Mobility Terms & Conditions
These Terms & Conditions by and between McCracken Group, Inc., (‘McCracken”) and Client, are incorporated into, become a part of the Agreement, and have the same Effective Dave as the Agreement (“Effective Date”)
1.0 Defined Terms. In addition to the terms defined elsewhere in the Agreement, the following defined terms will have the respective meanings set forth below.
1.1 “Agreement” means the agreement signed on the Effective Date, the Terms and Conditions and any other document signed by both parties.
1.2 “Affiliates” means any entity controlled by, controlling or under common control with an undersigned party. “Control” shall mean the direct or indirect ownership of more than fifty percent (50%) of the voting rights or income interest in the entity.
1.3 “Services” means any services provided by McCracken under the Agreement. Client understands that McCracken support hours for Services are M-F, 8 AM – 5 PM Eastern Standard Time.
1.4 “McCracken mobility software” means McCracken’s internet accessible software, including any modules, and other technology that Client may be required to or have the option to use in conjunction with the Services, and any associated documentation made available to Client hereunder.
1.5 “Third Party Products” means any third-party product or business object procured by McCracken on behalf of the Client in connection with the Services.
2.0 Agreement Structure.
2.1 The Agreement provides the terms and conditions under which Client, or its Affiliate, may purchase Services, including the applicable access to McCracken’s mobility software, from McCracken, or its Affiliates.
2.2 If Client issues a purchase order, (a “Client PO”), all Client POs shall be governed by the Agreement and the Terms and Conditions.
3.0 Term and Termination.
3.1 Subject to the termination provisions in Section 3.2, the Agreement shall commence on the Effective Date and continue until expiration or expiration of any renewal thereof.
3.2 Termination for Cause. Either party may terminate the Agreement for cause if the other party has breached any material provision or condition of the Agreement and has failed to cure such breach or has failed to commence a good faith effort to cure such breach within thirty (30) days of the receipt of written notice from the non-breaching party. In addition to the foregoing and to any other rights it may have under the Agreement, either party may, at its option, terminate the Agreement for cause if either party ceases to do business in the normal course of business, becomes or is declared insolvent or bankrupt, files or has filed against it a case under any bankruptcy or insolvency law, or becomes the subject of any proceeding relating to liquidation.
3.3 Termination without Cause. In the event Client terminates the Agreement without cause prior to the expiration of the Initial Term or Renewal Term of the Agreement as provided herein, Client must immediately pay to McCracken liquidated damages based upon the following: the Minimum Monthly Fee multiplied by the number of months remaining in the Initial or Renewal Term of the Agreement.
4.0 Price and Payment.
4.1 McCracken invoices are due fifteen (15) days from the invoice date. All payments must be stated (and payments made) in United States dollars. All amounts payable under the Agreement shall be exclusive of value added tax or analogous taxes (if any) which Client shall pay at the rate applicable thereto from time to time.
4.2 In addition to any of McCracken’s other rights and remedies under the Agreement, if any amounts owed by Client under the Agreement are more than 30 days overdue, McCracken shall have the right to suspend the Services provided to Client, without any liability to Client or any third-party, and assess late fees of 3% per month or the highest amount allowed by law, whichever is less, until all past due amounts are paid. Client shall be liable for all reasonable collection costs including attorney fees, court costs and other charges necessary for collection of past due amounts.
5.1 Each party acknowledges that in the course of performance of its obligations pursuant to the Agreement, each party (a “Recipient Party”) may obtain Confidential Information of the other party, or its Affiliates (a “Disclosing Party”). “Confidential Information” means all nonpublic information, including, but not limited to, trade secrets, know-how, techniques, processes, developments, inventions, products, services, samples, financial, business, pricing, sales or technical information, scripts, computer code, names of customers, suppliers or strategic partners, terms of the Agreement, negotiations or proposals, and other information disclosed in furtherance of the relationship between the parties: (a) in written or other tangible form and marked “Confidential” or with words of similar import; (b) orally or visually and identified as confidential or proprietary information at the time of disclosure; or, (c) under circumstances by which the Recipient Party should reasonable understand such information is to be treated as confidential, whether or not marked “Confidential” or otherwise.
5.2 The Recipient Party shall not have any obligation to preserve the confidential nature of Confidential Information of the Disclosing Party which: (a) was already in the Recipient Party or its Representatives’ possession prior to disclosure by the Disclosing Party; (b) is independently developed by the Recipient Party or its Representatives without reference to any Confidential Information; (c) is obtained from a third party who is not prohibited from transmitting the information to the Recipient Party or its Representatives; or (d) is or becomes generally available to the public other than as a result of disclosure by the Recipient Party or its Representatives.
