Terms & Conditions
SUMMARY – TERMS OF SERVICE
Making payment will be a subscription service agreement to Mobotour, LLC to be known as the (“Vendor”) for services of a standard cloud based mobile app service for a monthly or annual cost.
QR code orders are set at a minimum of 25 and cost $1 per QR Code.
Mobotour accepts Customer’s payment on the express condition that Customer agrees to and is bound by the terms and conditions set forth below (the “Terms of Service”). All Payments by Customer shall be subject to the Terms of Service therein. Such agreement shall be conclusively and irrevocably evidenced by Customer accepting provision of Services under such credit card payment or Invoice or by Customer’s payment of an subscription or hardware fee. No monthly prorations are given and no refunds.
TERMS AND CONDITIONS
- “Affiliate.” With respect to Customer, any parent or subsidiary corporation, and any corporation or other business entity controlling, controlled by or under common control with Customer, which agrees in writing to be bound by all the obligations of Customer hereunder.
- “Authorized Users.” The number of identifiable unique persons consisting of Customer’s personnel and outside consultants who are authorized to access and use the Services, as specified in the applicable Invoice. Authorized Users may include Customer’s authorized and identifiable third party consultants, out sourcers, contractors and other service providers.
- “Customer Data.” Customer’s information or other data processed, stored or transmitted by, in, or through the Services, including without limitation personal information relating to Customer’s personnel, customers, and prospective customers such that the identity of such persons is apparent or can reasonably be determined from such personal information.
- “Proprietary Rights.” Any rights with respect to patents, copyrights, Confidential Information, trade secrets, trade names, domain names, trade dress, logos, trademarks, service marks, and other similar rights or interests in intellectual property.
- “Invoice.” A document indicating that it is an “Invoice” which incorporates the Terms of Service in written form if mutually agreed upon and duly executed by the parties. In order to be binding, a “invoice” must comply with the above requirements and make payment towards the invoice balance.
- “Services.” The web services described and specified in the applicable invoice and any updates or upgrades to such services which may be generally released by mobotour to its customers from time to time.
- “Site.” Mobotour’s “https://mobotour.com” website
- “Mobotour Technology.” The qr code hardware, software and software updates, and all improvements or enhancements thereto, and intangible computer code necessary to deploy and serve the Services via the Site and mobile app.
- Effects of Terms of Service
The sale of the Services is subject to and governed solely by the Terms of Service and no terms or conditions of Customer’s Invoice, any agreement or any other understanding shall be binding on Mobotour or apply in any manner to the sale of such Services. Mobotour reserves the right to adjust terms of service at any time.
- Terms of Payment
Unless otherwise specified, prices are quoted in US dollars for Services being sold by Mobotour. Payment terms are net 0, due upon account set-up. If Customer’s account is past due, in addition to other rights and remedies, Mobotour may suspend provision of Services or performance hereunder or under any other contract with Customer until Customer’s account becomes current or until Mobotour receives satisfactory payment prior to such provision of Services or performance hereunder.
- Proprietary Rights Ownership.
Ownership of the Proprietary Rights embodied in the “mobotour.com” website, the Services, and the Mobotour Technology, including all improvements and updates thereto, shall remain exclusively vested in and be the sole and exclusive property of Mobotour and its licensors. The “https://mobotour.com” domain name, product names and logos associated with the Services are the ownership of Mobotour or third parties, and Customer shall have no right to use them at any time or in any way without mobotour’s prior written consent.
- Use Restrictions
Customer covenants and agrees that its use of the Services will be in a manner consistent with the Terms of Service and with all applicable laws and regulations, including trade secret, copyright, trademark, and export control laws. Without limiting the generality of the foregoing, Customer shall not, nor shall it permit or assist others, (i) to abuse or fraudulently use the Services; (ii) to process or permit to be processed the data of any third party that is not expressly authorized herein to access and use the Services; and (iii) to attempt to copy, reverse-engineer, decompile, disassemble, create a derivative work from, or otherwise attempt to derive the source codes of any part of the Mobotour Technology; (iv) to access, alter, or destroy any information of any customer of Mobotour by any fraudulent means or device, or attempt to do so; or (v) encumber, lease, rent loan, sublicense, transfer, transport or otherwise distribute the Mobotour Technology.
Customer shall be solely responsible for acquiring and maintaining technology and procedures for maintaining the security of its link to the Internet. As part of the Services, Mobotour shall implement reasonable security procedures consistent with prevailing industry standards to protect Customer Data from unauthorized access (the “Security Standard”). Provided that mobotour is in compliance with the Security Standard and is not otherwise negligent, the parties agree that mobotour shall not, under any circumstances, be held responsible or liable for situations (i) where data or transmissions are accessed by third parties through illegal or illicit means, or (ii) where the data or transmissions are accessed through the exploitation of security gaps, weaknesses, or flaws unknown to Mobotour at the time or any other matter beyond its control. Mobotour will promptly report to Customer any unauthorized access to Customer Data promptly upon discovery by Mobotour, and Mobotour will use diligent efforts to promptly remedy any breach of security that permitted such unauthorized access. In the event notification to persons included in such Customer Data is required, Customer shall be solely responsible for any and all such notifications at its expense.
