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General Terms & Conditions for Movilizer Service

A. GENERAL TERMS & CONDITIONS

  1. Scope of Application

    1. These General Terms and Conditions for Movilizer Service Part A ("GTC - PART A") apply to all agreements between Movilizer GmbH, a German corporation with its offices at Eastsite VIII Konrad-Zuse-Ring 30, 68163 Mannheim, Germany ("Movilizer") and its customer ("Customer") and set 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:

      • Movilizer Public Cloud Service (SaaS), subject to Movilizer Public Cloud Orders – PART B;
      • Movilizer onDemand Private Cloud Service (SaaS), subject to Movilizer onDemand Private Cloud Orders – PART C; and
      • Standard Mobile Apps, subject to Standard Mobile Apps Orders – PART D.

      Appendix 1 "Movilizer Service Level Agreement (Standard)", Appendix 2 "Evaluation Agreement (Software)" Appendix 3 "Movilizer End User License Agreement" and additional terms specific to each of the foregoing services are set forth at the indicated Part.

      GTC PARTS A to D and their Appendices 1 to 3 are collectively referred to herein as "GTC".

      Movilizer may provide to Customer consulting services such as implementation, configuration, custom development and training services as described in Movilizer consulting order form. The provision of these consulting services by Movilizer to Customer are governed by the GTC – Part A as supplemented by Movilizer Consutling Services Supplemental Terms and Conditions.

      The GTC - PART A, these Appendices, such additional terms, Movilizer Consutling Services Supplemental Terms and Conditions and any specific order agreed upon by the Parties are collectively referred to herein as the "Agreement." Except as expressly set forth herein, in the event of any conflict between the GTC - PART A, the additional terms, Movilizer Consutling Services Supplemental Terms and Conditions and the terms of any specific order, the specific order shall prevail.

    2. No other general terms and conditions, including Customer’s general terms and conditions (if any), form any part of the Agreement, even if Movilizer has performed services or provided products without expressly rejecting such general terms and conditions.

  2. Requirement of a Writing

    1. Offers from Movilizer are binding upon Movilizer only if agreed upon by the Parties in writing. In cases of conflict between terms provided by Customer and terms provided by Movilizer, the contract terms and conditions that apply are those in the Movilizer offer or order confirmation.

    2. No agreement or any subsequent change thereto is effective unless it is in written form. This also applies to any waiver of the written-form requirement.

    3. Any notice by Customer permitted under this Agreement (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 licensed application which is provided by Movilizer based on the Movilizer Service and actively exchanging data with the Movilizer Cloud. Multiple users can share one Active Mobile Device.
    • Affiliate means any legal entity that controls, is controlled by, or is under common ultimate or direct control with, another legal entity. An entity is deemed to "control" another if it owns directly or indirectly a sufficient voting interest to elect a majority of the directors or managing authority or to otherwise direct the affairs or management of the other entity.
    • API means application programming interface.
    • Authorized User means any individual to whom Customer grants access credentials through administrative user ID’s and user ID’s to use the Movilizer Service and that is an employee, agent, contractor or representative of Customer or Customer’s Affiliates.
    • Business Scenarios means a set of screens and business logic defined through the development capabilities offered as part of the Movilizer Service.
    • Customer Data means, other than Resultant Data, any data that Customer loads or enters into the Movilizer Service and data derived from Customer’s use of the Movilizer Service, including reply data and compilations.
    • Customer Hardware means one or more servers of Customer on which the Movilizer Supplied Software as part of the Movilizer Service is implemented and executed; such servers are operated by Customer.
    • Cybersecurity Event means the violation of an explicit or implied security policy. In general, types of activity that are commonly recognized as being in violation of a typical security policy include but are not limited to (i) attempts (either failed or successful) to gain unauthorized access to a system or its data, including personal identifiable information related incidents, (ii) unwanted disruption or denial of service, (iii) the unauthorized use of a system for processing or storing data, (iv)changes to system hardware, firmware, or software characteristics without the owner's knowledge, instruction, or consent.
    • Documentation means the documentation of the services or licenses to be provided by Movilizer to Customer; the documentation will be delivered electronically (e.g., via online download) and includes (a) a technical description of the services or the licenses and (b) instructions to be followed while using the services or the licenses.
    • Feedback means any suggestions, ideas, improvements, modifications, error identifications or other information related to the Movilizer Service or any Movilizer Materials provided by Customer or any user of the Movilizer Service, but excludes Customer Data.
    • Generally Available means that an upgrade, including an update, a new version or 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; 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 installed by Customer on the Mobile Devices; such software package is delivered as part of the Movilizer Service.
    • Movilizer Cloud means the Movilizer middleware consisting of both the Movilizer Software owned by Movilizer and the hardware on which the Movilizer Software is installed, providing a mobile gateway accessible through the internet.
    • Movilizer Hardware means one or more servers on which the Movilizer Service 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 or a third party.
    • Movilizer Materials means Movilizer Software, Documentation, the Movilizer Cloud, Feedback, and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Movilizer or its subcontractor(s) in connection with the Movilizer Service or that otherwise comprise or relate to the Movilizer Service. For the avoidance of doubt, Movilizer Materials include Resultant Data and Movilizer Hardware, but do not include Customer Data and Customer Hardware.
    • Movilizer Order means a Movilizer Consulting Order, a Movilizer Public Cloud Service Order, Movilizer onDemand Private Cloud Service Order or a 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 or Movilizer onDemand Private Cloud Service.
    • Movilizer Service Software means any Movilizer and third-party software, and all new versions, updates, revisions, and modifications of the foregoing, that Movilizer provides remote access to and use of as part of the Movilizer Service.
    • Movilizer Software means the Movilizer Service Software and Movilizer Supplied Software.
    • Movilizer Supplied Software means any software supplied by Movilizer, installed on the Mobile Device or on one or more servers operated by Customer and licensed to Customer pursuant to the Agreement including without limitation, Movilizer Client, Movilizer WebService Connector and Movilizer Standard Mobile Apps as applicable and all new versions, updates, revisions, and modifications thereof, if any.
    • Movilizer Support Service means the support service provided by Movilizer as defined in Part C, Section 6.
    • Movilizer WebService Connector means a Movilizer-owned software package that 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 an Active Mobile Device.
    • Party means Movilizer or Customer; Parties means Movilizer and Customer.
    • Resultant Data means information, data and other content that is derived by or through the Movilizer Service from processing Customer Data and that is sufficiently different from such Customer Data that such Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further processing of such information, data or content.
    • Third Party Materials means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Movilizer Service or Movilizer Software that are not proprietary to Movilizer.
    • WebService Call means a web service call defined by the Movilizer WebService Connector and executed by Customer and used to send Customer Data to the Movilizer Cloud as well as to collect the reply Customer Data from the Movilizer Cloud.

  4. 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.

  5. Reservation of Modification and Subcontractors

    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 the services will continue to meet all service levels agreed upon. If Customer objects to the modification or deviation and such objection is reasonable, taking Customer’s interests into account, Customer may terminate the affected product or service by written notice effective as of the date of the modification or deviation.

    2. Movilizer reserves the right to use third parties for the provision of any product or service to be provided under any Agreement, and Customer hereby consents to such use (each, a "Subcontractor").

  6. Fees and Payment

    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.

    2. Unless otherwise agreed in the Movilizer Order, payment is due 14 calendar days from the date of invoice. Payments must be made in Euros unless agreed otherwise in writing and must be accompanied by remittance detail containing at a minimum the invoice number and amount paid per invoice. Payments must be in accordance with the "Remit To" field on each invoice. If Customer is delinquent in payment to Movilizer, Movilizer may at its option: (a) withhold performance until all delinquent amounts and interest due, if any, are paid; (b) repossess products or software for which payment has not been made; (c) charge interest on delinquent amounts at the lower of 1.5% per month or the maximum rate permitted by law, for each full or partial month; (d) recover all costs of collection, including but not limited to reasonable attorneys‘ fees; or (e) combine any of the above rights and remedies as may be permitted by applicable law. These remedies are in addition to those available at law or in equity. Movilizer may re-evaluate Customer‘s credit standing at any time and modify or withdraw credit.

    3. Movilizer’s pricing excludes all taxes (including but not limited to sales, use, excise, value-added, and other similar taxes except German taxes based on Seller’s net income), duties and charges (collectively, "Taxes"). Customer will pay all Taxes resulting from this Agreement or Movilizer’s performance under this Agreement, whether imposed, levied, collected, withheld, or assessed now or later. If Movilizer is required to impose, levy, collect, withhold, or assess any Taxes on any transaction under this Agreement, then in addition to the purchase price, Movilizer will invoice Customer for such Taxes unless at the time of order placement Customer furnishes Movilizer with an exemption certificate or other documentation sufficient to verify exemption from the Taxes. If any Taxes are required to be withheld from amounts paid or payable to Movilizer under this Agreement, (a) such withholding amount will not be deducted from the amounts due Movilizer as originally priced, (b) Customer will pay the Taxes on behalf of Movilizer to the relevant taxing authority in accordance with applicable law, and (c) Customer will forward to Movilizer, within 60 days of payment, proof of Taxes paid sufficient to establish the withholding amount and the recipient. In no event will Movilizer be liable for Taxes paid or payable by Customer. This clause will survive expiration or any termination of this Agreement.

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

  7. Indemnity

    For the purposes of this Section 7, ‘Losses’ means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

    1. Movilizer

      Movilizer will indemnify or defend any lawsuit against Customer to the extent based on a claim by a third party (other than an Affiliate of Customer) that Customer’s or an Authorized User’s use of the Movilizer Service or Movilizer Materials (excluding Movilizer Supplied Software, Customer Data and Third Party Materials) in compliance with this Agreement (including the Documentation) directly infringes a patent or copyright valid in the United States or in the European Union to the extent based on the Movilizer Service and Movilizer Materials as delivered by Movilizer, and pay the amount of any final judgment against Customer resulting from such lawsuit which is attributable to the claim, provided Customer notifies Movilizer of the claim and cooperates with Movilizer as required by Section 7.3 below. Movilizer shall not be liable to indemnify Customer for payment of any damages or costs in any settlement unless Movilizer has consented to such settlement beforehand in writing. Should Movilizer exercise its right to defend the claim, Movilizer and Customer agree that Movilizer shall not be liable for any defense costs, including attorneys’ fees or other costs incurred in the lawsuit after Movilizer exercises its right. The foregoing obligation does not apply to any lawsuit, claim, proceeding, or Losses arising out of or relating to any:

      1. access to or use of the Movilizer Service or Movilizer Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in writing by Movilizer;
      2. designs, drawings, requirements or specifications provided by the Customer or any Authorized User or at their direction;
      3. customization, alteration, or modification of the Movilizer Service or Movilizer Materials other than: (i) by Movilizer or a party authorized in writing by Movilizer; or (ii) with Movilizer’s written approval in accordance with Movilizer’s written specification;
      4. the use of other than the latest version of the Movilizer Service or Movilizer Materials;
      5. failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by Movilizer;
      6. use of the Movilizer Service or Movilizer Materials beyond their normal, ordinary, and customary usage; or
      7. act, omission or other matter described in Section 7.2 (a); Section 7.2 (b), Section 7.2 (c) or Section 7.2 (d), whether or not the same results in any claim against or Losses by any Movilizer Indemnitee, as defined therein.

