Mobyforce^® Terms of Service

Your use of Mobyforce's solutions (referred to in this document as the "Service") is subject to the terms and conditions of a legal agreement between you and Mobyforce LLC ("Mobyforce"). This legal agreement is referred to as the "Terms".

1) Certain definitions

1.1) Solutions
"Solutions" shall mean the Mobyforce software solutions. Such Solutions may be upgraded or modified by Mobyforce from time to time. Updates will be posted to the Terms and all updates to the Terms will apply to all the Solutions.

1.2) Privacy Policy
Mobyforce's Privacy Policy outlines how Mobyforce secures Client personal information and protects privacy and confidentiality when using the Service. The Privacy Policy can be viewed at http://www.mobyforce.com/privacy.html.

1.3) Web Site
Mobyforce's web site is located at http://www.mobyforce.com.

1.4) Client
"Client" shall mean those persons and/or entities purchasing the Mobyforce Service in compliance with the Terms.

1.5) Users
"Users" shall mean those persons who use the Service in compliance with the Terms. Users may include but are not limited to the employees of the Client, consultants, contractors, agents, customers or third parties with which Client conducts business with.

1.6) Mobyforce Reseller
"Mobyforce Reseller" shall mean Mobyforce, or any person or entity who has entered into an agreement with Mobyforce to resell the Service.

1.7) Content
"Content" shall mean any Content provided through the Service (Created by Mobyforce or third parties) in compliance with the Terms, including map and terrain data, photographic, aerial and satellite imagery, traffic data, or any other content.

1.8) Client Content
"Client Content" shall mean any content the Client provides in use of the Service. This includes but is not limited to: Client data, Client customer data and information, work orders, invoices, images, videos, or audio recordings. Client Content does not include Content.

1.9) Brand Features
"Brand Features" shall mean all trademarks, brands, logos, service marks, trade dress, slogans, copyrighted designs, copy written material or other brand features.

1.10) Term
"Term" shall mean the period of time, such as one (1) month or one (1) year, during which the subscription to the service is in force.

1.11) Intellectual Property Rights
"Intellectual Property Rights" shall mean copyrights, trademarks, service marks, patents, applications and registration for each of the preceding, trade secrets, moral rights, contractual rights of non-disclosure and/or any other intellectual property or proprietary rights, however arising, globally with Mobyforce.

1.12) Confidential Information
"Confidential Information" shall mean all proprietary or non-public information disclosed during use or termination of use of the Service, whether written, electronic or oral and designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential.

2) Your relationship with Mobyforce

2.1) Use of the Service is subject to the Terms
In order to use the Service, you must agree to the Terms.
 
2.2) The Terms include Mobyforce's Privacy Policy
(a) The Terms include the following:
(i) the terms and conditions set forth in this document
(ii) the Privacy Policy
b) Before Client uses the Service, Client should read each of the documents comprising the Terms, and print or save a local copy for its records.

2.3) Entire agreement
The Terms represent the entire agreement and understanding between the Client and Mobyforce regarding the use of the Service and supersedes all prior agreements, oral or written. Client also may be subject to additional terms and conditions that may apply when Client uses or purchases other affiliate services, third-party content or third-party software.

2.4) Changes to the Terms
Mobyforce may update the Terms in the future, and Client will be able to find the most current version of this agreement at http://www.Mobyforce.com/terms.html. It is the responsibility of the Client to check any changes to the Terms. Client continued use of the Service following any posting of changes to the Terms will mean that Client accepts and agrees to continue to be bound by the current Terms. All modifications to the Terms shall be effective immediately upon being posted on the Web Site.

3) Acceptance of Terms

3.1) Clicking to accept or using the Service
Client can accept the Terms by:
(a) Clicking to accept or agreeing to the Terms, where this option is made available to Client by Mobyforce in the user interface for the Service; or
(b) Using the Service. In this case, Client understands and agrees that Mobyforce will treat Client use of the Service as acceptance of the Terms from that point onwards.

3.2) United States or other applicable jurisdiction law restrictions
Client may not use the Service and may not accept the Terms if Client is barred from using the Service under the laws of the United States or other applicable jurisdiction.

3.3) Authority to accept the Terms
Client represents that Client has full power, capacity and authority to accept the Terms. If Client is accepting on behalf of another entity, Client represents that Client has full legal authority to bind such entity to the Terms.

