Last Updated: 1/16/2013
For purposes of this agreement, the terms “you”, “your”, "the User" or other like terms shall refer to the party agreeing to the terms of this agreement and to any person or entity who, uses the bMobilized service under this agreement. Accordingly, the person agreeing to the terms of this agreement represents and warrants for his or herself and on behalf of the entity he or she purports to act for (and for any third party customer) that he or she is duly authorized for and on behalf of his or herself and on behalf of the entity he or she purports for act for (and for any third party customer) to enter into this agreement and perform this agreement.
You also understand that you are responsible for the security of your account user name and password and, in connection with any use of your account, you are responsible for the acts of your employees and anyone acting on your behalf or purporting to act on your behalf.
2 What we deliver to you
If you wish to sign up for the bMobilized service, you are required to register by creating an account. If you register, you represent and warrant to bMobilized that: (i) you are of legal age to form a binding contract, and, if you are acting on behalf of an organization, you have the right to enter this agreement on behalf of such organization; (ii) you will provide bMobilized with accurate, current and complete registration information; (iii) your registration and your use of the bMobilized service is not prohibited by law; and (iv) you have all legal rights to publish and distribute mobile website versions of the websites you input into the bMobilized service (the “User Authorized Sites”). bMobilized reserves the right to terminate or suspend your status as a user of the bMobilized service in the event that you breach any term of this agreement.
You declare that by creating an account, you hereby consent to, us sending, and you receiving, by means of telephone, facsimile, SMS or e-mail, communications containing content of a commercial nature relating to your use of our website, the bMobilized service and related services, including further information and offers from us that we believe you may find useful or interesting, such as newsletters, marketing or promotional materials. You acknowledge that we do not have to obtain your prior consent (whether written or oral) before sending such communications to you, provided that we shall immediately cease to send any such further communications should you notify us in writing that you do not wish to receive such commercial content anymore.
2.2 The bMobilized service
The bMobilized service consists of a system that automatically converts the content of your existing website to a website tailored for access from handheld and other mobile, devices with small screens and internet connectivity, such as mobile phones (your “mobile website”). After you have created an account and the bMobilized service has created a default mobile version of your website, you can log into your account and tailor your mobile website with our web based tools.
Our goal is to make the bMobilized service available at least 99.5% of the time, excluding the periods where we conduct scheduled maintenance or where unforeseeable and unavoidable service outages occur due to internet, network, or internet service provider related downtime outside our systems and/or control.
You as a customer are only given a right to use the bMobilized service. Except as otherwise provided in this agreement, no other rights, such as intellectual property rights of bMobilized, its affiliates or any third party, are transferred to you under this agreement. This agreement is not a sale and does not convey to you any rights of ownership in or related to bMobilized property. Any enhancements or other changes to the bMobilized service shall be subject to the terms of this agreement automatically and without notice to you.
Support is provided by our web based user documentation support system to all customers. Email and phone support may also be provided. We strive to provide a response to support requests no later than the business day following the day the request is made. Response and resolution times may vary depending on the nature of the issue reported. Requests not addressed by our user documentation will usually be given priority. bMobilized support hours are listed on the bMobilized website.
bMobilized performs regular maintenance to the bMobilized service in an effort to maintain the bMobilized service in stable and operational condition, and aims to enhance the bMobilized service over time. Maintenance includes error correction and other adoptions to general shifts in the World Wide Web consortium’s standards. However, we do not warrant that your mobile website will appear the same way on all mobile devices, or that all mobile devices will be able to access your mobile website. Changes made to your website after the bMobilized service has been established may also influence on whether and how it appears on mobile devices.
You understand that all information, data, text, software, music, sound, photographs, graphics, video or other content you make available by use of the bMobilized service is your sole responsibility. bMobilized does not censor or control any such content made available by use of the bMobilized service and therefore does not warrant the accuracy, security, integrity or legality of such content.
You grant bMobilized the following non-exclusive, perpetual, royalty-free, world-wide rights and licenses: to access, reproduce, distribute and publicly display the content, in whole or in part, to secure, preserve and make it publicly available, and to make derivative works based upon the content in order to migrate the content to other media or formats, or to preserve its public access.
By using the bMobilized service you, or your website users may be exposed to offensive, pornographic, indecent or objectionable content. In no event shall bMobilized be held liable for any such content, or exposure to such content. Although bMobilized is not obliged to control any content, we are entitled to remove or block access to content that we determine, in our sole discretion, may be contrary to the agreement or applicable law, without liability to you.
