MOBILEIRON, INC. END USER LICENSE AGREEMENT (version May 17, 2017)
PLEASE READ CAREFULLY: IF YOU ARE ACCEPTING THIS END USER LICENSE AGREEMENT ("AGREEMENT") ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY ("CUSTOMER"), YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THE CUSTOMER TO THIS AGREEMENT. UNLESS THE CUSTOMER HAS ANOTHER VALID AGREEMENT FOR THE PURCHASE AND USE OF MOBILEIRON, INC. ("MOBILEIRON") PRODUCTS (AS DEFINED BELOW), THIS AGREEMENT GOVERNS YOUR RIGHTS TO THE MOBILEIRON PRODUCTS. BY CLICKING "ACCEPT" CUSTOMER ACCEPTS THIS AGREEMENT AND THE AGREEMENT WILL BE DEEMED A BINDING CONTRACT BETWEEN MOBILEIRON AND CUSTOMER. IF CUSTOMER DOES NOT AGREE TO OR CANNOT COMPLY WITH ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT OR IF YOU DO NOT HAVE AUTHORITY TO BIND THE CUSTOMER, THEN DO NOT CLICK "ACCEPT" AND CUSTOMER WILL NOT BE AUTHORIZED TO USE THE PRODUCTS.
This Agreement is entered into as of the earliest of the date that Customer accepts the terms and conditions herein, the date set forth on an Order, or the date on which Customer downloads, installs, activates or uses the Software.
- "Acceptable Use Policy" means MobileIron's Acceptable Use Policy located at https://www.mobileiron.com/en/legal.
- "Affiliate" means any entity controlling, controlled by or under common control with Customer, where "control" 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.
- "Documentation" means the written and/or electronic release notes, implementation guides, or other published technical documentation about specific Software that is provided by MobileIron to Customer together with the delivery of the Software.
- "License Term" means the term of the license granted for specific Software, as identified in the relevant Order and starting when the Software is first made available for download by Customer.
- "Order" means any purchase order, product schedule or ordering document between Customer and authorized reseller or between Customer and MobileIron (if purchasing directly) that identifies the products and/or services licensed or sold and any applicable licensing parameters (e.g.,the number of licenses).
- "Software" means the object code version of MobileIron proprietary computer programs (including any software accessed as a service) described in the relevant Order, including any Documentation and Updates.
- "Updates" means any correction, update, upgrade, patch, or other modification or addition made by MobileIron to specific Software.
2. License Grant.
- Software License. Subject to the terms and conditions of this Agreement, during the applicable License Term, MobileIron hereby grants to Customer (i) a non-exclusive, non-transferable and non-sublicensable license for Customer to use the Software solely for Customer's internal use with Customer's ordinary business operations and in accordance with the applicable Documentation, and (ii) the right to maintain a reasonable number of copies of the Software on its systems for backup and recovery purposes. Customer may authorize its and its Affiliates' employees, contractors, and other individual users to access and use the Software on its behalf and for its internal business purposes in compliance with this Agreement, provided Customer is responsible for all such users' actions that violate the terms of this Agreement, any breach by any such user is a breach by Customer, and no such user is an employee or contractor of a MobileIron Competitor (defined below). Customer agrees that its purchase of the Software is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by MobileIron with respect to future functionality or features.
- Trial License. This Agreement applies to trial copies of Software ("Trial Software"), except for the following different or additional terms: (i) the License Term for Trial Software is thirty (30) days, which MobileIron may extend upon written consent; (ii) the trial period shall commence on the date that MobileIron delivers the Trial Software to Customer; (iii) Trial Software is provided "AS IS" without warranty of any kind, and MobileIron disclaims all warranties, indemnities, and all other liabilities for Trial Software; (iv) Customer is not entitled to any support and maintenance services or any Updates for Trial Software; and (v) either party may terminate the license for Trial Software upon five (5) days' written notice to the other party.
