Terms of Service

2.1 License Restrictions

“Customer Data” means data and other content submitted by or for Customer to the MoBagel Services, including Customer’s end user data, and session replays made as a result of using the MoBagel Services (if applicable). For the avoidance of doubt, Customer Data does not include System Data (defined below) or any dashboards, report templates or any other technology or components of the MoBagel Services created, developed, used or provided by MoBagel.

(a) Utilize the Services in a way that breaches any laws, regulations, privacy policies, or contracts maintained or agreed upon with end users regarding the handling of Customer Data.

(b) Send or input into the Services sensitive information such as health records, biometric or genetic details, social security and driver’s license numbers, birth dates, passwords, financial data including debit/credit card specifics, bank account numbers, card verification numbers, passport and government-issued identification numbers, or any other type of sensitive personal data.

(c) Attempt to reverse engineer, decompile, or disassemble to discover any source code, object code, or the foundational structure, concepts, or algorithms of the Services or any related software, documentation, or data.

(d) Conduct or attempt any form of vulnerability tests, breach security or authentication measures of the Services without authorized permission, or intentionally disable any aspect of the Services.

(e) Access or utilize the Services for developing a competitive product or service, or engage in any form of competitive analysis or benchmarking against the Services.

2.2 Customer Responsibilities

(a) Customer is obligated to ensure the legality, accuracy, and integrity of the Customer Data. This includes verifying that the collection, submission, processing, storage, and transmission of data through the Services abide by all relevant laws and regulations, privacy policies, agreements, or any commitments made to end users, notably securing all necessary consents and permissions

(b) Customers should be responsible for the application of reasonable efforts to block unauthorized access or usage of the Services.

(c) Customer agrees to indemnify and hold harmless MoBagel against any damages, losses, liabilities, settlements, and expenses (including, but not limited to, costs and attorney fees) associated with any claim or action resulting from an alleged breach of the aforementioned obligations or from any use of the Services by the Customer. This indemnification covers all potential legal or financial repercussions arising directly or indirectly from the Customer's engagement with the Services.

(d) Upon installing the MoBagel tracking tag, the Customer acknowledges that certain personal identifiers will be collected to facilitate user matching across various marketing, analytics, and advertising platforms. Customer hereby authorizes MoBagel to collect Customer Data through the Customer Website(s), assign unique identifiers to said data, and utilize them in conjunction with the provided Services.

3.1 Reservation of Rights

MoBagel owns and retains all right, title and interest in and to the Services, and all improvements, enhancements or modifications to the foregoing, and anything developed and delivered under these Agreement, including System Data.

3.2 License

MoBagel grants the Customer a limited, non-exclusive, non-sublicensable, revocable, non-transferable, and non-assignable right to access and use the Services strictly in accordance with the terms and conditions of this Agreement. No additional rights are provided to the Customer under this Agreement except as explicitly stated herein.

4.1 Definition of Confidential Information

"Confidential Information" encompasses both technical and non-technical data relevant to a party's business activities, prospective products, and services, including, but not limited to, information related to research, design specifications, financials, procurement, engineering, manufacturing, customer databases, sales metrics, and marketing strategies. Additionally, it includes any information obtained from third parties that a party is obligated to keep confidential.

4.2 Protection of Confidential Information

Each party, recognized as the "Receiving Party," understands that the other, the "Disclosing Party," has provided or might provide vital business, technical, or financial information pertinent to the Disclosing Party's operations, referred to as "Proprietary Information." For MoBagel, Proprietary Information consists of confidential insights into the service's features, functionality, and efficacy. For the Customer, it involves non-public data given to MoBagel to enable service provision and any consumer data ("Customer Data"). The Receiving Party is committed to (a) protecting such Proprietary Information diligently and (b) not disclosing this information to any third party, except as required for delivering the service or when expressly permitted.

The Disclosing Party agrees that the aforementioned protective measures become null and void for any information five years post-disclosure or for data that the Receiving Party can demonstrate (i) became public without their fault; (ii) was already known or in their possession prior to disclosure by the Disclosing Party; (iii) was received from a third party without violating any confidentiality agreements; (iv) was independently developed without using the Disclosing Party’s Proprietary Information, or (v) needs to be disclosed due to legal obligations.

