MOBILE IRON, INC.
IF YOU ARE AN EMPLOYEE OF OR CONSULTANT OR CONTRACTOR TO AN ENTITY IDENTIFIED IN THE FORM COMPLETED ON THE PREVIOUS PAGE, YOUR AGREEMENT TO THESE TERMS WILL BE DEEMED TO BE THE AGREEMENT OF THAT ENTITY IDENTIFIED (“CUSTOMER”) AND YOU AND THE CUSTOMER REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY OR HAVE BEEN PROVIDED THE AUTHORITY TO BIND THE CUSTOMER TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
MOBILE IRON, INC., A DELAWARE CORPORATION (“MOBILEIRON”) IS ONLY WILLING TO GRANT CUSTOMER ACCESS TO THE SAAS PRODUCTS, SOFTWARE, RELATED SERVICES AND OTHER SOFTWARE (AS APPLICABLE), PRODUCTS (AS APPLICABLE), AND SERVICES (AS APPLICABLE) ONLY UPON THE CONDITION THAT CUSTOMER ACCEPTS ALL THE TERMS CONTAINED HEREIN. BY CLICKING “ACCEPT” THE CUSTOMER ACCEPTS ALL OF THE TERMS OF THIS AGREEMENT. IF YOU OR CUSTOMER DO NOT AGREE TO (OR CANNOT COMPLY WITH) ALL OF THE TERMS OF THIS AGREEMENT, THEN PLEASE CLICK “DECLINE” AND NEITHER YOU NOR THE CUSTOMER WILL BE AUTHORIZED TO ACCESS OR USE THE SAAS PRODUCTS, SOFTWARE, RELATED SERVICES AND OTHER SOFTWARE (AS APPLICABLE), PRODUCTS (AS APPLICABLE), AND SERVICES (AS APPLICABLE).
IF YOU OR CUSTOMER ARE DEEMED TO HAVE ORDERED SAAS PRODUCTS, SOFTWARE, RELATED SERVICES AND/OR OTHER SOFTWARE (AS APPLICABLE), PRODUCTS (AS APPLICABLE), AND SERVICES (AS APPLICABLE), MOBILEIRON’S ACCEPTANCE IS EXPRESSLY CONDITIONAL ON ASSENT TO THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS (SPECIFICALLY INCLUDING ANY NEW OR DIFFERENT TERMS CONTAINED IN CUSTOMER’S PURCHASE ORDER). IF THESE TERMS ARE CONSIDERED AN OFFER BY THE CUSTOMER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT AND NO SOLICITATION OR ANY SUCH WRITTEN APPROVAL BY OR ON BEHALF OF MOBILEIRON SHALL BE CONSTRUED AS AN INFERENCE TO THE CONTRARY.
NOTWITHSTANDING ANYTHING ELSE STATED HEREIN, IF CUSTOMER AND MOBILEIRON HAVE EXECUTED A WRITTEN AGREEMENT FOR THE ACCESS TO OR USE OF THE SAAS PRODUCTS, SOFTWARE, RELATED SERVICES AND OTHER SOFTWARE (AS APPLICABLE), PRODUCTS (AS APPLICABLE), AND SERVICES (AS APPLICABLE) (“SIGNED AGREEMENT”), THEN THE TERMS OF THE SIGNED AGREEMENT SHALL GOVERN AND CONTROL AND THIS AGREEMENT SHALL HAVE NO EFFECT.
This TOU for SaaS Products includes the following attachments which are incorporated herein by reference:
A Service Level Agreement
B Hardware Terms & Conditions (as applicable)
C. SaaS Product International Terms & Conditions (as applicable)
This TOU for SaaS Products is entered into as of the earlier of the date that Customer accepts the terms herein or first accesses or uses any SaaS Product (the “Effective Date”).
MobileIron and Customer hereby agree as follows:
1. Certain Definitions. For purposes of this Agreement:
“Actual Device Count” means the actual number of devices that are registered with the applicable SaaS Product.
“Agreement” means the TOU for SaaS Products, the attachments and exhibits hereto, and any terms incorporated herein by reference.
“Authorized Reseller” means any authorized reseller of any SaaS Product that validly sells Customer one or more subscriptions to a SaaS Product subject to the terms and conditions of this Agreement.
“Customer Affiliate” means any entity Controlling, Controlled by or under common Control with Customer.
“Customer Data” means any data, information, applications, or other electronic items originated by Customer that Customer submits to any SaaS Product.
“Control” and its grammatical variants means: (i) a general partnership interest in a partnership; or (ii) the beneficial ownership of a majority of the outstanding equity entitled to vote for directors; or (iii) the power to direct or cause the direction of the management and policies of such entity whether by contract or otherwise.
“Customer Representative” means any Customer Affiliate and any employee or contractor of Customer (and/or any Customer Affiliate) to whom Customer (and/or any Customer Affiliate) provides access to any SaaS Product and/or, as applicable, any Software (or any component of the foregoing) for use on behalf of and for the benefit of Customer (and/or any Customer Affiliate) and for Customer’s (and/or any Customer Affiliate’s) internal business purposes, subject to all the terms and conditions of this Agreement.
“Documentation” means the written and/or electronic end user or technical documentation pertaining to the applicable SaaS Product that is provided by MobileIron to Customer together with the access to such SaaS Product.
“Licensed Device Count” means the maximum number of registered devices that Customer may have at any time that are managed and/or monitored by the applicable SaaS Product, which maximum number shall be based on the subscription fees paid by Customer as identified on the relevant Product Schedule. For the avoidance of doubt, registered devices are those devices that have loaded Device Software and have not been retired (meaning unregistered).
“Malicious Code” means any code that is designed to harm, or otherwise disrupt in any unauthorized manner, the operation of a recipient’s computer programs or computer systems or destroy or damage recipient’s data in an unauthorized manner. For clarity, Malicious Code shall not include standard routines in any SaaS Product or portion thereof that are intended to delete data and are implicit in the standard functionality of any SaaS Product or portion thereof, or any software bugs or errors handled through support or maintenance, or any license key or other equivalent code that might limit the functionality or scope of the use of any SaaS Product or portion thereof to the scope of the subscription and/or license (as applicable) purchased by Customer hereunder.