3. Use Restrictions. As a condition of the license granted in Section 2, Customer shall not itself and shall not authorize or permit any third party to: (a) reverse engineer, decompile, decode, decrypt, disassemble, or attempt to derive any source code from the Software (except and only to the extent any foregoing restriction is prohibited by applicable law); (b) modify, adapt, or create any derivative works based on the Software; (c) distribute, sell, license, lease, transfer, or otherwise provide any Software to third parties except as expressly provided in this Agreement; (d) provide the Software as a service to third parties, including but not limited to on a service bureau, SaaS, or time-sharing basis; (e) unbundle any component of any Software; or (f) use the Documentation except for supporting Customer's authorized use of the Software; or (g) violate the Acceptable Use Policy; or (h) employ or authorize a MobileIron Competitor to use or view the Software or Documentation, or to provide management, hosting, support or similar services with regard to the Software without the prior written consent of MobileIron. "MobileIron Competitor" means the Good Technology division/subsidiary of Blackberry, the Airwatch division/subsidiary of VMWare, the Maas360 division/subsidiary of IBM Corporation, the Intune division/subsidiary of Microsoft, the XenMobile division/subsidiary of Citrix, or successor divisions/subsidiaries that include products based on that technology.
4. Payment; Additional Licenses; Reporting. Customer shall pay the fees for MobileIron products and/or services as set forth in the applicable Order. If Customer is purchasing through a reseller, payment terms will be determined by Customer and the reseller. If Customer is purchasing directly from MobileIron, all fees shall be paid in U.S. dollars and are due within thirty (30) days of the invoice. Customer shall pay all applicable fees, insurance costs, and taxes, excluding taxes on MobileIron's net income. If the actual number of registered devices or users (as applicable) exceed the number of licenses purchased by Customer in the applicable Order, then Customer shall (a) immediately cease such excess usage or (b) purchase additional licenses to cover the excess usage. Fees for excess usage shall be based on MobileIron's then-current price list or specified in the Order. Upon written request by MobileIron, Customer shall provide a usage report, which in certain cases may be generated using the Software, or provide MobileIron reasonable access to the system administrator logs or portal solely for the purpose of certifying the number and type of registered devices or users. MobileIron’s infrastructure may enable MobileIron to access the device or user count for the Software.
- Definition."Confidential Information" means non-public information provided by one party ("Discloser") to the other ("Recipient") that is designated as confidential or reasonably should be considered as such, excluding information that (i) is or becomes public through no fault of the Recipient, (ii) was known to Recipient before the disclosure, (iii) is disclosed to Recipient by a third party without violation of any confidentiality restrictions, or (iv) is independently developed by the Recipient without access to or use of the Discloser's information. MobileIron Confidential Information includes but is not limited to all Software (and any derivatives, performance data, benchmark results, security assessments, product roadmaps and any other technical information relating to the Software), Documentation and its derivatives, and MobileIron's pricing. The terms and conditions of this Agreement are the Confidential Information of both parties.
- Non-disclosure and Non-Use. The Recipient shall (i) only use the Confidential Information of the Discloser to exercise its rights and/or to perform under this Agreement, (ii) use the same degree of care to prevent unauthorized use and disclosure of Discloser's Confidential Information as it does for its own confidential information, but in no event less than reasonable care, and (iii) with respect to employees, contractors, or agents of Recipient, limit access to the Discloser's Confidential Information only to those employees, contractors, or agents who have a need to access such Confidential Information and who are subject to confidentiality obligations at least as restrictive as those specified in this Section 5. The Recipient may disclose the Discloser's Confidential Information to the extent required by any court, governmental body, or law or regulation, provided that, if legally permissible, Recipient shall provide prompt written notice to the Discloser of such disclosure. Upon written request of the Discloser, the Recipient shall return or destroy, at Discloser's option, the Discloser's Confidential Information.
6. Ownership. All Software is licensed and not sold. MobileIron and its suppliers- own and retain all right, title, and (except as expressly licensed in this Agreement) interest in and to the Software and its derivative works. Customer is not obligated to provide MobileIron with any suggestions or feedback about the products or services ("Feedback"). To the extent Customer does provide Feedback to MobileIron, Customer assigns ownership of such Feedback to MobileIron and MobileIron may use and modify such Feedback without any restriction or payment.
