Wrapping Agreement for Mobile Device Applications
Wrapping Agreement for Mobile Device Applications
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE SUBMITTING ANY APPLICATION TO MOBILEIRON FOR WRAPPING. THE TERMS AND CONDITIONS OF THIS WRAPPING AGREEMENT FOR MOBILE DEVICE APPLICATIONS GOVERN YOUR RIGHTS TO ANY WRAPPIING SERVICE SUPPLIED BY MI AND ANY WRAPPED APPLICATION SUPPLIED BY MI.
IF YOU ARE AN EMPLOYEE OF OR CONSULTANT OR CONTRACTOR TO AN ENTITY SUBMITTING ANY APPLICATION TO MOBILEIRON FOR WRAPPING, YOUR AGREEMENT TO THESE TERMS WILL BE DEEMED TO BE THE AGREEMENT OF THAT ENTITY ("DEVELOPER") AND YOU AND DEVELOPER REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY OR HAVE BEEN PROVIDED THE AUTHORITY TO BIND DEVELOPER TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
MOBILEIRON, INC. ("MI" OR “MOBILEIRON”) IS ONLY WILLING TO WRAP AN APPLICATION AND DELIVER SUCH WRAPPED APPLICATION TO DEVELOPER UPON THE CONDITION THAT DEVELOPER ACCEPTS AND IS BOUND BY ALL THE TERMS CONTAINED HEREIN. BY SUBMITTING AN APPLICATION TO MOBILEIRON, DEVELOPER INDICATES THAT IT UNDERSTANDS THIS AGREEMENT AND ACCEPTS ALL OF ITS TERMS. IF YOU OR DEVELOPER DO NOT AGREE TO (OR CANNOT COMPLY WITH) ALL OF THE TERMS OF THIS AGREEMENT NEITHER YOU NOR DEVELOPER WILL BE AUTHORIZED TO SUBMIT ANY APPLICATION TO MI OR USE ANY WRAPPED APPLICATION.
IF YOU OR DEVELOPER ARE DEEMED TO HAVE ORDERED A SERVICE OR WRAPPED APPLICATION FROM MI, MI'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 DEVELOPER’S PURCHASE ORDER); IF THESE TERMS ARE CONSIDERED AN OFFER BY DEVELOPER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
NOTWITHSTANDING ANY OF THE FOREGOING, IF DEVELOPER AND MI HAVE EXECUTED A WRITTEN WRAPPING AGREEMENT FOR MOBILE DEVICE APPLICATIONS WHEREBY MOBILEIRON WRAPS AN APPLICATION FOR DEVELOPER ("SIGNED WRAPPING SERVICE AGREEMENT") THEN THE TERMS OF THE SIGNED WRAPPING SERVICE AGREEMENT SHALL GOVERN AND CONTROL AND THIS AGREEMENT SHALL HAVE NO EFFECT.
MI AND DEVELOPER AGREE AS FOLLOWS:
MI offers to wrap certain mobile device application(s) for independent developers which will add code to intercept certain calls, change behavior for security, and otherwise modify the application(s) for integration with the MI Platform (“Wrapping” or a “Wrapped” application). Developer owns and distributes one or more applications that it desires to interoperate with the MI Platform. From time to time, Developer may submit to MI certain of its mobile device applications for Wrapping. If MI accepts any such application for Wrapping (an “Application”), MI will Wrap the Application on the terms and conditions set forth herein. MI and Developer agree as follows:
“Channel Partners” means third parties that are authorized by MI to resell and/or distribute Wrapped Applications and their direct and indirect authorized sub-resellers and sub-distributors.
“Customers” means third parties that are licensed, directly by MI or indirectly through one or more tiers of Channel Partners, to use Wrapped Applications for their own internal use.
"EULA" means (i) where the Application is distributed via the Apple app store, the standard end user license agreement for distributed apps, located as of the Effective Date at http://www.apple.com/legal/itunes/appstore/dev/stdeula, or (ii) where the Application is distributed via the Apple or Android app store, or by other means, an end user license agreement that provides (a) a limited, nonexclusive right to use the Application, (b) a prohibition against distributing, selling, sublicensing, renting, loaning or leasing the Application, (c) a prohibition on reverse engineering, decompiling or otherwise attempting to discover the source code of the Application except to the extent expressly precluded by applicable law, (d) a statement that Developer's suppliers retain all right, title and interest in the Application, (e) statement that Developer's suppliers disclaim all warranties with respect to the Application substantially similar to that set forth in Section 6 and (f) a limit of liability substantially for the benefit of Developer's suppliers that disclaims all damages, whether direct, indirect, consequential or otherwise.