      Any liability of Movilizer under this provision is subject to the limitations of liability set forth in Section 8.

    2. Customer

      Customer willl indemnify, defend and hold harmless Movilizer and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a "Movilizer Indemnitee") from and against any and all Losses incurred by such Movilizer Indemnitee in connection with any claim, lawsuit, or proceeding by a third party (other than an Affiliate of a Movilizer Indemnitee) arising out of or relating to any:

      1. Customer Data, including any Processing (as defined in Section 10.1) of Customer Data by or on behalf of Movilizer or any Subcontractor in accordance with this Agreement;
      2. other materials or information (including any documents, data, designs, specifications, requirements, software, content or technology) provided by or on behalf of Customer or any Authorized User, including Movilizer’s compliance with any requirements, specifications or directions provided by or on behalf of Customer or any Authorized User;
      3. allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants or obligations under this Agreement;
      4. negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User; or
      5. alleged or actual infringement resulting or arising from the occurrence of any event described in Section 7.1 (a) through (f) as a result of actions by Customer or any Authorized User or at the direction of either.

    3. Indemnification Procedure

      Each Party shall promptly notify and send copies of any notice or communication to the other Party in writing of any claim for which such Party believes it is entitled to be indemnified pursuant to Section 7.1 or Section 7.2. The Party seeking indemnification (the "Indemnitee") shall cooperate with the other Party (the "Indemnitor") at the Indemnitor’s sole cost and expense and Indemnitee shall promptly furnish records and information reasonably requested by the Indemnitor. The Indemnitor shall promptly take control of the defense and investigation of such lawsuit and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 7.3 will not relieve the Indemnitor of its obligations under this Section 7 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

    4. Mitigation

      If any of the Movilizer Service or Movilizer Materials are, or in Movilizer’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property rights, or if Customer’s or any Authorized User’s use of the Movilizer Service or Movilizer Materials is enjoined or threatened to be enjoined, Movilizer may, at its option and sole cost and expense:

      1. obtain the right for Customer to continue to use the Movilizer Service and Movilizer Materials materially as contemplated by this Agreement;
      2. modify or replace the Movilizer Service and Movilizer Materials, in whole or in part, to seek to make the Movilizer Service and Movilizer Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Movilizer Service and Movilizer Materials, as applicable, under this Agreement; or
      3. by written notice to Customer, terminate this Agreement with respect to all or part of the Movilizer Service and Movilizer Materials, and require Customer to immediately cease any use of the Movilizer Service and Movilizer Materials or any specified part or feature thereof; subject to Customer’s compliance with its post-termination obligations set forth herein, Customer will be entitled to a refund of any and all unused, pre-paid fees.

      THIS SECTION 7 SETS FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AND RECOURSE AND MOVILIZER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE MOVILIZER SERVICE AND MOVILIZER MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT. CUSTOMER hereby waives, releases, and renounces all other indemnities, obligations, and liabilities of MOVILIZER and all other rights, claims and remedies of CUSTOMER OR ANY AUTHORIZED USER against MOVILIZER, express or implied, arising by law or otherwise, with respect to any actual or alleged patent, copyright OR OTHER INTELLECTUAL PROPERTY infringement by any MOVILIZER SERVICE, MOVILIZER MATERIALS, Products, MATERIALS, TRAINING, SERVICES, OR OTHER THING PROVIDED UNDER THIS AGREEMENT. MOVILIZER MAKES NO RESPRESENTATIONS OR WARRANTIES AGAINST INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, EVEN IF MOVILIZER HAS BEEN MADE AWARE OF SUCH INFRINGEMENT. ALL WARRANTIES AGAINST INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, STATUTORY, EXPRESS OR IMPLIED ARE HEREBY DISCLAIMED. EXCEPT AS PROVIDED IN SECTION 7.1, MOVILIZER SHALL NOT BE LIABLE FOR ANY CLAIMS RELATING TO ANY ACTUAL OR ALLEGED PATENT, COPYRIGHT OR OTHER INTELLECTUAL PROPERTY INFRINGEMENT RELATING TO THE MOVILIZER SERVICE, MOVILIZER MATERIALS OR THIS AGREEMENT.

  8. Liability

    1. IN NO EVENT WILL MOVILIZER BE LIABLE FOR CORRUPTION OF DATA, LOST PROFITS, LOST SAVINGS, INTERRUPTION IN USE OR AVAILABILITY OF DATA OR OTHER WORK, LOSS OF REVENUE, LOSS OF USE OR OTHER, SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND, EVEN IF MOVILIZER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

    2. IN NO EVENT WILL MOVILIZER’S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND PROVISION OF MOVILIZER SERVICES AND MATERIALS AND CONSULTANCY SERVICES HEREUNDER EXCEED THE LESSER OF THE FEES PAID BY CUSTOMER TO MOVILIZER IN THE 12 MONTHS PRIOR TO THE CLAIM GIVING RISE TO LIABILITY OR USD 300,000.

    3. THE LIMITATIONS OF LIABILITY SET OUT IN subsections 8.1 AND 8.2 above WILL APPLY REGARDLESS OF WHETHER LIABILITY ARISES FROM BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), BY OPERATION OF LAW, OR OTHERWISE and notwithstanding anything to the contrary otherwise set out in the agreement. FOR THE AVOIDANCE OF DOUBT, MOVILIZER DOES NOT SEEK HEREUNDER TO EXCLUDE OR RESTRICT ITS LIABILITY IN RELATION TO (I) FRAUD, (II) DEATH OR PERSONAL INJURY DIRECTLY RESULTING FROM ITS NEGLIGENCE OR (III) ANY MATTER IN RESPECT OF WHICH, BY LAW, IT IS NOT PERMITTED TO RESTRICT ITS LIABILITY.

  9. Confidential Information

    During the performance of this 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 or any Movilizer Order, and for a period of 5 years thereafter, the following applies in respect of Confidential Information:

    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.

    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 this Agreement, provided that such personnel and subcontractors are bound by obligations of confidentiality substantially similar to the terms of this Agreement.

    3. Return. During the term of this Agreement or any Movilizer Order, 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 this Agreement or any Movilizer Order, 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).

    4. Exceptions. Nothing in this Agreement will prohibit or limit a Party’s use of Confidential 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 Confidential Information, (b) independently developed by or for it without use of the Confidential Information, (c) acquired by it from a third party which is not, to the receiver’s knowledge, under an obligation not to disclose such Confidential Information, or (d) which is or becomes publicly available through no breach of the Agreement.

    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.

  10. Data Protection

    1. Definitions. For the purposes of this Section 10, the following terms shall be defined as follows:

      1. "Personal Data" means any information relating or unique to an identified or identifiable natural person, or which can be used to identify a particular person. An identifiable person is one who can be, or is capable of being, identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity. For the purposes of this Agreement, the definition of "Personal Data" shall be limited to data that is Processed by Movilizer on behalf of Customer.

      2. "Processing" shall mean any operation or set of operations performed on Personal Data manually or automatically, such as collection, recording, organization, storage, adaptation or alteration, retrieval, access, consultation, use, acquisition, transfer, hosting (via server, web, cloud or otherwise), disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.

      3. "Security Breach" means any event involving a compromise of the confidentiality of Personal Data or the systems or databases on which the Personal Data is processed. It includes any unauthorized access, use, theft or loss of Personal Data.

    2. The Parties agree that (i) Movilizer shall be the data processor for the purposes of Processing Personal Data pursuant to this Agreement; and (ii) Customer shall be the data controller. If Movilizer uses third-party vendors to perform Movilizer Services, those third-party vendors shall be sub-processors and shall be obligated by terms substantively similar to the terms in this Section 10. Customer acknowledges and agrees Movilizer to use any sub-processors at risk and responsibility of Movilizer and provided the any transfer outside of the EU will be provided once EU standard contractual clauses are executed.

    3. Movilizer shall only Process Personal Data as instructed by Customer and in accordance with the terms of this Agreement. This Agreement ( including any specific order) constitutes the written instructions by Customer as of the applicable effective date for Movilizer’s Processing of the Personal Data. Such instructions may be modified or supplemented from time to time by written agreement of Customer and Movilizer.

    4. Movilizer shall: (a) implement appropriate technical and organizational security measures to protect and transfer Personal Data, including but not limited to situations where Personal Data may leave the country where it was collected for storage or processing in a country that offers less legal protection than the country in which the data was collected; (b) permit employees and third parties to Process Personal Data only for purposes directly related to performance of the Movilizer Services under this Agreement (including any specific order) or subsequent written instructions from Customer; (c) return or destroy, at Movilizer’s sole discretion, all Personal Data at the earlier of the conclusion of the Agreement or such time when the Personal Data is no longer needed; and (d) promptly notify Customer about any Security Breach, any request for disclosure of Personal Data by a law enforcement agency (unless otherwise prohibited) or any requests received from individuals to whom Personal Data relates, without responding to any such request unless Movilizer has been otherwise authorized to do so by Customer.

    5. Customer and Movilizer as data controller and data processor, respectively, of any Personal Data shall duly observe all of their respective obligations under all laws and regulations applicable to their respective Processing of Personal Data. Movilizer and Customer agree to enter into any additional agreements that may be necessary in order to comply with applicable laws and regulations, including but not limited to agreements to allow for the transfer of Personal Data outside of the country in which it was collected.

    6. The requirements by either Customer or Movilizer relating to any changes of the written Processing instructions shall be subject to the change control procedures to be agreed between the Parties. If such a change requirement is generated by a modification to applicable data privacy laws and is required for ongoing compliance with such 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.

  11. Intellectual Property

    1. No right, title or interest in Movilizer Intellectual Property will be transferred to Customer under this Agreement, including Intellectual Property which existed prior to or is created independent of the performance of the Agreement.

    2. Movilizer and its suppliers retain all right, title and interest to all Movilizer Materials and/or Movilizer Service, and all modifications and enhancements thereof, and no right, title, or interest in Movilizer Materials and/or Movilizer Service, or any copies thereof, is transferred to Customer. All Movilizer Supplied Software delivered by Movilizer is subject to Movilizer‘s applicable End User Software License Agrement. Movilizer‘s applicable End User Software License Agrement is the one attached hereto as Appendix 3 unless a software license agreement is included or accompany the Mobilizer Supplied Software.

