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General Terms & Conditions for Customers

A. GENERAL TERMS & CONDITIONS (Part 1)

1. Scope of Application

1.1 These General Terms and Conditions Movilizer Service ("GTC") apply to all agreements between Movilizer GmbH, a German corporation, with its offices at Konrad-Zuse-Ring 30, 68163 Mannheim, ("Movilizer") and its customer ("Customer") setting forth the terms and conditions applicable to the following services and licenses to be provided by Movilizer to Customer according to separate orders to be agreed upon between the Parties:

  • Consulting Services, subject to Consulting Orders (if any) - PART B;
  • Movilizer Public Cloud Service (SaaS), subject to Movilizer Public Cloud Orders (if any); - PART C,
  • Movilizer onPremise Private Cloud Service (SaaS), subject to Movilizer onPremise Private Cloud Orders (if any) - PART D;
  • Movilizer onDemand Private Cloud Service (SaaS), subject to Movilizer onPremise Private Cloud Orders (if any) - PART E;
  • Standard Mobile Apps, subject to Standard Mobile Apps Orders (if any) - PART F;

(the GTC and any specific order collectively "Agreement"). In the event of any conflict between the GTC and any specific order, the specific order shall prevail.


1.2 No other general terms and conditions, including Customer's general terms and conditions (if any), form any part of the Agreements, even if Movilizer has performed an agreement without rejecting such general terms and conditions.

2. Offers, Agreement Conclusion, Notices

2.1 Offers from Movilizer are only binding if agreed in writing. In cases of conflict, the contract terms and details that apply are those in the Movilizer offer or order confirmation.

2.2 Neither the conclusion nor any subsequent change of any agreement is effective unless it is in written form. This also applies to any waiver of the written-form requirement.

2.3 Any notice by the Customer (e.g., termination notice or reminder notice) is only valid in written form.

3. Definitions

The following capitalized terms, and any defined terms in the Agreement, shall apply to the Agreement:

  • Active Mobile Device means a Mobile Device authorized by Customer to use the applicable licensed application which is provided by Movilizer based on the Movilizer Service and actively exchanging data with the Movilizer Cloud within a month (multiple users can share one Active Mobile Device).
  • Affiliate means a corporation, partnership, or other entity, either directly or indirectly controlling or controlled by a Party.
  • API means application programming interface.
  • Customer Data means any data that Customer loads or enters into the Movilizer Service and all results from processing such data, including reply data, compilations and derivative works thereof.
  • Customer Hardware means one or more servers of the Customer on which the Movilizer Software as part of the Movilizer onPremise Private Cloud Service is implemented and executed; such servers are operated by Customer.
  • Documentation means the documentation of the services and/or licenses to be provided by Movilizer to Customer; the documentation will be delivered electronically (e.g., via online download), including (a) a technical description of the services and/or the licenses and (b) instructions to be followed while using the services and/or the licenses.
  • Generally Available means that an upgrade, including an update, a new version and a new release, is released generally to commercial customers; limited beta and pre-release versions are not Generally Available.
  • Intellectual Property means all works, including literary works, pictorial, graphic and sculptural works, architectural works, works of visual art, and any other work that may be the subject matter of copyright protection; advertising and marketing concepts; information; data; formulas; designs; models; drawings; computer programs, including all documentation, related listings, design specifications, and flowcharts; trade secrets; and any inventions, including all processes, machines, manufactures and compositions of matter and any other invention that may be the subject matter of patent protection; and all statutory protection obtained or obtainable thereon.
  • Malicious Code means any cancelbots, back doors, easter eggs, time bombs, trap doors, trojan horses viruses, worms and other harmful or malicious code, files, scripts, agents or programs intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
  • Mobile Device means specific mobile phones, smart phones and personal digital assistants using a SIM card and a mobile phone number.
  • Movilizer Client means a Movilizer owned software package, which is installed by the Customer on the Mobile Devices; such software package is delivered as part of the Movilizer Service.
  • Movilizer Cloud means the Movilizer middleware, consistent of both, the Movilizer Software owned by Movilizer and the hardware, on which the Movilizer Software is installed, providing a mobile gateway accessible through Internet.
  • Movilizer Hardware means one or more servers on which the Movilizer Software as part of the Movilizer Public Cloud Service or the Movilizer onDemand Private Cloud Service is implemented and executed; such servers are operated by Movilizer and/or a third party.
  • Movilizer Order means Movilizer Public Cloud Service Order, Movilizer onPremise Private Cloud Service Order, Movilizer onDemand Private Cloud Service Order and Movilizer Standard Mobile Apps Order.
  • Movilizer Service means all Movilizer Software as a Service (SaaS) services to be provided by Movilizer to Customer, consisting of Movilizer Public Cloud Service, Movilizer onPremise Private Cloud Service and Movilizer onDemand Private Cloud Service.
  • Movilizer Web Service Connector means a Movilizer owned software package, which is installed by Customer in its backend system; such software package is delivered as part of the Movilizer Service, providing an API to execute a call to the Movilizer Cloud in order to send Customer Data to a Mobile Device.
  • Party means Movilizer or Customer; Parties means Movilizer and Customer.
  • Web Service Call means a web service call defined by the Movilizer Web Service Connector, and executed by the Customer and used to send Customer Data to the Movilizer Cloud as well as to collect the reply Customer Data from the Movilizer Cloud.

B. Consulting Services

4. Consulting Services

4.1 The GTC set forth the terms and conditions applicable to the supply of consulting services and of other services related to consulting services, in particular in connection with Mobile Apps and the Movilizer Service, to be provided by Movilizer to Customer ("Consulting Services"), as defined and set forth in separate orders ("Consulting Orders"). Consulting Orders should be agreed upon in accordance with Movilizer Order template.

4.2 Changes to any Consulting Order will be subject to mutual agreement of the Parties ("Consulting Change Order") and should be agreed upon in accordance with Movilizer change order template.