- Indemnification. MobileIron shall at its cost and expense (i) defend or settle any claim brought against Customer and its directors, officers and employees ("Customer Indemnitee(s)") by an unaffiliated third party alleging that Customer's use of the Software infringes or violates that third party's intellectual property right(s), and (ii) pay, indemnify and hold Customer Indemnitees harmless from any settlement of such claim or any damages finally awarded to such third party by a court of competent jurisdiction as a result of such claim.
- Procedures. MobileIron's indemnification obligation is conditioned on Customer Indemnitee(s): (i) giving MobileIron prompt written notice of such claim, (ii) permitting MobileIron to solely control and direct the defense or settlement of such claim, provided MobileIron shall not settle any claim in a manner that requires Customer to admit liability or pay money without Customer's prior written consent, and (iii) providing MobileIron all reasonable assistance in connection with the defense or settlement of such claim, at MobileIron's cost and expense.
- Remedies. If such a claim occurs or in MobileIron's opinion is reasonably likely to occur, MobileIron may at its expense and sole discretion: (i) procure the right to allow Customer to continue using the applicable Software, (ii) modify or replace the applicable Software to become non-infringing, or (iii) if neither (i) nor (ii) is commercially practicable, terminate Customer's license to the affected portion of applicable Software and refund a portion of the pre-paid, unused license fees paid by Customer corresponding to such Software. In the case of a perpetual license, the unused portion of the license fees shall be determined on a pro-rata basis over a three (3) year period starting from the initial delivery of the Software.
- Exclusions. MobileIron shall have no obligations under this Section 7 if the claim is based upon or arises out of: (i) any modification to the applicable Software not made by or at the direction of MobileIron, (ii) any combination or use of the applicable Software with any third party equipment, products or systems, to the extent that such claim is based on such combination or use, (iii) Customer's continued use of the allegedly infringing technology after being notified of the infringement claim, (iv) Customer's failure to use Updates made available by MobileIron, (v) Customer's failure to use the Software in accordance with the applicable Documentation, and/or (vi) use of the Software outside the scope of the license granted under this Agreement. The remedies specified in this Section 7 constitute Customer's sole and exclusive remedies, and MobileIron's entire liability, with respect to infringement of third party intellectual property rights.
8. Support and Maintenance Services, Hardware, and Resale Products.
- Support and Maintenance Services. Support and maintenance services shall be provided in accordance with the support and maintenance terms and conditions specified in Schedule B, attached hereto.
- Hardware. Customer may order MobileIron-branded hardware from MobileIron. Hardware shall be sold provided under the hardware terms and conditions specified in Schedule C, attached hereto.
- Resale Product Terms. As a convenience to Customer, MobileIron resells certain products ("Resale Products") that are owned by third parties or are licensed to MobileIron by such third parties. Resale Products are not included as part of the Software and are not required or necessary for use of the Software. Resale Products may be subject to separate terms with the applicable third party licensors, which are available at http://www.mobileiron.com/legal/thirdpartyterms or as may be separately agreed upon by such third party licensor and Customer. If support and maintenance is offered for a specific Resale Product and Customer purchases directly from MobileIron, MobileIron shall distribute the applicable Resale Product error correction, update, upgrade and other release provided to MobileIron by the third party licensor. To the extent that a third party licensor provides MobileIron with any indemnities or warranties for pass-through to customers in connection with the applicable Resale Product, MobileIron will pass such indemnities or warranties through to Customer. EXCEPT FOR THE WARRANTIES EXPRESSLY SPECIFIED IN THIS SECTION 8.c, RESALE PRODUCTS ARE PROVIDED "AS IS," AND MOBILEIRON PROVIDES NO OTHER WARRANTIES OF ANY KIND RELATING TO THEM. MOBILEIRON DISCLAIMS ALL OTHER WARRANTIES, INCLUDING FOR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY LOST PROFITS, LOST BUSINESS OPPORTUNITIES, LOST DATA, OR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES CAUSED BY SUCH RESALE PRODUCT. IN NO EVENT WILL MOBILEIRON'S LIABILITY ARISING OUT OF IN CONNECTION WITH ANY RESALE PRODUCT (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STATUTE, TORT OR OTHERWISE) EXCEED THE AMOUNTS RECEIVED BY MOBILEIRON FOR (a) SUCH RESALE PRODUCT DURING THE TWELVE-MONTH PERIOD BEFORE THE EVENT GIVING RISE TO SUCH LIABILITY OR (b) ASSOCIATED SUPPORT AND MAINTENANCE SERVICES IN THE THEN-CURRENT TERM.