    3. Not withstanding any language to the contrary, whether in these GTC or elsewhere, this Section 11 (Intellectual Property) will prevail over any contrary provision in any specific order or other documents exchanged by the Parties unless such it is agreed in a written contract instrument duly signed by the authorized representative of Movilizer and End Customer Purchasing Affiliate which expressly references Section 11 of these GTC- PART A.

  12. Miscellaneous

    1. Entire Agreement. All Movilizer Orders form an integral part of this Agreement. This Agreement, including any Movilizer Order and any other document which is referred to and incorporated by reference, is the complete understanding of the Parties in respect of and sets forth the entire understanding between the Parties with respect to the subject matter of the Agreement, 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 in the applicable Movilizer 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 Movilizer Order.

    2. Assignment. Neither Party may assign any rights or obligations under this Agreement without the advance written consent of the other Party, which consent will not be unreasonably withheld or delayed, except that Movilizer may assign this Agreement to any of its Affiliates upon written notice to Customer. Any attempt to assign or delegate in violation of this clause will be void.

    3. Customer shall comply with all import, export and re-export control laws and regulations of the United States, Germany and any other country having proper jurisdiction. Customer shall obtain all necessary export licenses in connection with any subsequent export, re-export, transfer and use of all products, technology and software purchased, licensed or received from Movilizer and will retain documentation to support compliance with those laws and regulations. Movilizer will not be liable to Customer for any failure to provide goods, services, transfers or technical data as a result of government actions that impact Movilizer's ability to perform, including: (1) the failure to provide or the cancellation of export or re-export licenses; (2) any subsequent interpretation of applicable import, transfer or export law or regulation after the date of any order or commitment that has a material adverse effect on Movilizer's performance; or (3) delays due to Customer’s failure to follow applicable import, export, transfer, or re-export laws and regulations. Customer shall not sell, transfer, export or re-export any Movilizer goods, services or technical data for use in activities that involve the design, development, production, use or stockpiling of nuclear, chemical or biological weapons or missiles, nor use Movilizer’s goods, services and technical data in any facility which engages in activities relating to such weapons or missiles. In addition, Movilizer’s goods, services or technical data may not be used in connection with any activity involving nuclear fission or fusion, or any use or handling of any nuclear material, until Customer, at no expense to Movilizer, has insurance coverage; indemnities; and waivers of liability, recourse and subrogation acceptable to Movilizer and adequate in Movilizer's opinion to protect Movilizer against any liability.

    4. Force Majeure. 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 Movilizer Order due to causes beyond its reasonable control, except that non-payment of amounts due hereunder shall not be excused by this provision. If a delay or failure persists for 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 provide reimbursement for expenses incurred.

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

    6. Neither this Agreement nor any Movilizer 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.

    7. No waiver of any provision of this 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 this Agreement or any applicable Movilizer 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.

    8. Except as expressly set out in Section 1.8 of Part C, if applicable, and Section 10 above, Customer acknowledges that Movilizer has no obligation to provide any form of cybersecurity or data protection relating to or in connection with the use and operation of the Movilizer Service or the network environment.

    9. Resultant Data may be used by Movilizer for purposes including but not limited to product repairs, diagnostics, research and analytics to improve the functionality of Movilizer’s products or services or to optimize usage, development of products or services or quality control or improvement.

    10. If a court of competent jurisdiction or arbitral panel finds any term or provision of this Agreement to be invalid, illegal or otherwise unenforceable, such term or provision will not affect the other terms or provisions of this 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.

    11. This Agreement shall be governed by English law without giving effect to its internal choice of law principles and application of the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded. The Parties submit to the exclusive jurisdiction of the courts of England. A person who is not a party to this Agreement may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999.

B. MOVILIZER PUBLIC CLOUD SERVICE (SaaS)

    1. The GTC- PART A and this Part B set forth the terms and conditions applicable to the supply of Movilizer Public Cloud Service (SaaS) (“Movilizer Public Cloud Service”), as defined and set forth in separate orders (“Movilizer Public Cloud Orders”). The form of Movilizer Public Cloud Orders shall follow 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 for its own and its Affiliates’ business purposes only.

      Trial Period. If expressly agreed upon in the Movilizer Public Cloud Order, Customer may use the Movilizer Public Cloud Service during a trial period free of charge for evaluation purposes, provided that Customer may not engage in productive use during this period (“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 Movilizer Public Cloud Order is terminated in writing no later than two (2) weeks prior to the expiration of the Trial Period.

      Evaluation of unreleased software or software as a service. Customer may wish to evaluate, and Movilizer may wish to have evaluated, software or software as a service prior to any general release. Any software or software as a service provided or made available to Customer prior to its general release is subject to the terms and conditions of the Evaluation Agreement attached hereto as appendix 2

    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 – PART A, this Part B and the Movilizer Public Cloud Order only.

    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 (as defined in Section 1.4(b)) 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 or downloading the completed Business Scenarios from the Movilizer Public Cloud through the Mobile App Admin Portal by Customer, or (ii) assessing or downloading the completed Business Scenarios from the Movilizer Public Cloud through the WebService Call defined by the Movilizer WebService Connector on a high frequency basis by Customer.

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

      1. 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.
      2. 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 per day, 7 days per week, except for: (i) scheduled downtime, or (ii) any unavailability caused by circumstances beyond Movilizer’s 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.
      3. The Movilizer Portal. There are 2 categories of Movilizer service access, as follows:

       

      • Mobile App Admin 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”).

    5. Movilizer will issue 2 types of UserIDs:

      • the Administrative UserID is an identification issued by Movilizer to the Customer to access the Movilizer Public Cloud through the Movilizer Portal; and
      • the UserID is an identification issued by Movilizer to the Customer to use the Movilizer Public Cloud Service in connection with Active Mobile Devices. The UserID may be issued automatically by sending an initial request out of Customer’s backend portal to the Movilizer Public Cloud.

      Each UserID will be linked to a defined mobile phone number. New UserIDs 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 UserID = One mobile phone number.

      The Customer is responsible for all activities occurring under all UserIDs issued.

    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:

      1. unless otherwise expressly agreed in writing, the Movilizer Public Cloud Service is:

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

      2. unless otherwise expressly agreed in writing, the following services are not parts of the Movilizer Public Cloud Service:

        • 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 or the Movilizer WebService Connector.

    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 environments, it expressly assumes all risk thereof.

    8. Security. The security functions and features of the Movilizer Public Cloud Service are described in the Security Concept Document which may be found on https://movilizer.com/security-concept.html. By using the Movilizer Public Cloud Service, Customer acknowledges that the security functions and features of the Movilizer Public Cloud Service set out in the Security Concept Document (as amended from time to time) meet Customer’s requirements and processing instructions. Customer has the responsibility to validate for correctness all Customer Data and to protect all Customer Data from loss by maintaining backups of all Customer Data and routinely updating such backups. If Customer Data is lost or damaged as a result of Movilizer’s material breach of its obligations hereunder, Movilizer will assist Customer in restoring such data to the Movilizer Public Cloud Service from the last available backup copy in compatible format. It is expressly agreed that Movilizer has the right to modify the Security Concept Document by written notice via e-mail. Movilizer will use reasonable efforts to provide Customer with 2 months prior notice of such modification, unless security, legal, or system performance considerations require an expedited implementation of such modification. If Customer establishes that such modification is not an enhancement and is not reasonably acceptable to Customer for legitimate business reasons, Customer may terminate the affected Movilizer Public Cloud Order even if it sets out a minimum initial term or automatic renewal terms by providing written notice to Movilizer within 30 days after receipt of Movilizer’s notice specifying the modification. If applicable, Movilizer will reimburse a prorata of the fees paid by the Customer corresponding to the unperformed portion of the term.

    9. The Movilizer Public Cloud Service may be modified by Movilizer from time to time. Customer agrees that in order to continue using the Movilizer Public Cloud Service, Customer may be required to install and apply updates, new versions, and new releases of Movilizer Supplied Software made available by Movilizer to Customer or updates of third party software products recommended by Movilizer in written notice via e-mail (“Required Update”). Movilizer will use reasonable efforts to provide Customer with one (1) month prior notice of the Required Update, unless security, legal, or system performance considerations require an expedited Required Update. Customer will timely install, implement and apply any Required Update in accordance with Movilizer’s notice specifying the same. Mobilizer will not support under section 6 below or otherwise Movilizer Supplied Software which have not been updated with the Required Update. Movilizer shall not be liable for any damages resulting from Customer’s failure to timely install, implement and apply any Required Update. If Customer establishes that a Required Update is not an enhancement and is not reasonably acceptable to Customer for legitimate business reasons, Customer may terminate the affected Movilizer Public Cloud Order even if it sets out a minimum initial term or automatic renewal terms by providing written notice to Movilizer within 30 days after receipt of Movilizer’s notice specifying the Required. If applicable, Movilizer will reimburse a prorata of the fees paid by the Customer corresponding to the unperformed portion of the term.

  1. Movilizer Standalone Service

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

    2. The Mobile App Admin Portal may be used to:

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

  2. Movilizer Integrated Service

    1. The Movilizer Integrated Service is characterized by a connection of the Movilizer Public Cloud to the backend system of the Customer through webservice by a webservice connector, a software package to be installed by Customer in Customer’s backend system, unless otherwise agreed upon. The webservice 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.

    2. The webservice connector will either be provided by Movilizer or created by Customer:

      1. Movilizer WebService Connectors provided by Movilizer: Customer may download from the Mobile App Admin Portal all of the available connectors (if any) and find the exact documentation for the installation. Each Movilizer WebService 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 Business Scenario logic.
      2. Webservice connectors created by Customer: Customer may create its own connectors by using the documentation on connectors provided by Movilizer through the Mobile App Admin Portal, provided that Customer’s backend system is capable of doing WebService Calls.

  3. Fees and Payment

    Unless otherwise agreed in the applicable Movilizer Public Cloud Order, and subject to the provisions set forth at Section 6 of Part A,

    1. Customer will pay the fees incurred in accordance with the current price lists of Movilizer;
    2. Fees are payable in advance for 12 month periods.

  4. Customer’s Duties and Obligations

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

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

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

    4. Customer shall prevent any unauthorized access to or use of the Movilizer Public Cloud Service, and notify Movilizer within 24 hours of any such unauthorized access or use. Movilizer does not represent that Movilizer Public Cloud Service is compatible with any specific third party hardware or software other than as expressly specified by Movilizer. Customer is responsible for providing and maintaining an operating environment compliant with at least the minimum standards specified by Movilizer. Customer understands and warrants that Customer has an obligation to implement and maintain reasonable and appropriate security measures relating to its use of the Movilizer Public Cloud Service, the information used therein, and the network environment. This obligation includes complying with applicable cybersecurity standards and best practices including those recommended by any national or international institution or organization recognized by the competent authorities in Customer’s country. If a Cybersecurity Event occurs, Customer shall promptly notify Movilizer of the Cybersecurity Event. Customer shall also promptly use its best efforts to detect, respond to and recover from such a Cybersecurity Event. Customer shall take reasonable steps to immediately remedy any Cybersecurity Event and prevent any further Cybersecurity Event at Customer’s expense in accordance with applicable laws, regulations, and standards. Customer further agrees that Customer will use its best efforts to preserve forensic data and evidence in its response to a Cybersecurity Event. Customer will provide and make available this forensic evidence and data to Movilizer. Movilizer shall not be liable for damages caused a Cybersecurity Event resulting from Customer’s failure to comply with the terms of this Agreement or Customer’s failure to maintain reasonable and appropriate security measures.