3.4) Age restrictions
Client must be 18 years of age or over, or the legal age to form a binding contract in Client jurisdiction if that age is greater than 18 years of age. If Client does not so qualify or if this Service is prohibited by law in the Client's jurisdiction, this Agreement shall be void and Client shall not be authorized to use the Service or the Web Site.

4) Licenses from Mobyforce to Client.

4.1) Service License
Mobyforce gives Client a non-exclusive, non-transferable, non-assignable and revocable license to use the Service as provided by Mobyforce, in the manner permitted by the Terms.

4.2) Content License
Mobyforce is providing Client a non-exclusive, non-transferable, non-assignable and revocable license to access, use, publicly perform and publicly display the Content, as the Content is provided in the Service, and in the manner permitted by the Terms. Specifically, Client understands the following in regards to route planning and location based features:
(a) Content (including but not limited to map data, traffic, and directions) is provided for planning purposes only. Client may find that weather conditions, construction projects, closures, or other events may cause road conditions or directions to differ from the results depicted in the Content. Client should exercise judgment in its use of the Content.
(b) Certain Content is provided under license from third parties, and is subject to copyright and other intellectual property rights owned by or licensed to such third parties. Client may be held liable for any unauthorized copying or disclosure of this content.

5) Licenses from Client to Mobyforce.

5.1) Mention Client as client
Client grants to Mobyforce and to its Mobyforce Reseller a non-assignable, non-transferable, revocable and non-exclusive license to mention Client as client of Mobyforce and of his Mobyforce Reseller.

6) Registration and Fees.

6.1) Registration and free trial period
Upon registration, Client will have access to all the features of the Service and Client's usage of the Service will be subject to the Terms. Mobyforce offers a thirty (30) day free trial of the Service with no further obligation. However, at the end of the 30 day free trial, Client agrees to pay the fees described below to continue using the service.

6.2) Subscriptions fees
In order to use the Service (except during the 30 day free trial), Client must purchase, for each User, a license by paying a monthly, bi-annual or annual subscription fee to his Mobyforce Reseller:
- Monthly Invoicing:
a. Invoice is sent at the end of the 30-Day Trial Activation
b. Invoice is issued starting the first day following the 30 Day Trial through the end of the next full month
c. Initial invoice amount is ONLY for the first full month
d. Monthly invoicing going forward
e. Adding licenses follow the invoicing steps from date of activation
f. Invoicing for End Customers: Net 10
 
Example:
- 30 Day trial activation date: March 12
- Invoice Date: April 12
- Invoice timeline: April 12 - May 31
- Initial Invoice amount: May 1 - May 31
- Monthly Invoicing moving forward

- Biannual Invoicing:
a. Invoice is sent at the end of the 30-Day Trial Activation
b. Invoice is issued starting the first day following the 30 Day Trial through the end of 6 months
c. Initial invoice amount is ONLY for the first full 6 months
d. Biannual invoicing going forward
e. Adding licenses follow the invoicing steps from date of activation
f. Co-Termed Licenses: Initial invoice will be for the remaining term of the initial licenses invoiced. Bi-Annual invoicing moving forward
g. Invoicing for End Customers: Net 10
 
Example:
- 30 Day trial activation date: March 12
- Invoice Date: April 12
- Invoice timeline: April 12 - Nov 30
- Initial Invoice amount: May 1 - Nov 30
- Bi-Annual Invoicing moving forward

- Annual Invoicing:
a. Invoice is sent at the end of the 30-Day Trial Activation
b. Invoice is issued starting the first day following the 30 Day Trial through the end of a 12 month period
c. Initial invoice amount is ONLY for the first full 12 month period
d. Annual invoicing going forward
e. Adding licenses follow the invoicing steps from date of activation
f. Co-Termed Licenses: Initial invoice will be for the remaining term of the initial licenses invoiced. Annual invoicing moving forward
g. Invoicing for End Customers: Net 10
 
Example:
- 30 Day trial activation date: March 12, 2102
- Invoice Date: April 12
- Invoice timeline: April 12 - April 30, 2013
- Initial Invoice amount: May 1, 2102 -April 30, 2013
- Annual Invoicing moving forward

Client may cancel the service at any time but any fee already paid is non-refundable, whether or not the corresponding User licenses are actively used and whether or not Client decide to stop using the Service at any time prior to the end of the Term.
The actual charges for the Service will be based on the Solutions, any specific configuration (including optional modules), the Term and the total number of Users. Please contact your Mobyforce Reseller to get a detailed quote.

6.3) Professional services fees
Professional services fees are quoted based on the Client specific requirement(s) and will be charged on an as-quoted basis.