5.3 The Recipient Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information, but not less than reasonable care, and will (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement; and, (ii) restrict the possession, knowledge and use of Confidential Information to its Affiliates, directors, officers, employees, contractors, agents, legal, and accounting advisers who (a) have a need to know Confidential Information in connection with the relationship, (b) are informed of the confidential nature of the Confidential Information, and (c) have obligations with respect to the Confidential Information that are consistent with the Agreement (“Representatives”). Notwithstanding the termination or expiration of the Agreement, each party agrees that the covenants, agreements and obligations set forth in the Agreement shall survive as follows: (i) in the case of any information or materials that constitute a trade secret within the meaning of applicable law, for as long as such information and materials remain as a trade secret, or (ii) in the case of any other information or materials, for a period of three (3) years from the expiration or termination of the Agreement.
5.4 Upon request of the Disclosing Party, the Recipient Party shall: a) return all Confidential Information, including all documents or media containing such Confidential Information and all copies or extracts thereof; or, b) destroy all Confidential Information in its possession and certify to such destruction in writing. Notwithstanding the foregoing, the Recipient Party shall be entitled to keep copies of Confidential Information to the extent required by any legal obligation, or for its internal document retention and/or archival policies and procedures in place for legal, compliance or regulatory purposes provided that such retained copies of Confidential Information continue to be subject to the confidentiality obligations set forth in the Agreement.
5.5 Without limiting the confidentiality obligations set forth herein, McCracken has the perpetual right to use aggregated, anonymized, and statistical data (“Statistical Data”) derived from the operation of McCracken’s mobility software or delivery of the Services, and nothing herein shall be construed as prohibiting McCracken from utilizing the Statistical Data for business and/or operating purposes, provided that McCracken does not share with any third party Statistical Data which reveals the identity of Client, Client’s end users, or Client’s Confidential Information.
6.0 Warranty; Disclaimer.
6.1 No Warranty. MCCRACKEN PROVIDES NO WARRANTY, EXPRESSED OR IMPLIED FOR ITS SERVICES. ANY WARRANTY CLIENT IS RELYING UPON IS LIMITED TO ANY WARRANTY PROVIDED BY ITS SUPPLIERS OR VENDORS. THE SERVICES AND ANY RELATED SOFTWARE ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PURPOSE. SINCE SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF IMPLIED WARRANTIES, THE MCCRACKEN DISCLAIMER MAY NOT APPLY IN THOSE JURISDICTIONS. MCCRACKEN DOES NOT REPRESENT OR WARRANT THAT THE SERVICE IS COMPLETE OR FREE FROM ERROR, AND DOES NOT ASSUME, AND EXPRESSLY DISCLAIMS, ANY LIABILITY TO ANY PERSON FOR LOSS OR DAMAGE CAUSED BY ERRORS OR OMISSIONS IN THE SERVICE, WHETHER SUCH ERRORS OR OMISSIONS RESULT FROM NEGLIGENCE OR AN ACCIDENT.
6.2 Upon request of the Client, McCracken may engage in the procurement of third-party products in connection with the Services or McCracken’s mobility software. Client’s use of such third-party products is subject to the applicable third-party supplier’s terms and conditions accompanying such third-party products or otherwise delivered to Client. ALL THIRD-PARTY PRODUCTS ARE PROVIDED BY MCCRACKEN “AS IS.”
7.0 Limitation of Liability.
7.1 IN NO EVENT SHALL MCCRACKEN’S LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR FOR ANY OTHER REASON, EXCEED THE FEES PAID OR OWED BY CLIENT TO MCCRACKEN UNDER THE RELEVANT SCHEDULE IN THE ONE YEAR PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY. THE FOREGOING LIMITATION SHALL APPLY EVEN IF CLIENT’S REMEDIES UNDER THE AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
7.2 IN NO EVENT SHALL MCCRACKEN BE LIABLE UNDER THE AGREEMENT TO CLIENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY TYPE, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES FOR BUSINESS INTERRUPTION, LOST PROFITS, LOSS OF DATA, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT MCCRACKEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION SHALL APPLY EVEN IF CLIENT’S REMEDIES UNDER THE AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
8.1 McCracken shall obtain and at all times during the term of the Agreement maintain at its own expense, the minimum insurance coverages set forth below.
- Statutory workers compensation insurance and employer’s liability insurance with limits of not less than $500,000.