“MobileIron Hardware” means any MobileIron-branded hardware that MobileIron furnishes directly to Customer or through an Authorized Reseller for distribution to Customer.
“Personal Information” means Customer Data relating to an identified or identifiable individual, including without limitation, geo-location information or a persistent identifier that may be used to identify or contact an individual.
“Price Lists” means the then-current price lists of MobileIron that identify MobileIron’s generally available software, products and services.
“Product Schedule” means one or more of the following applicable documents that identifies the SaaS Product and/or hardware and/or software products and services licensed or sold (as applicable) to Customer hereunder and the applicable licensing parameters, including the Licensed Device Count, Subscription Term, and pricing and payment terms relating to the provision of the applicable SaaS Product, MobileIron Hardware (if any), and/or other MobileIron or third party products or services (if any): (i) a product schedule mutually approved by the parties; or (ii) a MobileIron invoice, quote, online order form, or any other MobileIron ordering document that is mutually approved by the parties and references this Agreement, where subscriptions, licenses, products or services are purchased from MobileIron directly; or (iii) an Authorized Reseller invoice or ordering document agreed to between Customer and Authorized Reseller, where subscriptions, licenses, products or services are purchased through an Authorized Reseller. Multiple Product Schedules may apply if subscriptions, licenses, products, or services are purchased at different times, provided that, unless expressly stated otherwise in a mutually agreed upon Product Schedule, the terms specified in one Product Schedule shall be relevant only to the specific subscriptions, licenses, products or services listed on such Product Schedule.
“Related Services” means all services (other than the provision of a SaaS Product) to be provided by MobileIron to Customer hereunder as set forth in this Agreement or any Product Schedule, including any professional services and/or Support and Maintenance Services.
“SaaS Product” means one or more mobile enterprise management services and/or applications enabled by access to the mobile enterprise management software solution hosted by MobileIron and use of the Software related thereto.
“Software” means the object code version of MobileIron’s proprietary computer programs delivered to Customer hereunder for use in connection with any SaaS Product, including the device-side software used on devices registered to any SaaS Product (“Device Software”) and any connector software and/or any other server-side software (e.g. MobileIron Sentry Software/virtual appliance/machine) (collectively, the “Premise Software”), each of which may be delivered to Customer hereunder for use in connection with any SaaS Product, and any Documentation, backup copies and updates, upgrades, maintenance releases, or bug fixes to any of the foregoing provided to Customer hereunder.
“Subscription Term” means, with respect to a SaaS Product, the term of the subscription identified on the applicable Product Schedule.
“Support and Maintenance Services” has the meaning set forth in Attachment A.
2. Evaluation & Beta Access Terms.
a. Evaluation of Initial SaaS Product. If Customer is being provided access to the SaaS Product for evaluation purposes, the evaluation period shall be thirty (30) days; provided, however that the evaluation period may be extended up to ninety (90) days upon written authorization by MobileIron. Any such evaluation period shall commence on the date that MobileIron delivers to Customer all relevant access data (e.g., the connector code and the URL and information necessary for Customer to access and use such SaaS Product).
b. Terms Specific to Evaluation or Beta Access. For any evaluation described above in subsection (a) and any other evaluation or beta access of any SaaS Product provided to Customer after the Effective Date (except as may be otherwise agreed in a separate evaluation or beta agreement), the terms applicable to a SaaS Product shall apply equally to evaluation or beta access of such SaaS Product except for the following different or additional terms which shall apply (notwithstanding any contrary term specified in any other section of this Agreement): (i) the right to access and use evaluation or beta versions of any SaaS Product is limited to the evaluation or beta term permitted by MobileIron (or its Authorized Reseller, as applicable) and only for the limited purpose of evaluating such SaaS Product and establishing Customer’s desire to purchase subscriptions to such SaaS Product; and (ii) Customer represents that it is a bone fide potential customer of such SaaS Product that is evaluating whether to purchase and/or license such SaaS Product for deployment in its own business and not for competitive or other purposes; (iii) the evaluation or beta access and use is provided “AS IS” without any warranty of any kind; and (iv) Customer shall not be entitled to any service level commitments or any support or maintenance services, including any Support and Maintenance Services, for the evaluation or beta access of any SaaS Product; (v) MobileIron disclaims all warranties, indemnities, obligations, and other liabilities in connection with any evaluation or beta access or use of a SaaS Product; (vi) MobileIron (or its Authorized Reseller) may terminate the evaluation or beta access upon at least five (5) days prior written notice to Customer and require Customer to promptly return any evaluation or beta copies of the Software (as applicable) and remove all copies of such Software (as applicable) from its systems and devices unless Customer has purchased a subscription to the applicable SaaS Product prior to such termination; and (vii) within ten (10) days following written request of MobileIron, Customer shall have an authorized representative certify that Customer has so returned and removed all such Software (as applicable).
c. Termination. If Customer enters into any Product Schedule for a SaaS Product prior to, or within thirty (30) days after, the expiration or termination of the evaluation period described above in subsection (a), the Subscription Term for such SaaS Product shall commence in accordance with Section 3 below. If Customer does not enter into any Product Schedule for a SaaS Product within such time period, this Agreement shall terminate.
3. Subscription Terms.
a. Commencement of Subscription. The Subscription Term for a SaaS Product shall commence on the date that Customer enters into a Product Schedule for such SaaS Product, if Customer has previously evaluated such SaaS Product, or the date that MobileIron delivers to Customer all relevant access data, if Customer has not previously evaluated such SaaS Product. A Subscription Term shall continue for the initial Subscription Term specified in the relevant Product Schedule, except as terminated earlier in accordance with this Agreement.
b. Renewals. Except as otherwise specified in the applicable Product Schedule, the subscription for a SaaS Product shall automatically renew for additional periods equal to the expiring Subscription Term or one year (whichever is shorter), unless either party gives the other (or Customer provides the Authorized Reseller, as applicable) notice of non-renewal at least thirty (30) days before the end of the applicable Subscription Term. Additionally, where required by Customer’s internal policies, Customer shall issue a purchase order either to MobileIron (or its Authorized Reseller, as applicable) for such renewal Subscription Term. The per-device pricing for a subscription to a SaaS Product during any renewal Subscription Term shall be the same as that during the prior Subscription Term, unless MobileIron (or its Authorized Reseller, as applicable) has given Customer notice of a pricing increase at least thirty (30) days before the end of such prior Subscription Term, in which case the pricing increase shall be effective upon renewal.
