Terms of Service 2020
TERMS OF SERVICE
Effective date: September 15, 2020
Before using the Services, it is important that you carefully read the Agreement, which is applicable to (a) “Administrators” -- this includes those who initially set up the Service (“Primary Administrator”) and other that are granted Leadership privileges by the Primary Administrator (“Administrators”); (b) Users: those who are employed or contracted by the Customer and uses a mobile device managed by the Services for professional purposes (“Users”). The terms “you” includes Administrators and Users.
If you are entering into these Terms on behalf of a company or organization as a Primary Administrator, you represent that you have the authority to bind such entity and its Administrators, Users, and its affiliates to these Terms. If you do not have such authority, you may not use the Services. You acknowledge that these Terms are a contract between you and Mosyle Corporation, even though they are electronic and are not physically signed by you and Mosyle Corporation, and they govern your use of the Services.
You are free to reject these Terms, but that means that you cannot use our Services in any way.
This Agreement is in full effect while you or the entity that you represent use the Services in any way.
1. LICENSE AND TERMINATION
We hereby grant you a revocable, non-exclusive, non-transferable, limited right and license to use the Services in accordance with your Service plan. Mosyle Business is provided to be used exclusively by companies and for professional purposes only and shall not be used for any individual not connected with a company account under any circumstances. The term of your License shall commence on the date that you create your account and will end if your account is terminated by either you or us. We retain all right, title and interest in and to the Mosyle App and Services, including, but not limited to, all copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, computer code, and all other rights whether registered or not and all applications thereof. The Mosyle App and Services are protected by applicable laws and treaties worldwide, and may not be copied, reproduced or distributed in any manner or medium, in whole or in part, without prior written consent from us.
Either Mosyle or you may terminate this Agreement: (i) upon thirty (30) days prior written notice to the other party for a material breach by the other party if such breach remains uncured at the expiration of such notice period; or (ii) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If the Agreement is terminated, your account is simultaneously terminated and you will, as of the date of any termination, immediately cease accessing and otherwise using the Services. Upon termination by Customer pursuant to this Section 1, we will refund Customer any unused prepaid fees for the Services that were to be provided after the effective date of termination. Termination for any reason shall not relieve Customer of the obligation to pay any fees accrued or due and payable to Mosyle prior to the effective date of termination. Section 5 and Sections 10 to 18 will survive termination of this Agreement.
2. YOUR ACCOUNT
Each Company may have only one account. If several persons need to use an account at the same Company, the Company and the Primary Administrator must designate such persons as Administrators or Users.
3. SERVICES OVERVIEW
Through Mosyle Business Services, Companies and Organizations can remotely manage and enforce policies for the use of supported mobile devices by their Users. The Administrators (starting with the Primary Administrator) have the power to freely register all the other Users, providing information as name, email and role (“Company’s Data”). The email address is not required to register a User; any unique information (including but not limited to an e-mail address) that allows differentiating users can be used.
The use of the Services by Companies and Organizations is allowed only for internal and non- commercial use, and only in a manner that complies with all laws that apply to them. If their use of the Services is prohibited by applicable laws, then they aren't authorized to use the Services. We can't and won't be responsible for your use of the Services in a way that breaks the law.
After you establish your Company’s account (Primary Administrator) or other Administrators send you your account info, the following terms apply to your use of the Service:
(a) Account Access: You are fully responsible for any activity that occurs in connection with your Account, whether or not authorized, and for maintaining the confidentiality of passwords and any other credentials used to access your Account. In the event you discover any unauthorized access and/or use of your Account, you agree to immediately terminate such access and/or use, and to promptly notify us;
(b) Using your Account: To use the Services, follow the provided instructions. If you are unable to use your Account for any reason, please contact Customer Support.