- Monitoring of Customer’s Use
Mobotour reserves the right to internally monitor Customer’s usage of the Site and the Services. Any use of the Site or the Services by a Customer not specifically permitted under the Terms of Service is strictly prohibited and may result, at mobotour’s discretion, in the suspension or termination of any outstanding Invoice(s) for such Customer.
- 8.2 Restrictions on Use and Disclosure. Recipient may use Confidential Information only for the purposes of an Invoice and shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case using no less than a reasonable degree of care. Recipient may disclose Confidential Information received hereunder only as reasonably required to perform its obligations under a Purchase Order and only to its employees who have a need to know for such purposes and who are bound by signed agreements to protect the received Confidential Information from unauthorized use and disclosure.
8.3 Exclusions. The restrictions of the Terms of Service on use and disclosure of Confidential Information shall not apply to information that: (i) is in the possession or control of Recipient at the time of its disclosure hereunder; (ii) is, or becomes, publicly known, through no wrongful act of Recipient; (iii) is received by Recipient from a third party free to disclose it without obligation to Owner, (iv) is independently developed by a party as evidenced by its written and dated records and without any breach of the Terms of Service, including compliance with Section 4; or (v) is the subject of a written permission to disclose provided by Owner. The Recipient may disclose Confidential Information of Owner pursuant to the requirements of a governmental agency or by operation of law, provided that such Recipient gives Owner written notice thereof as soon as practicable and reasonably cooperates with Owner to contest such disclosure.
- General Skills and Knowledge
Notwithstanding anything to the contrary in the Terms of Service, Customer agrees that Mobotour is not prohibited from utilizing any skills or knowledge of a general nature acquired during the course of providing the Services, including information publicly known or available or that could reasonably be acquired in similar work performed for another customer of Mobotour.
All claims for any non-conformity, error, or defect of the Services must be made within five (5) days of the date of provision of the Services.
Any tax of any nature including, without limitation, any excise, sales, use, Services and services or other similar taxes which the Mobotour may be required to pay, to collect or to reimburse to others, by reason of the manufacture, ownership, use or sale of any product sold or service provided by Mobotour hereunder shall be the sole responsibility of Customer and shall be added to the amount to be paid hereunder.
- Limits of Contract
Only the Services, subscriptions and qr code hardware that are specifically described in with regards to payment are subject to the Terms of Service.
- Technical Data
All performance data relied on by Mobotour for the provision of the Services are based upon information furnished by Customer in accordance with its requirements and Mobotour assumes no responsibility for the accuracy of such information. All customer account data will be stored for 7 years.
- Force Majeure
For all purposes hereof, force majeure includes any act of God, war, mobilization, governmental regulation, strike, lockout, drought, flood, total or partial fire, obstruction of navigation, loss, damage or detention in transit, defective materials or delays by shippers, or other contingencies or causes beyond mobotour’s control which might prevent the manufacture, shipment or delivery of Services covered hereby. Performance of mobotour’s obligations may be suspended pending force majeure, without Mobotour being responsible to Customer for any damages or losses resulting from such suspension.
Representations & Warranties
- Customer represents, warrants and covenants that the performance of its obligations under the Terms of Service and the use of the Services (by Customer and its Authorized Users) will not violate any applicable laws or regulations.
- Customer represents, warrants and covenants that the acceptance and performance of the Terms of Service: (i) is within its corporate powers; (ii) has been duly authorized by all necessary corporate action; and (iii) does not and shall not contravene or constitute a default under, and is not and shall not be inconsistent with, any judgment decree or other, or any contract, agreement, or other undertaking, applicable to Customer.
- Customer acknowledges that (i) mobotour does not monitor the content of the information passing through the Services for purposes of verifying accuracy or legal compliance, and (ii) Customer will use commercially reasonable efforts to ensure that the information it and its Authorized Users transmit thereby complies with all applicable laws and regulations, whether now in existence or hereafter enacted and in force.
- In the event of any breach by Customer of any of the foregoing representations or warranties, in addition to any other remedies available at law or in equity, if the breach is not cured by Customer within 10 days of Customer’s receipt of written notice of the breach from Mobotour, Mobotour will have the right to suspend the Services until such breach is cured.
- Warranty Disclaimers.