4. Rights of Access and Use. Subject to the terms and conditions of this Agreement, during the applicable Subscription Term, MobileIron grants to Customer a non-exclusive, non-transferable and non-sublicensable right for Customer and Customer Representatives to: (i) access and use the applicable SaaS Product; (ii) to install, copy and use Premise Software in connection with the applicable SaaS Product on systems and equipment owned by, controlled by or managed on behalf of Customer (and/or any Customer Affiliate); and (iii) to install, copy and use Device Software in connection with the applicable SaaS Product on mobile devices used by Customer Representatives, each solely for Customer’s (and/or any Customer Affiliate’s) internal business purposes, and solely in accordance with the applicable Documentation. Customer may also maintain a reasonable number of copies of the applicable Software on its systems for backup and recovery purposes.
5. Restrictions. As a condition of the rights granted in Section 4, Customer shall not itself, and shall not authorize or permit any Customer Representative or any other third party, to: (i) use the applicable SaaS Product, Software or any portion of the foregoing in excess of or beyond the applicable Subscription Term, Licensed Device Count, the feature set(s), server counts, site(s), and/or other restrictions/limitations described in this Agreement or in the applicable Product Schedule; or (ii) distribute, sell, license, provide or otherwise make available any SaaS Product, Software or any portion of the foregoing to third parties except to Customer Representatives as expressly provided herein; or (iii) use any SaaS Product, Software or any portion of the foregoing to perform services for, or otherwise on behalf of, third parties, whether on a service bureau, SaaS, time sharing basis or otherwise except as otherwise expressly provided herein; or (iv) use any SaaS Product, Software or any portion of the foregoing to store or transmit infringing, libelous, other unlawful or tortious material, or other material in violation of any third party privacy or other rights; or (v) interfere with or disrupt the integrity or performance of any SaaS Product, Software or any portion of the foregoing or any third party data contained therein; or (vi) use any Software or any portion thereof on equipment, products, or systems not identified in Documentation; or (vii) modify any SaaS Product, Software or any portion of the foregoing or create derivative works based upon any SaaS Product, Software or any portion of the foregoing; or (viii) reverse engineer or decompile, decrypt, disassemble or otherwise reduce any SaaS Product, Software or any portion of the foregoing to human-readable form, except and only to the extent any foregoing restriction is prohibited by applicable law; or (ix) use any SaaS Product, Software or any portion of the foregoing in any way that is in violation of any applicable laws; or (x) alter or remove any proprietary notices or legends contained on or in any SaaS Product, Software or any portion of the foregoing; or (xi) copy or use any SaaS Product, Software or any portion of the foregoing, except as expressly authorized by this Agreement; or (xii) release, publish, and/or otherwise make available to any third party the results of any performance, functional or security evaluation of any SaaS Product, Software or any portion of the foregoing without the prior written approval of MobileIron; or (xiii) defeat or circumvent any controls of any SaaS Product, Software or any portion of the foregoing places on the number of users supported; or (xiv) recreate, in whole or in part, any database included within any SaaS Product, Software or any portion of the foregoing based on queries to such database. Software may contain or be provided with open source libraries, components, utilities and other open source software (collectively, “Open Source”), which Open Source may have applicable license terms as identified on a website designated by MobileIron or otherwise provided with the applicable Software or Documentation. Notwithstanding anything to the contrary herein, use of the Open Source shall be subject to the applicable Open Source license terms and conditions to the extent required by the applicable licensor (which terms shall not restrict the license rights granted to Customer hereunder but may contain additional rights).
6. Customer Responsibilities. Customer shall: (i) be responsible and liable for any action or inaction of Customer Representatives that is in breach of this Agreement; and (ii) be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which Customer (and Customer Representatives) acquire, upload, transmit and process Customer Data; and (iii) use commercially reasonable efforts to prevent unauthorized access to or use of any SaaS Product, and notify MobileIron promptly of any such unauthorized access or use; and (iv) make such disclosures, obtain such consents, provide such choices, implement such safeguards and otherwise comply with any applicable law, rule or regulation regarding the collection, access to, use, storage, disclosure, transfer or other processing (“Process” or “Processing”) of Personal Information of any individual whom Customer authorizes to use or access any SaaS Product or Software; and (v) be responsible for obtaining and maintaining appropriate equipment and ancillary services needed to connect to, access or otherwise use the applicable SaaS Product, including, without limitation, computers, computer operating systems and web browsers.
7. Service Levels, Professional Services, Supplemental MobileIron Products and Third Party Products.
a. Service Levels. Subject to the terms and conditions of this Agreement, during the applicable Subscription Term, MobileIron shall meet the service levels set forth on Attachment A.
b. Professional Services. Customer may order standardized professional services that are identified on the applicable Price List and described in a standardized statement of work published by MobileIron (“Standard SOW”) or the parties may agree to customized professional services related to the Software as set forth in a mutually-agreed statement of work (“Custom SOW”), which Standard SOW and/or Custom SOW are hereby incorporated by reference herein. All such professional services delivered by MobileIron shall be subject to the terms and conditions of this Agreement, regardless of whether the applicable Product Schedule, Standard SOW or Custom SOW expressly references this Agreement.
c. Supplemental MobileIron Products. Customer may desire to order supplemental MobileIron products or services as identified on the applicable Price List (“Supplemental MobileIron Products”). If Customer purchases a subscription to any Supplemental MobileIron Products from MobileIron directly or through Authorized Resellers, Customer acknowledges and agrees that the Supplemental MobileIron Products shall be deemed a SaaS Product and, except as otherwise expressly set forth herein, subject to the same terms and conditions applicable to other SaaS Products.