6.4) Taxes
Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Client shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on the fees.

6.5) Changes to the fees
Mobyforce Reseller, at any time and from time to time, may change the Service fees by providing notice of such change to Client. The new Service fees shall become effective (i) immediately for any new Service subscription, and (ii) at the end of the Term for any existing Service subscription.

6.6) Disputes
If Client believes Client's bill is incorrect, Client must contact his Mobyforce Reseller in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.

6.7) Confidentiality
All pricing terms are confidential, and Client agrees not to disclose them to any third party.

6.8) Collection
In the event the Mobyforce Reseller shall be required to initiate any collection activities against Client for the Service provided, Client agrees to be responsible for all costs and fees associated therewith, including reasonable attorneys' fees. Cancellation or termination of the Service, or any component herein, on the part of Mobyforce shall not be construed as a waiver of right to collect monies already owed to the Mobyforce Reseller.

6.9) Non-payment and suspension
In addition to any other rights granted to Mobyforce herein, Mobyforce reserves the right to suspend or terminate the Service if Client's account becomes delinquent (falls into arrears) at any time. Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Client will continue to be charged for User licenses during any period of suspension. If Client or Mobyforce initiates termination of the Service, Client will be obligated to pay any balance due on Client account computed in accordance with the fees section above. Client agrees that the Mobyforce Reseller may charge such unpaid fees to Client credit card or otherwise bill Client for such unpaid fees, including any fees for use of the Service for the remainder of the Term. Client agrees and acknowledges that Mobyforce has no obligation to retain Client Content (including any customer data) and that Client Content may be irretrievably deleted if Client account is 30 days or more delinquent.

7) Use of Service

7.1) Illegal activities
Client acknowledges and agrees that Mobyforce does not allow any illegal activities. Client warrants that Client will abide by all applicable local, state, national, and international laws and regulations and are solely responsible for all acts or omissions that occur under Client account or password, including, but not limited to, the content of Client transmissions through the Service.
Client may not use the Service or any Content for any purpose that is unlawful or prohibited by this Agreement, or to solicit the performance of any illegal activity or other activity which infringes the rights of Mobyforce, Mobyforce resellers, other Clients or any other party.

7.2) Client Content
Client agrees that Client is responsible for Client own conduct and any Content that Client creates, transmits or displays while using the Service and for any consequences thereof. Client understands and agrees that all information, data, media, documents, or documentation including but not limited to: text, software, music, sound, photographs, graphics, video, messages or other materials, whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content was originated. This means that Client, not Mobyforce, is entirely and solely responsible for all Content that Client uploads, posts, emails or otherwise transmits via this Service. Mobyforce does not control the Content posted via the Service, and as such, does not guarantee the accuracy, integrity, or quality of such content. Client understands that by using the Service, Client may be exposed to content that is offensive, objectionable, or indecent. Under no circumstances will Mobyforce be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed or otherwise transmitted via the Service. Mobyforce ACCEPTS NO RESPONSIBILITY WHATSOEVER FOR SUCH CONTENT, INCLUDING WITHOUT LIMITATION, THE QUALITY OR ACCURACY OF INFORMATION AVAILABLE THROUGH ITS SYSTEM.

7.3) Permitted use
Client agrees not to use, nor permit any third party to use, the Service to:
(a) defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy) of others;
(b) upload, post, transmit or otherwise make available any inappropriate or objectionable, racist, fraudulent, obscene, pornographic, profane, hateful, offensive, information or communications of any kind or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
(c) upload, post, transmit or otherwise make available any content that infringes any patent, trademark, copyright, trade secret or other proprietary right of any party, unless Client is the owner of the rights, or has the permission of the owner or other legal justification to use such content;
(d) upload, post, transmit or otherwise make available messages that promote pyramid schemes, investment opportunities, solicitations, chain letters, or disruptive commercial messages or advertisements;
(e) upload, post, email, transmit or otherwise make available any other content, message, or communication prohibited by applicable law, the Terms or any applicable Service policies or guidelines;
(f) download any file posted by another that Client knows, or reasonably should know, cannot legally be distributed in such manner;
(g) impersonate another person or entity, or falsely misrepresent Client affiliation with any person or entity or delete any author attributions or labels of the origin or source of Content, or other material;
(h) restrict or inhibit any other User from using and enjoying the Service;
(i) delete, obscure, or fail to display the Terms link as presented through the Service
(j) delete, obscure, or in any manner alter any warning, notice (including but not limited to any copyright or other proprietary rights notice), or link that appears in the Service or the Content;
(k) interfere with or disrupt the Service, servers, or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Service;
(l) Collect or store personal data about other Clients, other than that which the Clients have made publicly available;
(m) engage in spamming or flooding;
(n) use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Services or Content or collect information about Clients for any unauthorized purpose;
(o) display content that falsely expresses or implies that such content is sponsored or endorsed by Mobyforce;
(p) create User accounts by automated means or under false or fraudulent pretenses;
(q) promote or provide instructional information about illegal activities;
(r) promote physical harm or injury against any group or individual or other Clients; or
(s) transmit any viruses, worms, defects, Trojan horses, or any items of a disruptive, harmful or destructive nature.