    5. Customer shall not (i) use the Movilizer Public Cloud Service 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) input, upload, transmit or otherwise provide to or through the Movilizer Public Cloud Service any information or materials that contain, transmit or activate any 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.

    6. In order to facilitate Movilizer‘s investigation of any Cybersecurity Event involving the Movilizer Public Cloud Service, Customer agrees to reasonably cooperate with Movilizer in any investigation, litigation, or other action as deemed necessary by Movilizer to protect its rights relating to a Cybersecurity Event.

  5. Support and SLAs

    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:

      1. Support. During the Term, Customer's designated representative shall have access to the Movilizer technical support web site.
      2. Unless otherwise agreed upon in the Movilizer Public Cloud Order, further support services (e.g., call-in technical support or on-site support) do not form part of the Movilizer Support Service.
      3. Updates. During the Term, Customer shall receive Generally Available updates (x.x.(x)); updates may include corrections of defects or fixes of any minor software bugs (also known as patches) as well as minor new content.
      4. 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 Service, as designated by Movilizer in its discretion, do not form part of the Movilizer Support Service; new versions and new releases usually provide new software features (e.g., new functionalities). However, Customer may order new versions 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.

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

    2. Service Level Agreements. The Parties may also enter into a service level agreement in respect of the Movilizer Public Cloud Service (“Movilizer Service Level Agreement”). The form of Movilizer Service Level Agreements shall follow the Movilizer Order template, and the Movilizer Service Level Agreement attached thereto (if any).

    3. Movilizer shall not be obligated to provide any support service or any services or to meet any specifications agreed upon in Movilizer Service Level Agreements if any of the following occurs:

      1. 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); any changes made by Customer to Movilizer WebService Connector software code or to any Movilizer-owned software; or due to any communication problems arising from Customer’s firewall or restrictions on the Active Mobile Devices.
      2. 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.
      3. The error is corrected by an upgrade, a new version or release of the Movilizer WebService 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.
      4. The error was caused by defects within the service and under the control of the wireless provider or any other provider in charge of the data transfer (i) between the Customer’s backend system and the Movilizer Public Cloud, or (ii) between the Movilizer Public Cloud and an Active Mobile Device.

  6. Reservation of Rights, Authorization and License

    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 the Movilizer Public Cloud Service and Movilizer’s 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.

    2. Authorization. Subject to and conditioned on the fulfillment of Customer’s payment obligations hereunder and compliance and performance in accordance with all other terms and conditions of the Agreement, Movilizer hereby authorizes Customer and its Affiliates to access and use Movilizer Public Cloud Service solely during the Term for their own business purposes and in accordance with the terms and conditions of the Agreement. The foregoing authorization is not assignable, transferrable, licensable or sublicensable to third parties.

       

    3. 7.2 License. Movilizer hereby grants during the Term to Customer and its Affiliates the revocable, worldwide, non-exclusive right to use solely for their own business purposes Movilizer Supplied Software specified in the Movilizer Public Cloud Order or a separate Order complying with Movilizer Order template and accepted by Movilizer (e.g. the Movilizer Client and the Movilizer WebService Connectors) for the purpose of using the Movilizer Public Cloud Service, in accordance with and subject to the terms and conditions set forth in such Order, the applicable Movilizer’s End User License Agreemnet and this Agreement.

       

  7. Warranties

    1. Performance. Movilizer represents and warrants that during the Term it will make commercially reasonable efforts to ensure that the Movilizer Public Cloud Service will conform and operate substantially in accordance with the Documentation issued by Movilizer, 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 Active Mobile Devices; (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.

    2. Except as set forth in section 8.1, Movilizer’s sole liability and Customer’s sole remedy for any breach of the foregoing warranty is that Movilizer will use reasonable commercial efforts to remedy ANY non-conformance covered by the foregoing warranty.

    3. IN CASE OF NON-ACHIEVEMENT OF THE THE COMMITMENT DEFINED IN THE APPLICABLE MOVILIZER SERVICE AGREEMENT (IF ANY), PRICE CREDITS MAY APPLY AS DEFINED IN THE APPLICABLE MOVILIZER SERVICE AGREEMENT. THE CREDIT WILL BE PROVIDED ONLY TOWARDS ANY OUTSTANDING BALANCE FOR SERVICES OWED TO MOVILIZER, AND THE REMITTANCE OF SUCH CREDIT WILL REPRESENT CUSTOMER’S EXCLUSIVE REMEDY, AND MOVILIZER’S SOLE LIABILITY, FOR NON-ACHIEVEMENT OF THE COMMITMENT.

    4. EXCEPT AS SET FORTH IN THIS SECTION 8, MOVILIZER DOES NOT OFFER, IN RESPECT OF THE MOVILIZER PUBLIC CLOUD SERVICE, ANY WARRANTIES BY MOVILIZER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, WHICH ARE HEREBY EXPRESSLY DISCLAIMED TO THE EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, MOVILIZER MAKES NO WARRANTY OF ANY KIND THAT THE MOVILIZER PUBLIC CLOUD SERVICE OR MOVILIZER MATERIALS, OR ANY RELATED PRODUCTS, SERVICES OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS; OPERATE WITHOUT INTERRUPTION; ACHIEVE ANY INTENDED RESULT; BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES (EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE DOCUMENTATION); OR BE SECURE, ACCURATE, COMPLETE, FREE OF MALICIOUS CODE OR ERROR-FREE. ALL THIRD PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY MATERIALS. EXCEPT AS OTHERWISE SET OUT IN THE APPLICABLE MOVILIZER’S END USER LICENSE AGREEMENT, MOVILISER SUPPLIED SOFTWARE IS PROVIDED “AS IS”;

    5. 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 any applicable laws and government regulations on data protection.

  8. Term and Termination

    1. The term of each Movilizer Public Cloud Order will begin on the effective date set forth in that Movilizer Public Cloud Order and continue until it is terminated as set forth in that Movilizer Public Cloud Order or by mutual agreement between the Parties (“Term”). The Parties may agree upon a minimum initial term or automatic renewal terms in the Movilizer Public Cloud Order.

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

    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 of the Agreement 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, files a petition in bankruptcy, or a petition in bankruptcy is filed with respect to the other Party and is not dismissed within 30 days.

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

    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 the then-current cost of duplication.

    6. In the event of a termination of a Movilizer Public Cloud Order permitted by this Section 9, Customer will be required to pay Movilizer for any products or services delivered prior to the effective date of termination.

C. MOVILIZER onDEMAND PRIVATE CLOUD SERVICE

    1. The GTC - PART A and this Part C set forth the terms and conditions applicable to the supply of the Movilizer onDemand Private Cloud Service, as defined and set forth in separate orders (“Movilizer onDemand Private Cloud Orders”). The form of Movilizer onDemand Private Cloud Orders shall follow 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 only for their own business purposes.

    2. Unless otherwise provided in this Part C, the provisions of Part B relating to the Movilizer Public Cloud Service apply also to the Movilizer onDemand Private Cloud Service, except the provisions concerning the Trial Period. For purposes of this Part C, any reference in Part B to “Movilizer Public Cloud” means “Movilizer onDemand Private Cloud,” any reference in Part B to “Movilizer Public Cloud Service” means “Movilizer onDemand Private Cloud Service” and any reference in Part B to “Movilizer Public Cloud Order” means “Movilizer onDemand Private Cloud Order.”

    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 to the Customer and accessible through both the Movilizer Client and the Movilizer Portal. Movilizer shall use commercially re asonable efforts to make the Movilizer onDemand Private Cloud available and accessible 24 hours per day, 7 days per week, except for: (i) scheduled downtime, or (ii) any unavailability caused by Force Majeure.

D. STANDARD MOBILE APPS

     

    The GTC - PART A and this Part D 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”). The form of Standard Mobile Apps Orders shall follow the Movilizer Order template.

  1. License

    The definitions, grant of license to Standard Mobile Apps, and terms and conditions of grant are set out in the following documents in descending order of priority: (i) Standard Mobile Apps Order, (i) this Part D and (iii) Movilizer End User Agreement attached hereto as Appendix 3. The foregoing grant of rights is limited to the use by the Customer and its Affiliates for their own business purposes.

  2. Fees and Payment

    Unless otherwise agreed in the applicable Standard Mobile Apps Order, and subject to the provisions set forth at Section 6 of Part A,

    1. Customer will pay the fees incurred in accordance with the current price lists of Movilizer;
    2. Fees are payable in advance for 12 month periods.

  3. Term and Termination

    1. The term of each Standard Mobile Apps Order will begin on the effective date set forth in that Standard Mobile Apps Order and continue until it is terminated as set forth in that Standard Mobile Apps Order or by mutual agreement between the Parties (“Term”). The Parties may agree upon a minimum initial term or automatic renewal terms in the Standard Mobile Apps Order.

    2. Either Party is entitled to terminate a Standard Mobile Apps Order for convenience with a written notice of 30 days prior to the end of the Term agreed upon in that Order (if any) or, if no Term is agreed, 30 days prior to the end of each calendar month.

    3. Either Party may, in addition to other relief, terminate a Standard Mobile Apps Order for cause if the other Party breaches any material provision of the Agreement 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 Standard Mobile Apps Order for cause if the other Party becomes insolvent, files a petition in bankruptcy, or a petition in bankruptcy is filed with respect to the other Party and is not dismissed within 30 days.

    4. Expiration or termination of one or more Standard Mobile Apps Orders shall not affect any other separate agreement between the Parties.

    5. Upon expiration or termination of any Standard Mobile Apps Order, Movilizer shall make a final backup of any Customer Data, if requested by Customer, and provide the backup media to Customer at the then-current cost of duplication.

    6. In the event of a termination of a Standard Mobile Apps Order permitted by this Section 9, Customer will be required to pay Movilizer for any products or services delivered prior to the effective date of termination.

Appendix 1

STANDARD MOVILIZER SERVICE LEVEL AGREEMENT
(STANDARD EDITION)

  1. Definitions

    The terms used herein will have the meanings set forth in the Agreement, unless otherwise defined herein. The following capitalized terms, and any defined terms in this Movilizer SLA, shall apply to this Movilizer SLA:

    Call-In Technical Support means the commitment as defined in section 2.2 of this Movilizer SLA.

    Commitment means the commitment as defined in section 2.1 of this Movilizer SLA.

    Excluded Events means Scheduled Downtime and Force Majeure Events.