You may not use the Services with any purpose different than to remotely manage and enforce policies for the use of supported mobile devices by Users of your Company, including but not limited to:
(a) Copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code of the Mosyle Business App or Services;
(b) Remove or obscure the copyright notice or other notices displayed in connection with the Services;
(c) Interfere with or disrupt the Services, or servers and networks connected to the Services, or circumvent, disable or otherwise interfere with security-related features of the Services or features that prevent or restrict use or copying of any content or that enforce limitations on use of the Services;
(d) Allow any third party to use the Services under your account, share your password or other account information with anyone, create additional accounts for any reason whatsoever, or use the account of any third party; excepted otherwise for the means officially available in the Services;
(e) Utilize the Services for the purpose of monitoring the mobile device usage of any individual other than Users of your Company;
(f) Use any robot, spider, scraper, or other automated means to access the Services for any purpose; or
(g) Knowingly disseminate or transmit any worms, viruses or other harmful, disruptive or destructive files, code, programs or other similar technologies, or otherwise utilize the Services in any manner that violates any statute, rule, or regulation.
5. REPRESENTATIONS AND WARRANTIES BY THE USER
The Services are made available to you in reliance upon the following representations and warranties: (i) If you are a Primary Administrator, the information you provided when creating your account was complete and accurate in all respects and you are over the age of eighteen (18) and you have full power and authority to represent your Company and are establishing this account to manage the mobile device usage of Users of your Company or Organization; (iii) you will use the Services only for its intended purpose; (iv) you will not use the Services for the purpose of violating any statute, rule, or regulation; (v) you will not use the Services to facilitate the distribution of computer viruses, spyware, or any other malicious code; (vi) you will not use the Services to violate the privacy rights of any third party; and (vii) you will not use the Services in any manner other than as described herein.
6. PROTECTION OF COMPANY’S DATA
Mosyle will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Company’s Data, as described in the Guidelines. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Company’s Data by Mosyle personnel except (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by law, or (c) as a Company or Administrator expressly permit or request.
The Services will be performed using equipment or facilities located in the United States. Mosyle’s US based service providers are either Privacy Shield compliant or have executed Standard Contractual Clauses (as approved by the European Commission) that provide legal grounds for assuring that, when processed in the United States, the personal data of EU citizens that are processed by Mosyle customers when using the Services will receive from Mosyle and its service providers located outside the EU an adequate level of protection within the meaning of Article 46 of Regulation (EU) 2016/679 (General Data Protection Regulation).
By agreeing to these Terms, the Company grants Mosyle a general authorization in the meaning of Article 28 (2) of Regulation (EU) 2016/679 to engage processors for the purposes of providing the Services. Mosyle will inform the Company of changes in such processors in accordance with the procedure of modifying these Terms as stipulated below.
List of processors:
The extensive list of Microsoft AZURE security reports and attestations can be found here.
7. DATA BREACH NOTIFICATION AND RESPONSE
Company will immediately notify Mosyle Corporation of any unauthorized use of the Service or any other breach of security relating to the Service.
Mosyle Corporation will store and process confidential information in accordance with customary industry standards. Mosyle Corporation will have a written data breach response plan and will take commercially reasonable steps to notify the Company once it becomes aware of a data breach known to involve, or likely involving, Company confidential information.
Mosyle Corporation will cooperate with the Company to comply with any applicable data breach notification laws.
8. DATA PROCESSING CONTRACT
For the purposes of Article 28 of Regulation (EU) 2016/679, these Terms constitute the data processing contract between the Company as the data controller and Mosyle as the data processor. The Company hereby instructs Mosyle to process the data as described in these Terms.
(a) Subject matter and nature of processing. Mosyle provides the Platform where the Company, as the data controller, can collect, store and organize the personal data of data subjects determined by the Company. The Services has been designed to work as enterprise mobile device management tool but, to the extent not regulated by these Terms, the Companies decides how they use the Services.
(b) Duration. Mosyle will process data on behalf of the Company until the termination of the Services in accordance with these Terms. Mosyle will delete all the personal data to the controller after the end of the provision of services relating to processing, and deletes existing copies unless Union or Member State law requires storage of the personal data.