By using the bMobilized service, you will be given one or more mobile-specific urls. bMobilized, in its sole discretion, reserves the right to reclaim the mobile-specific url and assign you another one.
As menu systems on websites may vary greatly, bMobilized cannot warrant that the bMobilized service interprets the menu on your website correctly, or that it is identified at all. You must therefore make sure the bMobilized service presents a correct reproduction of your website before giving the public or other intended users access to your mobile website. You are solely responsible for all the aspects of the content, use, “look and feel” and availability of your website (including your mobile website created by your use of the bMobilized service).
In order to enhance accessibility of your existing website on a mobile device, advertisements and other elements of your content may be stripped away. This shall not be deemed a defect.
The bMobilized service supports the viewing of advertisements generated and presented by the bMobilized service (not from your existing website). Paying customers may turn such advertisements on and off. Non-paying customers explicitly agree and accept that any such advertisements will occupy a part of the screen of the user without notice or compensation to such customer.
In the event the EU Data Protection Directive is applicable to your use of the bMobilized service, you agree that, as the one determining the purpose of any use of personal information, you are the controller. bMobilized, as the provider of the bMobilized service working on your behalf, is the processor.
Your data may be stored with professional data operators in Norway, the United States, Canada, countries in the European Union and/or other countries with robust privacy legislation and a stable political climate. By using the bMobilized service, you give your consent to the collection, use and transfer of such data, to and from such countries.
Our ability to maintain your privacy is dependent upon your compliance with this agreement, including without limitation clause 5.1.
3 Limited warranty – SLA
If bMobilized does not meet our high standard of availability set forth in Section 2.2 above, you may request a partial refund of the fee paid for the month in which the availability standard was not met. Such partial refund shall equal the percentage of actual downtime exceeding the standard set forth in Section 2.2 during the affected month multiplied by the fee paid on account of the affected month.
In order for us to be able to keep our prices reasonable, the above described refund is your sole remedy for the failure of bMobilized to meet the target level of availability of the bMobilized service. Refunds will be issued in the form of a credit towards your next payment, unless the affected month was pre-established by you as your final month of service, and you have informed us of that in writing prior to the bMobilized service outage. If so pre-established, your refund will be issued via wire transfer, Pay Pal or credit card payment (at our sole option) within 45 days. If you are not satisfied with the availability of the bMobilized service or with any aspect of the bMobilized service, you may also, of course, always terminate this agreement for your sole convenience in accordance with the terms of Section 6 below.
Except as stated in the previous paragraphs, bMobilized, its affiliates, shareholders, directors, officers, employees and agents EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE;
WITHOUT LIMITING THE ABOVE, (I) WE MAKE NO WARRANTY THAT THE SITE, THE SERVICE OR THE CONTENT WILL MEET YOUR REQUIREMENTS, OR WILL BE UNINTERRUPTED, CONTINUOUS, TIMELY, SECURE, ACCURATE, CORRECT, COMPLETE OR AVAILABILE; (II) WE DO NOT ENDORSE OR APPROVE ANY CONTENT PROVIDED BY ANY PARTY THAN US AND DISCLAIM ALL LIABLITY WHATSOEVER THERETO; AND (III) WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THIS SITE, THE SERVICE OR THE CONTENT IN TERMS OF ITS CORRECTNESS, COMPLETENESS, RESULTS, AVAILABILITY, ACCURACY, RELIABILITY OR OTHERWISE. YOU ASSUME ALL RISK AND RESPONSIBILITY WITH RESPECT TO YOUR USE OF THE BMOBILIZED SERVICE.
No advice or information, whether oral or written, obtained by you from bMobilized, any of bMobilized’s affiliates or employees, or through the bMobilized service or bMobilized website content will create any warranty not expressly stated herein.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
4 Planned maintenance
bMobilized makes every effort to perform all service maintenance activities during pre-scheduled maintenance windows. Currently, the maintenance windows are set for Saturday and Sunday mornings, from 3:00 a.m. to 7:00 a.m. US Central Standard Time as well as weekdays between 3:00 am and 5 a.m. U.S. Central Standard Time. We may not utilize every maintenance window. If system downtime is planned outside any maintenance window, we will issue an announcement prior to the date of the planned maintenance activity. No such planned of notified downtime shall be counted against the availability standard set forth in Section 2.2 above.