    Force Majeure Event means events caused by Force Majeure.

    Normal Hours means the commitment as defined in section 2.2 of this Movilizer SLA.

    Price Credits means the price credits as defined in section 3 of this Movilizer SLA.

    Scheduled Downtime means downtime that is scheduled by Movilizer with at least twelve (12) hours notice to Customer, and which Movilizer shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday, Movilizer local time; however, only the first two (2) scheduled downtime events per month are considered as “Scheduled Downtime”.

    Service Availability means the availability of the Movilizer Service, in substantial whole, for use by Customer (disruptions to non-material features or features not used by Customer shall not be counted); the Service Availability is calculated against the Commitment per calendar quarter as follows:

    (Total Minutes - Downtime - Excluded Events) / (Total Minutes - Excluded Events) x 100

    Service Level Commitment means the commitment as defined in section 2 of this Movilizer SLA.

    Subscription Period means the time period beginning on Movilizer Service Start Date and ending on the Movilizer Service End Date as defined and set forth in the Movilizer SaaS Order.

    Total Minutes means the total minutes in each full calendar quarter of operation by Movilizer. A partial quarter at the beginning or end of a Subscription Period shall neither be counted nor subject to the Service Level Commitment.

  2. Service Level Commitment

    1. Service Operation

      Movilizer promises Customer that the average Service Availability of the Movilizer Service will be normally 99,5% of the time during each calendar quarter, and that Call-In Technical Support will meet the support commitment set forth in section 2.2 below, except for Excluded Events ("Commitment"). If Movilizer does not meet the Commitment, Customer will be entitled to receive the Price Credits described below.

    2. Call-In Technical Support

      Call-In Technical Support (“Call-In Technical Support”) means the following maintenance services which will be available during normal hours of operation (8:00 a.m. to 6:00 p.m. CET) (the “Normal Hours”).

      1. Submitting Service Requests.

        Customer's designated contact person will submit service requests according to Movilizer’ instructions. The service request should assign a Severity Level as set forth in (b) below and adequately describe and document the reported error so it can be reproduced.

        Movilizer may re-characterise the Severity Level.

        Hotline Support is available for Ticket with Severity Level RED and ORANGE.

      2. Severity Level. The Severity Level means a perceived error in the Movilizer Service is reportedly having the following impact:

        • 'Code Red' means the reported error is having a material impact on critical business operations at the enterprise level that cannot be worked around and which needs to be corrected as soon as reasonably possible (e.g., transaction processing application for e-commerce system has crashed and cannot be rebooted).

        • 'Code Orange' means the reported error is having a material impact on important business operations that can be worked around or deferred for only a limited period of time (e.g., delay in daily reports is causing work stoppages).
        • 'Code Yellow' means the reported error is degrading business operations in a way that delays or interferes with some non-critical business operations and can be worked around for a reasonable time (e.g., slow down in generation of reports that need to be produced in the next few days).

        • 'Code Green' means the reported error is having a minor impact on business operations that can be worked around and a fix should be included in the next service upgrade (e.g., cosmetic changes to screen layouts, requests for feature enhancements or updates to documentation).

      3. (c) Response to Service Request. Response time begins when Movilizer logs-in a service request in proper form from the Customer's authorized contact person. Service requests received after Normal Hours are logged at the beginning of the next business day (except Code Red cases may be logged sooner if Movilizer personnel are available). Response time ends with Movilizer' notice that it has commenced diagnosis and error correction efforts. Movilizer' response time commitment is as follows:

        Severity Level Response Time Commitment
        Code Red Within one (2) hour
        Code Orange Within three (5) hours
        Code Yellow Next Business Day
        Code Green Within 3 Business Days

  3. Price Credits

    If Movilizer fails to meet any Commitment in any quarter of the Subscription Period, Customer will be entitled to receive Price Credits in the amount of 10% of the fees for such quarter ("Price Credits"), capped to a maximum of 30% per quarter. Price Credits will be applied to the fees for the next month of the following quarter for the Movilizer Service or paid to Customer if the Subscription Period has already ended.

  4. Claims Procedure

    Customer must request Price Credits by sending an email to Movilizer at:

    accounting@movilizer.com

    within fourteen (14) calendar days after the end of the period to which it relates. The email will identify Customer, this Movilizer SLA and the Agreement, the period to which the claim relates and include supporting calculations, which will be compared to Movilizer records.

    If disputed, Movilizer shall provide Customer reports of system performance. Movilizer' report prepared in the ordinary course of business shall be deemed correct unless demonstrated to be clearly erroneous.

    Price Credits are Customer's sole and exclusive remedy for claims relating to failure to meet Commitments and are forfeited if a claim is not made in the time and manner specified. THIS LIMITATION DOES NOT APPLY TO LIABILTY EXPRESSLY PROVIDED BY COMPELLING STATUTORY LAW (E.G. LIABILTY ARISING OUT OF WILFULL ACTS).

Appendix 2

EVALUATION AGREEMENT (SOFTWARE)

    This Evaluation Agreement is a legal agreement between Movilizer GmbH, a wholly-owned subsidiary of Honeywell International Inc (“Movilizer”) and the legal entity on whose behalf this Agreement is being accepted

    Movilizer is developing certain software and/or software as a service that is proprietary to Movilizer or its licensors. CUSTOMER wishes to evaluate, and Movilizer wishes to have evaluated, this software and/or software as a service prior to any general release, for use in a non-production environment. Therefore, the parties agree as follows:

  1. Definitions

    1. Agreement means this Evaluation Agreement.
    2. Evaluate or Evaluation means the use and test of Evaluation Materials by CUSTOMER with the sole purpose of evaluating its performance.
    3. Evaluation Materials means the Evaluation Software and the Materials.
    4. Evaluation Software means the object code relating to Movilizer’s unlreased software and/or software as a service made available to CUSTOMER under this Agreement.
    5. Materials means any non-software documentation made available to CUSTOMER upon acceptance of this Agreement, including but not limited to FAQs, help files, and installation or user guides.
    6. CUSTOMER Business Data means confidential CUSTOMER business information that becomes available to Movilizer through use of the Evaluation Software, such as identification of network components by IP address or other network identification.
    7. CUSTOMER Personal Data means personally identifiable information of CUSTOMER employees or customers that becomes available to Movilizer through use of the Evaluation Software, such as first name, surname, and personal contact information.

  2. License

    Movilizer will grant CUSTOMER a non-exclusive License to use the Evaluation Materials to CUSTOMER, at no charge, for the Evaluation Period for use in a non-production environment. CUSTOMER may not use the Evaluation Materials in a production or live environment, use the Evaluation Materials to provide services to any third party, or permit any third party to access the Evaluation Materials.CUSTOMER agrees that, as between the parties, the Evaluation Materials are the sole property of Movilizer and that title to the same shall at all times remain with Movilizer. All title and copyrights in and to the Evaluation Materials are owned by Movilizer. All rights not specifically granted by Movilizer under this Agreement are reserved for Movilizer. Nothing herein shall be construed as restricting Movilizer 's right to sell, lease, license, modify, publish, or otherwise distribute the Evaluation Materials, in whole or in part, to any other person or entity.

  3. Evaluation Period

    CUSTOMER may conduct the Evaluation for the period of time stated in the Materials or, for any longer period that is mutually agreed to by the parties and confirmed in writing.

  4. Customer Obligations

    1. CUSTOMER shall provide an environment suitable for testing and evaluating the Evaluation Software as contemplated by the parties.

    2. CUSTOMER Representative shall keep track of the Evaluation Materials and be able to locate them if requested by the Movilizer Representative

    3. CUSTOMER shall cooperate with Movilizer in gathering information relating to the performance of the Evaluation Software.

    4. During the Evaluation Period, CUSTOMER shall provide periodic verbal or written evaluations of the Evaluation Software, including its evaluated strengths, weaknesses, and any recommended improvements. In performing this evaluation, CUSTOMER will use the Evaluation Software under normal conditions. During the Evaluation Period, representatives of CUSTOMER may periodically discuss with Movilizer representative via telephone or e-mail any Evaluation Software malfunctions or needed/recommended Evaluation Software improvements.

    5. CUSTOMER shall not alter, decompile, reverse assemble, reverse engineer, or otherwise modify the Evaluation Software.

    6. CUSTOMER agrees not to obscure, remove, or in any way modify any trademarks, trade names, logos, patent or copyright notices, or other proprietary rights notices marked on, embedded in, or otherwise associated with the Evaluation Materials.

    7. CUSTOMER acknowledges that the Evaluation Software is valuable trade secret or confidential information of Movilizer, that it is protected by intellectual property laws and treaties, and that it is subject to the Nondisclosure Agreement attached as Exhibit A (NDA). CUSTOMER shall not make the Evaluation Software available in any form to any person other than CUSTOMER's employees whose job performance requires such access for evaluation purposes. CUSTOMER shall take appropriate action to protect the confidentiality of the Evaluation Materials to ensure that any person permitted access to the Evaluation Materials does not provide them to others. CUSTOMER acknowledges that its use of the Evaluation Software is subject to the End User License Agreement attached as Exhibit B (EULA). The provisions of this Section shall survive the expiration or termination of this Agreement.

    8. CUSTOMER acknowledges that Movilizer may change at any time the Evaluation Materials in its sole discretion.

  5. Movilizer's Obligations

    1. CUSTOMER shall provide an environment suitable for testing and evaluating the Evaluation Software as contemplated by the parties.

    2. Movilizer shall be solely responsible for the cost of shipping and delivering the Evaluation Materials to CUSTOMER’s facility for Evaluation.

    3. Movilizer shall be responsible for the payment of any use, value added, or other taxes, customs duties, or similar tariffs and fees that may be required solely due to the shipment, delivery, installation, or use of the Evaluation Materials during the Evaluation Period.

  6. Other Manufacturers’ Equipment

    The parties acknowledge that the Evaluation Software may be installed as part of a system that includes software and/or hardware produced by other manufacturers. In the event of failure within the system, it may be difficult to determine which item of equipment within the system is responsible for the failure. Upon CUSTOMER’s request, Movilizer will cooperate with CUSTOMER in attempting to determine which piece of equipment is responsible for the failure. CUSTOMER will be solely responsible for the maintenance and repair of equipment produced by other manufacturers.

  7. Expiration Of Agreement

    This Agreement shall expire on the expiration of the Evaluation Period set forth above. Upon expiration of this Agreement CUSTOMER shall uninstall the Evaluation Software from all devices, delete all Evaluation Materials present as electronic files from any storage media, and destroy all Materials, unless and to the extent that copies of the same are present in CUSTOMER’s regular backup files and cannot be readily deleted.

  8. Termination

    1. Either party may terminate this Agreement immediately, without prior notice, by giving written notice to the other party if the other party is in breach of any material term or condition of this Agreement.

    2. Either party may terminate this Agreement without cause by giving the other party written notice of termination at least ten (10) business days prior to the termination date specified in the notice.