Within 14 days of receiving a written change request from Customer, Movilizer will provide Customer with a written offer based on Movilizer change order template, including, but not limited to a statement of the estimated hours required to complete the change and any price increase or decrease in respect of the Consulting Order that would result from such change (if any). Upon agreement of a Consulting Change Order, Movilizer will proceed in accordance with the agreed change.

 

5. Project Manager / Project Staff

5.1 The Customer will appoint an individual who will serve as the primary contact point for Movilizer in connection with the respective order ("Customer Project Manager"). Movilizer will appoint an individual who will be responsible for managing Movilizer performance of the supply of Consulting Services to be provided by Movilizer and as the primary contact point for Customer ("Movilizer Project Manager").

5.2 As of the Consulting Order effective date, Movilizer may appoint the individuals reasonably required to provide the Consulting Services in accordance with the schedule set forth in the Consulting Order. Movilizer will have complete managerial control over its personnel and contractual control over its subcontractors. In the event, it becomes necessary to remove such personnel for any reason, Movilizer will deliver to Customer notice thereof.

 

6. Acceptance

6.1 Within 14 days (or other such period as may be expressly set forth in a Consulting Order) after delivery by Movilizer to Customer of any completed deliverable, product, material, report or component furnished under the Agreement ("Work Product"), an authorized representative of the Customer will provide to Movilizer a written acceptance or rejection of such Work Product. Each Work Product will be deemed accepted unless rejected in writing within such period.

6.2 Customer will not unreasonably withhold its acceptance of a Work Product. Any rejection by Customer of a Work Product will state the manner in writing in which the Work Product does not comply in all material respects with the specifications or other standards in the Agreement.

 

7. Fees and Payment

7.1 Unless otherwise agreed in the applicable Consulting Order, Customer will pay to Movilizer fees for time spent and expenses incurred in accordance with the current price lists of Movilizer.

7.2 Movilizer will invoice Customer monthly for time spent and expenses incurred, or as specified in the applicable Consulting Order. Invoices will indicate the number of hours worked by labor classification and detail of expenses incurred, unless otherwise required pursuant to the applicable Consulting Order.

 

8. Intellectual Property

8.1 Movilizer assigns to Customer all worldwide right, title and interest in and to Work Products developed or otherwise created hereunder specifically for Customer and being Customer specific; in respect of all other Work Products developed or otherwise created hereunder, Movilizer grants to Customer and its Affiliates a perpetual, worldwide, non-exclusive license to use the Work Products for their own business purposes. Customer and its Affiliates will be free to make, have made, use, copy, modify, and translate the Work Products, and products incorporating the Work Products. However, the foregoing assignments and grants of rights are limited to the use of the Work Products by the Customer and its Affiliates for their own business purposes, and are not assignable, transferrable, and/or (sub-)licensable to third parties.

8.2 Movilizer will enter into a written agreement with each of its employees and subcontractors prior to their working hereunder through which all rights to Intellectual Property created, made, conceived, reduced to practice or authored within the scope of employment or engagement by Movilizer in the performance of a Consulting Order are owned by Movilizer.

8.3 Movilizer will retain ownership of (i) all Intellectual Property made or owned by Movilizer prior to the effective date of the applicable Consulting Order and (ii) all Intellectual Property developed hereunder, except such Work Products that are specifically developed or otherwise created for Customer hereunder and Customer specific ((i) and (ii) collectively "Movilizer Materials"). Customer acknowledges that Movilizer may use Movilizer Materials in the performance of the Consulting Services and in developing the Work Products, and that the Work Product may contain Movilizer Materials or information incorporating, based upon, or derived from Movilizer Materials. Movilizer will retain ownership of all Movilizer Materials but grants Customer and its Affiliates a perpetual, worldwide, non-exclusive license to use the Movilizer Materials in connection with the Work Products for their own business purposes.

8.4 The Parties will cooperate with each other and execute such other documents as may be necessary or appropriate to achieve the objectives of this section.

 

9. Warranties

9.1 Performance. Movilizer represents and warrants to Customer that:

  • all Consulting Services and the Work Products provided under the Agreement and the applicable Consulting Order will be provided in conformance with the performance criteria and specifications set forth in the applicable Consulting Order, and be performed in a workmanlike and professional manner in accordance with all applicable standards;
  • Movilizer has appropriate experience in the information technology field and such other fields as may be necessary to perform the Consulting Services.

In the event of breach of the foregoing warranties with respect to any Consulting Service and/or Work Product, Movilizer will in a timely manner, repair or replace the affected Work Products, and, if necessary, re-perform the Consulting Services, provided that Movilizer receives a written notice to the breaching providing reasonable documentation to support the conclusion of the event of breach reasonably. If reasonable efforts to timely repair or replace said Work Products or re-perform said Consulting Services are unsuccessful, Customer will have the right to terminate the applicable Consulting Order, provided that Movilizer has not remedied such breach of the foregoing warranties within a reasonable cure period of at least 30 days cure period (it has to be taken into account that solutions might require input of third parties not under control of Movilizer, e.g., problems in operating systems). Customer will, however, pay for Consulting Services performed by Movilizer and for expenses incurred up to the date a notice of termination is received by Movilizer.

9.2 Non-infringement. Movilizer represents and warrants to the best of its knowledge and belief that the Consulting Services and the Work Products, when properly used as contemplated herein and in the applicable Consulting Order, will not infringe or misappropriate any Intellectual Property Rights of third parties. Upon being notified of such a claim, Movilizer shall at its option: (i) defend through litigation or obtain through negotiation the right of Customer to continue using the Consulting Services and the Work Products; and/or (ii) rework the Consulting Services and the Work Products so as to make it non-infringing while preserving the original functionality.

9.3 Unless in the case of intent or gross negligence, of fraudulent concealment of a defect and of personal injury, any claims by the Customer against Movilizer are time barred one year after the Consulting Services and the Work Products were provided to the Customer. The one year period is suspended during the period in which Movilizer is checking the existence or is remedying a defect, until Movilizer informs Customer of the result of its check, gives notice that the remedy is complete, or refuses to remedy the defect.