d. Third Party Products. MobileIron resells licenses to certain third party software or services as identified on the applicable Price List (“Third Party Products”), which products are subject to separate agreements with the applicable third party suppliers (“Third Party Product Terms”). Third Party Product Terms are available for review at http://www.mobileiron.com/legal/thirdpartyterms (or other URL designated by MobileIron) or, if applicable, are negotiated and executed by and between the applicable third party supplier and Customer. If Customer purchases any Third Party Products, Customer acknowledges and agrees that it is bound by the applicable Third Party Product Terms. For purchases of Third Party Products directly from MobileIron, the payment-related terms applicable to a SaaS Product shall apply equally to the Third Party Products. Except as otherwise expressly set forth in this subsection (d), this Agreement shall not apply to the Third Party Products and Customer acknowledges and agrees that MobileIron disclaims all warranties, indemnities, obligations, and other liabilities in connection with any Third Party Product. If support and maintenance is offered for a specific Third Party Product and Customer purchases directly from MobileIron, MobileIron’s sole and exclusive obligation is to distribute any applicable Third Party Product error correction, update, upgrade and other release provided to MobileIron for customers purchasing support and maintenance and/or to provide any first-line technical support as described in MobileIron’s published documentation for such support and maintenance offering. IN NO EVENT SHALL MOBILEIRON’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY THIRD PARTY PRODUCT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STATUTE, TORT OR OTHERWISE, (I) EXCEED THE AMOUNTS RECEIVED BY MOBILEIRON FOR THE APPLICABLE THIRD PARTY PRODUCT AND (II) WITH RESPECT TO THE SUPPORT AND MAINTENANCE SERVICES RELATED THERETO (IF ANY), EXCEED ANY AMOUNTS RECEIVED BY MOBILEIRON FOR THE APPLICABLE SUPPORT AND MAINTENANCE SERVICES IN THE THEN-CURRENT TERM.
8. Tracking; Device Count Increases; Reporting; Invoice. If, at any time during any Subscription Term, the Actual Device Count exceeds the then-current Licensed Device Count for a specific SaaS Product or if Customer wishes to increase the Licensed Device Count for a specific SaaS Product, Customer shall promptly notify MobileIron (or its Authorized Reseller) and pay the applicable incremental subscription fees, and after the relevant payment has been received, the Licensed Device Count for the applicable SaaS Product shall be amended to reflect this change. Within ten (10) days of MobileIron’s or its Authorized Reseller’s written request, which shall not occur more than one (1) time per calendar quarter, Customer shall provide MobileIron or its Authorized Reseller (as relevant) with a certification signed by an authorized representative of Customer that identifies: (i) the Actual Device Count for all SaaS Products; and (ii) the number of servers onto which the Premise Software is downloaded, as well as a screenshot of the same information as shown on the dashboard of the applicable SaaS Product. Customer acknowledges that MobileIron, as a provider of a SaaS Product, has information regarding the Actual Device Count, and as such, MobileIron and/or its Authorized Resellers (to which MobileIron may disclose such information) may invoice Customer, and Customer shall pay any such valid invoice, if the Licensed Device Count is below the Actual Device Count for any SaaS Product. Unless otherwise mutually agreed in writing, the fees charged to Customer for the additional licenses, device counts and services shall be based on MobileIron’s then-current price list.
9. Indemnity. Subject to the terms herein, MobileIron shall, at its cost and expense, (i) defend, or at its option settle, any claim brought against Customer, Customer Representatives, and their respective directors, officers and employees (“Customer Indemnitee(s)”) by a third party alleging that any use of a SaaS Product or any Software infringes or violates any third party intellectual property right, and (ii) pay, indemnify and hold Customer Indemnitees harmless from any settlement of such claim or any damages awarded to such third party as a result of such claim, provided that Customer Indemnitee(s): (a) give MobileIron prompt written notice of any such claim; and (b) permit MobileIron to solely control and direct the defense or settlement of any such claim, provided MobileIron shall not settle any claim in a manner which requires Customer to admit liability or pay money without Customer’s prior written consent; and (c) provide MobileIron all reasonable assistance in connection with the defense or settlement of any such claim, at MobileIron’s cost and expense. Customer may participate in the defense and settlement at Customer’s sole expense. If such a claim occurs, or in MobileIron’s opinion is reasonably likely to occur, MobileIron, at its expense and at its sole discretion, may, in addition to its indemnification obligations hereunder: (i) procure the right to allow Customer to continue to use the applicable SaaS Product (or Software, as applicable), or (ii) modify or replace the applicable SaaS Product (or Software, as applicable) or infringing portions thereof to become non-infringing, or (iii) if neither (i) nor (ii) is commercially practicable, terminate Customer’s use of the affected portion of the applicable SaaS Product (or Software, as applicable) and refund any pre-paid, unused subscription fees paid to MobileIron for the unused period of any such terminated Subscription Term. Notwithstanding the foregoing, MobileIron shall have no obligations under this Section to the extent any claim is based upon or arises out of use of (aa) the applicable SaaS Product (or Software, as applicable) not in accordance with the applicable Documentation or outside the scope of the rights granted under this Agreement; and/or (bb) any combination or use of the applicable SaaS Product with third party services, equipment, products or systems, to the extent that such claim is based on such combination or use; and/or (cc) damages attributable to the value of the use of a non-MobileIron product or service. Subject to the terms herein, Customer shall, at its cost and expense, (I) defend, or at its option settle, any claim brought against MobileIron, its affiliates, and their respective directors, officers and employees (“MobileIron Indemnitee(s)”) by a third party alleging that the Customer Data or Customer’s use of any SaaS Product or any Software is in violation of this Agreement, infringes, misappropriates, or violates the intellectual property or other proprietary rights or violates applicable law, and (II) pay, indemnify and hold Customer Indemnitees harmless from any settlement of such claim or any damages awarded to such third party as a result of such claim, provided that MobileIron Indemnitee(s): (x) gives Customer prompt written notice of any such claim; (y) permits Customer to solely control and direct the defense or settlement of any such claim, provided Customer shall not settle any claim which settlement terms requires MobileIron to admit liability or pay money without MobileIron’s prior written consent; and (z) provides Customer all reasonable assistance in connection with the defense or settlement of any such claim, at Customer’s expense. The remedies set forth in this Section constitute the indemnitees’ sole and exclusive remedies, and indemnitor’s entire liability, with respect to claims described in this Section.