7.4) International use and export compliance
Client shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Service. Without limiting the foregoing, (i) Client represents that Client is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Client will not access or use Service in violation of any U.S. export embargo, prohibition or restriction.
Client acknowledges and agrees that it is Client responsibility to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which Client resides or has customers.

7.5) Passwords and security
Client is responsible for maintaining the confidentiality of Client account password, and is responsible for all activities that occur under Client account.
Client will not misuse or share the login id/password that is issued to Client by Mobyforce, misrepresent Client identity or Client affiliation with an entity, impersonate any person or entity, or misstate the origin of any materials Client is exposed to through the Service.
Client agrees to immediately notify Mobyforce of any unauthorized use of Client password or account or any other breach of security.
Mobyforce cannot and will not be liable for any loss or damage arising from Client failure to provide Mobyforce with accurate information or to keep Client password secure and confidential.
Client may be held liable for losses incurred by Mobyforce, Mobyforce Resellers or any other user of or visitor to the Service to an unauthorized third party using Client email address, password or account as a result of Client failure to keep Client account information secure and confidential.
Client agrees that Mobyforce shall not be liable for any loss or damage arising from Client failure to comply with these obligations.

7.6) Responsibility for breaches
Client agrees that Client is solely responsible (and that Mobyforce has no responsibility to Client or to any third party) for any breach of Client obligations under the Terms and for the consequences (including any loss or damage which Mobyforce may suffer) of any such breach.

7.7) One User account per User
Any User account is for one User only: the login id and password cannot be shared with any other User to avoid paying the corresponding subscription fee.
Mobyforce reserves the right to put in place detection and protection features to prevent concurrent Users with the same login id and password to use the Service.

7.8) Access to the Service
Client needs one subscription for each of the Client's Users, whether or not the User accesses the Service through the web only, a smartphone/tablet only or a combination of both.

7.9) Enforcements
Mobyforce reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties.
In cooperation with government requests and legal process, to protect the integrity and operation of the Service, Mobyforce may access and disclose any information it considers necessary or appropriate, including, without limitation, User profile information (i.e. name, e-mail address, etc.), IP addressing and traffic information, usage history, and posted Content.

7.10) Company's data usage and privacy policies
Client agrees to comply with Client company data usage and privacy policies.

7.11) Reselling
Client agrees to not charge Users or any other third party any incremental fee solely for the use of the Service or the Content, unless Client has entered into a separate agreement with Mobyforce or an authorized Mobyforce Reseller, or obtained Mobyforce's written permission to do so.

7.12) Source code
Client agrees to not reverse engineer, decompile or otherwise attempt to extract the source code of the Service or any part thereof.

7.13) General practices regarding use and storage
Client agrees that Mobyforce has no responsibility or liability for the deletion or failure to store Client Content and other communications maintained or transmitted by the Service.
Mobyforce strongly recommends to its Clients that they archive all Content and Client Content used in the Service frequently. Mobyforce is not responsible for any lost or unrecoverable Content.

7.14) Limits on use and storage
Client acknowledges and agrees that Mobyforce may impose or adjust limits on the:
(a) number of overall transactions Client may send or receive through the Service;
(b) number of work orders per day Client may send or receive through the Service;
(c) number of tasks per day Client may send or receive through the Service;
(d) number of activities per day Client may send or receive through the Service;
(e) number of forms per day Client may send or receive through the Service;
(f) number of notifications per day Client may send or receive through the Service;
(g) number of downloads or bulk feeds of any Content, including but not limited to numerical latitude or longitude coordinates, imagery, and visible map data;
(h) number of geocoding requests;
(i) number of maps visualized;
(j) number of geofences;
(k) number of APIs Client may send or receive through the Service;
(l) overall data storage;
(m) overall number of customers;
(n) overall number of forms;
(o) overall number of points of interest;
(p) overall number of routes;
(q) overall number of service contracts;
(r) overall number of products;
(s) overall number of installed products;
(t) overall number of mobiRules;
(u) time interval between the capture of 2 smartphone or tablet locations;
(v) time interval between 2 communications from/to Mobyforce's smartphone or tablet native application and Mobyforce's cloud based platform;
Mobyforce reserves the right to establish or modify its general practices and limits relating to volume of transactions and storage. Please note that additional volume can be obtained typically at an additional cost to the base Service fees.