 

10. Term and Termination

10.1 The term of the Consulting Order will begin on the effective date set forth in the respective Consulting Order and continue until it is terminated as set forth in the respective Consulting Order, or by mutual agreement between the Parties.

10.2 Unless otherwise agreed upon in the respective Consulting Order, the ordinary termination of a Consulting Order is excluded.

10.3 Either Party may, in addition to other relief, terminate a Consulting Order for cause, if the other Party breaches any material provision hereof and fails within 30 days after receipt of notice of default to correct such default or to commence corrective action reasonably acceptable to the aggrieved Party and proceed with due diligence to completion. Either Party may terminate a Consulting Order for cause, if the other party becomes insolvent, makes and/or a petition in bankruptcy is filed with respect to the Party and is not dismissed within 30 days.

10.4 Expiration or termination of one or more Consulting Orders shall not affect any other separate agreement between the Parties.

C. Movilizer Public Cloud Service

11. Movilizer Public Cloud Service (SaaS)

11.1 The GTC set forth the terms and conditions applicable to the supply of Movilizer Public Cloud Service (SaaS), as defined and set forth in separate orders ("Movilizer Public Cloud Orders"). Movilizer Public Cloud Orders should be agreed upon in accordance with the Movilizer Order template. Unless agreed upon otherwise in the Movilizer Public Cloud Order, the Movilizer Public Cloud Service provided to Customer may be used by Customer and its Affiliates only.Trial Period. If expressly agreed upon in the respective Movilizer Public Cloud Order, Customer may use the Movilizer Public Cloud Service during a trial period free of charge for evaluation purposes (productive use being excluded) ("Trial Period"). On expiration of the Trial Period, the Movilizer Public Cloud Service shall be provided continuously in accordance with the terms and conditions agreed upon in the Movilizer Public Cloud Order and the current price lists of Movilizer, unless the respective Movilizer Public Cloud Order is terminated in writing no later than two (2) weeks prior to the expiration of the Trial Period.

11.2 The Movilizer Public Cloud Service is provided by Movilizer to Customer on a "Software as a Service" basis only.Customer and its Affiliates may use the Movilizer Public Cloud Service provided by Movilizer in accordance with the terms and subject to the conditions of the GTC and the Movilizer Public Cloud Order only.

11.3 The Movilizer Public Cloud Service is defined, inter alia, by the following functions:

  • Administrating and monitoring of Active Mobile Devices by Customer.
  • Sending and assigning Business Scenarios to Active Mobile Devices through the Movilizer Public Cloud by Customer.
  • Completing Business Scenarios by Active Mobile Devices and re-sending the completed Business Scenarios to the Movilizer Public Cloud.
  • Receiving Business Scenarios completed by Active Mobile Devices, either by (i) assessing and/or downloading the completed Business Scenarios from the Movilizer Public Cloud through the Movilizer Portal by Customer, or (ii) assessing and/or downloading the completed Business Scenarios from the Movilizer Public Cloud through the Web Service Call defined by the Movilizer Web Service Connector on a high frequency basis by Customer.

11.4 The Movilizer Public Cloud Service is defined, inter alia, by the functional scope of the following components provided by Movilizer:

(a) The Movilizer Client is a frontend client, a software package to be installed by Customer on Active Mobile Devices. Movilizer shall use commercially reasonable efforts to provide the Movilizer Client to Customer.

(b) The Movilizer Public Cloud provides a mobile gateway operated by Movilizer on a multi tenant infrastructure running on Movilizer Hardware and accessible through both, the Movilizer Client and the Movilizer Portal. Movilizer shall use commercially reasonable efforts to make the Movilizer Public Cloud available and accessible 24 hours a day, 7 days a week, except for: (i) scheduled downtime, or (ii) any unavailability caused by circumstances beyond Movilizer direct fault and reasonable control ("Force Majeure"), including without limitation, acts of God, acts of government, strikes, lockouts, riots, war, terrorism or other civil disturbance or unrest, earthquakes, weather, fires, flood, explosions, disruptions of communications and other essential services, labour stoppages or other labour problems (other than those involving Movilizer employees), computer viruses and malicious attacks or Internet service provider failures or delays.

(c) The Movilizer Portal. There are 2 categories of Movilizer service access, as follows:

  • Movilizer Portal, in which case the Movilizer Public Cloud Service is considered as Movilizer standalone services ("Movilizer Standalone Service"); and
  • Customer's Backend Integration, in which case the Movilizer Public Cloud Service is considered as Movilizer integrated services ("Movilizer Integrated Service").

11.5 Movilizer will issue 2 types of User IDs:

  • the Administrative User IDs means an identification issued by Movilizer to the Customer to access the Movilizer Public Cloud through the Movilizer Portal; and
  • the User IDs means an identification issued by Movilizer to the Customer to use the Movilizer Public Cloud Service in connection with Active Mobile Devices. The User ID may be issued automatically by sending an initial request out of Customer's Backend Portal to the Movilizer Public Cloud.

Each User ID will be linked to a defined mobile phone number. New User IDs are issued automatically by sending out Customer Data to an Active Mobile Device for the very first time. The following mapping and 1:1 relation applies: One User ID = One mobile phone number.
The Customer is responsible for all activities occurring under all User IDs issued.

11.6 The current technical features of the Movilizer Public Cloud Service are described in the Fact Sheet Movilizer Technical Features, as amended from time to time by Movilizer. Customer acknowledges that

(a) the Movilizer Public Cloud Service is:

  • neither a hosting service nor a hosted environment for Customer Data;
  • not designed and operated to store Customer Data; it is designed and operated as a mobility gateway only;

(b) the following services are not parts of the Movilizer Public Cloud Service, unless agreed upon otherwise:

  • the data transfer between (i) the Customer's backend system and the Movilizer Public Cloud (if any), and (ii) the Mobile Devices and the Movilizer Public Cloud,
  • any set-up (e.g., installation, implementation and configuration) of the Movilizer Client and/or the Movilizer Web Service Connector.