(c) Parties’ rights and obligations. The Company’s rights and obligations regarding Company’s Data are provided in these Terms. Mosyle ensures that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. Mosyle takes all measures required pursuant to Article 32 of Regulation (EU) 2016/679. Mosyle undertakes to make available to the controller all information necessary to demonstrate compliance with their obligations and to allow for and contribute to audits, including inspections, conducted or mandated by the Company as the data controller.
9. UPGRADING ACCOUNT & PAYMENT
To the extent you use a Service plan that is made available for a fee, you must be an Administrator and you will be required to select a payment plan and provide accurate information regarding your credit card or other payment instrument. You will promptly update your account information with any changes in your payment information. You agree to pay Mosyle Business in accordance with the terms set forth on the Site (https://business.mosyle.com/pricing and related pages), on our Billing Policy (https://business.mosyle.com/legal/billing ) and these Terms, and you authorize Mosyle Corporation or its third-party payment processors to bill your payment instrument in advance on a periodic basis in accordance with such terms.
10. REPRESENTATIONS BY MOSYLE AND DISCLAIMER OF WARRANTY
Mosyle represents and warrants that during the term this Agreement:
a)The Services will perform materially in accordance with the Mosyle’s online or electronic specification or guide for the Services (which may be updated from time to time) (“Documentation”); and
b)The functionality of the Services will not be materially decreased unless the decrease in functionality is due to changes to an operating system used on the devices managed by Mosyle (including but not limited to iOS, macOS, and tvOS).
In the event of a breach of the warranty set forth in (a) and (b) above, we will correct the non- conforming Services at no additional charge to you. The remedies set forth in this Section 10 will be your sole remedy and our sole liability for breach of these warranties, unless the breach of warranty constitutes a material breach of the Agreement and has not been cured within 30 days following our receipt of written notice from you of such material breach and you elect to terminate the Agreement in accordance with Section 1 above, in which case the termination right set forth in Section 1 in the case of an uncured material breach will be your sole remedy and our sole liability for such breach.
Except as otherwise specified herein, the Services are provided on an "as is" and "as available" basis, and without warranties of any kind either express or implied, and you assume all responsibility for the selection of the Mosyle Business Services to achieve your intended results.
EXCEPT AS OTHERWISE SPECIFIED HEREIN, (a) WE HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT,
(b) WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED, and (c) WE DO NOT OFFER A WARRANTY OR MAKE ANY REPRESENTATION CONCERNING THE ACCURACY OF THE SERVICES. IF YOU RELY ON THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY INFORMATION YOU OBTAIN VIA YOUR USE OF THE SERVICES, YOU DO SO SOLELY AT YOUR OWN RISK.
Applicable law may not allow the exclusion of certain warranties, so to the extent such exclusions are not allowed, they may not apply to you.
11. LIMITATION OF LIABILITY
In no event shall we be liable to you or any other party for any indirect, special, incidental, consequential, or punitive damages, however and wherever arising, that may result from the delivery or failure of the Services, including without limitation to losses incurred due to: (a) software glitches, server failures, power outages, or any other issue beyond our control; (b) any delays in or failure of the Services to operate as described; (c) any unauthorized disclosure of account information or other Service disruptions that may occur through the actions of any third party, such as hackers; (d) any damages that may occur to a telephone or other mobile device that results from the use of the Services; (e) damages or losses of any kind resulting from actions you take in reliance upon any results or other information provided by the Services; and (f) any other damages or losses you may incur in connection with the Services.
IN NO EVENT SHALL OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT OR IN CONNECTION WITH THE SERVICES EXCEED THE TOTAL AMOUNT OF FEES PAID BY YOU DURING THE SIX (6) MONTHS PRIOR TO BRINGING THE CLAIM. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE EXCLUSIONS SET FORTH IN THIS SECTION MAY NOT APPLY TO YOU.
