THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND TIME LIMIT ON SUBMITTING CLAIMS THAT AFFECT YOUR RIGHTS. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.
1.1. “Mobiquity Networks” means Mobiquity Networks Technology Corp., a New York corporation having its principal place of business at 600 Old Country Road, Garden City, NY 11530.
1.2. “Mobiquity Networks SDK” means the Mobiquity Networks APIs, and any sample source code or documentation licensed to you under the terms of this Mobiquity Networks SDK License Agreement (the “Agreement”).
2. Agreement Acceptance and Terms.
2.1. Acceptance of this Agreement. You must accept this Agreement before you can use the Mobiquity Networks SDK. By using any portion of the Mobiquity Networks SDK you hereby agree to the terms and conditions of this Agreement. Do not accept this Agreement or use the Mobiquity Networks SDK if you or your company is barred from use of the SDK under the laws or regulations of the United States or any other country.
2.2. Authority. If you are agreeing to be bound by this Agreement on behalf of your employer or another entity, you represent and warrant that you have full legal authority to bind your employer or such entity to this Agreement. If you do not have such legal authority, you may not accept the Agreement or use the Mobiquity Networks SDK on behalf of your employer or any other entity.
3. Mobiquity Networks SDK License Terms.
Subject to the terms and conditions contained herein, Mobiquity Networks grants to you a limited, non-transferable, non-sublicensable, non-exclusive, worldwide, license to use the Mobiquity Networks SDK solely to develop, test and operate applications that will run on the Mobiquity Networks Platform. You will have no right to license, distribute or otherwise transfer the Mobiquity Networks SDK or any rights therein. Your rights in the Mobiquity Networks SDK will be limited to those expressly granted in this Agreement.
You will not: (a) modify, disassemble, decompile or reverse engineer any part of the Mobiquity Networks SDK (except that you may modify any sample source code included in the Mobiquity Networks SDK); (b) copy (except for backup purposes and with all labeling and copyright notices intact) or otherwise reproduce the Mobiquity Networks SDK, in whole or in part, or modify, adapt, alter, translate or incorporate into or with other software or create a derivative work of any part of the Mobiquity Networks Platform except as expressly permitted herein; (c) remove, modify or otherwise tamper with notices or legends on the Mobiquity Networks SDK or any labeling on any physical media; (d) use the Mobiquity Networks SDK in any manner to provide service bureau, time sharing or other computer services to third parties; (e) distribute the Mobiquity Networks SDK (other than the incorporation of distributable elements of the Mobiquity Networks SDK in your application developed by you in accordance with the terms of this Agreement; or (f) disclose the results of any performance benchmarks or similar testing of the Mobiquity Networks SDK or the Mobiquity Networks Platform to any third party without Mobiquity Networks’s prior written consent.
5. Ownership and Use.
5.1. Intellectual Property Rights. Title to and ownership of the Mobiquity Networks SDK will remain exclusively in Mobiquity Networks at all times. You will promptly notify Mobiquity Networks of any claim which may be adverse to Mobiquity Networks’s interest in the Mobiquity Networks SDK. The Mobiquity Networks SDK will be used only by you, unless Mobiquity Networks authorizes other parties in advance in writing to use the Mobiquity Networks SDK under your supervision.
5.2. Feedback. If you provide Mobiquity Networks with verbal and/or written feedback related to your use of the Mobiquity Networks SDK, including, but not limited to, a report of any errors which you may discover in the Mobiquity Networks SDK, the Mobiquity Networks Platform or related documentation, or suggestions for improvements or changes to the Mobiquity Networks SDK and/or the Mobiquity Networks Platform, you hereby grant Mobiquity Networks a perpetual, irrevocable right to use such feedback to develop and improve the Mobiquity Networks SDK, the Mobiquity Networks Platform or any other Mobiquity Networks product or service.
5.3. Mobiquity Networks SDK Changes. You agree that the form and nature of the Mobiquity Networks SDK may change without prior notice and that future versions of the Mobiquity Networks SDK may be incompatible with applications developed on previous versions of the Mobiquity Networks SDK. You agree that Mobiquity Networks may stop (permanently or temporarily) providing the Mobiquity Networks SDK (or any features within the Mobiquity Networks SDK) at Mobiquity Networks’s sole discretion at any time and without prior notice.