7.15) Limits on data retention
Client acknowledges and agrees that Mobyforce may impose or adjust limits on the amount of time Client Content is available:
(a) closed work orders;
(b) closed tasks;
(c) closed activities;
(d) submitted forms;
(e) raw locations (e.g. Mobyforce doesn't need to store all the locations that have been captured in a "Stopped" segment)
(f) raw locations and corresponding mobiSegments (v)
Mobyforce reserves the right to establish or modify its general practices and limits relating to volume of transactions and storage. Please note that additional data retention can be obtained typically at an additional cost to the base subscription fees.

7.16) Support
Support for the Service is provided by e-mail, Monday through Friday, excluding local bank holidays, at the local business hours of your Mobyforce Reseller. Please contact your Mobyforce Reseller to obtain its local business hours. For support outside these hours, please contact your Mobyforce Reseller to obtain a quote.

7.17) Disruption of service
Client may not use any "deep-link", "page-scrape", "robot", "spider" or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Service, or in any way reproduce or circumvent the navigational structure or presentation of the Service, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Service.
Client may not attempt to gain unauthorized access to any portion or feature of the Service, or any other systems or networks connected to the Service or to Mobyforce's server, or to any of the services offered on or through the Service, by hacking, password "mining" or any other illegitimate means.
Client may not probe, scan or test the vulnerability of the Service or any network connected to the Service, nor breach the security or authentication measures on the Service or any network connected to the Service.
Client may not reverse look-up, trace or seek to trace any information on any other user of or visitor to the Service, or any other Client of Mobyforce, including any account not owned by Client, or exploit the Service or information made available or offered by or through the Service, in any way where the purpose is to reveal any information, including but not limited to personal identification or information, other than Client own information, as provided for by the Service.
Client agrees not to use any device, software or routine to interfere or attempt to interfere with the proper function of the Service or any transaction being conducted on the Service, or with any other person's use of the Service.
Client may not forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal Client sends to Mobyforce or impersonate any other individual or entity.

7.18) Service availability
Client understands and agrees that access and use of the Service may be interrupted from time to time as a consequence of equipment malfunction, periodic Solutions upgrades and updates, maintenance or repair of the Service by Mobyforce or as a consequence of other third party provider disruptions.

7.19) Software updates
Mobyforce reserves the right to automatically upgrade the software to update, enhance and further develop the Service, including providing bug fixes, patches, enhanced functionality, missing plug-ins and new versions.
If not done automatically, Mobyforce also reserves the right to require Client to obtain and use the most recent version.

7.20) Competitors
Client is not authorized to use the Service if Client sells or plans to sell products or services that would compete with the Service. Client may not access the Service in order to monitor its availability, performance, or functionality in order to benchmark the Service or for any other competitive purpose.

7.21) Other software and hardware
Client shall be responsible for obtaining and maintaining, at Client own expense, all computer hardware, software, communication equipment, access lines, smartphones, tablets and any device Client use to access and utilize the Service.

7.22) Smartphone/tablet passwords
Mobyforce strongly recommends that each smartphone or tablet User sets up a password to access its smartphone or tablet.

7.22) Data roaming and overusage
Mobyforce is not responsible for any charges incurred for roaming and overusage charges incurred by Clients while using the Service. Clients is responsible for any data, texting, roaming, and long distance charges incurred on mobile device plans. Mobyforce strongly recommends Client to disable roaming while travelling outside of their normal coverage area.

7.23) Mobile Device Management ("MDM")
The Service is not a MDM Solution and Mobyforce may recommend using a MDM solution in conjunction with the Service depending on the Client use cases (e.g. ability to remotely wipe a smartphone or tablet, ability to only allow certain application(s), ability to prevent data roaming...).