- Third Party Services. The Software may contain features designed to interface with applications or services provided or made available by third parties ("Third Party Services"). In order to use a feature in connection with a Third Party Service, Customer must have a license from the provider of the relevant Third Party Service. If the Third Party Services are no longer available or if the applicable third party provider no longer allows the Third Party Services to interface with the Software, then such features will no longer be available or function in the Software. MobileIron and the provider of the applicable Third Party Service disclaim all warranties, indemnities, obligations, and other liabilities in connection with any interface or integration with the Third Party Service. Further, MobileIron disclaims all warranties, indemnities, obligations, and other liabilities in connection with any Third Party Service.
- Software. For ninety (90) days following the commencement of the applicable License Term, MobileIron represents and warrants to Customer that the Software materially conforms to the specifications specified in the relevant Documentation. Customer's sole and exclusive remedy and the entire liability of MobileIron for MobileIron's breach of this warranty will be for MobileIron, at its option, to repair or replace such Software or refund the license and associated support and maintenance fees paid for such non-conforming Software, in which case the license to the Software shall terminate.
- Professional Services. Customer may order MobileIron professional services from any authorized reseller or directly from MobileIron. Such professional services shall be subject to the terms and conditions of this Agreement and mutually agreed-upon statement of work (if any). For ninety (90) days following the date of delivery of any professional service by MobileIron to Customer, MobileIron represents and warrants that such professional services shall be professional, workman-like and performed in a manner conforming to generally accepted industry standards and practices for similar services. Customer's sole and exclusive remedy and the entire liability of MobileIron for MobileIron's breach of this warranty will be for MobileIron, at its option, to re-perform the non-conforming services or refund the fees paid for such non-conforming professional services.
- Hardware. If Customer purchases hardware, the hardware warranty is specified in Schedule C, attached hereto.
- Exclusions. The express warranties do not apply if the applicable Software or hardware (i) has been modified, except by or at the direction of MobileIron, (ii) has not been installed, used, or maintained in accordance with this Agreement and Documentation, (iii) has been subjected to abnormal physical or electrical stress, misuse, negligence or accident, and/or (iv) is used with equipment, products or systems not specified in the Documentation. Additionally, these warranties only apply if notice of a warranty claim is provided within the applicable warranty period.
- Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS SECTION 9, THE SOFTWARE, HARDWARE, AND SERVICES ARE PROVIDED “AS IS,” AND MOBILEIRON PROVIDES NO OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND MOBILEIRON SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
10. Term and Termination. The license granted herein with respect to specific Software shall remain effective until the License Term for the relevant Software expires or the license for the relevant Software is terminated. This Agreement shall remain effective until the earliest of (a) termination in accordance with this Section 10, (b) expiration of the applicable License Term or (c) expiration of the applicable Support & Maintenance Term. If MobileIron agrees to reinstate a lapsed subscription license, then the terms of this Agreement shall apply. Either party may terminate this Agreement: (a) upon thirty (30) days' written notice of a material breach by the other party, unless the breach is cured within the 30-day notice period, or (b) immediately, if the other party ceases to do business, becomes insolvent, or seeks protection under any bankruptcy or comparable proceedings. In addition, the parties may terminate this Agreement by mutual written consent. For perpetual licenses only, the license grant in Section 2 shall survive expiration or termination of this Agreement unless MobileIron has terminated due to Customer's uncured material breach. All other licenses terminate upon expiration or termination of this Agreement. In addition, Sections 1, 3-7, and 9-12, and all liabilities that accrue prior to termination shall survive expiration or termination of this Agreement for any reason.