10. Ownership. The Software is licensed and not sold. MobileIron and its licensors shall own and retain all right, title, and (except as expressly licensed hereunder) interest in and to all SaaS Products, Software, all copies or portions of the foregoing, and any derivative works of the foregoing (by whomever created). There are no implied licenses granted by MobileIron under this Agreement. All suggestions or feedback provided by Customer or its employees, contractors or other agents (including Customer Representatives) to MobileIron or its Authorized Resellers with respect to any SaaS Product or Software shall be MobileIron’s property and deemed Confidential Information of MobileIron, and Customer hereby assigns the same to MobileIron. As between the parties, Customer exclusively owns all right, title and (except as expressly licensed hereunder) interest in and to all Customer Data. In connection with the normal operation of a SaaS Product, MobileIron compiles and has access to aggregated data (such as product or feature usage, device metrics/metadata and/or mobile application usage), which is anonymized and aggregated so that it does NOT and cannot contain any information identifiable or attributable to any individual or Customer ("Aggregated Anonymous Data”). Customer agrees that MobileIron shall have the right to use, store, analyze, and disclose such Aggregated Anonymous Data.
11. Term; Termination.
a. Term. The term of this Agreement shall commence on the Effective Date and shall continue until all Subscription Terms (including any renewals) for all SaaS Products have expired or terminated, unless earlier terminated as expressly set forth herein.
b. Termination for Cause. This Agreement may be terminated by a party: (i) upon thirty (30) days written notice, if the other party materially breaches any provision of this Agreement and such breach remains uncured after such thirty (30) day notice period expires; or (ii) effective immediately, if the other party ceases to do business, or otherwise terminates its business operations without a successor; or (iii) effective immediately, if the other party becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is filed against it and not dismissed within ninety (90) days.
c. Effect of Expiration or Termination. (I) Upon any termination or expiration of this Agreement: (i) all Subscription Terms and access, rights and licenses granted to Customer hereunder shall terminate; and (ii) Customer shall cease using all SaaS Products and Software; and (iii) Customer shall destroy (or at MobileIron’s option, return) all copies of any Software; and (iv) upon written request of a party, the other party shall return to such party all Confidential Information (excluding Customer Data which is addressed below) of such party in its possession or control. (II) With respect to Customer Data, at Customer's request, if received within thirty (30) days of any expiration or termination of the Agreement: (i) MobileIron shall permit Customer to access a SaaS Product solely to the extent necessary for Customer to retrieve applications uploaded to such SaaS Product by Customer; and (ii) MobileIron shall make available to Customer for download a file of Customer Data in comma separated value (.csv) format along with attachments in their native format. After such thirty (30) day period, MobileIron shall have no obligation to maintain or provide any of Customer Data and shall thereafter, unless legally prohibited, delete all of Customer Data in MobileIron’s possession or control. (III) Upon any termination of this Agreement by Customer for cause, MobileIron shall refund to Customer any prepaid, unused subscription fees paid to MobileIron for the unused period of all terminated Subscription Terms. Upon termination or expiration, Sections 1, 2(b), 5, 7(b), 7(c), 7(d), 8, 9, 10, 11, 12, 13 (which shall survive for three (3) years), 14 and 15, and all liabilities that accrue prior to termination or expiration shall survive and remain in effect.
12. Limited Warranties; Disclaimers.
a. SaaS Product Warranty. MobileIron warrants to Customer that the applicable SaaS Product (and any applicable Software) shall perform materially in accordance with the Documentation. Customer must notify MobileIron of any warranty deficiencies with a SaaS Product (or any applicable Software) within thirty (30) days from provision of deficient SaaS Product in order to receive any warranty remedy for such deficiency. For any breach of the forgoing warranty, Customer’s exclusive remedy shall be for MobileIron to correct or re-perform such deficient SaaS product (or deliver new applicable Software), provided that if correction or re-performance in compliance with this warranty (or re-delivery) is not possible or practical, Customer shall be entitled to either (i) a pro-rata refund of subscription fees paid to MobileIron for such deficient SaaS Product (or applicable Software), or (ii) terminate the applicable Subscription Term and obtain a refund of the prepaid, unused subscription fees paid to MobileIron for the unused period of any such terminated Subscription Term.
b. Related Services Warranty. MobileIron warrants to Customer that all Related Services provided hereunder by MobileIron shall be professional, workmanlike and performed in a manner conforming to generally accepted industry standards and practices for similar services. Customer must notify MobileIron of any warranty deficiencies for Related Services within thirty (30) days from performance of the deficient Related Service in order to receive any warranty remedy for such deficiency. For any breach of the forgoing warranty, Customer’s exclusive remedy shall be for MobileIron to correct or re-perform such deficient Related Services, provided that if correction or re-performance in compliance with this warranty is not possible or practical, Customer shall be entitled to a refund of any relevant fees paid to MobileIron for such deficient Related Services.
c. Hardware Limited Warranty. If Customer has ordered and received MobileIron Hardware from MobileIron or an Authorized Reseller, the warranty and remedies described in Attachment B shall apply.
d. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it shall not intentionally transmit to the other party or store on any SaaS Product any Malicious Code. If any Malicious Code is transmitted by one party to the other, such other party may remove and return such code to the party that delivered it.
e. Restrictions. The express warranties specified above do not apply if the applicable SaaS Product, Software, Related Services, MobileIron Hardware, or any portion thereof: (i) has been altered, except by or on behalf MobileIron; (ii) has not been used, installed, operated, repaired, or maintained in accordance with this Agreement and/or Documentation; (iii) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident; (iv) is used on equipment, products, or systems not meeting specifications identified by MobileIron in the applicable Documentation or (v) is licensed, for beta, evaluation, or testing purposes or with respect to MobileIron Hardware, is sold as a refurbished unit. Additionally, the warranties set forth herein only apply when notice of a warranty claim is provided to MobileIron within the applicable warranty period specified herein and do not apply to any bug, defect or error caused by or attributable to software or hardware not supplied by MobileIron.