"MI Platform" means MI's AppConnect functionality and all of MI’s server and client applications that are required components of MI’s AppConnect functionality.
“Open Source License” means any software license that requires, as a condition of use, modification and/or distribution of the applicable licensed software and/or other software incorporated into or distributed with such software, such software and/or such other software is: (a) disclosed or distributed in source code form; and/or (b) licensed for the purpose of making modifications or derivative works; and/or (c) redistributable at no charge; and/or (d) permitted to be reverse engineered; and/or (e) is used only for non-commercial purposes; and/or (f) distributed with attribution, proprietary notices or other notices.
“Open Source Software” means any software (including without limitation, any application, module, library, database or driver, or any portion thereof) that is made available for use under any Open Source License, including without limitation, any software that is subject to a license that has been approved by the Open Source Initiative, Free Software Foundation or similar group.
2. Wrapping. MI will use commercially reasonable efforts to Wrap the Application(s). Developer acknowledges and agrees that Wrapping an Application may not work as intended and may result in Application errors or other malfunctions and that MI will have no liability for any Application errors or other malfunctions as a result of the Wrapping. Developer agrees to test any Wrapped Application prior to any use. MI will have no support, maintenance or other obligation under this Agreement to Developer or any third party with respect to any Wrapped Application. Developer will have no obligation to distribute any Wrapped Application.
3. License and Obligations.
3.1 Grant by Developer. (a) Subject to the terms of this Agreement, Developer hereby grants to MI, a worldwide, non-exclusive, royalty-free license to (i) Wrap the Applications(s); (ii) use, install, operate, reproduce, and/or distribute any Wrapped Application only in object code format to Customers, either directly or indirectly through Channel Partners, under a EULA specified by Developer; provided, that, MI will only distribute through non-public means (e.g., private websites); and (iii) use Wrapped Application(s) internally by MI or by Channel Partners for support, testing, training and other non-production purposes as MI and Channel Partner may in their discretion provide to Customers. (b) Developer acknowledges and agrees that MI will not charge Customers or Channel Partners any fees or payments for Wrapped Application(s) and, as such, Developer will not have the right or ability to collect any fees or payment from MI or Channel Partners for such distribution. Developer agrees that if it desires to collect license or usage fees from any Wrapped Application distributed through MI or Channel Partners, Developer will be solely responsible for incorporating such features or functionality within its Application to allow collection of license, usage or other fees directly from Customers or end users.
3.2 Grant by MI. (a) Subject to the terms and conditions of this Agreement, MI hereby grants to Developer, under MI's intellectual property rights in Wrapping Modifications (as defined below), a worldwide, non-exclusive, royalty-free license to use, install, operate, reproduce and/or distribute the Wrapped Application only in object code format and only through non-public means; provided, that (i) if Developer distributes any Wrapped Application, such distribution is under the terms and conditions of an EULA, (ii) Developer includes a copyright notice in the Wrapped Application reflecting the copyright ownership of Developer in such Application, and (iii) Developer shall be solely responsible for any updates, support obligations or other liabilities that may arise from such distribution. Except as expressly set forth in this Section, MI grants Developer no licenses of any kind hereunder. (b) The licenses set forth above do not include any rights to, and Developer shall not, (i) modify, translate or create any derivative work of any Wrapped Application, (ii) reverse engineer, disassemble, decompile or otherwise attempt to gain access to the source code of the portions of the Wrapped Application that constitute the additions, changes or other modifications created by MI during Wrapping (the “Wrapping Modifications”) except to the extent expressly precluded by applicable law, (iii) remove, alter or cover any copyright notices or other proprietary rights notices placed or embedded on or in any part of the Wrapped Application, or (iv) cause or permit any third party to do any of the foregoing. (c) Neither party (a “licensor party”) may use any trademarks, trade names, service marks or logos (“Marks”) of the other party (a “licensee party”) without the licensor party’s prior written consent on a case-by-case basis. Developer hereby gives its consent for MI and Channel Partners to use its Marks in connection with distribution of the Wrapped Application(s) in accordance with this Agreement. If a licensor party gives the licensee party its prior consent to use its Marks, all use and display of its Marks shall fully comply with any trademark usage guidelines provided by the licensor party and the licensor party may require inspection of all materials bearing its Marks. All goodwill associated with the use of Marks shall inure to the benefit of the licensor party. Notwithstanding anything else, the licensee party will at no time contest or aid in contesting the validity or ownership of any Mark of the licensor party or take any action in derogation of licensor party’s rights therein, including without limitation applying to register any trademark, trade name, service mark or other designation that is confusingly similar to any Mark of the licensor party.