5 Your use of the bMobilized service
5.1 Dos and don'ts
Subject to the terms and conditions of this agreement, bMobilized hereby grants you a non-transferable, non-exclusive, non-sublicensable (except as otherwise provided in this agreement), revocable world-wide right to access and use the bMobilzied service. You may access the bMobilized service solely for your internal purposes and you may not resell or otherwise distribute the bMobilized service without the advance written permission of bMobilized.
You agree to use the bMobilized service in good faith within the limits set by law and this agreement. Without limiting the generality of the forgoing you expressly agree not to:
- use or attempt to use the bMobilized service by way of any other user interfaces other than the ones provided to you through the bMobilized service or explicitly referred to in the bMobilized service;
- send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
- send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
- use the bMobilized service to gain unauthorized access to the bMobilized service or any third party system;
- access the bMobilized service if you are a direct competitor of bMobilized or for purposes of benchmarking, analyzing, or comparing the bMobilized service to others not owned by bMobilized or for any other competitive purpose.
- violate trademarks, service marks, patent, copyright, trade secret or other intellectual property rights of bMobilized or any third party;
- violate, or attempt to violate, the security or privacy of the bMobilized service, or attempt to gain access to the account of any third party;
- communicate obscene, offensive, unlawful, defamatory, harassing, abusive, fraudulent, or otherwise objectionable content as determined by bMobilized in its sole discretion.
- include content on your website, or the mobile version your website, or use the bMobilized service in any manner, that violates, infringes or misappropriates the rights of any third party including without limitation intellectual property rights, proprietary rights, rights of privacy or trade secrets.
You expressly agree that you are solely responsible for:
- maintaining secret all user name(s) and password(s) to the bMobilized service, and not sharing user name(s) or password(s) with any third party;
- designating one username and password to each of your employees or other person operating or using the bMobilized service for you, and causing each such person to maintain the secrecy of his or her username and password and to refrain from disclosing to other persons his or her username and password;
- and reporting any unauthorized access to, or use of the bMobilized service to bMobilized.
You agree that you shall use the bMobilized service solely for its intended purposes in accordance with this agreement and shall not reproduce, copy, sell, rent, license, sublicense or in any other way convey the bMobilized service in whole or part, or any access to the bMobilized service, without the prior written agreement of bMobilized. You further agree that you shall not (i) disassemble, decompile or otherwise reverse engineer the bMobilized service or any intellectual property related thereto, (ii) modify, alter or create a derivative work of the bMobilized service or any part of bMobilized’s intellectual property; (iii) exercise any rights with respect to bMobilized’s intellectual property other than those expressly granted herein, or (iv) build or otherwise develop a service having functionality substantially similar to the functionality of the bMobilized service.
bMobilized and bMobilized affiliates have no liability or responsibility to you or to any other person or entity for performance or nonperformance of the aforementioned activities.
5.2 Contact details, and notices
It is your duty to keep your e-mail address and other registered data in your account up to date and active and to ensure that emails we send you are not stopped by spam filters or other types of email blocking systems, and otherwise ensure that e-mail we send you are received and read by you. Further, you acknowledge that any notice to be given to you by bMobilized pursuant to this agreement may be given to you by email to the email address you provide in the registered data you provide in connection with your account and any such notice shall be deemed given upon sending. You agree that as long as bMobilized provides conspicuous notice elsewhere in the bMobilized service, bMobilized shall have no liability for failure to notify you via e-mail, including for improper address, filtration, bounce-back, erroneous transmission or other e-mail or technical malfunction.
5.3 Third Party Sites
The bMobilized service may provide links to third party sites or resources. bMobilized has no control over such third party sites or resources and you acknowledge and agree that bMobilized is not responsible for the availability of such external resources and does not endorse and is not liable for any content, advertising, products or other materials available from or on such sites or resources. Any transactions or activity between you and any third party site or resource is solely between you and the applicable third party, and any terms, conditions, warranties or representations associated with such activity shall be between you and them. You recognize that certain third party providers of ancillary services may require your agreement to additional or different license or other terms prior to your use or access of their sites or services. Any such agreement shall not in any way modify your Agreement here with us.
You may cancel your subscription to a domain for any reason or for no reason at any time by logging in to your bMobilized account and deleting the domain you want to cancel in the Dashboard. We reserve the right to refuse to cancel your subscription to a domain on your behalf. Except as otherwise provided, you will be responsible for any and all fees and charges applicable to your account through the end of the month in which your cancellation occurs, whether or not you in fact use the bMobilized service during such month. Notwithstanding the foregoing, we reserve the right to provide you with a prorated credit based on the number of days left in your billing cycle, which may only be applied to another domain you add to the same account.
bMobilized may at its own sole discretion suspend or terminate the bMobilized service and this agreement immediately and without notice for any breach of Section 5 above.