- Commercial General Liability insurance with limits of not less than $1,000,000 each occurrence, $2,000,000 general aggregate.
- Business automobile liability insurance with a limit of not less than $1,000,000 per occurrence written to cover all hired and non-owned automobiles.
- Professional Liability/Errors & Omissions insurance with limits of not less than $1,000,000 each occurrence, $2,000,000 general aggregate.
9.0 Access to and Use of McCracken’s mobility software
9.1 Subject to the terms and conditions of the Agreement, McCracken will provide Client with a limited, revocable, non-exclusive, non-transferable right to access and use McCracken’s mobility software configured for use with the Services. Client will access McCracken’s mobility software using username and passwords. Usernames and passwords will only be issued to employees of Client or third parties that McCracken approves in writing. McCracken reserves the right to refuse issuing usernames and passwords to such third parties that McCracken deems to be direct competitors of McCracken. In addition, Client may access McCracken’s mobility software using specific static Internet protocol (IP) addresses. Client shall be solely responsible for issuing, controlling, and monitoring use of usernames, passwords and static IP addresses and shall take all reasonable steps to safeguard usernames and passwords and access to any such static IP address. Client shall immediately notify McCracken of any unauthorized disclosure or use of the passwords or access to McCracken’s mobility software or the need to deactivate passwords and provide to McCracken its reasonable cooperation to remedy such unauthorized disclosure or use. Passwords are subject to cancellation or suspension by McCracken upon the misuse of passwords by Client.
9.2 Client may only use McCracken’s mobility software for Client’s own internal use for the term defined in the Agreement, solely in connection with Client’s own internal business activities. Client shall not allow third parties, to: (i) download or copy McCracken’s mobility software or otherwise reproduce McCracken’s mobility software or any portion thereof, except as expressly authorized by McCracken; provided, however, that Client may download any reports or data, (ii) modify, reverse engineer, decompile, disassemble, or attempt to derive the source code of McCracken’s mobility software, (iii) permit, rent, sell, lease, assign, resell, license, sublicense, distribute or otherwise transfer the use of or access to McCracken’s mobility software for use by third parties, (iv) use McCracken’s mobility software for timesharing or service bureau purposes or otherwise for the benefit of a third party, or (v) create, write or develop any derivative technology or software program based on McCracken’s mobility software or any confidential information belonging to McCracken.
9.3 McCracken retains ownership of McCracken’s mobility software and the Services and all related Intellectual Property Rights. McCracken reserves all rights not expressly granted to Client in the Agreement. Client recognizes that McCracken’s mobility software has substantial monetary value and is considered a trade secret containing confidential information belonging to McCracken. Client shall ensure that any identification labels or legal notices contained in any aspect of McCracken’s mobility software are not modified, suppressed or in any other way made inconspicuous. Client acknowledges that McCracken’s mobility software is at times dependent upon the operating system of the device and that not all features are available on all device operating systems.
9.4 Solely in connection with the provision of Services, McCracken grants Client a limited, revocable, non-exclusive, non-transferable right to access and use any tangible deliverables provided by McCracken to Client solely for Client’s internal business purposes.
10.0 Export Control.
10.1 Neither McCracken’s mobility software, nor any other technical data received from McCracken, nor the direct product thereof, shall be exported or re-exported outside the United States except as authorized and as permitted by the laws and regulations of the United States. If Client is an agency of the U.S. Government or U.S. Government contractor or subcontractor at any tier, then the U.S. Government shall agree that use of McCracken’s mobility software is subject to the restrictions on use as permitted by FAR 52.227-19 (June 1987) or DFARS 227.7202-3(a) (Jan. 1, 2000) or successor regulations, or similar acquisition regulations of other applicable U.S. Government organizations.
10.2 Certain of McCracken’s Services that utilize encryption technology have a U.S. Export Control Classification Number that is EAR99. Such Services that utilize encryption technology are subject to the U.S. Export Administration Regulations (EAR) 15 CFR Chapter VII and/or the International Traffic in Arms regulations (ITAR), 22 CFR Chapter I Subchapter M. Client acknowledges that with respect to such products and services, Client will comply with these regulations.
11.0 Privacy; Data Protection.
11.1 As used herein, “Personal Data” means, generally, information relating to an identifiable natural person and/or allows an individual to be identified and, for greater certainty includes, without limitation, any information which is considered “personal information” within the meaning of, or as otherwise provided by, applicable privacy or data protections laws, regulations, governmental agency directives, ordinances, circulars, rules and opinions now or hereafter in force, as amended from time to time.