5.1 Compliance with Data Protection Laws

MoBagel and the Customer commit to strict adherence to all relevant data protection laws, regulations, and industry privacy standards across jurisdictions. This includes, where applicable, the General Data Protection Regulation (GDPR), the California Consumer Privacy Act (CCPA), the California Privacy Rights Act (CPRA), and other applicable privacy laws.

5.2 Indemnification for Data Protection Breaches

Both parties agree to indemnify and defend each other against losses resulting from breaches of data protection commitments. MoBagel pledges not to collect, process, share, or use Customer Data beyond what is necessary for providing the Services, unless legally required. Furthermore, MoBagel commits to not selling Customer Data and ensures data transfers comply with privacy standards.

5.3 Handling Consumer Data Requests

Upon receiving individual requests related to their data under this Agreement, both MoBagel and the Customer are responsible for providing prompt and compliant responses. This encompasses data correction, opt-outs, access, and deletion requests in accordance with Applicable Privacy Laws.

5.4 Ownership and Rights of Customer Data

The Customer retains ownership of all Customer Data, including any derived data provided through the Services. Conversely, MoBagel maintains ownership over the Services and Software, including all developments, enhancements, and intellectual property rights.

6.1 Payment of Fees

The Customer is required to pay MoBagel the invoiced fees for the subscribed Services, in accordance with the terms specified. In cases where the Customer's usage exceeds the predefined Service Capacity, or additional fees are applicable as per the Agreement, the Customer will be invoiced for such excess usage. The Customer is then obligated to pay these additional fees as outlined.

6.2 Billing Discrepancies and Inquiries

If the Customer identifies a billing error, they must notify MoBagel within thirty (30) days from the date of the initial billing statement where the discrepancy occurred. This notification is necessary for the Customer to be eligible for any potential adjustment or credit. All billing inquiries should be directed to MoBagel’s customer support at support@mobagel.com.

6.3 Responsibility for Taxes and Duties

The Customer bears responsibility for all applicable local taxes and duties, which include but are not limited to Withholding Tax, Value Added Tax (VAT), Goods and Services Tax (GST), Customs, and Excise duties, along with any other local taxes. It is important to note that the fees payable to MoBagel are exclusive of such taxes and duties.

7.1 Termination Notice

Either party may terminate the Agreement with a thirty (30) day notice for any material breach by the other party. In instances of nonpayment, no notice is required for termination. The Customer is obligated to pay in full for the Services provided up to and including the last day of service provision.

7.2 Survival of Provisions

Certain provisions of the Agreement will survive termination. These include, but are not limited to, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. These enduring provisions ensure continued protection and rights post-termination.

Customer will release, indemnify, defend and hold harmless MoBagel and its subsidiaries, Affiliates, agents, officers, directors, employees, shareholders and representatives of any of the foregoing entities, from and against any and all losses, liabilities, expenses, damages, costs (including attorneys’ fees and court costs), claims, demands, suits, proceedings, or other action of any kind whatsoever (“Claim”) arising or resulting from Customer’s use of the MoBagel Services or violation of these Terms. MoBagel shall have the right to participate in or assume the exclusive defense and control of any Claim with counsel selected by MoBagel at MoBagel’s own expense; in such case, Customer agrees to cooperate in the defense of the Claim. Notwithstanding any other provision of these Terms, Customer shall not enter into settlement of any Claim without the prior written consent of MoBagel.

9.1 Legal Authority and Compliance

Both MoBagel and the Customer warrant to each other that they have the necessary legal standing, corporate authority, and power to enter into, execute, and fully perform their obligations under this Agreement. This ensures that both parties are legally capable of engaging in the Agreement and fulfilling their respective duties.

9.2 Non-contravention of Existing Obligations

They further affirm that their participation in this Agreement does not and will not conflict with any other existing contracts, agreements, orders, judgments, or decrees to which they are parties. This clause guarantees that engaging in this Agreement will not result in breaches of any pre-existing legal commitments.

9.3 Consents and Permissions

The Customer also confirms that it has obtained all legally required consents and permissions from its end users for the submission and processing of Customer Data, in addition to making all necessary disclosures. This provision ensures that the Customer's use of MoBagel's Services complies with applicable laws and respects the privacy and rights of its end users.