If you are a paying customer and you breach this agreement, except in the case of a breach of Section 5 above or any other breach that bMobilized determines in its reasonable discretion could cause irreparable harm to bMobilized (in which cases bMobilized may immediately terminate this agreement and/or your access to the bMobilized service upon notice to you), bMobilized shall give you notice of the applicable breach and if the breach is not remedied (corrected) within 14 days following such notice, this agreement and your access to, and use of, the bMobilized service may be terminated immediately by bMobilized without further notice.
bMobilized may terminate the agreement and/or your access to the bMobilized service without cause and for its sole convenience at any time upon notice to you. Further, the bMobilized service may be discontinued in its entirety by bMobilized at any time upon notice to you.
The bMobilized service will be made unavailable, and any or all of your data may be deleted, if this agreement and/or your access to the bMobilized service is terminated. bMobilized shall have no liability to you in the event such data is deleted, destroyed or made unavailable to you or third parties upon such termination.
You agree that if a third party asserts a claim against bMobilized, its affiliates, officers, directors, employees or agents and such claim arose as a result of your breach of any of the obligations set forth in this agreement, you shall defend, indemnify and hold harmless bMobilized, its affiliates, officers, directors, employees and agents from and against such claims and any and all liabilities, losses, damages, costs and expenses (including without limitation reasonable attorneys fees and expenses) suffered or incurred by bMobilized, its affiliates, officers, directors, employees or agents as a result of such claim.
Sections 2.6, 3, 5.1, 6, 9, 12, and 13 shall survive any termination or expiration of this agreement.
7 How we charge you
Our billing policy is as follows:
- In consideration for bMobilized providing the bMobilized service, you shall pay to bMobilized all applicable fees billed to you by bMobilized. The cost of the bMobilized service to you will be charged to you on a per domain basis. No charges will be added to your account until you provide us with your payment information.
- The applicable fees for the bMobilized service are stated on our website and may change without notice..
- Any and all set-up fees in connection with the bMobilized website or the bMobilized service are non-refundable and non-cancelable.
- bMobilized reserves the right to add usage fees based on the number of daily hits to each of your mobile websites and the monthly volume of outbound data traffic served by each of your mobile websites.
- You shall be fully responsible for the payment of any taxes, including sales, use or service taxes, that apply to this agreement and your use of the bMobilized service.
- After you register as a user of the bMobilized service, provide us with your payment information, and agree to be bound by the terms of this Agreement, we will bill you monthly in advance on a recurring basis for the services you have selected to receive until the bMobilized service is terminated and such termination becomes effective.
- The billing will take place through an automatic charge to the approved credit or payment card. A summary of invoice information will be sent to you by email, with more details available on our website.
- By accepting any of our services, you agree to maintain the accuracy, completeness and effectiveness of your billing information (including without limitation ensuring an active credit card with sufficient credit to make payments of all amounts due under this agreement is authorized and included in the billing information) and to immediately make appropriate changes to your account upon any changes to such credit card or other billing information.
- No refunds will be issued on any claim for a refund that is made later than thirty (30) days following the end of the calendar month in which the applicable claim arose.
- Upon our approval, account balances may be used as a credit towards service purchases.
- We reserve the right to deactivate your account without further notice if payment is more than 14 days past due date. Interest on overdue amounts will accrue at the rate of 1.5% per month or the highest rate permitted by applicable law, whichever is less, until such time and payment in full of such overdue amounts is made.
- The price you pay for the bMobilized service is not based upon your actual use of the bMobilized service, but the service you are entitled to use. You must yourself therefore cancel by using bMobilized's self-service facilities for account management, any service that you no longer wish to use and pay for.
8 Contributions and reference
Being an online service we aim to evolve continually. An important element of such evolution is feedback from customers. Although we may use your input or contribution for enhancing the bMobilized service, we are not obliged to use or to compensate you for such contribution. By contributing or giving input, you agree that bMobilized shall have the right to use such contributions or input freely and without restriction for any purpose and without liability to you, and you hereby assign such contributions to bMobilized and represent and warrant that, such contributions or input do not infringe the intellectual property right of others.