11.7 Not Fault Tolerant. The Movilizer Public Cloud Service is not fault tolerant and is not designed, manufactured or intended for use in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control, direct life support machines, or weapon systems, in which the failure of the service could lead to death, personal injury or physical or environmental damage. To the extent Customer uses the Movilizer Public Cloud Service in such environment, it expressly assumes all risk therefore.

 

12. Movilizer Standalone Service

12.1 The Movilizer Standalone Service is characterized by the use of the Movilizer Portal, which is accessible through the Internet (www.movilizer.com). Movilizer shall use commercially reasonable efforts to make the Movilizer Portal available and accessible 24 hours a day, 7 days a week, except for: (i) scheduled downtime, or (ii) any unavailability caused by Force Majeure.

12.2 The Movilizer Portal may be used to

  • creating Business Scenarios by using and adapting the available templates;
  • access and/or download reply data completed by Active Mobile Devices (e.g., into Microsoft Excel).

 

13. Movilizer Integrated Service

13.1 The Movilizer Integrated Service is characterized by a connection of the Movilizer Public Cloud to the backend system of the Customer through Web Service by a Web Service Connector, a software package to be installed by Customer in Customer's backend system, unless otherwise agreed upon. The Web Service includes APIs for:

  • Sending and assigning Business Scenarios to the Active Mobile Devices;
  • Receiving Business Scenarios completed by the Active Mobile Devices; and
  • Monitoring the mobile landscape.

13.2 The Web Service Connector will either be provided by Movilizer or created by Customer:

(a) Movilizer Web Service Connectors provided by Movilizer. Customer may download from the Movilizer Portal all of the available connectors (if any) and find the exact documentation for the installation. Each Movilizer Web Service Connector always includes a generic connector that will allow the Customer's system to call the Movilizer Public Cloud and optionally a business connector which contains the Customer's scenario business logic.

(b) Web Service Connectors created by Customer. Customer may create its own connectors by using the documentation on connectors provided by Movilizer through the Movilizer Portal, provided that Customer's backend system is capable of doing Web Service Calls.

 

14. Fees and Payment

Unless otherwise agreed in the applicable Movilizer Order,

(a) Customer will pay the fees incurred in accordance with the current price lists of Movilizer;

(b) fees are payable in advance for 12 months periods.

 

15. Customer's Duties and Obligations

15.1 Customer shall use the Movilizer Public Cloud Service only in accordance with the Documentation and applicable laws and government regulations.

15.2 Customer shall be responsible for Active Mobile Devices' compliance with the Agreement, for the accuracy, quality, integrity and legality of Customer Data, and the transfer of data between (i) the Customer's backend system and the Movilizer Public Cloud (if any), and (ii) the Mobile Devices and the Movilizer Public Cloud.

15.3 Customer shall ensure that Customer Data is in a proper format, as specified by the Documentation of the APIs of the Movilizer Web Service Connector.

15.4 Customer shall use commercially reasonable efforts to prevent any unauthorized access to or use of the Movilizer Public Cloud Service, and notify Movilizer promptly of any such unauthorized access or use.

15.5 Customer shall not (i) use the Movilizer Public Cloud Service to store data, to store or transmit infringing, libellous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights; (ii) use the Movilizer Public Cloud Service to store or transmit Malicious Code; (iii) intentionally interfere with or disrupt the integrity or performance of the Movilizer Public Cloud Service or third party data contained therein, and shall make reasonable efforts to ensure that no other software, data or equipment having an adverse impact on the Movilizer Public Cloud Service has been introduced in its backend systems; or (iv) attempt to gain unauthorized access to the Movilizer Public Cloud Service or to related systems or networks operated by Movilizer.

 

16. Support and SLAs

16.1 Movilizer Support Service. The Movilizer Support Service as provided by Movilizer as part of the Movilizer Public Cloud Service is defined as follows, and the following rights and obligations and responsibilities apply in respect of the Movilizer Support Service:

(a) Support. During the Term, Customer's designated representative shall have access to Movilizer technical support web site.

Unless otherwise agreed upon in the Movilizer Public Cloud Order, further support services (e.g., call-in technical support and/or an on-site support) do not form part of the Movilizer Support Services.

(b) Updates. During the Term, Customer shall receive Generally Available updates (x.x.(x)); updates may include corrections of defects and/or fixes of any minor software bugs (also known as patches) as well as minor new content.

New Versions (Upgrades) and New Releases. Unless otherwise agreed upon explicitly in the Movilizer Public Cloud Order, new versions (upgrades, x.(x).x) and new releases ((x).x.x) for the Movilizer Public Cloud SaaS Service, as designated by Movilizer in its discretion, do not form part of the Movilizer Support Services; new versions and new releases usually provide new software features (e.g., new functionalities).

However, Customer may order new versions and/or new releases in accordance with the current price lists of Movilizer.

Customer may request new functions and features for future versions and releases, but Movilizer has sole discretion on which new functions and features it will implement.

(c) Training Service. During the Term, Customer may attend any available online Movilizer training sessions in the use and operation of the Movilizer Public Cloud SaaS Service. Training sessions will be offered when updates, new versions, and new releases for the Movilizer Public Cloud SaaS Service are Generally Available. Movilizer will also make additional training available for various topic-specific items, as determined by Movilizer in its sole discretion.

16.2 Service Level Agreements. The Parties may also agree upon a service level agreement in respect of the Movilizer Public Cloud Service ("Movilizer Service Level Agreement"). Movilizer Service Level Agreements should be agreed upon in accordance with the Movilizer Order template, and the Movilizer Service Level Agreement attached thereto (if any).

16.3 Movilizer shall not be obligated to provide any Support Service and/or any services and/or to meet any specifications agreed upon in Service Level Agreements if any of the following occurs:

(a) The error was caused by hardware problems with Customer's backend system or any other Customer hardware, any hardware or software problems with the Active Mobile Devices (except software problems with the Movilizer Client, provided that such problems are not caused by changes in its code made by Customer), or any changes made by Customer to Movilizer Web Service Connector software code or to any Movilizer owned software, or due to any communication problems arising from Customer's firewall and/or restrictions on the Mobile Devices.