3.3 Open Source. If an Application includes or is distributed with any Open Source Software, Developer agrees to comply with all applicable Open Source Licenses. In addition, Developer has not and will not use or include any Open Source Software in such a way that would cause the Wrapping Modifications to be subject to any Open Source Licenses. Developer agrees that, other than distributing any attribution, proprietary notices or other notices delivered by Developer to MI with an Application, with respect to any distribution of a Wrapped Application by MI or Channel Partners in accordance with this Agreement, MI will not have to comply with any obligation of any Open Source License for any Open Source Software included or distributed by Developer in or with an Application. MI has not and will not use or include or any Open Source Software in the Wrapping Modifications in such a way that would cause the Application (excluding the Wrapping Modifications) to be subject to any Open Source Licenses.
3.4 Additional Requirements. Developer acknowledges and agrees that for Wrapped Applications for iOS devices, the following provisions apply: (i) Developer represents and warrants that it has a valid Apple “iOS Developer Enterprise Program” license agreement; and (ii) Developer is required to re-sign any Wrapped Application using its own Apple “iOS Developer Enterprise Program” certificate.
4. Ownership. As between the parties, Developer retains all right, title and interest in and to the Application(s), except for licenses expressly granted hereunder. MI owns and retains all right, title and interest in and to the Wrapping Modifications, except for licenses expressly granted hereunder.
5. Confidentiality. "Confidential Information" means any non-public data, information and other materials regarding the products, software, services, or business of either party and/or its suppliers provided by such party ("Disclosing Party") to the other party hereunder ("Receiving Party") where such information is marked or otherwise communicated as being "proprietary" or "confidential" or the like, or where such information should, by its nature, be reasonably considered to be confidential and/or proprietary. Except as expressly authorized herein, the Receiving Party agrees to: (i) use the Confidential Information of the Disclosing Party only to perform its obligations hereunder or exercise the rights granted to it hereunder; (ii) treat all Confidential Information of the Disclosing Party in the same manner as it treats its own similar proprietary information, but in no case will the degree of care be less than reasonable care; and (iii) disclose the Disclosing Party's Confidential Information only to those employees and contractors of the Receiving Party who have a need to know such information for the purposes of this Agreement, provided that any such employee or contractor 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 or contractor with the terms of this Agreement.
6. Warranty; Disclaimer. Developer warrants that it owns the Application and has the right to grant the licenses hereunder. Developer warrants that the Application and the media on which the Application (if any) is delivered shall have been scanned for viruses and other malicious code using an updated commercially available anti-virus software. MI warrants that the Wrapping Modifications shall have been scanned for viruses and other malicious code using an updated commercially available anti-virus software. EACH PARTY ACKNOWLEDGES THAT THE APPLICATION AND/OR WRAPPED APPLICATION (AS APPLICABLE) ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
7. Indemnification. Developer will indemnify, defend and hold MI, Channel Partners and Customers harmless from any and all claims, actions, liabilities, losses, costs and expenses (including attorneys’ fees and court costs) resulting from or arising in connection with Developer’s failure to comply with applicable laws and regulations applicable to the Application(s) and/or Wrapped Application(s) (including without limitation export laws and data privacy laws) and/or any third party claims brought against MI, Channel Partners and Customers alleging that the Application(s) and/or Wrapped Application(s) (other than the Wrapping Modifications) infringes or violates any third party intellectual property right; provided, that the indemnified party gives Developer prompt written notice, the indemnified party allows Developer to control to defense and settlement of any such claim or action at Developer's expense (provided that Developer shall not settle any claim in a manner that requires any admission of liability or payment money by an indemnified party without such indemnified party’s prior written consent) and MI cooperates with Developer in any such defense or settlement at Developer's expense.
