MobilSense owns all right, title and interest in the Software and all Improvements, including all copyrights and all other intellectual property therein. All rights not expressly granted to End User herein are reserved by MobilSense.
To the maximum extent permitted by law, End User will not: modify, reverse engineer, decompile, disassemble or attempt to derive the source code of the Software; (b) copy of or otherwise reproduce the Software or any portion thereof, except as expressly authorized by MobilSense.
End User will take all reasonable steps to safeguard all User, Manager, and Administrator login and password information, so as to ensure that no unauthorized person will have access to the Software, and that no persons authorized to have access will make any unauthorized use thereof. End User will promptly report to MobilSense any unauthorized use of the Software of which End User becomes.
End User will not disclose to any third party the capabilities of the Software, any technical, product or business information of MobilSense, or any information that MobilSense identifies as confidential, without the prior written consent of MobilSense. End User will take all reasonable measures to maintain the confidentiality of all Confidential Information in its possession or control.
End User acknowledges and agrees that (a) the Confidential Information is of a special, unique, unusual, extraordinary and intellectual character; (b) the unauthorized use or disclosure of any Confidential Information would constitute a material breach of this Agreement; (c) the interests of MobilSense in and to the Confidential Information would be irreparably injured by the unauthorized use or disclosure of such information; and (d) money damages would not be sufficient to compensate MobilSense for any such unauthorized use or disclosure. Accordingly, End User agrees that, in addition to any other remedies available to MobilSense at law, in equity or under this Agreement, MobilSense shall be entitled to seek specific performance, injunctive relief and other equitable relief to prevent any actual or threatened use or disclosure of the Confidential Information.
MobilSense warrants that the Software will substantially conform to those functional specifications or other written documentation provided by MobilSense when the Software is given normal, proper and intended usage in compliance with any user manuals or other written instructions provided by MobilSense. In the event that the Software should fail to so conform during the Term, MobilSense will investigate and use commercially reasonable efforts to remedy such nonconformance. THE FOREGOING REPRESENTS THE SOLE AND EXCLUSIVE WARRANTY PROVIDED FOR THE SOFTWARE, AND MOBILSENSE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING (BUT NOT LIMITED TO) ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTIES ALLEGED TO HAVE ARISEN FROM CUSTOM, USAGE, OR A COURSE OF DEALINGS BETWEEN THE PARTIES. NO EMPLOYEE, AGENT, DEALER OR DISTRIBUTOR (INCLUDING WITHOUT LIMITATION THE PARTNER) IS AUTHORIZED TO MODIFY THIS LIMITED WARRANTY OR TO MAKE ANY ADDITIONAL WARRANTIES. MobilSense does not warrant that the functions contained in the Software will meet End User’s requirements or that the operation of the Software will be uninterrupted or error-free.
End User shall defend, indemnify and hold harmless MobilSense, and its employees, officers, directors, licensors and affiliates from and against any and all claims, losses, liability, costs and expenses (including but not limited to attorneys’ fees) arising from your violation of this Agreement, your infringement of any third-party’s rights, (including, without limitation, infringement of any copyright, violation of any proprietary right and invasion of any privacy rights), and/or the use or misuse of the Software by you or any Administrator, Manager or User accessing and using the Software under this Agreement. These obligations will survive any termination of this Agreement.
END USER IS SOLELY RESPONSIBLE FOR INPUTS INTO THE SOFTWARE, VERIFYING THE RESULTS OF THE USE OF THE SOFTWARE AND HOW THE OUTPUT FROM THE SOFTWARE IS USED BY END USER. MOBILSENSE SHALL NOT BE RESPONSIBLE OR LIABLE TO END USER OR ANY THIRD PARTY FOR THE RESULTS OR WORK PRODUCT OBTAINED FROM END USER’S USE OF THE SOFTWARE. IN NO EVENT SHALL MOBILSENSE BE LIABLE OR OBLIGATED TO END USER IN ANY MANNER FOR ANY SPECIAL, NON-COMPENSATORY, CONSEQUENTIAL, INDIRECT, INCIDENTAL, STATUTORY OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST DATA OR PROGRAMS, BUSINESS INTERRUPTIONS, LOST PROFITS AND LOST REVENUE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF MOBILSENSE IS AWARE OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO END USER. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, MOBILSENSE SHALL NOT BE LIABLE TO END USER IN AN AMOUNT IN THE AGGREGATE GREATER THAN THE AMOUNT THAT IS RECEIVED BY MOBILSENSE FOR THE SOFTWARE LICENSED BY END USER. THE LIMITATIONS SET FORTH ABOVE SHALL BE DEEMED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES SET FORTH IN THIS AGREEMENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE FULLY CONSIDERED THE FOREGOING ALLOCATION OF RISK AND FIND IT REASONABLE, AND THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
Termination for Breach. Notwithstanding the Term, MobilSense may terminate this Agreement (a) immediately, should Licensee breach Ownership and Restrictions (Restrictions) Section or the Confidentiality Section of this Agreement, or (b) should Licensee commit any other breach in the performance of its obligations under this Agreement, which breach continues uncured for more than thirty (30) days after Licensee receives written notice thereof from MobilSense specifying the nature of the breach.
Effect of Termination. Upon termination of this Agreement for any reason other than breach by Licensee, Licensee will be entitled to continue to access and use the Software for a period of sixty (60) days in order to accomplish any wind-down or completion of a billing cycle. No new data will be added during such wind-down period, but Licensee will continue to have the right to review and manipulate any data that was available as of the effective date of termination. In the event that MobilSense terminates the Agreement for breach by Licensee, Licensee’s rights to use and access the Software will cease immediately upon such termination.