f. Disclaimer. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION, NEITHER PARTY PROVIDES ANY WARRANTIES OF ANY KIND WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
13. Confidentiality. “Confidential Information” means any non-public data, information and other materials regarding the products, software, services, or business of a party (and/or, if either party is bound to protect the confidentiality of any third party’s information, of a third party) provided by one party (“Disclosing Party”) to the other party (“Receiving Party”) after the Effective Date in connection with this Agreement where such information is marked or otherwise communicated as being “proprietary” or “confidential” or the like, or where such information should, by its nature or circumstances of disclosure, be reasonably considered to be confidential and/or proprietary. The parties agree that, without limiting the foregoing, (a) Customer Data shall be deemed the Confidential Information of Customer, and (b) the SaaS Products, Software and components of the foregoing (and any performance data, benchmark results, and technical information relating to the foregoing), the Documentation, and MobileIron’s pricing information (set forth in a Product Schedule, Price List or otherwise) shall be deemed the Confidential Information of MobileIron. Notwithstanding the foregoing, Confidential Information shall not include information that: (i) is already known to the Receiving Party without restriction as to disclosure prior to disclosure by the Disclosing Party; (ii) becomes publicly available without fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without restriction as to disclosure, or is approved for release by written authorization of the Disclosing Party; or (iv) is independently developed or created by the Receiving Party without use of the Disclosing Party’s Confidential Information as evidenced by contemporaneous written records. Except as otherwise expressly authorized herein, the Receiving Party agrees to: (x) use the Confidential Information of the Disclosing Party only to perform hereunder (including providing the features and services associated with the normal use of the applicable SaaS Product and Software) or exercise rights granted to it hereunder; (y) treat all Confidential Information of the Disclosing Party in the same manner as it treats its own similar proprietary information, but in no case shall the degree of care be less than reasonable care; and (z) disclose the Disclosing Party’s Confidential Information only to those employees, contractors or other agents of the Receiving Party who have a need to know such information for the purposes of this Agreement, provided that any such employee, contractor or other agent shall be subject to obligations of non-use and confidentiality with respect to such Confidential Information at least as restrictive as the terms of this Agreement, and the Receiving Party shall remain liable for any non-compliance of such employee, contractor or other agent with the terms of this Agreement. Notwithstanding the provisions of this Section, the Receiving Party may disclose the Disclosing Party’s Confidential Information as required by any court or other governmental body or as otherwise required by law or regulation to be disclosed, provided, however, that the Receiving Party shall provide written notice to the disclosing party promptly to enable the Disclosing Party to seek a protective order or otherwise prevent disclosure of such Confidential Information.
14. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR ANY BREACHES OF OR FOR LIABILITY ARISING OUT OF SECTION 5 (‘RESTRICTIONS’) OR SECTION 9 (‘INDEMNITY’): (a) IN NO EVENT SHALL CUSTOMER OR MOBILEIRON OR MOBILEIRON’S SUPPLIERS BE LIABLE TO THE OTHER PARTY FOR ANY LOST REVENUE, PROFIT, LOST OR DAMAGED DATA, OR BUSINESS INTERRUPTION, OR FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE ANY SAAS PRODUCT, SOFTWARE, RELATED SERVICES, MOBILEIRON HARDWARE OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT OR OTHERWISE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (b) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF CUSTOMER OR MOBILEIRON ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE USE OF OR INABILITY TO USE ANY SAAS PRODUCT, SOFTWARE, RELATED SERVICES, MOBILEIRON HARDWARE OR OTHERWISE (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STATUTE, TORT OR OTHERWISE) EXCEED THE LESSER OF $500,000.00 OR THE FEES RECEIVED BY MOBILEIRON FROM CUSTOMER FOR THE APPLICABLE SAAS PRODUCT, SOFTWARE, RELATED SERVICE OR MOBILEIRON HARDWARE IN THE PRECEDING TWELVE (12) MONTHS PRIOR TO THE DATE OF THE FIRST CLAIM (OR IN THE CASE OF CUSTOMER’S LIABILITY EXCEED THE FEES PAID OR DUE TO MOBILEIRON (OR ITS AUTHORIZED RESELLER) FOR THE APPLICABLE SAAS PRODUCT, SOFTWARE, RELATED SERVICE OR MOBILEIRON PRODUCT IN SUCH TWELVE (12) MONTH PERIOD), WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE. MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SET FORTH IN THIS SECTION. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO ANY INTENTIONAL BREACH OF SECTION 13 (‘CONFIDENTIALITY’).
a. Language. This Agreement, any disputes hereunder, and all services to be provided hereunder by MobileIron to Customer (if any) shall be conducted and provided in the English language.
b. Third Party Suppliers. A SaaS Product or Software may contain or be provided with third party proprietary program, interfaces, firmware and other software licensed by MobileIron (“Third Party Components”) or third party services that are made available through the Software (“Third Party Services”). In connection therewith, additional or different terms may be applicable as identified on http://www.mobileiron.com/legal/thirdpartyterms (or other URL designated by MobileIron) or otherwise made available to Customer (which terms are hereby incorporated by reference herein). Customer agrees to, and its usage and/or access of Third Party Components and Third Party Services is subject to, such terms. If, during a Subscription Term, a third party supplier terminates use or access to its Third Party Service, MobileIron shall notify Customer of the same, and all use and access to such Third Party Service shall terminate as of the effective date specified by such third party supplier. Within thirty (30) days of the notification by MobileIron of the termination of any Third Party Service, the Customer may terminate the applicable SaaS Product for convenience (effective no earlier than the date the applicable Third Party Service is terminated). Upon such termination, Customer shall be entitled to receive a pro-rata refund on any pre-paid, unused subscription fees paid to MobileIron for the unused period for the unused period of any such terminated Subscription Term of the applicable SaaS Product. MobileIron shall have no liability to Customer in connection with any termination of any such Third Party Service or the Customer’s use of any Third Party Service. Any warranties associated with such services are only those directly provided by the third party supplier to Customer.
c. Export. SaaS Products, Software and Documentation, including technical data, may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer agrees to comply with all such regulations.
d. U.S. Government End User Purchasers. The Software, including all components thereof, and Documentation qualify as “commercial items,” as that term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this Agreement may be incorporated, Customer may provide to Government end user or, if this Agreement is direct, Government end user will acquire, the Software and Documentation with only those rights set forth in this Agreement. Use of either the Software or Documentation or both constitutes agreement by the Government that the Software and Documentation are “commercial computer software” and “commercial computer software documentation,” and constitutes acceptance of the rights and restrictions herein. LF:[LF:
e. Choice of Law; Venue. Except as otherwise set forth in Attachment C (if applicable), this Agreement shall be governed by and construed in accordance with the laws of the State of California, without reference to or application of choice of law rules or principles. Except as otherwise set forth in Attachment C (if applicable), the sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in Santa Clara County, California; Customer and MobileIron hereby agree to service of process in accordance with the rules of such courts. Notwithstanding any choice of law provision or otherwise, the Uniform Computer Information Transactions Act (UCITA) and the United Nations Convention on the International Sale of Goods shall not apply.