5.4. Your Ownership. Mobiquity Networks acknowledges that Mobiquity Networks does not obtain any ownership interest in any applications that you develop using the Mobiquity Networks SDK and you acknowledge that Mobiquity Networks retains ownership in any distributable components of the Mobiquity Networks SDK that you embed in your applications.
5.5. Trademarks and Rights Notices. Nothing in this Agreement gives you a right to use any of Mobiquity Networks’s trade names, trademarks, service marks, logos, domain names or other distinctive brand features. You agree that you will not adopt, use or attempt to register, whether as a corporate name, domain name, product name, trademark, service mark or other indication of origin, any trademark of Mobiquity Networks or any mark that is confusingly similar to or will dilute the distinctive nature of the Mobiquity Networks trademarks. You also agree that you will not include the term “Mobiquity Networks” as part of the name for any application that you develop using the Mobiquity Networks SDK. You agree that you will not remove, obscure or alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to or contained within the Mobiquity Networks SDK.
5.6. Compliance with Law and Industry Standards. You agree to only use the Mobiquity Networks SDK to write applications for purposes that are permitted by: (a) this Agreement; and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions.
5.7. Data Collection. You will not develop your application such that you allow your application to transmit or otherwise collect user data, device data, location data or any personally identifiable information from your application or from Mobiquity Networks devices without first obtaining the user’s consent to do so and providing clear and complete information to users regarding any such transmission, collection and use of data.
7. Term and Termination.
This Agreement is effective until terminated by Mobiquity Networks or you as described below.
7.1. You may terminate this Agreement by notifying Mobiquity Networks that you have stopped all use of the Mobiquity Networks SDK.
7.2. Mobiquity Networks may terminate this Agreement at any time if: (a) you have breached any provision of the this Agreement; (b) Mobiquity Networks is legally required to do so; or (c) Mobiquity Networks decides not to provide the Mobiquity Networks SDK or services related to the Mobiquity Networks SDK to users in the country in which you reside.
7.3. Upon any termination of this Agreement you will immediately: (a) cease the use of all of the Mobiquity Networks SDK; and (b) destroy all copies of the Mobiquity Networks SDK (except for any sample code from the Mobiquity Networks SDK that you have embedded in your authorized applications). The provisions of Sections 1, 5 through 7, 8.3, and 10 through 15 inclusive of this Agreement will survive any termination or expiration of this Agreement.
8. No Warranty.
The Mobiquity Networks SDK is provided to you on an “AS IS” basis and without warranty of any kind. Mobiquity Networks DISCLAIMS ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, RELATING TO THE Mobiquity Networks SDK, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. YOU AGREE THAT YOUR USE OF THE Mobiquity Networks SDK IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR ANY LOSS OF DATA THAT RESULTS FROM SUCH USE.
9. Limitation of Liability.
9.1. No Liability for Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL Mobiquity Networks BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) ARISING OUT OF THE USE OF THE Mobiquity Networks SDK REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF Mobiquity Networks HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2. Limitation on Direct Damages. IN NO EVENT WILL Mobiquity Networks’S AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT EXCEED ONE HUNDRED DOLLARS (USD $100).
9.3. Allocation of Risk. You and Mobiquity Networks agree that the foregoing warranty disclaimer and limitation of liability set forth in Sections 9 and 10, respectively, fairly allocate the risks in the Agreement between the parties. You and Mobiquity Networks further agree that this allocation is an essential element of the basis of the bargain between the parties, that Mobiquity Networks would not have entered this Agreement without these limitations, and that the limitations will apply notwithstanding any failure of the essential purpose of this Agreement or any limited remedy hereunder.
To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless Mobiquity Networks, its affiliates and their respective directors, officers, employees, agents and representatives from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or allegedly based (in whole or in part) on: (a) your use of the Mobiquity Networks SDK; (b) any application you develop using the Mobiquity Networks SDK that infringes any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person or defames any person or violates their rights of publicity or privacy; (c) any violation by you of any applicable law or regulation; or (d) any non-compliance by you with the terms of this Agreement.
You acknowledge and agree that you will not import, export, or re-export, directly or indirectly, any commodity (including, without limitation, the Mobiquity Networks SDK or related information) to any country in violation of the laws and regulations of any applicable jurisdiction. This restriction expressly includes, without limitation, the export regulations of the United States, and the import and export restrictions of the various European countries. You further agree to defend, indemnify and hold harmless Mobiquity Networks, its affiliates and their respective directors, officers, employees, agents and representatives from any losses, costs, claims or other liabilities arising out of your breach of this Section 12.