TO THE FULLEST EXTENT ALLOWED BY LAW, MOBAGEL PROVIDES THE SERVICES, INCLUDING ANY BETA OR PILOT VERSIONS, "AS IS" WITHOUT GUARANTEEING UNINTERRUPTED SERVICE, ERROR-FREE OPERATION, FULFILLMENT OF CUSTOMER REQUIREMENTS, OR THE EFFICACY OF THIRD-PARTY PRODUCTS OR OUTCOMES FROM USING THE SERVICES. MOBAGEL EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, AND ACCURACY, AS WELL AS ANY WARRANTY THAT MIGHT ARISE FROM DEALINGS, PERFORMANCE, OR INDUSTRY USAGE. THIS INCLUDES NOT GUARANTEEING THE SERVICES WILL BE WITHOUT DELAYS, FAILURES, OR OTHER ISSUES COMMON IN THE USE OF INTERNET AND COMMUNICATION FACILITIES, ENSURING NON-INTERFERENCE WITH SERVICE ENJOYMENT, OR THAT INFORMATION PROVIDED WILL ALWAYS BE ACCURATE, COMPLETE, OR AVAILABLE. MOBAGEL WILL NOT BE LIABLE FOR ANY DATA LOSS OR INACCURACIES. USERS SHOULD BE AWARE THAT THE SERVICES MIGHT CONTAIN BUGS, ERRORS, DEFECTS, OR HARMFUL ELEMENTS AND NEITHER PARTY ASSURES SPECIFIC RESULTS FROM THE SERVICES, SUCH AS THE NUMBER, TIMING, OR SUCCESS OF CLICKS, IMPRESSIONS, OR COST-PER-ACTION VALUES, NOR THAT THE SERVICES WILL BE FREE FROM ERRORS OR AVAILABLE WITHOUT INTERRUPTION.

IN NO EVENT SHALL MOBAGEL OR ITS AFFILIATES BE RESPONSIBLE OR LIABLE TO CUSTOMER FOR ANY LOSS OF PROFITS OR REVENUE, LOSS OF GOODWILL OR REPUTATIONAL HARM, LOSS OF DATA, INTERRUPTION OF BUSINESS, THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND,REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF SUCH DAMAGES IN ADVANCE.

MOBAGEL’S MAXIMUM AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS AND DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTE OR OTHERWISE, SHALL NOT EXCEED 1,000 US DOLLARS. THIS LIMITATION OF LIABILITY IS EXCLUSIVE AS TO ALL REMEDIES AND THE LIABILITY CAP SHALL NOT BE COMBINED WITH ANY OTHER LIMITS OF LIABILITY SO AS TO INCREASE THE CAP VALUE IN ANY INSTANCE OR SERIES OF INSTANCES. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION, MOBAGEL’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.

12.1 Applicable Law

This Agreement is governed by the laws of the United States of America and the State of California, without regard to conflicts of law principles. This ensures that a consistent legal framework applies to the interpretation and enforcement of the terms.

12.2 Jurisdiction

Both parties consent to the exclusive jurisdiction of federal and state courts in Santa Clara County, California, for disputes arising out of this Agreement. However, for the enforcement of court orders or judgments, this jurisdiction is non-exclusive. Moreover, claims for equitable relief can be pursued in any competent court, highlighting the broader options for addressing such issues.

12.3 Recovery of Legal Expenses

In any legal proceeding related to this Agreement, the prevailing party has the right to recover reasonable legal expenses, including attorney fees and court costs, in addition to any other relief granted.

13.1 Entire Agreement

This Agreement constitutes the complete agreement between the parties, overriding all prior discussions and agreements. It clarifies that the relationship is strictly that of independent contractors, not implying any partnership, agency, or employment relationship.

13.2 Assignment

Rights under this Agreement cannot be transferred or assigned without written consent, except through a sale, merger, or significant asset transfer. Unauthorized attempts at assignment are null and void, ensuring that rights and obligations under this Agreement are carefully controlled.

13.3 Waivers and Notices

A waiver of any breach must be in writing to be effective and does not imply a waiver of future breaches. All notices must be in writing, adhering to specified delivery methods, ensuring clear and formal communication.

13.4 Severability and Force Majeure

If any provision is found unenforceable, it affects only that provision's applicability without undermining the Agreement's overall enforceability. Parties are not liable for delays or failures in performance caused by circumstances beyond reasonable control, except financial obligations, recognizing the impact of unforeseeable events while maintaining financial commitments.