7.24) Safety Watchdog & Emergency
Mobyforce takes security very seriously and the concept behind the Emergency and Safety Watchdog features is to provide additional mechanisms to protect your mobile workforce. However, these features are provided on a best effort basis and cannot be guaranteed (e.g. if the User is not in a cellular network coverage area, the native application will not be able to notify the cloud based infrastructure and trigger the corresponding emergency procedures). These features are not a replacement of your cellular service emergency (e.g. 911) calls. Client acknowledges and understands that Mobyforce will not be liable for any service outage and/or inability to notify or to access emergency operator. Client agrees to defend, indemnify, and hold harmless Mobyforce, its officers, directors, employees from any claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorney fees) by, or on behalf of, User relating to the failure or outage of the service, including those related to the Emergency and Safety Watchdog features.

7.25) Do not use while driving or operating any equipment
Mobyforce strongly recommends NOT to be reviewing or inputting any data into a mobile device while driving or operating any type of equipment. Client assumes full responsibility, acknowledges and agrees that Mobyforce is not liable for any loss, issues, accidents, harm or damage that may be incurred by Client as a result of using the Service while driving or operating any equipment.

7.26) Location tracking
Mobyforce provides multiple location based features as part of the Service. These features are optional and can be activated/deactivated by the Client at its own discretion. Each individual User can also deactivate location tracking within the application (and the User can also deactivate any location tracking through the settings of its smartphone or tablet). Mobyforce takes the User privacy rights very seriously and offer multiple location tracking mode and parameters to respect the privacy of the User while still providing valuable location based services to Client.
To provide location-based features as part of the Service (e.g. last known location...), Mobyforce collects and uses the real-time geographic location of the User smartphone or tablet. The location is provided by the smartphone or tablet internal sensor(s) (e.g. GPS...) and its precision and accuracy are device specific and cannot be guaranteed. In some situations (e.g. indoors), the location might not even be available.

7.27) Location and movement analysis features
In addition to displaying the collected location data (the"raw" locations), Mobyforce has implemented a patented set of algorithms that automatically analyze those raw locations to determine the actual User movement segments (e.g. "In Transit", "Stopped"...). The algorithms typically require multiple iterations to determine the actual movements of a User and the corresponding results might temporarily fluctuate (e.g. when a User is in transit but temporarily stopped at a red light...). In addition, the "Lenient mode" parameter lets the algorithms use "most likely scenario" when some locations are missing: e.g. if a User enters a building, stays in that building for several minutes (no location available during that time frame) and then leaves that building (i.e. same location before and after), the algorithms will report that the User was "Stopped" at that location when the lenient mode is activated (even though there is no actual collected data to guarantee that the User was stopped in that building).
The location and movement analysis results are provided on a best effort basis and they cannot be guaranteed. Client acknowledges and understands that Mobyforce will not be liable for any incorrect User movement analysis. Client agrees to defend, indemnify, and hold harmless Mobyforce, its officers, directors, employees from any claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorney fees) by, or on behalf of, User relating to the failure of the service, including those related to the location and movement analysis features.

7.28) Other Content
The Service may include hyperlinks to other websites or content or resources. Mobyforce has no control over any web sites or resources that are provided by companies or persons other than Mobyforce. Client acknowledges and agrees that Mobyforce is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such websites or resources.
Client acknowledges and agrees that Mobyforce is not liable for any loss or damage that may be incurred by Client as a result of the availability of those external sites or resources, or as a result of any reliance placed by Client on the completeness, accuracy or existence of any advertising, products, or other materials on, or available from, such websites or resources.

8) Web Site accessibility

The majority of the pages on the Web Site are accessible to individuals with disabilities in accordance with Section 508 of the Rehabilitation Act. If Client has difficulties accessing any part of the site, please let Mobyforce know, and Mobyforce will do its best to reasonably provide Client with prompt access to the information Client desires.
For Visitors with visual disabilities:
(a) Images on the Web Site are accompanied by alternative text describing graphics.
(b) Documents on the Web Site are presented in many formats. These formats are generally accessible to Users using screen reading software.
(c) If Client has trouble viewing any page on the Web Site with adaptive technology, please let Mobyforce know right away.

9) Changes to the Service

Mobyforce is constantly innovating in order to provide the best possible experience for its Users. Client acknowledges and agrees that the form and nature of the Service may change from time to time without prior notice to Client. As part of this continuing innovation, Client acknowledges and agrees that Mobyforce may stop (temporarily or permanently) providing the Service (or any features within the Service) to Client or to Users generally at Mobyforce's sole discretion, without prior notice to Client. Mobyforce reserves the right to refuse or discontinue the Service to anyone, and to disable Users' access to the Service, at any time in its sole discretion with or without notice.