    3. On or before the effective termination date, CUSTOMER shall cease using the Evaluation Materials.

  9. Ownership

    The Evaluation results and any verbal or written evaluations and all inventions, improvements, modifications, derivations, or developments related to the Evaluation Materials conceived or made by Movilizer during or subsequent to this Agreement, including those inventions, product improvements, modifications, derivations, or developments that may be based partly or wholly on feedback, suggestions, or recommended improvements from CUSTOMER, shall be the exclusive property of Movilizer and its licensors and Movilizer and its licensors shall have exclusive rights to all patents, copyrights, property rights, title and interest in such inventions, improvements, modifications, derivations, or developments related to the Evaluation Materials. Movilizer shall be entitled to distribute, publish, and otherwise use test results, feedback information, and written or verbal evaluations as it determines, in its sole discretion.

  10. Data Handling And Privacy

    In the event that the Evaluation includes any access by Movilizer to CUSTOMER Business Data or CUSTOMER Personal Data, the following terms shall apply:

    1. CUSTOMER shall limit CUSTOMER Personal Data to that information strictly necessary to the Evaluation and to Movilizer’s ability to meet its obligations under this Agreement and applicable laws as a service provider and data processor of CUSTOMER Personal Data. Movilizer shall process CUSTOMER Personal Data for the duration of this Agreement and for one (1) year thereafter as necessary to manage the possible consequences of exiting the services.

    2. Movilizer will process CUSTOMER Personal Data in accordance with CUSTOMER´s instruction as set by this Agreement or any written instructions between Movilizer and CUSTOMER. Any potential costs and charges associated with any additional or amended instructions shall be agreed to in advance and in writing. Movilizer may process CUSTOMER Personal Data other than on the instructions of CUSTOMER if it is required under applicable law to which Movilizer is subject, in which case Movilizer shall inform CUSTOMER of such requirement before Movilizer processes the CUSTOMER Personal Data unless the law prohibits this on important grounds of public interest. CUSTOMER shall at all times comply with its obligations under this Agreement and applicable privacy laws.

    3. Movilizer has implemented and maintained the physical, technical, and organizational security measures as required by the data privacy laws and industry to protect CUSTOMER Personal Data and CUSTOMER Business Data against accidental or unlawful destruction or accidental loss, alteration, or unauthorized disclosure or access. CUSTOMER acknowledges that Movilizer may change the security measures through the adoption of new or enhanced security technologies and authorizes Movilizer to make such changes provided that they do not diminish the level of protection.

    4. CUSTOMER authorizes Movilizer to engage affiliated and unaffiliated subcontractors to perform some or all of its obligations under this Agreement. Movilizer will provide subcontractors with access to CUSTOMER Personal Data only where necessary. On written request Movilizer will provide the identity of its subcontractors. Shall any of the subcontractors be located outside of the EU, Movilizer will ensure any data transfer will occur on the basis of execution of the EU Standard Contractual Clauses, Privacy Shield, or any other recognized mechanism by the EU Data Protection Authorities.

  11. DISCLAIMER OF WARRANTIES

    CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT THE EVALUATION SOFTWARE IS EXPERIMENTAL AND IS PROVIDED "AS IS." MOVILIZER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE EVALUATION SOFTWARE AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. MOVILIZER RESERVES THE RIGHT TO ADD OR REMOVE FEATURES OR FUNCTIONALITY TO OR FROM THE EVALUATION SOFTWARE AT ANY TIME AND MAKES NO WARRANTY THAT THE EVALUATION SOFTWARE WILL HAVE ANY SPECIFIC FEATURE, FUNCTION, OR CAPABILITY NOW OR IN THE FUTURE.

  12. LIMITATION OF LIABILITY

    IN NO EVENT SHALL THE AGGREGATE LIABILITY OF MOVILIZER AND ITS SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED USD 1,000 AND MOVILIZER SHALL NOT BE LIABLE FOR ANY PROPERTY DAMAGE, PERSONAL INJURY, LOSS OF PROFITS, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR FOR ANY OTHER SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR OTHER SIMILAR DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE, EVEN IF MOVILIZER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MOVILIZER DOES NOT SEEK HEREUNDER TO EXCLUDE OR RESTRICT ITS LIABILITY IN RELATION TO (I) FRAUD, (II) DEATH OR PERSONAL INJURY DIRECTLY RESULTING FROM ITS NEGLIGENCE OR (III) ANY MATTER IN RESPECT OF WHICH, BY LAW, IT IS NOT PERMITTED TO RESTRICT ITS LIABILITY.

  13. PROTECTABLE TECHNOLOGY

    he Evaluation Materials may contain subject matter protectable as intellectual property by patent, copyright, trade secret, or otherwise that has not been offered for sale or use under license to the public. This Agreement is deemed to be a confidential disclosure for the purposes of evaluation testing only and will not be considered as an offer or disclosure that would trigger the filing requirements under U.S. or foreign laws related to patent filings.

  14. Confidentiality

    The Evaluation Materials contain information that is confidential and proprietary to Movilizer and its licensors (“Confidential Information”). Customer may (a) disclose the Confidential Information only to its employees, officers, directors, consultants, and contract employees who are required to have the Confidential Information to achieve the purpose fo this Agreement and who are legally bound in writing to Customer to maintain and use the Confidential Information in accordance with the terms of this Agreement and (b) use the Confidential Information only for the purpose of this Agreement. Customer will not (a) disclose Confidential Information to any other person without the prior written consent of Movilizer or, (b) decompile, disassemble, decode, reproduce, redesign, or reverse engineer any samples or computer software containing Confidential Information or any part thereof provided to Customer. Customer may make a limited number of copies of any documents containing Confidential Information as necessary to achieve the purpose of this agreement. Customer will reproduce the restrictive legends of the original on all copies it makes. Customer will protect Confidential Information using the same degree of care, but no less than reasonable care, as it uses to protect its own confidential information. The obligations set out in this section 14 shall survive the terrm o

    of this Agreement. Upon the expiration, termination or cancellation of this Agreement, Customer shall return all data and information provided by Movilizer, or, at Movilizer’s option, destroy all such data and information and certify to such destruction.

  15. General Provisions

    1. Entire Agreement
      This document and the attached exhibits contain the entire agreement between the parties relating to the subject matter contained herein and supersede all prior or contemporaneous agreements, written or oral, between the parties. This Agreement may not be modified except by written documents signed by an authorized representative of each party.

    2. Waiver
      No term of this Agreement shall be considered waived and no breach excused by either party unless made in writing by the other party. No consent, waiver, or excuse by either party, express or implied, shall constitute a subsequent consent, waiver, or excuse.

    3. Assignment
      Movilizer may assign any of its duties with respect to installation or service of the Evaluation Materials to third parties. No such assignment shall relieve Movilizer of its obligations under this Agreement. CUSTOMER may not assign or otherwise transfer this Agreement and the rights under it without Movilizer’s prior written consent. No attempt to assign or transfer in violation of this provision shall be valid or binding upon Movilizer.

    4. Notices
      All notices required or authorized under this Agreement shall be effective when received, with evidence of receipt. Notices to CUSTOMER shall be sent to CUSTOMER’s address shown on the first page of this Agreement, or to such other address as CUSTOMER designates to Movilizer in writing. Notices to Movilizer shall be sent to the attention of: General Counsel, Hand Held Products, Inc., 9680 Old Bailes Road, Fort Mill, South Carolina 29707, United States of America.

    5. Governing Law
      This Agreement shall be governed by the laws of England and Wales, excluding choice of law provisions. A person who is not a party to this Agreement may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999.

    6. Attorneys’ Fees
      In the event an action is brought to enforce the terms and conditions of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees, both at trial and on appeal.

Appendix 3

MOVILIZER END USER LICENSE AGREEMENT

    This Software License is a legal agreement between Movilizer GmbH. ("Movilizer"); and, the Licensee and its Authorized Users using the Licensed Software, all as defined in Section 1 below. The Licensed Software may include software owned by Movilizer and software licensed by Movilizer from its software suppliers ("Suppliers"). This Agreement also applies to any updates, upgrades, revisions, patches, bug fixes, new versions, supplements, and other modifications to, as well as Internet-based services and support services for, the Licensed Software, unless other terms accompany those items; if so, those terms apply.

    The Licensed Software is not licensed to and may not be used by Licensee without accepting this Software License. Installation of the Licensed Software will constitute acceptance and may be revoked only by completely uninstalling and deleting all instances of the Licensed Software.

  1. DEFINITIONS

    1. "Archival Copies" means copies of Licensed Software in non-printed, machine-readable form, used solely for archival or backup purposes.

    2. "Authorized User" means means any individual authorized by Licensee to access and use Licensed Software in accordance with the Order, subject to the terms of this license, and who is an employee, agent, contractor or representative of Licensee.

    3. "Documentation" means Movilizer’s published user documentation for Licensed Software and Unlicensed Software, which may be in the form of user manual or other related documentation, in written or electronic form.

    4. "Intellectual Property" means all copyrights, trademarks, trade secrets, patents, mask works and other intellectual property rights recognized in any jurisdiction worldwide, including all applications and registrations.

    5. "Licensed Software" means the object code of all Software licensed to Licensee under the Order, including any updates, upgrades, error corrections, changes or revisions.

    6. "Licensed Use" means use by Licensee as described in the Order.

    7. "Licensee" means the entity or entities granted the license to Licensed Software in the Order.

    8. "Order" means a purchase order issued by the Licensee for Licensed Software and accepted by an authorized representative of Movilizer or a firm proposal from Movilizer to Licensee duly accepted by an authorized representative of Licensee.

    9. "Provided Software" means all Documentation and Software, including Licensed Software and Unlicensed Software, which are provided to Licensee.

    10. "Software" means machine-readable object and source code, including executable programs and firmware and any associated documentation.

    11. "Software Information" means Provided Software; technology, ideas, know how, Documentation, processes, algorithms and trade secrets embodied in or related to the Licensed Software; any software keys related to the Licensed Software; and any other information related to the Provided Software, whether disclosed orally or in written or magnetic media, identified (if oral) or marked (if written) as "confidential," "proprietary" or with similar designation at the time of disclosure.

    12. "Unlicensed Software" means Software not licensed to Licensee that may be included on storage media containing Licensed Software, or features that Licensee has not purchased.

  2. LICENSE AND RESTRICTIONS

    1. License
      Subject to Licensee compliance with the terms and conditions of this Software License including payment of fees and entry into force of an Order implementing this Software License, Movilizer grants to Licensee and Licensee accepts a restricted, personal, limited, nontransferable, nonexclusive license, without right of sublicense, to use Licensed Software for the Licensed Use. Unlicensed Software may be included with Licensed Software solely for administrative convenience. Licensee has no right or license to any Unlicensed Software. Licensee must not attempt to access, or permit any third party to attempt to access, the Unlicensed Software.