NEITHER MOBOTOUR NOR ANY OF ITS SUPPLIERS OR RESELLERS MAKES ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND MOBOTOUR AND ITS SUPPLIERS SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA ACCURACY, AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW DISCLAIMERS OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY. CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THE TERMS OF SERVICE HAVE BEEN MADE RESPECTING THE SERVICES, AND THAT CUSTOMER HAS NOT RELIED ON ANY REPRESENTATION NOT EXPRESSLY SET OUT IN THE TERMS OF SERVICE. Mobotour DOES NOT WARRANT THAT THE SERVICES OR SITE WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE SERVICES OR SITE WILL OPERATE IN THE COMBINATIONS WHICH CUSTOMER MAY SELECT FOR USE, OR THAT THE OPERATION OF THE SERVICES OR SITE WILL BE UNINTERRUPTED, OR ERROR-FREE. FURTHER, CUSTOMER ACKNOWLEDGES AND AGREES THAT Mobotour HAS NO CONTROL OVER THE INTERNET, AND THAT Mobotour IS NOT LIABLE FOR THE DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET WHICH MIGHT RESTRICT OR PROHIBIT THE OPERATION OF THE SERVICES.
- Disclaimer of Actions of Third Parties.
Mobotour does not and cannot control the flow of data to or from mobotour’s Technology and other portions of the Internet. Such flow of data depends on the performance of Internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt customer’s connections to the Internet (or portions thereof). Although Mobotour will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, Mobotour cannot guarantee that such events will not occur. Mobotour DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES WHICH ARE NOT mobotour’s SUBCONTRACTORS.
- Mobotour will indemnify, defend and hold harmless Customer and its Affiliates from and against any lawsuit, liabilities, loss, cost or expense (including, but not limited to, reasonable attorneys’ fees and costs of suit) arising out of a third party claim made against Customer that the Mobotour Technology or Services infringe on any intellectual property right of a third party; provided, however, that mobtour is notified in writing of such claim promptly after such claim is made upon Customer. Mobotour shall have the right to control any defense of the claim. In no event shall Customer settle any such claim without mobotour’s prior written approval. mobotour shall have no liability or obligation if the claim arises from (i) any alteration or modification to the Mobotour Technology or Services by Customer, (ii) any combination of the Mobotour Technology or Services by Customer with other programs or data not furnished by Mobotour, or (iii) any use by Customer of the Mobotour Technology or Services that is prohibited by the Terms of Service or otherwise outside the scope of use for which the Mobotour Technology or Services are intended.
- Each party will indemnify, defend and hold harmless the other party and its Affiliates from and against any lawsuit, liability, loss, cost or expense (including, but not limited to, reasonable attorneys’ fees and costs of suit) arising out of, related to, or in connection with the acts, omissions, performance (or failure to perform) of the first party, its subcontractors, or their respective employees or agents, to the extent the lawsuit, liability, loss costs or expense results from the negligence, willful misconduct or other fault of the first party, its subcontractors or their respective employees or agents.
- Options for Infringement Claims.
If any party is enjoined from using the mobotour Technology, or if mobotour believes that the mobotour Technology may become the subject of a claim of intellectual property infringement, mobotour, at its option and expense, may: (i) procure the right for Customer to continue to use the Services; (ii) replace or modify the Mobotour Technology so as to make it non-infringing; provided, however, that the Services continue to conform to the descriptions and/or specifications provided in the applicable invoice; or (iii) in addition to any other remedies available in law or equity, terminate any outstanding invoices, in which case Mobotour shall refund to Customer any and all subscription fees paid by Customer for those Services not provided by Mobotour and provide, at Customer’s request and free of charge, Customer Data in a database document format. This Section 20 and the preceding Section 19 set forth the liability of Mobotour to Customer for any infringement by the Mobotour Technology or Services of any intellectual property right of any third party.
- Limitation of Liability
THE LIABILITY OF Mobotour WILL NOT UNDER ANY CIRCUMSTANCES EXCEED THE PURCHASE PRICE OF THE SERVICES PROVIDED IN THE TWELVE (12)-MONTH PERIOD LEADING UP TO THE DATE ANY SUCH LIABILITY ARISES AND IN NO EVENT SHALL Mobotour BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY OR CONTINGENT DAMAGES OR COMMERCIAL LOSS OF ANY KIND (INCLUDING DAMAGES FOR LOSS OF PROFITS) ALLEGEDLY SUSTAINED BY CUSTOMER.
Customer shall not assign or transfer its rights or obligations under the Terms of Service without the written consent of Mobotour and any assignment made without such consent shall be null and void.
- No Partnership
No agency, partnership, joint venture, or employment is created between Customer and Mobotour as a result of the Terms of Service, and Customer does not have any authority of any kind to bind Mobotour in any respect whatsoever.
- Governing Law and Invalidity
Any provision hereof which is contrary to law will not invalidate any other provision thereof. The foregoing sets forth the sole and entire agreement between the parties with respect to the Services supplied hereunder. These Terms of Service shall be governed by and interpreted in accordance with the laws of the United States of America applicable therein, excluding any rules of private international law or the conflict of laws which would lead to the application of any other laws. Customer agrees that any action at law or in equity arising out of or relating to the Terms of Service shall be filed and adjudicated only in the federal or provincial courts located in the state of Florida, U.S.A, and Customer hereby irrevocably and unconditionally consents and attorneys to the exclusive jurisdiction and venue of such courts over any suit, action or proceeding arising out of the Terms of Service.