11. Limitation of Liabilities. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR ANY BREACHES OF OR FOR LIABILITY ARISING OUT OF SECTION 3 (RESTRICTIONS), 5 (CONFIDENTIALITY), OR A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, OR CUSTOMER'S PAYMENT OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STATUTE, TORT OR OTHERWISE) FOR: (a) ANY LOST PROFITS, LOST BUSINESS OPPORTUNITIES, LOST DATA, OR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR SUCH DAMAGES OR LOSSES WERE REASONABLY FORESEEABLE, OR (b) AN AMOUNT THAT EXCEEDS THE TOTAL FEES PAYABLE TO MOBILEIRON FOR THE RELEVANT SOFTWARE, HARDWARE, OR SERVICE DURING THE TWELVE-MONTH PERIOD BEFORE THE EVENT GIVING RISE TO SUCH LIABILITY. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SPECIFIED IN THIS AGREEMENT. MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SPECIFIED IN THIS SECTION 11.
- Export/Import. Software and Documentation may be subject to U.S. and foreign import and export control laws and regulations. Customer agrees to comply with all such regulations applicable to Customer, including obtaining applicable import licenses.
- U.S. Government End Users. The Software and Documentation are "commercial items," as that term is defined in 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R.227.7202-1 through 227.729204, the Software and Documentation are being licensed to U.S. Government end users only as "commercial items" and with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement.
- In-Licensed Materials and Open Source. The Software may contain or may operate with software services or other technology that is not owned by MobileIron but has been licensed to MobileIron by a third party and is necessary for the normal operation of the Software ("In-Licensed Materials") or that is available under open source or free software licenses. The In-Licensed Materials may be subject to additional terms and conditions, as identified on http://www.mobileiron.com/legal/thirdpartyterms or as otherwise made available to Customer. Such terms and conditions are incorporated by reference herein. To the extent MobileIron uses open source software in the Software, the terms and restrictions set forth herein shall not prevent or restrict Customer from exercising additional or different rights to such open source software in accordance with the applicable open source licenses.
- Governing Law and Jurisdiction. Except as otherwise provided in Schedule A (if applicable), this Agreement, and the rights and duties of the parties arising from this Agreement, shall be governed by, construed, and enforced in accordance with the laws of the State of California, excluding its conflicts-of-law principles. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be state and federal courts in Santa Clara County, California, and the parties agree to service of process in accordance with the rules of such courts. The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply.
- Assignment. Neither party may assign this Agreement without prior written consent of the other party, provided however either party may do so to a successor-in-interest pursuant to a merger, acquisition, or sale of all or substantially all of its business and/or assets. Any assignment in violation of this Section 12.e shall be void. Subject to the foregoing, all rights and obligations of the parties under this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns.
- Data Communications. MobileIron shall only collect, access, use, store, safeguard, disclose and transfer ("Process") Personal Information (i) for the purposes of this Agreement, including without limitation, to implement and deliver the Software and its features and associated services, provide Customer support, and help Customer prevent or address service or technical problems, (ii) as otherwise expressly permitted by Customer in writing, or (iii) as compelled by law. Customer shall make such disclosures, obtain such consents, and provide such access, choices and other applicable rights to individual users with regard to the Processing of Personal Information as are required under applicable law, rules or regulations. "Personal Information" means any information relating to an identified or identifiable individual user that is obtained by or communicated to MobileIron by Customer in performance by MobileIron of its obligations under this Agreement. MobileIron collects, analyzes, and uses aggregated, de-identified technical data and related information (such as product or feature usage, device metrics/metadata and/or mobile application usage) to facilitate market research, product development/improvement and to provide support and maintenance services. MobileIron may use, store, or disclose such information or material derived from such information, as long as it is in a form that does not identify or is not attributable to any individual.
- Equitable Relief. The parties agree that a material breach of this Agreement adversely affecting MobileIron's or its suppliers' intellectual property rights in Software or either party's Confidential Information may cause irreparable injury to such party for which monetary damages would be an inadequate 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 under this Agreement or at law.