(b) The error results from an operator error, errors in Customer Data, software not supplied by Movilizer, or use that is not in accordance with the Documentation.

(c) The error is corrected by an upgrade, a new version or release of the Movilizer Web Service Connector or Movilizer Client that Customer has failed to implement, provided Movilizer advised Customer via a notification e-mail that such upgrade, version or release corrected an error.

(d) The error was caused by defects within the service and under the control of the wireless provider and/or any other provider in charge of the data transfer (i) between the Customer's backend system and the Movilizer Public Cloud, and/or (ii) between the Movilizer Public Cloud and a Mobile Device.

 

17. Reservation of Rights and IP Rights

17.1 Reservation of Rights. Movilizer expressly reserves all rights in its Movilizer Public Cloud Service and its other services and software not specifically granted to Customer herein. It is acknowledged that all right, title and interest in Movilizer Public Cloud Service and its other services and software will remain with Movilizer (or third party suppliers, if applicable) and that the Movilizer Public Cloud Service is provided on a "Software as a Service" basis only.

17.2 Rights of Use. Movilizer hereby grants during the Term to Customer and its Affiliates the revocable, worldwide non-exclusive right to use (i) the Movilizer Client and the Web Service Connectors provided by Movilizer for the purpose of using the Movilizer Public Cloud Service, and (ii) the Movilizer Public Cloud Service, in particular the service of the Movilizer Public Cloud. For the avoidance of doubt, Movilizer does not grant to Customer or its Affiliates any rights in and to the Movilizer Hardware and/or the Movilizer Software. The foregoing grant of rights is limited to the use by the Customer and its Affiliates for their own business purposes only, and is not assignable, transferrable, and/or (sub-)licensable to third parties.

 

18. Warranties

18.1 Performance. Movilizer represents and warrants that during the Term it will make commercially reasonable efforts to ensure that

(a) the Movilizer Public Cloud Service will conform and operate substantially in accordance with the Documentation issued by Movilizer; and

(b) the Movilizer Public Cloud Service will be free from defects and any Malicious Code (to the best of its knowledge);

provided, that (i) the Movilizer Public Cloud Service is implemented and operated in accordance with all instructions supplied by Movilizer; (ii) Customer notifies Movilizer in writing of any defect within 10 days after the appearance thereof; (iii) Customer has installed all updates, new versions, and new releases made available by Movilizer with respect to the Movilizer Public Cloud Service, and all updates recommended by Movilizer with respect to any third party software products that may materially affect the performance of the Movilizer Public Cloud Service on the Mobile Device; (iv) Customer has maintained all associated equipment, software and environmental conditions in accordance with applicable specifications and industry standards; (v) Customer has not introduced other equipment or software creating an adverse impact on the Movilizer Public Cloud Service; (vi) Customer has paid all undisputed amounts due hereunder and is not in default of any provision of this Agreement; (vii) any legacy software with respect to which the Movilizer Public Cloud Service is to operate contains clearly defined interfaces and correct integration code, and (viii) Customer has made no changes (nor permitted any changes to be made other than by or with the express approval of Movilizer) to the software delivered by Movilizer.

18.2 Non-infringement. Movilizer represents and warrants to the best of its knowledge and belief that the Movilizer Public Cloud Service, when properly used as contemplated herein and in the applicable Movilizer Public Cloud Order, will not infringe or misappropriate any Intellectual Property Rights. Upon being notified of such a claim, Movilizer shall at its option: (i) defend through litigation or obtain through negotiation the right of Customer to continue using the Movilizer Public Cloud Service; (ii) rework the Movilizer Public Cloud Service so as to make it non-infringing while preserving the original functionality, or (iii) replace the Movilizer Public Cloud Service with functionally equivalent service. If none of the foregoing alternatives provide an adequate remedy, Customer may terminate any applicable Movilizer Public Cloud Order.

18.3 Customer Data. Customer expressly reserves all rights in the Customer Data, and hereby authorizes Movilizer to transfer Customer Data as contemplated herein. Customer represents and warrants that it owns or has all requisite rights to use the Customer Data with the Movilizer Public Cloud Service, and to authorize Movilizer to transfer Customer Data as contemplated herein, and that such use will not infringe or misappropriate any applicable laws and government regulations on data protection.

 

19. Term and Termination

19.1 The term of the Movilizer Public Cloud Order will begin on the effective date set forth in the respective Movilizer Public Cloud Order and continue until it is terminated as set forth in the respective Movilizer Order, or by mutual agreement between the Parties ("Term"). The Parties may agree a minimum initial term and/or minimal automatic renewal terms in the Movilizer Order.

19.2 Either Party is entitled to ordinary terminate a Movilizer Public Cloud Order for convenience with a written notice of 30 days to the end of the Term agreed in the Movilizer Public Cloud Order (if any) or, if no Term is agreed in the Movilizer Order, to the end of each calendar month.

19.3 Either Party may, in addition to other relief, terminate a Movilizer Public Cloud Order for cause, if the other Party breaches any material provision hereof and fails within 60 days after receipt of notice of default to correct such default or to commence corrective action reasonably acceptable to the aggrieved Party and proceed with due diligence to completion. Either Party may terminate a Movilizer Public Cloud Order for cause, if the other party becomes insolvent, makes and/or a petition in bankruptcy is filed with respect to the Party and is not dismissed within 60 days.

19.4 Expiration or termination of one or more Movilizer Public Cloud Orders shall not affect any other separate agreement between the Parties.

19.5 Upon expiration or termination of any Movilizer Public Cloud Order, Movilizer shall make a final backup of any Customer Data, if requested by Customer, and provide the backup media to Customer at current cost of duplication.

D. Movilizer onPremise Private CloudService

20.1 The GTC set forth the terms and conditions applicable to the supply of Movilizer onPremise Private Cloud Service, as defined and set forth in separate orders ("Movilizer onPremise Private Cloud Orders"). Movilizer onPremise Private Cloud Orders should be agreed upon in accordance with the Movilizer Order template.