Indemnification by You
You are solely responsible for using our Services in accordance with applicable law, and agree to indemnify, hold harmless, and defend us, together with our officers, directors, employees, agents, subsidiaries, and affiliates (the “Indemnified Parties”), from and against any claims, actions, proceedings, and suits (collectively “Claims”) brought against us by any third party or regulatory agency that are associated with your use of the Services (including, but not limited to, invasion of privacy claims), your violation of applicable laws, or your breach of this Agreement, and you expressly agree to assume liability for any damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees) that may be incurred by us in connection with any Claim subject to this section.
Indemnification by Mosyle
Mosyle shall defend Customer, at Mosyle’s expense, from Claims brought by any third party or regulatory agency arising from our breach of this Agreement or alleging that the use of the Services as contemplated hereunder infringes a third party’s Intellectual Property Rights, and shall indemnify and hold Customer harmless against any loss, damage or costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys' fees) (collectively, “Losses”); provided that Customer: (a) promptly gives written notice of the Claim to Mosyle (although a delay of notice will not relieve Mosyle of its obligations under this Section except to the extent that Mosyle is prejudiced by such delay); (b) gives Mosyle sole control of the defense and settlement of the Claim (although Mosyle may not settle any Claim unless it unconditionally releases Customer of all liability); and (c) provides to Mosyle, at Mosyle's cost, all reasonable assistance. “Intellectual Property Rights” means any and all common law, statutory and other industrial property rights and intellectual property rights in the United States, including copyrights, trademarks, trade secrets, patents and other proprietary rights issued, honored or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto.
Mosyle shall have no liability for your Claims or Losses to the extent arising from: (i) modification of the Services by anyone other than Mosyle; (ii) use of the Services in a manner inconsistent with the Agreement or Documentation; or (iii) use of the Services in combination with any other product or service not provided by Mosyle. If Customer is enjoined from using the Service or Mosyle reasonably believes it will be enjoined, Mosyle shall have the right, at its sole option, to obtain for Customer the right to continue use of the Services or to replace or modify the Services so that it is no longer infringing. If neither of the foregoing options is reasonably available to Mosyle, then the Agreement may be terminated at either party’s option and Mosyle’s sole liability, in addition to the indemnification obligations herein, shall be to refund any unused prepaid fees for the Services.
13. GOVERNING LAW AND ARBITRATION
This Agreement will be governed by the internal law of the state of Delaware.
Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration shall take place in Orlando, Florida, in accordance with the AAA rules then in effect, and judgment upon any award rendered in such arbitration will be binding and may be entered in any court having jurisdiction thereof.
14. LIMITATION OF ACTIONS
Any claim or cause of action arising out of your use of the Service must be filed within one year after such claim or cause of action arose or it shall forever be barred, notwithstanding any statute of limitations or other law to the contrary. Within this period, any failure by us to enforce or exercise any provision of these Terms or any related right shall not constitute a waiver of that right or provision.
15. MODIFICATION AND NOTICE OF CHANGES
We reserve the right to change, modify, add or remove portions of these Terms, without advance notice to you. We will notify you of any such changes by posting a notice on our Site and/or via email. The new Terms will reference the effective date at the top of this page together with a link to previous versions. Except as stated elsewhere, such amended terms will be effective immediately and without further notice. Your continued use of the Services after the posting of changes constitutes your binding acceptance of such changes.
16. ENTIRE AGREEMENT
These Terms and any document incorporated by reference herein constitute the entire agreement between you and us and govern your use of the Services, superseding any prior agreements between us.
If any provision of these Terms is found by a court or other binding authority to be invalid, the remaining provisions contained in these Terms shall continue in full force and effect.
We reserve the right to take any action it deems appropriate if we determine, in our sole and absolute discretion, that you have violated these Terms. Such action may include cancelling your account, terminating your license to use the Services, or initiating civil or criminal legal proceedings.
If you have any questions or concerns regarding these Terms, please contact us.
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