third party provider agrees to abide by confidentiality obligations similar to the ones contained in this Agreement. In addition, Kobiton may disclose Session Information, Apps and Usage Data if required by law or to any government body upon its audit or other inspection of the records or facilities of Kobiton or its providers.
SUSPENSION OF ACCESS. Kobiton may suspend your access to the Kobiton Service or deactivate any of Your Devices for any violation of this Agreement or if Kobiton reasonably believes that your activity or Your Device is harming the Kobiton Service or the rights or property of any person. You acknowledge that you will not have access to Your Devices or your Apps or Session Information during any suspension. Kobiton may exercise the rights in this Section prior to exercising the termination provisions of this Agreement and without prior written notice to you. Unless the Agreement is terminated, Kobiton will remove the suspension upon resolution of the cause of the suspension.
SUGGESTIONS. You grant Kobiton a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Kobiton Service any suggestions, enhancement requests, recommendations or other feedback provided by you, including your User, relating to the Kobiton Service (“Feedback”). Kobiton may use and incorporate any Feedback without any compensation or acknowledgement to you. Kobiton is not under any obligation to use or incorporate any Feedback.
TERMINATION. Kobiton may terminate this Agreement and the Kobiton Service upon your breach of any of the terms contained in this Agreement. Otherwise this Agreement and the Kobiton Service terminate (a) at the end of the Trial Period if you cancel or (b) upon cancellation of the Subscription Term as described in the “TRIAL PERIOD AND TERM” section above.
EFFECT OF TERMINATION. Upon termination for any reason, all test sessions in progress end immediately and you shall immediately destroy all copies of the Desktop Application and any Documentation in your possession or control. Kobiton will archive your Session Information after termination, and for a period of 90 days after termination you may reactivate your account by renewing your subscription to Kobiton Service to access, view and remove Session Information from the Kobiton Service. After this 90-day period, Kobiton may delete any Session Information in its discretion, but it is not obligated to do so.
DISCLAIMERS. Kobiton makes no, and disclaims all, warranties and conditions of any kind, whether express, implied, statutory or otherwise, including any warranties of merchantability, noninfringement, satisfactory quality or fitness for a particular purpose, to the maximum extent permitted by applicable law.
Kobiton does not warrant that the Kobiton service or Desktop Application will be uninterrupted, error-free or completely secure. Kobiton does not and cannot control the flow of data to or from Kobiton, your network, and other portions of the Internet. Such flow of data depends in large part on services provided or controlled by third parties, and at times, actions or inactions of such third parties can impair or disrupt your connections to the Internet (or portions thereof). Kobiton cannot guarantee that such events will not occur. Accordingly, Kobiton disclaims any and all liability resulting from or related to such events.
You are responsible for all decisions regarding your App based on your use of the Kobiton Service, including without limitation any losses or liabilities arising from the results of the Kobiton Service. Without limiting the foregoing, you agree that Kobiton and its officers, directors, agents, and employees, have no liability for errors or omissions in the output of the Kobiton Service, such outputs including, without limitation, the quality or accuracy of any screen displays or reports, in the transmission and reception of data, or in the processing of such data by the Kobiton Service.
YOUR INDEMNIFICATION. You shall defend, indemnify and hold harmless Kobiton, its affiliates and its and their officers, directors, employees, agents, successors and assigns from and against any and all losses, costs, expenses (including attorneys’ fees and expenses), claims, liabilities, and damages of any kind incurred by those persons or entities which result from (a) your breach of this Agreement or (b) Your Devices, your Apps or any Session Information.
LIMITATION OF LIABILITY. In no event will Kobiton or its officers, directors, agents, and employees, be liable to you under this Agreement or otherwise, regardless of the form of claim or action, in an amount that exceeds the fees you pay Kobiton in the 12 months immediately preceding the claim or action. In no event will Kobiton or its officers, directors, agents, and employees, be liable to you for consequential, exemplary, incidental, or indirect damages or costs (including legal fees and expenses) or loss of goodwill or profit in connection with the Kobiton Service or this Agreement, even if Kobiton has been advised of the possibility of such damages or costs. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so this paragraph may not apply to you.