In order to enable users to know by what means you have converted your existing website to a website optimized for viewing by mobile devices, bMobilized shall be entitled to expose a link and/or a identifying graphic for bMobilized (e.g. a bMobilized logo and “Powered by bMobilized” reference) at the bottom of the mobile version your website and you agree that you shall have no right title or license in such identifying graphic or link or in any of the intellectual property of bMobilized, except solely as necessary to display such identifying graphic or link on your mobile website in the form supplied by bMobilized during the term of this agreement. You agree that you shall not use such identifying graphic or any other intellectual property of bMobilized for any other purpose whatsoever without the express prior written consent of bMobilized. bMobilized may as part of its marketing efforts, reproduce and expose your trade name and/or mark to third parties and identify you as a bMobilized customer.
9 Limitation of liability
Except as stated in the previous paragraphs, IN NO EVENT ARE WE LIABLE FOR ANY LOST PROFITS, ANTICIPATED SAVINGS, LOSS OF DATA OR SPECIAL, INCIDENTAL OR OTHER CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR LOSS OF USE), WHETHER BASED ON CONTRACT, TORT (INCLUDING FROM NEGLIGENCE), OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH YOUR USE OR INABILITY TO USE THE BMOBILIZED SERVICE, OR OTHERWISE UNDER THIS AGREEMENT. FURTHER, IN NO EVENT SHALL OUR LIABILITY TO YOU EXCEED IN THE AGGREGATE, THE AMOUNT PAID BY YOU TO US UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE THE CLAIM UPON WHICH LIABILITY IS ASSERTED. OUR LIABILITY TO YOU OR ANY THIRD PARTIES IS LIMITED TO THE REMEDIES PROVIDED THROUGH OUR LIMITED WARRANTY IN SECTION 3 ABOVE.
FURTHER, WE ARE NOT LIABLE FOR:
- ANY DAMAGE TO, OR LOSS FROM ANY THIRD PARTY INTRUSION INTO OR ACCESS TO, THE USER'S OWN COMPUTER SYSTEMS, DUE TO USE OF THE BMOBILIZED SERVICE, OR
- ANY CONSEQUENCES OF THE BMOBILIZED SERVICE STRIPPING ANY CONTENT, ANY ADVERTISEMENTS OR OTHER INCOME GENERATING CONTENT, OFF YOUR WEB PAGES IN ORDER TO PRESENT YOUR WEBSITE ON A MOBILE DEVICE.
- ANY HARM TO YOUR COMPUTER SYSTEM, LOSS OR CORRUPTION OF DATA, OR OTHER HARM THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE BMOBILIZED SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
9.2 Non-paying customers
If you are a non-paying customer you understand and accept that the bMobilized service may be unavailable for extended periods of time. We may discontinue any or all services provided to you at any time without notice to you and the limited warranty stipulated in Section 3 above shall not be deemed part of this agreement for purposes of your use of the bMobilized service.
9.3 Legal venue; applicable law
This agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York without regard to any conflict of laws principles that would require the application of laws of any other jurisdiction. Each of the parties hereto irrevocably consents to the jurisdiction and venue or any state of federal court located in New York, New York, in connection with any matter based upon or arising out of this agreement or the matters contemplated herein, and agrees that process may be served upon them in any manner authorized by the laws of the State of New York for such persons.
10 Infringement Notices and Takedown
bMobilized complies with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. § 512, as amended).
Procedure for Reporting Copyright Infringements:
If you believe that material or content residing on or accessible through the bMobilized website or service infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
- Identification of works or materials being infringed;
- Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that bMobilized is capable of finding and verifying its existence;
- Contact information about the notifier including address, telephone number and, if available, e-mail address;
- A statement that the notifier has a good faith belief that the material is not authorized by the copyright owner, its agent, or the law; and
- A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
Procedure to Supply a Counter-Notice to the Designated Agent
If the content provider, member or user believes that the material that was removed or to which access was disabled is either not infringing, or the content provider, member or user believes that it has the right to post and use such material from the copyright owner, the copyright owner's agent, or pursuant to the law, the content provider, member or user must send a counter-notice containing the following information to the Designated Agent listed below:
- A physical or electronic signature of the content provider, member or user;
- Identification of the material that has been removed or to which access to has been disabled and the location at which the material appeared before it was removed or disabled;
- A statement that the content provider, member or user has a good faith belief that the material was removed or disabled as a result of mistake or a misidentification of the material; and
- Content provider's, member's or user's name, address, telephone number, and, if available, e-mail address and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider's, member's or user's address is located, or if the content provider's, member's or user's address is located outside the United States, for any judicial district in which bMobilized is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
Please contact bMobilized’s Designated Agent to Receive Notification of Claimed Infringement at the following address:
bMobilized Attn: Designated Agent 670 Broadway, Suite 305 New York, NY 10012 Email: firstname.lastname@example.org
bMobilized reserves the right to terminate a user’s account if the user is determined to be a repeat infringer.