8. Term and Termination. This Agreement will commence on the Effective Date and shall continue in perpetuity, unless earlier terminated pursuant to this Section. Either party terminate this Agreement upon written notice in the event the other party materially breaches this Agreement and such breach remains uncured thirty (30) days after written notice thereof. Either party may terminate this Agreement for convenience upon at least one hundred eighty (180) days prior written notice. Within ninety (90) days after termination of this Agreement, each party will cease distributing the Wrapped Application. The rights and obligations of the parties in Sections 1, 3.1(b), 3.2(b), 3.2(c) and 4-11 shall survive any termination or expiration of this Agreement. Within five (5) days after any termination of this Agreement upon the other party’s request, each party shall return to the other all Confidential Information of the other party in its possession, custody or control disclosed pursuant to this Agreement. Nothing contained herein shall limit any other remedies that either party may have for the default of the other party under this Agreement nor relieve the other party of any of its obligations incurred prior to any expiration or termination of this Agreement.
9. Limitation of Liability. EXCEPT FOR A BREACH OF OR LIABILITY ARISING UNDER SECTIONS 3 (“LICENSE AND OBLIGATIONS”), AND/OR 5 (“CONFIDENTIALITY”), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO CASE SHALL MI, OR ITS SUPPLIERS, OR DEVELOPER BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY CAUSE OF ACTION EVEN IF ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MI’s AGGREGATE LIABILITY TO DEVELOPER EXCEED FIVE HUNDRED U.S. DOLLARS (US$500). THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, EVEN IF REPRESENTATIVES OF MI, ANY OF ITS SUPPLIERS OR DEVELOPER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. DEVELOPER ACKNOWLEDGES THAT THE TERMS OF THE LICENSE GRANTED HEREIN ARE BASED IN PART ON THESE LIMITATIONS.
10. General Provisions. Any notice provided to a party hereunder shall be in writing. The failure to enforce any term of this Agreement on one occasion shall not prevent enforcement on any other occasion or the enforcement of any other term. If any provision of this Agreement shall be adjudged by any court to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary. Except as otherwise specified in Section 11 below, this Agreement is governed by the laws of the State of California, USA, without regard to its conflicts of laws provisions and this Agreement shall not be governed or affected by any version of the Uniform Computer Information Transactions Act enacted in any jurisdiction. Neither party shall assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the other party; provided, however, either party may assign this Agreement without the prior written consent of the other party solely in connection with a merger, consolidation, corporate reorganization, sale of all or substantially all of such party’s assets, sale of stock, change of name or like event. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns. Any purported assignment by Developer other than as provided above shall be null and void. The prevailing party in any action to enforce this Agreement shall be entitled to recover attorneys’ fees. Any waivers or amendments shall be effective only if made by writing signed by representatives authorized to bind the parties. The Wrapped Application, 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. Developer agrees to comply with all such regulations. The Wrapped Application qualifies 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, Developer may provide to Government end user or, if this Agreement is direct, Government end user will acquire, the Wrapped Application with only those rights set forth in this Agreement. Use of Wrapped Application constitutes agreement by the Government that the Wrapped Application are “commercial computer software” and “commercial computer software documentation,” and constitutes acceptance of the rights and restrictions herein. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous agreements and communications relating to the subject matter of this Agreement. This Agreement, any disputes hereunder, and all services to be provided hereunder by MI to Developer (if any) shall be conducted and provided in the English language.
11. Arbitration. If Developer’s principal place of business is outside of the United States, the following shall apply: Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, 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 without reference to conflicts of law provisions. The number of arbitrators shall be thee (3), provided that the arbitrators so selected shall have substantial experience in licensing and contract disputes. The seat, or legal place, of arbitration shall be New York, New York, USA. The language to be used in the arbitral proceedings shall be English. 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 the 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, MI 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.