f. Processing of Personal Information. MobileIron agrees that it shall maintain administrative, physical, and technical safeguards designed to protect the security, confidentiality and integrity of Personal Information. MobileIron shall not Process Personal Information, except (i) for the purposes of this Agreement, including without limitation to implement and deliver the features and services associated with the normal use of any SaaS Product, provide Customer support and help Customer prevent or address service or technical problems, (ii) as otherwise expressly permitted by Customer, or (iii) as compelled by law.
g. Entire Agreement; Modifications. This Agreement constitute the entire agreement between the parties with respect to the provision of SaaS Products, Software, Related Services and other software (as applicable), products (as applicable), and services (as applicable) as described herein. This Agreement supersedes and cancels all previous written and previous or contemporaneous oral communications, proposals, representations, and agreements relating to the subject matter contained herein. This Agreement prevails over any pre-printed, conflicting or additional terms of any purchase order, ordering document, acknowledgement or confirmation or other document issued by Customer, even if accepted in writing by both parties. This Agreement may be modified by a “click wrap” or “click accept” agreement that MobileIron incorporates into or as a condition of downloading a SaaS Product or Software. Except as expressly provided herein, this Agreement may be amended, or any term or condition set forth herein waived, only by a writing hand signed by both parties where “in writing” does not include an e-mail message and “hand signed” does not include an electronic signature.
h. Severability. Should any term of this Agreement be declared invalid, void or unenforceable by any court of competent jurisdiction or by an arbitration panel (as applicable), that provision shall be modified, limited or eliminated to the minimum extent necessary to effectuate the original intent and such declaration shall have no effect on the remaining terms hereof, which shall continue in full force and effect.
i. Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
j. Assignment. This Agreement may not be assigned or transferred, in whole or in part, without the other party’s prior written consent, provided each party expressly reserves the right to assign this Agreement in its entirety to a successor in interest of all or substantially all of its business or assets. Any action or conduct in violation of the foregoing shall be void and without effect. Subject to the foregoing, all rights and obligations of the parties hereunder shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns. MobileIron may delegate any of its obligations hereunder, provided it shall remain fully liable and responsible for its delegates’ actions or inactions in violation of this Agreement.
k. Legal Fees. The party prevailing in any dispute under this Agreement shall be entitled to its reasonable costs and legal fees.
l. Notice. Any notice required or permitted to be given in accordance with this Agreement shall be in writing. Notices to MobileIron shall be sent by personal delivery, registered or certified mail (return receipt requested, postage prepaid) or commercial express courier (with written verification of receipt) to: MobileIron, Inc., 415 East Middlefield Road, Mountain View, CA 94043, U.S.A., Attention: General Counsel. For contractual purposes, Customer consents to receive communications from MobileIron electronically. Notices sent to Customer shall be sent by personal delivery, electronic mail, registered or certified mail (return receipt requested, postage prepaid) or commercial express courier (with written verification of receipt) to: the electronic address Customer has provided to MobileIron for invoicing purposes or any Customer address listed on the applicable Product Schedule. All notices shall be deemed given: (i) when delivered personally; (ii) 24 hours after electronic mail is sent, unless MobileIron is notified that the email address is invalid; (iii) five (5) days after having been sent by registered or certified mail, (or ten (10) days for international mail; or (iv) one (1) day after deposit with a commercial express courier specifying next day delivery (or two (2) days for international courier packages specifying 2-day delivery). Either party may change its address for receipt of notice by notice to the other party in accordance with this Section.
m. Equitable Relief. The parties agree that a material breach of this Agreement adversely affecting MobileIron’s or its suppliers’ intellectual property rights in any SaaS Product or Software or the Confidential Information of either party may cause irreparable injury to such party for which monetary damages would not be an adequate remedy and the non-breaching party shall be entitled to equitable relief (without a requirement to post a bond) in addition to any remedies it may have hereunder or at law.
n. Customer Affiliates. The parties agree that: (i) a Customer Affiliate may purchase licenses, products or services identified on any applicable Price List under the terms of this Agreement either by executing an acceptance agreement with MobileIron or through MobileIron’s acceptance of an applicable purchase order issued by such Customer Affiliate to MobileIron or by an Authorized Reseller to MobileIron (as applicable); and (ii) upon execution of such an agreement or acceptance of such a purchase order, such Customer Affiliate shall be deemed to have purchased such licenses, products or services hereunder, and such Customer Affiliate shall be bound by and shall comply with the terms and conditions of this Agreement as a “Customer” under this Agreement.
o. Independent Contractors. The parties are independent contractors, and this Agreement shall not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties.
p. Headings. Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement.
q. Counterparts. This Agreement may be executed and delivered in one or more counterparts (including facsimile, PDF or other electronic counterparts), with the same effect as if the parties had signed the same document. Each counterpart so executed shall be deemed to be an original, and all such counterparts shall be construed together and shall constitute one Agreement.
r. Basis of the Bargain. Customer acknowledges and agrees that MobileIron has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.
MOBILE IRON, INC.
ATTACHMENT A: SERVICE LEVEL AGREEMENT (“SLA”)
Note: If Customer has entered into a support services agreement with an Authorized Reseller, the support services to be provided to Customer shall be as set forth in such agreement and Section II.B of this Attachment A shall not apply.
I. SERVICE LEVEL. Subject to the terms and conditions herein, MobileIron agrees to use commercially reasonable efforts to make the SaaS Products (excluding any offline Software components) available 24 hours a day, 7 days a week, except for: (i) planned downtime, or (ii) any unavailability caused by circumstances beyond MobileIron’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving MobileIron employees), or Internet service provider failures or delays.