We may amend the agreement from time to time by informing you of the amended terms via e-mail to the e-mail address you provide to us in your account, and/or by presenting such changes on the bMobilized website. Such amendments will become effective when sent to your last known email address, or when presented on our website. If you do not agree to the new or different terms, you should not use or access the bMobilized website or the bMobilized service. See bmobilized.com/terms-and-conditions for the most up-to-date and applicable terms.
bMobilized may from time to time during your use of the bMobilized service disclose to you certain Confidential Information. "Confidential Information" means trade secrets, know-how, inventions, techniques, processes, source code, pricing and discount lists and schedules, customer lists, contract terms, customer leads, financial information, sales and marketing plans and other such proprietary information. You will not use any Confidential Information of bMobilized for any purpose not expressly permitted by this agreement, and will disclose the Confidential Information of bMobilized only to your employees or contractors who are bound to you by written confidentiality obligations and have a need to know such Confidential Information for purposes of this agreement. You will protect bMobilized’s Confidential Information from unauthorized use, access, or disclosure in the same manner as you protect your own confidential or proprietary information of a similar nature and with no less than reasonable care. Your obligations under this Section 10 with respect to any Confidential Information of bMobilized will terminate if and when you can document that such information: (a) was already lawfully known to the you at the time of disclosure by bMobilized without restriction; (b) was disclosed to the you by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of yours becomes, generally available to the public; or (d) is independently developed by you without access to, or use of, bMobilized’s Confidential Information. You may disclose Confidential Information to the extent disclosure is required by judicial order from a court of competent jurisdiction; provided, however, that prior to such a disclosure, you will notify bMobilized of such required disclosure and will cooperate with bMobilized, at bMobilized’s request and expense, in any lawful action to contest or limit the scope of such required disclosure. During the term of this agreement, and for a period of one year thereafter, without bMobilized’s prior written permission, you and any entity on whose behalf you access the bMobilized service shall not directly or indirectly market, sell or develop any technology or services that are similar to or competitive with or incorporate features, data or Confidential Information of bMobilized, the bMobilized service, nor shall you solicit or attempt to solicit or otherwise interfere in the relationship between (i) any prospective customer or partner of bMobilized, (ii) any employee or contractor of bMobilized, or (iii) any person reasonably believed to be a licensee of bMobilized. If you are in a jurisdiction in which such a provision is not enforceable, such provision shall not apply and this agreement shall be read in its entirety without such provision.
13.1 Relationship – Independent Contractors
You and bMobilized are independent contractors and nothing in this agreement will be deemed to create any agency, employee-employer relationship, partnership, or joint venture between the parties. Except as otherwise provided in this agreement, neither party has or may represent that it has the right, power or authority to bind, contract or commit the other party or to create any obligation on behalf of the other party.
13.2 No Waiver and Severability
No waiver by any party to a breach of this agreement shall constitute a waiver of any provision of this agreement or of any subsequent or other breach or default under this agreement. In the event that any portion of this agreement is held to be invalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary and the remaining provisions of this agreement shall remain in full force and effect.
13.3 Force Majeure
Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages, and upon the occurrence of any of the foregoing, the non-performing party will be excused from further performance of its obligations caused by such event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
13.4 Entire Agreement
13.5 Equitable Relief
You acknowledge that any breach by you of this agreement may cause irreparable damage or injury to bMobilized, for which the award of damages would not be adequate compensation. You agree that bMobilized may bring an action to enjoin you from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and bMobilized may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which bMobilized may be entitled at law or in equity.
13.6 Assignment or Change in Control
This agreement may not be assigned by you without the express written consent of bMobilized, which consent may be withheld for any reason, but may be assigned by you subject to the restrictions contained herein to (a) a parent or subsidiary, (b) an acquirer of substantially all of the assets of your entity, or (c) a successor by merger. Your liability for fees shall survive such transfer until paid in full. Any attempted transfer in violation of these provisions shall be void. Any transfer or attempted transfer by you that would result in a competitor of bMobilized having more than a 50% interest in you shall be a material breach and grounds for termination of this agreement. This Agreement is freely assignable by bMobilized.