- Publicity. MobileIron may publicly disclose that Customer is a customer of MobileIron and a licensee of the Software, including in a list of MobileIron customers and other promotional materials.
- Independent Contractor. The parties are independent contractors. This Agreement shall not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties.
- Customer Affiliates. An Affiliate may purchase MobileIron products and/or services either by executing a participation agreement with MobileIron or through MobileIron's acceptance of an Order issued by such Affiliate or Authorized Reseller (as applicable). Upon execution of a participation agreement by Affiliate or, if the Affiliate issues a purchase order referring to this Section 12.j, that is accepted by MobileIron, such Affiliate shall be deemed to have purchased such products and/or services hereunder, and such Affiliate shall be bound by and shall comply with the terms and conditions of this Agreement as a "Customer" under the Agreement.
- Waiver & Severability; Amendments. The failure of either party to enforce any provision of this Agreement shall not constitute a waiver of any other provision or any subsequent breach. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect. This Agreement may only be amended, or any term or condition set forth herein waived, by written consent of both parties.
- Notices. Except as otherwise provided in this Agreement, all legal notices to Customer will be given in writing to any Customer address listed on the applicable Order. All legal notices to MobileIron will be given in writing to: MobileIron, Inc., 415 East Middlefield Road, Mountain View, CA 94043, U.S.A., Fax 650-963-3307, Attention: General Counsel. Such notices will be effective (a) when personally delivered, (b) on the reported delivery date if sent by a recognized international or overnight courier or by fax, or (c) five business days after being sent by registered or certified mail (or ten days for international mail). For clarity, purchase orders, invoices, and other documents relating to order processing and payment are not legal notices and may be delivered electronically in accordance with MobileIron and Customer’s standard ordering procedures.
- Entire Agreement. This Agreement consists of these terms and conditions, and the attached schedule(s), which are incorporated by reference. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes and cancels all prior agreements, representations, communications, and understandings of the parties, written or oral, relating to such subject matter, and is not intended to confer upon any person other than the signatories below any rights or remedies. This Agreement prevails over any conflicting, or additional terms of any ordering document, acknowledgment, confirmation or other document issued by Customer before or after the execution of this Agreement unless such conflicting or additional terms have been introduced via an amendment and accepted in writing by both parties. The headings of sections of this Agreement are for convenience and are not for use in interpreting this Agreement.
Schedule A: Dispute Resolution outside North America
If Customer's principal office is located outside North America as indicated on the cover sheet, the terms and conditions of this Schedule shall apply to all disputes arising out of or relating to this Agreement (excluding disputes regarding the actual or alleged violation of MobileIron's intellectual property rights or the collection of overdue invoices, which shall be governed by California law).
1. For ALL principal offices outside North America:
- Choice of Law. This Agreement, and the rights and duties of the parties arising from this Agreement, shall be governed by, construed, and enforced with the laws of the State of New York, excluding its conflicts-of-law principles. The Uniform Computer Information Transactions Act 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 of the Agreement, 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 third arbitrator. If the two party-appointed arbitrators are unable to agree on a third arbitrator, the third arbitrator shall be selected in accordance with the applicable rules of the arbitration body. Each arbitrator shall be independent of each of the parties and shall have suitable experience and knowledge in the subject matter of the Dispute. 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. 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 foregoing, either party 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.
2. For ONLY principal offices within Europe, the Middle East or Africa: Any Dispute shall be referred to and finally resolved by arbitration under the London Court of International Arbitration 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.
3. For ONLY principal offices within Asia Pacific, Australia & New Zealand: Any Dispute shall be referred to and finally resolved by arbitration under the Rules of Conciliation and Arbitration of the International Chamber of Commerce 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.
4. For ONLY principal offices within the Americas, excluding North America: Any Dispute shall be referred to and finally resolved by arbitration under International Dispute Resolution Procedures of the American Arbitration Association 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.