10) Confidentiality

A party receiving Confidential Information ("Receiving Party") shall not directly or indirectly, at any time, without the prior written consent of the Disclosing Party, use or disclose the Confidential Information or any part thereof in a manner detrimental to the Disclosing Party or for any use other than necessary for the performance of Receiving Party's obligations under the Terms. The Receiving Party shall be responsible for any breach of the Terms by its employees and/or agents and by any other person to whom the Receiving Party has disclosed the Confidential Information to the same extent that the Receiving Party would be responsible to the Disclosing Party if the Receiving Party had breached the Agreement. Receiving Party agrees to and shall take all reasonable steps to protect the confidentiality of the Confidential Information.

The term Confidential Information does not include information which:
(a) is already known to the Receiving Party, free of any obligation to keep it confidential;
(b) is or becomes publicly known through no wrongful act of the Receiving Party;
(c) is received by the Receiving Party from a third party without any restriction on confidentiality;
(d) is independently developed by the Receiving Party;
(e) is disclosed to third parties by the Disclosing Party without any obligation of confidentiality; or
(f) is approved for release by prior written authorization of the Disclosing Party.

If Receiving Party is requested by a court, governmental entity or through legal process to disclose any Confidential Information, it will promptly notify Disclosing Party to permit Disclosing Party to seek a protective order or take other appropriate action. Receiving Party will also cooperate in Disclosing Party's efforts to obtain a protective order or other reasonable assurance that confidential treatment will be afforded the Confidential Information and shall only disclose the part of the Confidential Information as is required by law to be disclosed and Receiving Party will use its best efforts to obtain confidential treatment therefor.

In addition to any other rights and remedies available to Disclosing Party hereunder or at law, Receiving Party acknowledges and agrees that due to the nature of the Confidential Information its confidentiality obligations to Disclosing Party hereunder are of a unique character and agrees that any breach of such obligations may result in irreparable and continuing damage to Disclosing Party for which there may be no adequate remedy in damages.

Notwithstanding anything to the contrary in this Agreement, Disclosing Party will be authorized and entitled to seek injunctive relief, without the necessity of posting a bond or other security, even if otherwise normally required, and/or a decree for specific performance, and such further relief as may be proper from a court with competent jurisdiction.

11) Intellectual Property Rights

11.1) Mobyforce's Intellectual Property Rights
Client acknowledges and agrees that Mobyforce owns all legal right, title and interest in and to the Service and Content, including any Intellectual Property Rights (whether those rights happen to be registered or not, protected or not by applicable intellectual property and other laws and treaties, and wherever in the world those rights may exist).
Client acknowledges and agrees that Mobyforce owns all legal right, title and interest in and to any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client or any other party relating to the Service.

11.2) Client Intellectual Property Rights
Mobyforce claims no ownership or control over any Content submitted, posted or displayed by Client on or through the Service. Client or a third party licensor, as appropriate, retains all patent, trademark and copyright to any Content Client submits, posts or displays on or through the Service and Client is responsible for protecting those rights, as appropriate.

11.3) Copyright and trademark information
Mobyforce is a registered trademark of Mobyforce LLC. Other names appearing in the Service may be trademarks of their respective owners. The trademarks, service marks and logos of Mobyforce and others used in the Service ("Trademarks") are the property of Mobyforce and their respective owners. Client has no right to use any such Trademarks, and nothing contained in the Service or the Terms grants any right to use (by implication, waiver, estoppels or otherwise) any Trademarks without the prior written permission of Mobyforce or the respective owner.

12) Termination

The Terms shall commence upon Client registration and use of the Service and will continue to apply until terminated by either Client or Mobyforce as set out below.

12.1) Terminating the Terms
Client may discontinue its use of the Service at any time and any account cancellation request must be made through the Web Site. Following Client request, Mobyforce will terminate Client password(s), account(s) or use of the Service. Client will be able to request its data (e.g. customer exports...) within 30 days of termination but Client agrees and acknowledges that Mobyforce has no obligation to retain Client Content and the Content after those 30 days. Unless explicitly requested by Client, Mobyforce will delete Client Content and the Content thirty (30) days after termination. Client will not hold Mobyforce responsible for any deleted Client Content and Content.