Unless agreed upon otherwise in the Movilizer onPremise Private Cloud Order, the Movilizer onPremise Private Cloud Service provided to Customer may be used by Customer for its own and its Affiliates' business purposes only.

20.2 Unless otherwise provided in this Part D., the provisions of Part C relating to the Movilizer Public Cloud Service apply also to the Movilizer onPremise Private Cloud Service, except the provisions on the Trial Period.

In this respect, "Movilizer Public Cloud" means "Movilizer onPremise Private Cloud", "Movilizer Public Cloud Service" means "Movilizer onPremise Private Cloud Service" and "Movilizer Public Cloud Order" means "Movilizer onPremise Private Cloud Order".

20.3 Unless agreed upon otherwise in the Movilizer onPremise Private Cloud Order, the Movilizer onPremise Private Cloud Service is defined, inter alia, by the functional scope of the following components provided by Movilizer:

The Movilizer onPremise Private Cloud is a software application providing a mobile gateway operated by Customer on a single or on a multi tenant infrastructure running on Customer Hardware and accessible by Customer through Internet.

20.4 Rights of Use. Movilizer hereby grants during the Term of any applicable Movilizer onPremise Private Cloud Order to Customer and its Affiliates the revocable, worldwide non-exclusive right to use the software packages provided in accordance with the terms and subject to the Movilizer onPremise Private Cloud Order and the GTC. The foregoing grant of rights is limited to the use by the Customer and its Affiliates for their own business purposes, and is not assignable, transferrable, and/or (sub-)licensable to third parties

20.5 Customer shall be responsible for any backend system and any other hardware on which software provided by Movilizer is implemented and/or executed, and any other hardware and software used by Customer, including Active Mobile Devices, except the software provided by Movilizer.

Unless agreed upon otherwise in the Movilizer onPremise Private Cloud Order, any set-up (e.g., installation, implementation and configuration) of any component provided by Movilizer do not form part of the Movilizer onPremise Private Cloud Service.

20.6 The current technical features of the Movilizer onPremise Private Cloud Service are described in the Fact Sheet Movilizer Technical Features, as amended from time to time by Movilizer.

 

E. Movilizer onDemand Private Cloud Service

21.1 The GTC set forth the terms and conditions applicable to the supply of Movilizer onDemand Private Cloud Service, as defined and set forth in separate orders ("Movilizer onDemand Private Cloud Orders"). Movilizer onDemand Private Cloud Orders should be agreed upon in accordance with the Movilizer Order template.

Unless agreed upon otherwise in the Movilizer onDemand Private Cloud Order, the Movilizer onDemand Private Cloud Service provided to Customer may be used by the Customer and its Affiliates for their own business purposes only.

21.2 Unless otherwise provided in this Part E., the provisions of Part C relating to the Movilizer Public Cloud Service apply also to the Movilizer onDemand Private Cloud Service, except the provisions on the Trial Period.

In this respect, "Movilizer Public Cloud" means "Movilizer onDemand Private Cloud", "Movilizer Public Cloud Service" means "Movilizer onDemand Private Cloud Service" and "Movilizer Public Cloud Order" means "Movilizer onDemand Private Cloud Order".

21.3 Unless agreed upon otherwise in the Movilizer onDemand Private Cloud Order, the Movilizer onDemand Private Cloud Service is defined, inter alia, by the functional scope of the following components provided by Movilizer:

The Movilizer onDemand Private Cloud provides a mobile gateway operated by Movilizer on a multi tenant infrastructure running on Movilizer Hardware dedicated for the Customer and accessible through both, the Movilizer Client and the Movilizer Portal. Movilizer shall use commercially reasonable efforts to make the Movilizer onDemand Private Cloud available and accessible 24 hours a day, 7 days a week, except for: (i) scheduled downtime, or (ii) any unavailability caused by Force Majeure.

 

F. Standard Mobile Apps

22. Standard Mobile Apps

The GTC set forth the terms and conditions applicable to the supply of mobile apps which are offered by Movilizer as Standard Mobile Apps ("Standard Mobile Apps") and to be provided by Movilizer to Customer, as defined and set forth in separate orders ("Standard Mobile Apps Orders"). Standard Mobile Apps Orders should be agreed upon in accordance with the Movilizer Order template.

 

23. Rights of Use

Movilizer hereby grants to Customer and its Affiliates the revocable, worldwide non-exclusive right to use and copy the Standard Mobile Apps in accordance with the terms and subject to the Movilizer Standard Mobile Apps Order and the GTC. Customer and its Affiliates will be free to make, have made, use, copy, modify, and translate the Standard Mobile Apps. The foregoing grant of rights is limited to the use by the Customer and its Affiliates for their own business purposes, and is not assignable, transferrable, and/or (sub-)licensable to third parties

 

24. Warranties

24.1 Performance. Movilizer represents and warrants to Customer that Movilizer will make commercially reasonable efforts to ensure that the Standard Mobile Apps will conform and operate substantially in accordance with the Documentation issued by Movilizer, and be free from defects and any Malicious Code to the best of its knowledge provided, that (i) the Standard Mobile Apps are implemented and operated in accordance with all instructions supplied by Movilizer; (ii) Customer notifies Movilizer in writing of any defect within 10 days after the appearance thereof; (iii) Customer has installed all updates, new versions, and new releases made available by Movilizer with respect to the Standard Mobile Apps, and all updates recommended by Movilizer with respect to any third party software products that may materially affect the performance of the Movilizer Service on the Mobile Device; (iv) Customer has maintained all associated equipment, software and environmental conditions in accordance with applicable specifications and industry standards; (v) Customer has not introduced other equipment or software creating an adverse impact on the Standard Mobile Apps; (vi) Customer has paid all undisputed amounts due hereunder and is not in default of any provision of this Agreement; and (vii) Customer has made no changes (nor permitted any changes to be made other than by or with the express approval of Movilizer) to the software delivered by Movilizer.

In the event of breach of the foregoing warranties with respect to any Standard Mobile App, Movilizer will in a timely manner, repair or replace the affected Standard Mobile Apps, and, if necessary, re-develop and re-supply the Standard Mobile Apps, provided that Movilizer receives a written notice to the breaching providing reasonable documentation to support the conclusion of the event of breach reasonably.