Schedule B: Support & Maintenance Agreement
If Customer has paid fees to obtain support and maintenance services directly from MobileIron, this Support and Maintenance Agreement ("SMA") applies to such support and maintenance services. If Customer has paid fees to obtain support and maintenance services directly from an authorized reseller, the terms regarding support in this SMA shall not apply and shall instead be determined between Customer and the relevant authorized reseller; however, the terms regarding maintenance as set forth in Section 3 below shall continue to apply.
- "Designated Support Contact" means any Customer employee appointed by Customer who has been trained and certified by MobileIron to be a primary Customer contact with MobileIron for support services.
- "Incident" means when the Supported Software does not seem to materially perform in accordance with the specifications specified in the relevant Documentation.
- "Response" means when MobileIron support personnel have (i) triaged the Incident, (ii) contacted Customer, and (iii) begun initial troubleshooting on the Incident.
- "Support & Maintenance Term" means the duration of support and/or maintenance services that MobileIron must provide, as specified in the relevant Order. The initial Support & Maintenance Term shall commence when the Software is first made available for download by Customer. Any renewal Support & Maintenance Term shall commence upon the day immediately following the end of the then-current Support & Maintenance Term.
- "Supported Software" means the current shipping release of the Software and any prior release for one (1) year after such prior release has been superseded by a subsequent shipping release. (For example, if Software shipping version 5.0 is released in January 2016, version 5.1 is released in June 2016, and version 5.2 is released in December 2016, MobileIron shall support version 5.0 until June 2017, version 5.1 until December 2017, and version 5.2, assuming version 5.2 has not been superseded yet.)
2. Support Services.
- Support and Trouble Tickets. During the Support & Maintenance Term, MobileIron shall use commercially reasonable efforts to provide support services to Customer, as described below. The Designated Support Contact may report Incidents to MobileIron through MobileIron's Support Portal (available at https://help.mobileiron.com) or support telephone helpline, and thereafter, the parties may cooperate to address the Incidents via email, telephone or the Support Portal. MobileIron shall provide Customer with a trouble ticket number that Customer can use to track the status of Incidents. MobileIron may close the trouble ticket without further responsibility if Customer fails to respond to a request for additional information or to confirm that the trouble ticket is resolved within ten (10) days of MobileIron's request or receipt of a patch or workaround (as applicable). Support services for Supported Software are available to Customers who have purchased direct support services or higher, for twenty-four hours per day and seven days per week.
- Initial Response Times for Technical Support Issues. MobileIron shall provide Responses for Incidents that have been properly reported through the Support Portal in accordance with the table below:
Initial Response Time for Direct Support
Initial Response Time for Premium Plus Support
A severity one (1) issue is a catastrophic production problem which may severely impact Customer's production systems or that causes Customer's production systems to go down or not function. There may be a loss of production data and no procedural work around exists.
A severity two (2) issue is an issue where Customer's production systems are functioning but does so in a severely reduced capacity. The situation causes significant impact to portions of Customer's business operations and productivity. The systems are exposed to potential loss or interruption of service, including disruption of Customer's High Availability Configuration.
A severity three (3) issue is a medium-to-low impact problem which involves partial non-critical functionality loss. This issue impairs some operations but allows Customer to continue to function. This may be a minor issue with limited/no loss of functionality or impact to Customer's operation and there is an easy circumvention or avoidance by the end user. This includes errors in Documentation.
1 business day
1 business day
A severity four (4) issue is for a general usage question or recommendation for a future product enhancement or modification. There is no impact on the quality, performance or functionality of the product.
5 business days
5 business days
* For the purposes of the chart above, MobileIron business hours are 6 am-6 pm PT, Monday through Friday (excluding holidays)
c. Limitations. MobileIron shall have no obligations under this Section 2: (i) if the Incident cannot be reproduced by MobileIron, (ii) if the Supported Software has been modified ore repaired, except by or at the direction of MobileIron, (iii) if the Supported Software has not been installed, used or maintained in accordance with the Documentation, (iv) the Supported Software is used on hardware, software or other equipment that deviates from MobileIron's recommendations made in the then current Documentation, (v) Customer does not permit MobileIron timely access to the logs or to perform remote troubleshooting sessions on the affected server or component, as reasonably requested by MobileIron, and/or (vi) for information or data contained in, stored on, or integrated with any Supported Software
3. Maintenance Services.
- Maintenance. During the Support & Maintenance Term, MobileIron (or authorized reseller, if applicable) shall make available to Customer all Updates to the extent generally released to other MobileIron customers that purchased the same maintenance services. Such maintenance services shall apply only to the current shipping release of the Software and, for security fixes only, the immediately prior release.