12. Dispute Resolution and Binding Arbitration.
Definitions. As used in this Arbitration Provision, the terms “Mobiquity Networks,” “we,” “us,” and “our” refer to Mobiquity Networks Inc., including its subsidiaries and agents; the terms “you” and “your” refer to you as an individual as well as other individuals you allow to access or use the Products, and any legal entity you control, work for, or represent when you access or use the Products. The word “Products” means your access to and/or use of any Mobiquity Networks website, advertisement or promotion and any product, service, or software that you obtain from or through Mobiquity Networks. The word “Claims” means all claims, disputes, or controversies between you and us of any nature or kind, whether pre-existing, present, or future, that arise from or relate to the Products. This includes but is not limited to disagreements about the validity, enforceability, or scope of this Arbitration Provision.
Informal Efforts to Resolve Dispute. If a dispute arises between you and Mobiquity Networks, you should first attempt to resolve it by sending an email to firstname.lastname@example.org or by sending the details of your complaint, including your contact information for a response, to the address or fax number listed below. We will attempt in good faith to resolve all Claims submitted this way within fifteen (15) days of receipt.
Agreement to Arbitrate; Right to Opt Out. If informal efforts to resolve Claims fail or are not used, you agree that any and all Claims will be resolved exclusively by binding arbitration as described herein, except that: (i) you may assert Claims in a small claims court in the United States if your Claims meet the court’s jurisdictional requirements; and (ii) either party may pursue Claims and relief in a court of competent jurisdiction regarding the validity and/or infringement of a party’s intellectual property rights.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS VERY LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD TO YOU ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND FORMS OF RELIEF AS A COURT COULD (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF AS WELL AS STATUTORY DAMAGES), AND MUST FOLLOW THE LAW AND TERMS OF THIS AGREEMENT AS A COURT WOULD. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS AND PRIVATE ATTORNEY GENERAL ACTIONS ARE NOT PERMITTED.
IF YOU DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY MOBIQUITY NETWORKS IN WRITING WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST ACCEPT OR HAVE ACCESS TO THIS AGREEMENT BY MAILING OR FAXING AN OPT-OUT REQUEST TO OUR CUSTOMER SERVICE CENTER LISTED BELOW. YOUR WRITTEN NOTIFICATION MUST INCLUDE YOUR NAME, ADDRESS, AND A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH US THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH US OR THE DELIVERY OF PRODUCTS TO YOU BY US. IF YOU HAVE PREVIOUSLY NOTIFIED US OF YOUR DECISION TO OPT OUT OF ARBITRATION, YOU DO NOT NEED TO DO SO AGAIN.
Arbitration Fees. The allocation and payment of all filing, administration and arbitrator fees will be governed by the JAMS’s rules which limit the amount a consumer is required to pay. If the arbitrator determines that your Claims are not frivolous applying the standards of the Federal Rules of Civil Procedure, we agree to reimburse you the amount of all filing, administration and arbitrator fees you are required to pay for the arbitration.
Arbitration Rules. The arbitration will be conducted by the JAMS (“JAMS”) under its rules if you are a resident of the United States; if your use of the Products has been principally for personal or household use, the JAMS’ procedures for consumer-related disputes including the minimum fairness standards will also apply. If you are a resident of a country other than the United States, the arbitration will be conducted by the JAMS in New York, NY, under its rules for international arbitration, and you and we agree to submit to the personal jurisdiction of the U.S. federal court in New York, New York in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. In the event of a conflict or inconsistency between the applicable arbitration rules and this Arbitration Provision, this Arbitration Provision shall govern and control.
The arbitration will be conducted in the English language by a single arbitrator who is an attorney-at-law with at least fifteen years’ experience in consumer and technology transactions and who is also a member of the JAMS roster of arbitrators. If you and we can’t agree on a mutually acceptable arbitrator within fifteen (15) days after the arbitration is initiated, then the JAMS will pick a neutral arbitrator who meets the qualifications. The JAMS rules are available at http://www.jamsadr.com , or by calling 1- 800 – 352- 5267 from inside the United States or +44 207 583 9808 from outside the United States.
Initiating Arbitration. To begin an arbitration proceeding, you must follow the procedures specified by the applicable JAMS rules as described on their website at http://www.jamsadr.com.