24.2 Section 9.2 (Non-infringement) and 9.3 (Time bar) apply mutatis mutandis.

G. GENERAL TERMS AND CONDITIONS (part 2)

25. Relationship of the Parties

Movilizer will be an independent contractor, and not an agent, representative or joint venture partner of Customer. Nothing in this Agreement will be deemed or construed to create a joint venture, partnership, fiduciary, or agency relationship between the Parties for any purposes. The partners, employees, officers and agents of one Party, in the performance of this Agreement, will act only in the capacity of representatives of that Party and not as employees, officers or agents of the other Party and will not be deemed for any purpose to be employees of the other. Neither Party will commit, nor be authorized to commit or bind, the other Party in any manner.

 

26. Reservation of Modification and Subcontractors

26.1 Movilizer hereby reserves the right to modify the products and services agreed upon or deviate from them on the basis of technical reasons only, provided that the products and/or the services will meet all service level agreed upon; if the agreement of the modification or deviation can reasonably not be expected of the Customer taking its interests into account, the Customer is entitled to termination by written notice to the effective date of the modification or deviation.

26.2 Movilizer reserves the right to use third parties (e.g., subcontractors) for the providing of any product or service to be provided under any Agreement, and Customer hereby consents to such use.

 

27. Fees and Payment

27.1 All fees agreed upon, and all fees listed in the price lists of Movilizer are quoted and shall be paid in Euros, and are understood to be fees without applicable taxes (net fees). Customer undertakes to pay any applicable taxes, in particular all applicable statutory value-added taxes.

27.2 Invoices are payable net by Customer within 14 days after receipt of invoice by Customer, unless otherwise agreed in the Movilizer Order.

27.3 Customer may not withhold or "setoff" any undisputed amounts due hereunder. Movilizer reserves the right and is entitled to refuse its part of the delivery of any products and/or the performance of any services under any Agreement, until the Customer renders payment in accordance with this Agreement, unless Movilizer is obliged to perform in advance.

 

28. Liability

28.1 Movilizer is liable for damages from injury to life, limb or health or for damages from such injuries from a legal representative or vicarious agent of Movilizer.

28.2 Movilizer is liable for other damages which are due to willful or grossly negligent breach of duty of Movilizer or willful or grossly negligent breach of duty of a legal representative or vicarious agent of Movilizer, or which are caused by the lack of guaranteed product or service qualities.

28.3 If there is a violation of basic contractual duties, Movilizer is liable, as long as it is not a case as defined in Section 28.1 or 28.2, to the damages typically foreseeable. However, the said liability is limited to a maximum of EUR 150,000 per occurrence and limited to an aggregate annual limit of EUR 300,000.

28.4 Any further liability for damages is excluded. Liability pursuant to the German Product Liability Act shall remain unaffected.

28.5 Customer is responsible for ensuring the routine backup of its data. If there is a loss of data caused through the fault of Movilizer, Movilizer is, provided that a case as defined in Section 28.1, 28.2, 28.3 or 28.4 is given, consequently liable only for the cost of replicating the data from the backup copies which are to be created by the Customer, and for restoring the data which also would have been lost in a properly conducted data backup procedure.

28.6 Movilizer is not liable for consequential damages, as long as it is not a case as defined Section 28.1 or 28.2.

28.7 For all claims against Movilizer in contract, tort, or otherwise for loss or wasted anticipatory expenditure the time bar comes into effect after a period of one year. This does not apply to liability for intent or gross negligence, liability for personal injury, or liability under the German Product Liability Act. Sec. 199 (1) of the German Civil Code applies.

The foregoing provisions in this section notwithstanding, the time bar comes into effect not later than 5 years after the claim arises. The provisions in this section do not affect any other time bars in the Agreement, in particular for claims arising out of defects.

 

29. Confidential Information

During the performance of the Agreement, each Party may be given access to information (in any form) that relates to the other's past, present, and future research, development, business activities, products, services, software (in both source code and object code form), and technical knowledge, or business or financial information which is the property of the disclosing party and which is identified by the discloser as confidential, or which is reasonably identifiable as confidential ("Confidential Information").

During the term of this Agreement, and for a period of 5 years thereafter, the following applies in respect of Confidential Information:

29.1 Use. A Party may use or make copies of the Confidential Information of the other Party only to the extent reasonably necessary for purposes of this Agreement, in particular for the purpose of fulfilling its obligations under the Agreement, or for the Parties' discussions regarding potential products or services to be provided under the Agreement.

29.2 Protection. Each Party will protect the confidentiality of the Confidential Information of the other in the same manner that it protects the confidentiality of its own similar confidential information, but in no event using less than a reasonable industry standard of care. Each Party will restrict access to the Confidential Information to those of its personnel and subcontractors (including personnel of such subcontractors) engaged in the performance, management, receipt or use of the products and services provided under the Agreement, provided that such personnel and subcontractors are bound by obligations of confidentiality substantially similar to the terms of the Agreement.

29.3 Return. During the term of any Agreement, each Party will return or destroy the other Party's Confidential Information in its possession upon request by the other Party, unless otherwise allowed to retain such Confidential Information. Upon the termination of the Agreement, each Party will upon request by the other Party promptly return or destroy the other Party's Confidential Information. Each Party may retain copies of the other Party's Confidential Information required for compliance with its recordkeeping, or quality assurance requirements (subject to the terms of the Agreement).

29.4 Exceptions. Nothing in the Agreement will prohibit or limit a Party's use of information (including, but not limited to, ideas, concepts, know-how, techniques, and methodologies) (a) previously known to it without an obligation not to disclose such information, (b) independently developed by or for it without use of the information, (c) acquired by it from a third party which is not, to the receiver's knowledge, under an obligation not to disclose such information, or (d) which is or becomes publicly available through no breach of the Agreement.