- Reinstatement. If the Support & Maintenance Term expires without renewal, this SMA shall terminate as of the expiration date. Customer may reinstate this SMA by paying MobileIron an amount equal to the support and/or maintenance fees that would have been payable during the period of lapse and a reinstatement fee.
4. General. MobileIron may revise the terms of this SMA, provided that: (a) such revision is made to its standard SMA terms made generally available to other customers, (b) MobileIron provides written/email notice of such revision at least sixty (60) days prior to the expiration of the then-current Support & Maintenance Term, (c) such revisions only apply to renewal terms, and (d) renewal is subject to mutual agreement. Any delay or failure in the performance by MobileIron shall be excused if and to the extent caused by a cause or event that is not reasonably foreseeable or otherwise caused by or under the control of MobileIron, including but not limited to acts of God (including but not limited to fire, flood, earthquake, storm, hurricane or other natural disaster), war, hostilities (whether war be declared or not), invasion, act of foreign enemies, mobilization, requisition or embargo, rebellion, revolution, insurrection, military or usurped power, civil war, acts or threats of terrorism, riots, strikes or labor disputes (excluding by MobileIron employees).
Schedule C: Hardware
1. Hardware Delivery. MobileIron shall deliver all purchased hardware to Customer EXW (Incoterms 2010) through a carrier agent designated by MobileIron (unless a different carrier agent is designated by Customer and accepted by MobileIron). Title and risk of loss shall pass from MobileIron to Customer upon delivery of the hardware to such carrier agent. Customer shall pay all freight, insurance, and other shipping-related expenses associated with purchases of hardware.
2. Hardware Warranty. For the applicable warranty period identified in the applicable price list (or twelve (12) months if not identified in such price list) as measured from the date of MobileIron's shipment of the hardware (as provided on the packaging material in which such hardware is shipped), MobileIron represents and warrants to Customer that such hardware shall be free from defects in material and workmanship under normal use. Customer's sole and exclusive remedy and the entire liability of MobileIron for MobileIron's breach of this warranty will be for MobileIron, at its option, to repair or replace such hardware, provided Customer complies with the RMA Procedures (defined below). Any hardware or replacement parts used may be new or reconditioned/refurbished.
3. Return Material Authorization Procedures ("RMA Procedures"). Customer shall report suspected defects in the hardware to MobileIron through MobileIron's Support Portal or support telephone helpline during the applicable warranty period. If the parties determine that the hardware fails to meet the warranty specified above: (a) MobileIron shall issue Customer a RMA number, (b) Customer shall ship such hardware to the address specified by MobileIron, freight prepaid, at MobileIron's cost and expense, (c) and MobileIron shall ship Customer repaired or replacement hardware, freight prepaid, at MobileIron's cost and expense. For the avoidance of doubt, in order for MobileIron to ship replacement hardware, Customer must report the suspected defect, MobileIron must confirm that the hardware has failed to meet the warranty, and MobileIron must issue Customer a RMA number by 1:00 pm Pacific time during MobileIron's business hours on that same day. If the RMA number is not issued by 1:00 pm Pacific time, MobileIron will ship the replacement hardware the next business day. Business hours are 9 am-5 pm Pacific time, Monday through Friday (excluding holidays). If Customer fails to return the defective hardware to MobileIron within thirty (30) days of the date MobileIron issues Customer a RMA number, MobileIron may invoice Customer for the replacement hardware at MobileIron's then-current list price. Any returned defective hardware shall be MobileIron's property once MobileIron delivers replacement hardware to Customer.