11.2 Client authorizes McCracken to collect, use, store and otherwise process the Personal Data McCracken obtains from or on behalf of Client as a result of providing the Services under the Agreement or for any additional purposes described pursuant to the Agreement. Client agrees that McCracken may use the processors identified in Exhibit A (McCracken Processor Table) to the Agreement when McCracken reasonably determines it necessary for the provision of the Services (Collectively, “Processors”). Client agrees that McCracken may transfer Client data including any Personal Data across a country border to the Processors and may, upon notice to Client, vary this list of Processors when it reasonably determines it necessary for the provision of the Services. Prior to EEA Personal Data being transferred out of the EEA, the parties or their relevant Affiliates will enter into McCracken’s Data Protection Addendum. All disputes or liability arising under these agreements, even if entered into by affiliates, will be treated by the parties as if the dispute or liability arose between them under the terms of the Agreement.
12.1 The governing law for any claim arising under the Agreement shall be the laws of the State of Ohio. The venue for any claim arising under the Agreement shall be the state and federal courts located in Hamilton County, Ohio. Both parties agree to personal and subject matter jurisdiction in the Hamilton County, State of Ohio and waive any rights to bring a motion based upon jurisdiction or venue. If either McCracken or Client employs attorneys to enforce any rights arising out of or relating to the Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees, costs, and other expenses.
12.2 Regardless of the circumstances of termination or expiration of the Agreement, or portion thereof, the provisions of Sections 4 (“Price and Payment”), 5 (“Confidentiality”), 7 (“Limitation of Liability”), 9 (“Access to and Use of McCracken’s mobility software”) and 12 (“General”) shall survive the termination or expiration and continue according to their terms.
12.3 Client agrees that McCracken may use Client’s name in any customer list that McCracken distributes to third parties during the term of the Agreement. Additionally, Client also agrees that McCracken may (i) include Client’s name, address, URL and a brief description of their business on McCracken’s company website or in certain trade publications, and (ii) issue a press release relating to the Agreement; provided, however, that McCracken obtains prior written approval from Client before any such publication or distribution. Client agrees that it will not unreasonably withhold such approval.
12.4 The parties are independent contractors and neither party is an employee, agent, servant, representative, partner, or joint venturer of the other or has any authority to assume or create any obligation or liability of any kind on behalf of the other.
12.5 Client shall not during the term of the Agreement offer, promise, solicit, employ or contract (direct or through a third-party contractor) any McCracken employee who has been assigned to perform Services covered by the Agreement. If Client shall employ or contract with any such person during the term of the Agreement or within twelve months after the termination of the Agreement, Client shall pay McCracken, within 30 days, a fee equal to 200% of such person’s most recent annual compensation with McCracken.
12.6 No waiver of any term or condition is valid unless in writing and signed by authorized representatives of both parties. No amendment or modification to the Agreement will be valid unless set forth in writing and signed by authorized representatives of both parties.
12.7 Either Party may assign the Agreement in connection with a merger, acquisition, or sale of all or substantially all of its business related hereto. Except as expressly stated in this section, neither party may assign its rights or obligations under the Agreement without obtaining the other party’s prior written consent which shall not be unreasonably withheld. Any attempted assignment in breach of this provision will be void.
12.8 Any notice required or permitted by the Agreement must be in writing in English and delivered by personal delivery, overnight courier, or regular, certified, or registered mail, return receipt requested, and deemed received upon personal delivery, acknowledgment of receipt of electronic transmission, the promised delivery date after deposit with overnight courier, or five (5) days after deposit in the mail. Notices shall be sent to the address set forth in the introductory clause of the Agreement or to such other addresses as may be designated by notice from one party to the other.
12.9 Whenever possible, each provision of the Agreement will be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of the Agreement is found to violate a law, it will be severed from the rest of the Agreement and ignored and a new provision deemed added to the Agreement to accomplish, to the extent possible, the intent of the parties as evidenced by the provision so severed. The headings used in the Agreement have no legal effect.
12.10 Except as may be otherwise provided in the Agreement, the rights or remedies of the parties hereunder are not exclusive, and either party is entitled alternatively or cumulatively, subject to the other provisions of the Agreement, to damages for breach, to an order requiring specific performance, or to any other remedy available at law or in equity. Neither party or its subsidiaries or affiliates will bring a claim under the Agreement more than two years after the cause of action arose.
12.11 The Agreement, including these Terms & Conditions and any other document signed by the parties constitutes the entire agreement between the parties regarding the subject matter stated herein, and supersedes all previous communications, representations, understandings, and agreements, either oral, electronic, or written. The Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of the Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of the Agreement.