II. SCOPE OF SUPPORT & MAINTENANCE SERVICES. During the applicable Subscription Term, MobileIron shall use commercially reasonable efforts to provide Customer the following support & maintenance services with respect to the applicable SaaS Product and Software (“Support and Maintenance Services”):
III. GENERAL. MobileIron may revise the terms of this SLA provided that (i) such revision is in connection with a revision to any standard terms under which MobileIron provides support and/or maintenance, (ii) MobileIron provides written or e-mail notice (and/or posting on http://support.mobileiron.com or such other URL provided by MobileIron from time to time) of the revised terms at least sixty (60) days prior to the expiration of the applicable then-current Subscription Term, and (iii) such revised terms only apply to renewal Subscription Terms (if any) and renewal is subject to mutual agreement.
MOBILE IRON, INC.
ATTACHMENT B: MOBILEIRON HARDWARE TERMS
If Customer has ordered and received MobileIron Hardware from MobileIron or an Authorized Reseller of MobileIron Hardware, the following terms and conditions apply:
Limited Hardware Warranty. Subject to the terms and conditions of this Agreement, MobileIron warrants for the applicable warranty period identified in the applicable Price List (or twenty four (24) months if not identified in such Price List) as measured from the date of shipment of the MobileIron Hardware by MobileIron, that any new MobileIron Hardware shall be free from defects in material and workmanship under normal use. The date of shipment of MobileIron Hardware by MobileIron is set forth on the packaging material in which the MobileIron Hardware is shipped. This limited warranty extends only to Customer. Customer’s sole and exclusive remedy and the entire liability of MobileIron and its suppliers under this limited warranty shall be, at MobileIron’s or its service center’s option, to repair the MobileIron Hardware or, if repair is not possible, to replace of the MobileIron Hardware within the warranty period and according to the RMA procedures described below (the “RMA Procedures”). MobileIron replacement parts used in MobileIron Hardware replacement may be new or reconditioned / refurbished (like new). MobileIron’s obligations hereunder are conditioned upon the return of affected MobileIron Hardware in accordance with MobileIron’s or its service center’s then-current RMA Procedures.
RMA Procedures: During the warranty period specified above:
(a) Reporting. Customer shall report suspected malfunctions of the MobileIron Hardware supplied by MobileIron (if any) via email or via phone, and cooperates with MobileIron in its investigation to determine if the MobileIron Hardware fails to meet its limited warranty set forth above (“Defective”).
(b) RMA Procedure for Defective MobileIron Hardware. If the MobileIron Hardware is Defective, MobileIron shall issue Customer a Return Material Authorization (“RMA”) number. Customer shall ship the Defective MobileIron Hardware to the address specified by MobileIron, freight prepaid, at MobileIron’s cost. MobileIron shall ship Customer replacement MobileIron Hardware with freight prepaid for next business day delivery) in the United States, unless otherwise mutually agreed by the parties. For all other countries, replacement MobileIron Hardware shall be shipped priority delivery after the RMA number has been issued; please contact MobileIron support for the method and timing of such shipment. In order for MobileIron to be able to ship next business day, the RMA number must be issued no later than 1:00 p.m. Pacific Time during MobileIron’s normal business hours. As a condition of shipping Customer the replacement MobileIron Hardware prior to Customer returning the Defective MobileIron Hardware, Customer must agree to return the Defective MobileIron Hardware to MobileIron within fifteen (15) business days or Customer shall be invoiced for the replacement MobileIron Hardware at MobileIron’s then-current list price and Customer agrees to pay such invoice within thirty (30) days of the invoice date. All returned MobileIron Hardware shall be the property of MobileIron once MobileIron delivers the replacement MobileIron Hardware to Customer. Replacement MobileIron Hardware may be new, reconditioned/refurbished (like new). MobileIron may in its sole discretion modify the MobileIron Hardware at no cost to Customer to improve its reliability or performance.
MOBILE IRON, INC.
ATTACHMENT C: EULA INTERNATIONAL TERMS AND CONDITIONS
If Customer’s principal office is located outside North America as indicated on the cover sheet, the terms and conditions of this Attachment shall apply. Otherwise, this Attachment shall not apply.
The following terms apply to all principal offices outside North America:
Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without reference to or application of choice of law rules or principles. Notwithstanding any choice of law provision or otherwise, the Uniform Computer Information Transactions Act (UCITA) and the United Nations Convention on the International Sale of Goods shall not apply.
Arbitration. Any dispute, claim or controversy arising out of or relating to this Agreement or the existence, breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, (each, a “Dispute”) shall be referred to and finally resolved by arbitration under the rules and at the location identified below. The arbitral panel shall consist of three (3) arbitrators, selected as follows: each party shall appoint one (1) arbitrator, and those two (2) arbitrators shall discuss and select a chairman. If the two party-appointed arbitrators are unable to agree on the chairman, the chairman shall be selected in accordance with the applicable rules of the arbitration body. Each arbitrator shall be independent of each of the parties. The arbitrators shall have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrators may determine. The prevailing party in any arbitration shall be entitled to receive reimbursement of its reasonable expenses incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the forgoing, MobileIron shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator, provided that a permanent injunction and damages shall only be awarded by the arbitrator. The language to be used in the arbitral proceedings shall be English.
In addition, the following terms only apply to principal offices within Europe, the Middle East or Africa (EMEA):
Arbitration Rules and Location. Any Dispute shall be referred to and finally resolved by arbitration under the London Court of International Arbitration (“LCIA”) Rules (which Rules are deemed to be incorporated by reference into this clause) on the basis that the governing law is the law of the State of New York, USA. The seat, or legal place, of arbitration shall be London, England.
In addition, the following terms only apply to principal offices within Asia Pacific, Australia & New Zealand:
Arbitration Rules and Location. Any Dispute shall be referred to and finally resolved by arbitration under the Rules of Conciliation and Arbitration of the International Chamber of Commerce (“ICC”) in force on the date when the notice of arbitration is submitted in accordance with such Rules (which Rules are deemed to be incorporated by reference into this clause) on the basis that the governing law is the law of the State of New York, USA. The seat, or legal place, of arbitration shall be Singapore.
In addition, the following terms only apply to principal offices within the Americas (excluding North America):
Arbitration Rules and Location. Any Dispute shall be referred to and finally resolved by arbitration under International Dispute Resolution Procedures of the American Arbitration Association (“AAA”) in force on the date when the notice of arbitration is submitted in accordance with such Procedures (which Procedures are deemed to be incorporated by reference into this clause) on the basis that the governing law is the law of the State of New York, USA. The seat, or legal place, of arbitration shall be New York, New York, USA.