Time Restriction. YOU MUST FILE A COMPLAINT WITH JAMS OR A PERMITTED COURT WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A CLAIM, OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS OR DISPUTE.
Arbitration Process. Because appearing in person for arbitration can be unduly burdensome in the circumstances, arbitration under this Arbitration Provision shall not require any personal appearance by the parties or witnesses unless mutually agreed. Either or both parties may participate by written submissions, telephone calls, or other means of remote communication as allowed by the arbitrator. The arbitration proceedings will be conducted in the English language at a location designated by the JAMS that is the most convenient for you.
The arbitration can only decide Claim(s) between you and us, and may not consolidate or join the claims of other persons that may have similar claims. There shall be no pre-arbitration discovery except as provided for in the applicable JAMS rules. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information.
In conducting the arbitration proceeding, the arbitrator will apply the law of the State of New York (without regard to its conflicts of law provisions) including U.S. federal law for matters covered by federal law (e.g. the Federal Arbitration Act). At the request of any party, the arbitrator shall provide a brief written explanation of the basis for the decision and award. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator’s decision will be final and binding on the parties except for any right to appeal under the JAMS rules or the Federal Arbitration Act.
Recovery and Attorneys’ Fees. If the arbitrator rules in your favor on the merits of any Claim you bring against us and issues you an award that is greater in monetary value than our last written settlement offer made to you before written submissions are made to the arbitrator, then we will (i) pay you 150% of your arbitration damages award, up to $1,000 over and above your damages award; and (ii) pay your attorneys, if any, the amount of attorneys’ fees, and reimburse any expenses (including expert witness fees and costs) that you or your attorney reasonably incurred for investigating, preparing, and pursuing your Claim in arbitration. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of such fees, expenses, and the alternative payment and the attorney premium at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits. The right to attorneys’ fees and expenses discussed above supplements any right to attorneys’ fees and expenses you may have under applicable law, although you may not recover duplicative awards of attorneys’ fees or costs. If your use of the Products was principally for personal or household use, neither party will be entitled to any award of punitive or special damages and Mobiquity Networks waives any right it may have to seek an award of attorneys’ fees and expenses from you in connection with any arbitration of Claims between us.
Confidentiality. You and we shall keep confidential any information exchanged during the arbitration as well as the decision of the arbitrator made with respect to any Claim(s) arbitrated under this Arbitration Provision and, with the exception of disclosure to your or our attorneys, accountants, auditors, and other legal or financial advisors, neither party shall disclose such information or decision to any other person unless required to do so by law.
Continuing Obligation to Arbitrate; Severability. This Arbitration Provision shall survive termination of your access to or use of any Products and related agreements. If any portion of this Arbitration Provision is deemed invalid or unenforceable at law, such invalid or unenforceable provision will be interpreted, construed or reformed to the extent required to make it valid and enforceable, and this shall not invalidate the remaining portions of this Arbitration Provision.
Mobiquity Networks Customer Service Center Address:
Mobiquity Networks Inc.
600 Old Country Road
Garden City, NY 11530
13. Changes to the Agreement.
This SDK Licensing Agreement may be revised periodically without further notice. To stay aware of any changes, please revisit this page regularly. If you have any questions about this policy, please feel free to contact us at email@example.com.
14. General Provisions.
This Agreement is not assignable or transferable, in whole or in part, by you, whether involuntarily, by merger, operation of law or otherwise, without Mobiquity Networks’s prior written consent. Any amalgamation or merger of a party with any third party, or the purchase or all or substantially all of the assets of a party, will be deemed an assignment requiring consent. Any attempted transfer in violation of this section is void. A waiver of any default hereunder or of any of the terms and conditions of this Agreement will not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but will apply solely to the instance to which such waiver is directed. The exercise of any right or remedy provided in this Agreement will be without prejudice to the right to exercise any other right or remedy provided by law or equity, except as expressly limited by this Agreement. Captions in this Agreement are for the convenience of the parties only and will not affect the interpretation or construction of this Agreement. In the event any provision of this Agreement is held to be invalid or unenforceable, such provision will be severed from the remainder of this Agreement, and such remainder will remain in force and effect. The parties agree to replace any such invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision. This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior and/or simultaneous representations, discussions, negotiations and agreements relating to the Mobiquity Networks SDK, whether written or oral.