12.2) Termination for cause
Any breach of Client payment obligations or unauthorized use of the Service will be deemed a material breach of this Agreement. Mobyforce, in its sole discretion, may terminate Client password(s), account(s) or use of the Service if Client breaches or otherwise fails to comply with the Terms. In addition, Mobyforce may terminate a free 30-day trial account at any time in its sole discretion. Client agrees and acknowledges that Mobyforce has no obligation to retain Client Content and the Content, and will delete it after a period of thirty (30) days. Client will not hold Mobyforce responsible for any deleted Client Content and Content.

12.3) Surviving provisions
Sections 12 (Termination), 13 (Disclaimer of Warranties), 14 (Limitations of Liability), 15 (Indemnity) and 16 (General Provisions) of the Terms, shall survive termination.

13) Disclaimer of warranties
CLIENT EXPRESSLY UNDERSTAND AND AGREE THAT CLIENT USE OF THE SERVICE AND THE CONTENT IS AT CLIENT SOLE RISK AND THAT THE SERVICE AND THE CONTENT ARE PROVIDED "AS IS" AND "AS AVAILABLE." IN PARTICULAR, MOBYFORCE DOES NOT REPRESENT OR WARRANT TO CLIENT THAT:
(a) CLIENT USE OF THE SERVICE WILL MEET CLIENT REQUIREMENTS;
(b) CLIENT USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR;
(c) ANY INFORMATION OBTAINED BY CLIENT AS A RESULT OF CLIENT USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; AND
(d) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO CLIENT AS PART OF THE SERVICE WILL BE CORRECTED.
ANY CONTENT OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT CLIENT OWN DISCRETION AND RISK AND CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CLIENT COMPUTER SYSTEM OR OTHER DEVICE, LOSS OF DATA, OR ANY OTHER DAMAGE OR INJURY THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH CONTENT.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CLIENT FROM MOBYFORCE, OR THROUGH OR FROM THE SERVICE OR CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.

14) Limitation of liability

CLIENT AGREES THAT EXCEPT WITH RESPECT TO THE INDEMNIFICATION PROVISIONS CONTAINED HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, IN CONTRACT OR IN TORT, OR UNDER ANY OTHER LEGAL THEORY (INCLUDING STRICT LIABILITY), FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES, INCLUDING LOST PROFITS, REVENUES OR DATA, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NONPERFORMANCE OF THE TERMS, OR FOR ANY CLAIM MADE AGAINST SUCH PARTY BY ANY OTHER ENTITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR MORE THAN THE TOTAL AMOUNT OF PAYMENTS MADE BY CLIENT TO MOBYFORCE UNDER THE TERMS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO SUCH LIABILITY.

15) Indemnity

Client agrees to hold harmless and indemnify Mobyforce, and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners, from and against any third party claim arising from or in any way related to Client use of the Service, violation of the Terms or any other actions connected with use of the Service, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, Mobyforce will provide Client with written notice of such claim, suit or action. Client will cooperate as fully as reasonably required in the defense of any claim. Mobyforce reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by Client. Client acknowledges that damages for improper use of the Service may be irreparable; therefore, Mobyforce is entitled to seek equitable relief, including but not limited to preliminary injunction, in addition to all other remedies.

16) General provisions

16.1) Notices
Client agrees that Mobyforce or his Mobyforce Reseller may provide Client with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Service.

16.2) No waiver
Client agrees that if Mobyforce does not exercise or enforce any legal right or remedy contained in the Terms (or that Mobyforce has the benefit of under any applicable law), this will not be taken to be a formal waiver of Mobyforce's rights and that those rights or remedies will still be available to Mobyforce. Any waiver of any provision of the Terms will be effective only if Mobyforce expressly states in a signed writing that it is waiving a specified portion of the Terms.

16.3) Severability
If any court of law that has jurisdiction rules that any provision of the Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable.

16.4) Assignment
The Terms may be assigned by Mobyforce and will inure to the benefit of Mobyforce, its successors and assigns.

16.5) Governing Law and Jurisdiction
The Terms, and Client relationship with Mobyforce under the Terms, will be governed by the laws of the State of Florida, USA, without regard to its conflict of laws provisions. Client and Mobyforce agree to submit to the exclusive jurisdiction of the courts located in the County of Palm Beach, Florida, USA, to resolve any legal matter arising from the Terms. Notwithstanding this, Client agrees that Mobyforce will be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

16.6) Statute of limitations
Client agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.

16.7) Complete Agreement
The Terms constitute the whole legal agreement between Client and Mobyforce and govern Client use of the Service and Content, and completely replace and supersede any prior agreements between Client and Mobyforce, written or oral, in relation to the Service and Content.