29.5 Compelled Disclosure. If the receiver receives a validly issued administrative or judicial process requesting Confidential Information of the other Party, it will promptly notify the other Party of such receipt and tender to the other Party the defense of such process. If requested by the other Party, the receiver will reasonably cooperate (at the expense of the other Party) in opposing such process. Unless the process is timely limited, quashed or extended, the receiver will then be entitled to comply with such request to the extent permitted by law.

 

30. Data Protection

30.1 Roles. In relation to the personal data which is defined as personal data under the relevant laws relating to data protection, transborder data flow and data privacy (collectively "Privacy Laws") (i) Customer shall at all times act as and maintain the role of the owner and/or controller of such data, and (ii) Movilizer shall at all times act as and maintain the role of the provider of data transfer, and shall only transfer such personal data as instructed in writing by Customer and in accordance with the terms of the Agreement. Nothing in the Agreement shall restrict or limit in any way Customer's rights or obligations as owner and/or controller of the personal data or be deemed as an assignment of such rights and obligations to Movilizer; nor shall anything in the Agreement restrict or limit in any way Movilizer rights or obligations as provider of data transfer or its obligations to comply with all of Customer's instructions as to the transfer of personal data.

30.2 Written Agreement. For purposes of the relevant Privacy Laws, the Agreement (including any specific order) are the written agreements relating to the transfer of personal data by Movilizer.

30.3 Instructions. The Agreement (including any specific order) constitutes the written instructions by Customer as of the applicable effective date for Movilizer transfer of the personal data. Such instructions may be modified and/or supplemented from time to time by written agreement of Customer and Movilizer.

30.4 Compliance. Customer and Movilizer as controller and transfer provider, respectively, of any personal data shall duly observe all of their respective obligations under the relevant Privacy Laws. Customer and Movilizer shall make or obtain and maintain throughout the term of the Agreement all necessary registrations or filings and notifications which Customer or Movilizer, as the case may be, is obliged to obtain and maintain pursuant to the relevant Privacy Laws in respect of the services or other activities contemplated to be undertaken under or in connection with the Agreement. Movilizer will, during the term of the Agreement, as part of the services, comply with Customer's written instructions regarding the transfer of personal data and, in so transferring the personal data, engage in activities and operations and maintain safeguarding and confidentiality measures (collectively the "Actions") which comply with Privacy Laws.

30.5 Changes. The requirements by either Customer or Movilizer relating to any changes of the written processing instructions or the Actions shall be subject to the change control procedures to be agreed between the Parties. If such a change requirement is generated by a modification in the Privacy Laws and is required for ongoing compliance with such Privacy Laws, then Customer will have the right to require the implementation of the requested change even if the change control procedures have not yet been followed through to completion. In such event, Customer agrees to pay the reasonable fees charged by Movilizer in consideration for the change.

 

31. Miscellaneous

31.1 Entire Agreement. All orders form integral part of the Agreement. The Agreement, and any applicable order and any other document, which are referred to and incorporated by reference, is the complete understanding of the Parties in respect of and set forth the entire understanding between the Parties with respect to the subject matter of the Agreement and the applicable order, and supersedes all prior agreements, conditions, warranties, representations, arrangements and communications, whether oral or written. Each Party acknowledges that it is entering into the Agreement solely on the basis of the agreements and representations contained herein and the applicable order, and that it has not relied upon any representations, warranties, promises, or inducements of any kind, whether oral or written, and from any source, other than those that are expressly contained within the Agreement and any applicable order.

31.2 Assignment. Neither the Agreement nor any order can be assigned in whole or in part by Movilizer or Customer without the prior written consent of the other Party. Any purported assignment without such prior written consent will be wholly void and without effect. Approval of any requested assignment will not be unreasonably withheld.

31.3 Unless otherwise agreed in writing, all services and products to be provided by Movilizer for Customer during the term of the Agreement will be governed by the Agreement. In the event of any conflict between the Agreement and an order, the order shall prevail and control.

31.4 Neither Movilizer nor Customer will be liable to the other for any delay or failure to perform any of the services set forth in the Agreement or any applicable order due to causes beyond its reasonable control, except non-payment of amounts due hereunder shall not be excused by this provision. If a delay or failure occurs longer than 30 days, Customer has the right to terminate the affected service upon written notice to Movilizer without any termination liability or penalties. Customer will, however, pay for services performed by Movilizer and reimbursement for expenses incurred.

31.5 Unless otherwise agreed in writing, the duties, obligations, rights and remedies under the Agreement and any applicable order are in addition to and not in limitation of those otherwise imposed or available by law.

31.6 Neither the Agreement nor any order may be modified or amended except by the mutual written agreement of the Parties signed by an authorized representative of each of the Parties.

31.7 No waiver of any provision of the Agreement will be effective unless it is in writing and signed by the Party against which it is sought to be enforced. The delay or failure by either Party to exercise or enforce any of its rights under the Agreement or any applicable order is not a waiver of that Party's right to later enforce those rights, nor will any single or partial exercise of any such right preclude any other or further exercise of these rights or any other right.

31.8 If a court of competent jurisdiction or arbitral panel finds any term or provision of these GTC and/or the Agreement to be invalid, illegal or otherwise unenforceable, such term or provision will not affect the other terms or provisions of the Agreement. Such term or provision will be deemed modified to the extent necessary, in the court's or panel's opinion, to render such term or provision enforceable while preserving to the fullest extent permissible, the intent and agreements of the Parties. Upon such modification, the rights and obligations of the Parties will be construed and enforced in accordance with such modification.

31.9 All questions arising under or in connection with the Agreement will be exclusively governed and determined by the laws of Germany, without giving effect to its conflict of law rules and principles. The Parties expressly agree to exclude the application of the U.N. Convention on Contracts for the International Sale of Goods (1980) to the Agreement.

31.10 If the Customer is a business person in the meaning of the German Commercial Code, or a public-law body corporate or special fund, the sole place of jurisdiction for all differences arising out of or in connection with this Agreement is Mannheim, Germany.

31.11 The Customer agrees to be listed on the website and otherwise Movilizer marketing collaterals as a reference. The use of the official logo, the company name, a short description of the project is permitted here.

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