    2. Ownership
      Movilizer and its third-party suppliers retain all right, title and interest in and to the intellectual property rights in all Provided Software. Except for the license expressly granted herein, no right, title, or interest in or to the Provided Software, or to any copies thereof, is transferred hereunder to Licensee. Licensee acknowledges that, as between Licensee and Movilizer, the Provided Software and all copies of it, regardless of the form or media on which the original or copies may exist, are the sole and exclusive property of Movilizer and its suppliers

    3. Restriction on Use
      Except as stated in this Software License, Licensee may not, without Movilizer‘s prior written consent, (a) permit any third parties or non-licensed entities to use the Provided Software; (b) copy (except as specified in the Archival Copies clause below), modify, sublicense, rent, lease, loan, use in the operation of a service bureau, sell, distribute, disclose, publish, assign (except as specified in the Protecting Integrity clause below), encumber or transfer in any manner Provided Software or any license rights; (c) create derivative or merged works of the Provided Software; (d) electronically transfer Provided Software from one computer to another over a network other than Licensee internal network as permitted in this license; (e) use or allow use of Provided Software for processing data of any person or entity other than Licensee; (f) perform, publish or release to any third party any benchmarks or other comparisons regarding Provided Software; or (g) alter or remove any Movilizer or Movilizer licensor copyright or other proprietary rights notices or legends on or in Provided Software. Licensee is responsible for informing Authorized Users of restrictions as to use of Licensed Software. In the event Licensee elects to use an outsourcer to process data on its behalf, Licensee agrees to notify Movilizer in writing in advance and to enter into a Consent to Process arrangement with Movilizer and Licensee’s outsourcer.

    4. Keys and Access
      If applicable, Movilizer will provide to Licensee any Licensed Software keys necessary to access Licensed Software contained on media shipped to Licensee. Licensee must not disclose Licensed Software keys to any third party. Licensee must not circumvent, or attempt to circumvent, any license management, security devices, access logs, or other measures for protection of Licensed Software, or permit or assist any Authorized User or third party to do same. Licensee must not attempt to modify, tamper with, reverse engineer, reverse compile or disassemble Licensed Software keys. Upon use of a new key for Licensed Software, Licensee must not use the old key to access the Software.

    5. Transfer of Licensed Software
      Licensee may not delegate, assign or transfer this license, any license granted or its rights or duties under this license, including by way of merger (regardless if Licensee is surviving entity), acquisition, or operation of law, and any attempt to so transfer without Movilizer prior written consent is void.

    6. Archival Copies
      Licensee may make 2 Archival Copies (or maximum number of copies under applicable law) in addition to any Archival Copies created in the ordinary and normal course of Licensee’s regular IT backup processes, to be used solely for archival or backup purposes. Movilizer and its third-party suppliers solely own all Archival Copies. Licensee must include all notices (e.g., copyright and trade secret) and serial numbers on Archival Copies. Except as provided herein, Licensee may not reproduce Provided Software.

    7. Protecting Integrity
      Licensee may not directly or indirectly make any effort to deconstruct Provided Software, including without limitation, translating, decompiling, disassembling, reverse assembling, reverse engineering, or otherwise attempting to derive the source code of Provided Software, or permit any third party to do the foregoing. Licensee must take all reasonable actions necessary to prevent unauthorized access, disclosure, distribution, possession, alteration, reproduction, transfer or use of Provided Software, and must train Authorized Users to ensure compliance by Licensee with this License and Restrictions section. Licensee may not use or disclose Provided Software except as expressly authorized by this license and must maintain Provided Software in strict confidence. Licensee may not allow its consultants or other contractors to access or use Provided Software without Movilizer prior written consent. Licensee must defend, indemnify and hold harmless Movilizer and its subsidiaries, affiliates, and agents, and their respective officers, directors, shareholders, and employees from all damages and third-party claims, causes of action or damages arising from unauthorized use or disclosure of Provided Software.

    8. Local Prohibition
      If local law prohibits enforcement of the restrictions in the Protecting Integrity clause above, then the restrictions are deemed replaced by the following: Licensee must not, nor authorize third parties to, translate, reverse engineer, decompile, disassemble or otherwise decode or alter; or create derivative works based on Provided Software, without Movilizer’s prior written consent, except to the extent expressly permitted by mandatory provisions of applicable law (including national laws implementing European Union Directive 91/250/EEC on the legal protection of computer programs) in order to gain certain information for limited purposes specified in these laws. Licensee may not exercise its rights under these laws unless Licensee has first requested, and Movilizer has refused to provide in writing within 30 days, the required information.

    9. Third Party Software
      Licensed Software may contain or be derived from materials of third-party licensors. Third-party materials may be subject to restrictions in addition to those listed in this Software License, which restrictions are included in the documentation accompanying third-party Software. Licensee must only use third-party software according to Licensed Use, and may not use third-party Software on a stand-alone basis or integrate with any other Software. Licensee agrees that any third-party Software supplier has the right to enforce this Software License as to third-party Software.

    10. No High-Risk Activities
      The Licensed Software is not fault-tolerant. Licensee agrees that it will not use the Licensed Software in hazardous environments requiring fail-safe performance (including, without limitation, the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems), in which the failure of the Licensed Software could lead directly or indirectly to death, personal injury, or severe physical or environmental damage.

    11. Support
      Licensed Software fees do not include support, installation or training, which may be purchased at Movilizer‘s then-current rates under an after-market service agreement.

  3. SOFTWARE INFORMATION

    1. Use and Disclosure
      Licensee may not use or disclose Software Information except as expressly permitted by this Software License, and must protect Software Information using the same degree of care which Licensee uses as to its own confidential information of like kind, and in no event less than a reasonable degree of care. Licensee must take prompt and appropriate action at its expense to prevent unauthorized use or disclosure of Software Information.

    2. Exclusions
      Software Information does not include any information that is:

      1. developed by Licensee independently of and without reference to Software Information;
      2. developed by Licensee independently of and without reference to Software Information;
      3. rightfully obtained by Licensee without restriction from a third party who had no obligation of confidentiality, either directly or indirectly, with respect to the information;
      4. publicly available other than through negligence of Licensee;
      5. released without restriction by Movilizer;
      6. known to Licensee at the time of disclosure, without an existing duty to protect information; or
      7. disclosed by Licensee with prior written approval of Movilizer.

    3. Required Disclosure
      Licensee may disclose Software Information if it is required to disclose the information as a matter of law, provided the Licensee notifies Movilizer and, upon Movilizer’s request, agrees to cooperate in all reasonable respects to contest the disclosure or obtain a protective order or other remedy.

    4. Disclosure to Personnel
      Licensee may disclose Software Information only to its employees and temporary workers (including agency personnel) having a "need to know" the information in order to exercise Licensee’s rights and comply with its responsibiities and obligations under this Software License. Licensee must ensure that each employee or temporary worker is aware of this Software License and has signed a contract making the employee or temporary worker subject to confidentiality obligations no less stringent than those imposed under this Software License. If authorized in writing by Movilizer, Licensee may disclose Software Information to a third party if:

      1. Licensee requires third party to sign a confidentiality agreement with terms and conditions no less stringent than those imposed under this Software License; and
      2. the signed agreement is delivered to Movilizer prior to disclosure of any Software Information to the third party; and
      3. Licensee remains responsible to Movilizer for any disclosure by the third party in violation of this Software License or the confidentiality agreement signed by third party.

    5. Survival
      The obligations of Licensee with respect to Software Information will survive the termination or expiration of the Software License in perpetuity.

  4. TERMINATION OF LICENSE AND SURVIVAL

    The license granted herein is effective upon installation of the Licensed Software and continues for the duration specified in the Order or until terminated as stated in this Software License. Movilizer may terminate the license if Licensee defaults under the Software License or the Order under which the license was granted and does not remedy the default within 10 days after receiving written notice from Movilizer, or if Licensee is in bankruptcy, insolvency, dissolution, or receivership proceedings. Upon termination of the license, Movilizer may repossess Provided Software and all copies, including Archival Copies, without further notice. Promptly upon termination of this license, Licensee must immediately cease all use of Licensed Software and return, destroy or delete from its system, as directed by Movilizer, all copies of Provided Software. In addition, Licensee will supply written certification that the Provided Software has been deleted from all computer systems and all related Documentation has been destroyed. These remedies are cumulative and in addition to any other remedies available to Movilizer. Termination does not affect any cause of action accruing to any Party against the other before termination. Except if Licensee is in default under the Order or the Software License, the Software License survives completion of the Order. All provisions of the Order that by their nature should apply to this Software License beyond the term of the Order will remain in force with respect to this Software License after acceptance and complete performance of the Order. All provisions of the Software License that by their nature should apply beyond the term of the Software License will remain in force after termination or expiration of this Software License.

  5. Negation of Other Licenses

    Except as expressly granted in this Software license, no license or right, including sublicensing rights – whether expressly, implicitly, by estoppel, conduct of the Parties or otherwise – is granted by Movilizer to Licensee.

  6. WARRANTY

    1. Warranty – Media
      If applicable, Movilizer warrants that the media on which Licensed Software is shipped will be free of any material defects in workmanship for a period of 12 months from date of first shipment. If a material defect in workmanship of the media occurs during the warranty period, Movilizer’s sole obligation, and Licensee’s sole remedy, will be the replacement of the media and the Licensed Software that resides on that media.
    2. Warranty
      Movilizer warrants that Licensed Software, as first delivered by Movilizer, will operate according to Movilizer published user documentation for Licensed Software for 3 months after date of first shipment to Licensee, but as to third-party Software included within Licensed Software, the warranty period is for the shorter of 3 months or the warranty period granted to Movilizer by the third-party supplier.
    3. Viruses
      Movilizer warrants that Licensed Software was scanned for viruses known to Movilizer before Licensed Software was delivered by Movilizer.
    4. Licensee Obligations
      Within 30 days of discovery of an alleged defect in Licensed Software, Licensee must notify Movilizer in writing during the warranty period, and provide to Movilizer adequate information and assistance to enable Movilizer to recreate the alleged defect. Licensee’s failure to timely provide notice and information will relieve Movilizer of any obligation related to the alleged defect.
    5. Remedies
      If Movilizer confirms a defect in Licensed Software during the applicable warranty period, Movilizer shall, at its option and at no charge to Licensee, repair or replace Licensed Software. Licensee accepts this performance by Movilizer as Licensee’s sole and exclusive remedy for the defect. Licensee is not excused from performing any of its obligations under the Order or this license while Movilizer is repairing or replacing Licensed Software. All Licensed Software repaired or replaced is warranted for the remainder of the original warranty period.
    6. Warranty Conditions
      The warranties specified in this Warranty clause will not be effective and Movilizer will have no obligation or liability to Licensee if: (a) Licensed Software is not used according to Documentation and Licensed Use; (b) Licensed Software is altered, modified, or revised by or for Licensee; (c) Licensee’s computer hardware malfunctions; (d) Licensee uses Licensed Software with any computer hardware or software not approved or recommended by Movilizer as compatible with Licensed Software in Documentation; (e) the warranty claim is unrelated to a defect in Licensed Software, (f) the Licensed Software is not implemented and operated in accordance with all instructions supplied by Movilizer, (g) Licensee has not installed all updates, new versions, and new releases made available by Movilizer with respect to the Licensed Software or has not installed all updates recommended by Movilizer with respect to any third party software products that may materially affect the performance of the Licensed Software, (h) Customer has not maintained all associated equipment, software and environmental conditions in accordance with applicable specifications and industry standards, (i) Customer has not paid all undisputed amounts due to Movilizer in connection with the Licensed Software or is otherwise in breach under the terms of this license.
    7. EXCLUSIVITY
      THESE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE. NO WARRANTY EXTENSION WILL BE BINDING ON MOVILIZER UNLESS IN WRITING AND SIGNED BY AUTHORIZED MOVILIZER REPRESENTATIVE.