COMMUNICATIONS. General questions and communications regarding the Kobiton Service and Documentation can be made via the means provided at the Support Portal. Any notices to Kobiton regarding this Agreement should be made to firstname.lastname@example.org. Kobiton may contact and notify you at the email address provided for the Org Admin. You are required to keep the contact information for your Org Admin current.
GOVERNING LAW AND LANGUAGE. This Agreement is governed by the laws of the state of Georgia, USA, without regard to choice or conflicts of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The official language of this Agreement is English. All contract interpretations, notices and dispute resolutions shall be in English. Translations of any of these documents are not to be construed as official or original versions of the documents.
(a) If you are a resident of, or a company organized under a state or territory of, the United States, then all disputes regarding this Agreement will be settled exclusively in any court of competent jurisdiction located in Fulton County, Georgia. Each party hereby consents and submits to the in personam jurisdiction of such courts. Each party hereby waives any objection based on forum non conveniens and any objection to venue of any action instituted under this Agreement to the extent that an action is brought in the courts identified above.
(b) Otherwise, all disputes regarding this Agreement shall be finally resolved by binding arbitration before a single arbitrator pursuant to the then-existing Rules of Conciliation and Arbitration (“Rules”), and under the auspices, of the International Chamber of Commerce (“ICC). The arbitrator shall be knowledgeable in the chosen law and the software industry. At either party’s request, the arbitrator shall give a written opinion stating the factual basis and legal reasoning for the decision. The arbitrator shall have the authority to determine issues of arbitrability and to award damages as permitted by this Agreement. The parties, their representatives, and any other participants shall hold the existence, content, and result of arbitration in confidence. The arbitration proceedings will take place in Atlanta, Georgia. Judgment on the arbitration award may be entered in any court having jurisdiction.
(c) Notwithstanding the foregoing, Kobiton may, at its sole discretion, seek preliminary judicial relief in any court of competent jurisdiction (including, but not limited to, preliminary injunctive relief) as necessary to enforce its rights in its intellectual property.
LIMITATION OF ACTIONS. No action arising out of this Agreement, regardless of form, may be brought by you more than one year after the date the cause of action has accrued.
EXPORT COMPLIANCE. The Kobiton Service may be subject to export laws and regulations of the United States and other jurisdictions. You represent that you as an individual and your organization are not named on any U.S. government denied-party list. You shall not use or export the Kobiton Service in violation of any U.S. export law or regulation.
U.S. GOVERNMENT END USE PROVISIONS. The following applies to all acquisitions of the Kobiton Service and Documentation by or for the U.S. government or by any prime contractor or subcontractor under any contract, grant or other activity with the U.S. government. The Kobiton Service and Documentation and services utilizing the Kobiton Service and Documentation provided under this Agreement are “commercial items” as that term is defined at 48 C.F.R. 2.101 consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and other applicable acquisition regulations and are provided to the U.S. Government only as a commercial item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, all U.S. Government users and licensees acquire the Kobiton Service and its associated services and Documentation with only those rights and subject to the restrictions set forth in this Agreement. Notwithstanding the foregoing, the Kobiton Service and its associated services and Documentation may not be acquired by the U.S. government pursuant to a contract incorporating clauses prescribed by FAR Subpart 27.4 or DFARS Subpart 227.4.
MISCELLANEOUS. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to this Agreement. No waiver or modification of any provision of this Agreement will be effective unless it is in writing, refers to this Agreement, and is signed by authorized representatives of the parties. No failure or delay by either party to exercise any right, power, or remedy constitutes a waiver of that right, power, or remedy. A party’s waiver of the performance of any covenant or any breach is not to be construed as a waiver of any succeeding breach or of any other covenant. If any provision of this Agreement requires judicial interpretation, this Agreement is not to be more strictly construed against one party than the other. If any provision of this Agreement is declared invalid by a court of competent jurisdiction, the provision will be ineffective only to the extent of the invalidity, so that the remainder of that provision and all remaining provisions of this Agreement will continue in full force and effect. You may not assign, sublicense, or transfer this Agreement without the prior written consent of Kobiton. Any attempt by you to sublicense, assign or transfer any rights, duties, or obligations hereunder is null and void.