  7. LICENSEE OBLIGATIONS, REPRESENTATIONS AND WARRANTIES REGARING THE USE OF THE SOFTWARE

    1. Records
      Licensee must maintain complete, current and accurate records documenting the location of Provided Software (in all forms) in Licensee‘s possession.
    2. Compliance Verification
      To ensure compliance with the terms of this license Movilizer or its designated representative may: (a) require Licensee to send a written certification of compliance with the terms and conditions of this license within 30 days of Movilizer‘s request; (b) conduct an inspection and audit upon reasonable notice of the records described in the Records clause above and of electronic logs of access to Provided Software; and (c) obtain true and correct photocopies of the records described in the Records clause above, during regular business hours at Licensee offices in a manner not to interfere unreasonably with Licensee’s normal business activities. Certification or audit may not be requested more than once every 6 months. If any audit discloses any underpayment of fees, Licensee must promptly pay Movilizer the underpaid amount, together with interest thereon at the lower of a rate of 1.5% per month or partial month during which amount was due, or maximum rate allowed by law, from due date to payment date. If the audit reveals that Licensee has underpaid Movilizer by 5% or more of the amount owed, Licensee must promptly reimburse Movilizer for its reasonable costs and expenses associated with the audit.
    3. Licensee represents and warrants that it will not, and will not cause or knowingly allow others to, do any of the following:

      1. use the Provided Software unlawfully;
      2. place harmful software on the Provided Software or use it in connection with the Provided Software, including but not limited to the generation or dissemination of computer viruses, Trojan horses, time bombs, denial of service attacks, key-logging and other monitoring software, worms, or logic bombs;
      3. use the Provided Software, by itself or in conjunction with harmful software, to:
      4. negatively impact the operation or performance of the Provided Software,
      5. negatively impact the safety, security, or privacy of users or owners of the Provided Software,
      6. negatively impact the operation or performance of the networks with which the Provided Software may interact ("Networks"),
      7. attempt unauthorized use of or access to such Networks, or to any service, data or account, or,
      8. cause harm to the Provided Software, the Products with which it is used, or the Networks, or impair their use by others.

  8. DELIVERY

    Movilizer will deliver Provided Software: (a) by physical means as stated in the Order, or (b) by electronic means, in which case Movilizer’s obligation to deliver Provided Software is completed at the time Movilizer makes Provided Software available on a specific Movilizer server and gives Licensee a method of accessing and downloading Provided Software.

  9. OPEN SOURCE RESTRICTIONS

    Licensee represents and warrants that any use by Licensee of Open Source software in conjunction with the Provided Software will not: (i) create, or purport to create, obligations on Licensor or its Suppliers with respect to the Provided Software; or (ii) grant, or purport to grant, to any third party any rights to the Provided Software that are not permitted by this Agreement; or (iii) grant, or purport to grant, to any third party any immunities with respect to Licensor’s or its Suppliers’ proprietary rights. Any Open Source software listed under this Agreement is listed only for convenience and solely for information purposes, and, if licensed, is licensed only under the terms set forth in the corresponding Open Source License, which may be found on the Internet at the location from which the Software was downloaded, and/or in the header files of such software, as applicable.

  10. NOTE ON JAVA SUPPORT

    The Software may contain support for programs written in Java. Java technology is not fault tolerant and is not designed, manufactured, or intended for use or resale as online control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of Java technology could lead to directly to death, personal injury, or severe physical or environmental damage.

  11. DISPUTE RESOLUTION AND CHOICE OF LAW

    This Agreement shall be governed by English law without giving effect to its internal choice of law principles and application of the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded. The Parties submit to the exclusive jurisdiction of the courts of England. A person who is not a party to this Agreement may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999.

  12. GENERAL

    This Agreement is the complete agreement and understanding of the parties with respect to the Provided Software and any accompanying documentation and supersedes all prior oral, written, or other representations and agreements. Licensee acknowledges that the Provided Software may be subject to import/export laws and/or regulations and agrees to comply with all import, export and re-export control laws and regulations of the United States, Germany, and any other country having proper jurisdiction. Licensee shall obtain all necessary export licenses in connection with any subsequent export, re-export, transfer and use of all products, technology and software purchased, licensed or received from Licensor and will retain documentation to support compliance with those laws and regulations with all applicable international and national laws that apply to the Provided Software, including the U.S. Export Administration Regulations, as well as end-user, end-use, and country destination restrictions issued by the U.S. and other governments. If the Provided Software is acquired under the terms of a U.S. Government contract, its use, duplication, and disclosure are subject to the terms of this license and the restrictions contained in the Rights in Technical Data and Computer Software clause at 252.227-7013 (DOD contracts); and subdivisions (a) through (d) of 52.227-19 as applicable.

MOVILIZER CONSULTING SERVICES SUPPLEMENTAL TERMS AND CONDITIONS

FOR USE IN CROSS BORDER TRANSACTIONS

    1. Movilizer GTC Part A as supplemented by these Consulting Service supplemental terms and conditions set forth the terms and conditions applicable to the supply of consulting services such as implementation, configuration, custom development and training services to be provided by Movilizer to Customer (“Consulting Services”), as defined and set forth in separate orders (“Consulting Orders”). The form of Consulting Orders shall follow the Movilizer Order template. Except as otherwise stated in these Consulting Service Supplemental Terms and Conditions, the definitions set out in Movilizer GTC – Part A will apply hereto.

    2. Changes to any Consulting Order will be subject to mutual agreement of the Parties (“Consulting Change Order”) and shall be agreed upon in accordance with the 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 the 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. Upon agreement upon a Consulting Change Order, Movilizer will proceed in accordance with the agreed change.

  1. Project Manager / Project Staff

    1. Customer will appoint an individual who will serve as the primary contact point for Movilizer in connection with the Consulting Order ("Customer Project Manager"). Movilizer will appoint an individual who will be responsible for managing Movilizer performance of the supply of Consulting Services and as the primary contact point for Customer ("Movilizer Project Manager").

    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.

  2. Acceptance

    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 Consulting Order ("Work Product"), an authorized representative of 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.

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

  3. Fees and Payment

    1. Unless otherwise agreed in the applicable Consulting Order, and subject to the provisions set forth at Section 6 of Part A, Customer will pay to Movilizer fees for time spent and expenses incurred in fulfilment of the Consulting Order in accordance with the current price lists of Movilizer.

    2. Movilizer will invoice Customer monthly for time spent and expenses incurred, or as otherwise 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.

  4. Warranties

    1. Performance.
      Movilizer represents and warrants to Customer that:

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

      In the event of breach of the foregoing warranties with respect to any Consulting Service or Work Product, Movilizer will, in a timely manner, repair or replace the affected Work Product, and, if necessary, re-perform the Consulting Services, provided that Movilizer receives a written notice from Customer including documentation of the breach. Customer will have the right to terminate the applicable Consulting Order if Movilizer has not remedied such breach within a reasonable cure period of at least 30 days. The determination of what cure period is reasonable must take into account that solutions might require input of third parties not under the control of Movilizer (e.g., problems in operating systems). Customer will pay for Consulting Services performed by Movilizer and for expenses incurred up to the date a notice of termination is received by Movilizer.

    2. Movilizer will invoice Customer monthly for time spent and expenses incurred, or as otherwise 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.

    3. Except where Movilizer has acted with intent to harm, has engaged in gross negligence or fraudulent concealment of a defect, or in cases involving personal injury, any claims by Customer against Movilizer are time-barred one year after the Consulting Services and the Work Product were provided to the Customer. This one year period will be suspended during any period in which Movilizer is investigating the existence of a claimed defect or is remedying a defect, until Movilizer informs Customer of the result of its investigation, gives notice that the remedy is complete, or refuses to remedy the defect.

    4. EXCLUSIVE WARRANTY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE EXPRESS WARRANTIES OF MOVILIZER STATED IN SECTION 5 ABOVE IN RESPECT OF THE CONSULTING SERVICES AND WORK PRODUCT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. EXCEPT AS PROVIDED IN SECTION 7 OF THE GENERAL TERMS AND CONDITIONS (INDEMNITY), THE EXPRESS OBLIGATIONS, LIABILITIES AND REMEDIES STATED IN SECTION 5 ABOVE ARE EXCLUSIVE AND ARE MOVILIZER’S SOLE OBLIGATIONS AND LIABILITIES AND CUSTOMER’S SOLE REMEDIES IN RESPECT OF THE CONSULTING SERVICES AND WORK PRODUCT.

  5. Intellectual Property

    1. Movilizer hereby grants to Customer and its Affiliates the rights to use the Work Product. This grant is limited to the Customer’s or its Affiliates’ own internal business purposes and is not assignable, transferable or licensable. The Parties agree that neither grants the other any rights to any Intellectual Property developed by that Party before, during or after termination of this Agreement other than as expressly stated herein.

  6. Term and Termination

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

    2. Unless otherwise agreed upon in the Consulting Order, neither Party may terminate a Consulting Order for convenience.

    3. Either Party may, in addition to other relief, terminate a Consulting Order for cause if the other Party breaches any material provision of the Agreement 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, files a petition in bankruptcy, or a petition in bankruptcy is filed with respect to the other Party and is not dismissed within 30 days.

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

    5. In the event of a termination of a Consulting Order permitted by this Section 7, Customer will be required to pay Movilizer for any products or services delivered prior to the effective date of termination.

  7. GTC

    It is expressly acknowledged and agreed that the supply of the Consulting Services shall be subject to the GTC Part A including without limitation Section 8 “Liability” thereof. These Consulting Services Supplemental Terms and Conditions solely apply to the Consulting Services provided by Movilizer to Customer and not to any Movilizer Service or Movilizer Software (as defined in the GTC Part A). Any Movilizer Service or Movilizer Software provided in connection with the Consulting Services, which will be subject to the other Parts and/or Appendices of the GTC as applicable.

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