TERMS OF USE

Date Last Updated: May 29, 2019 The Mobibi Platform (“Mobibi”) Terms of Use (“Terms of Use”) are entered into between you (“You” or “Your”), and Mobibi, Inc, located at 610 Santa Monica Blvd Suite 222, Santa Monica, California 90401, (“Mobibi, Inc”). If You accept or agree to these Terms of Use on behalf of a company or other legal entity You represent and warrant that You have the authority to bind that company or other legal entity to these Terms of Use. “You” and “Your” will refer and apply to that company or other legal entity. Please carefully read these Terms of Use and our Privacy Policy, which may be found at https://www.mobibi.com/privacy, which is incorporated into these Terms of Use by reference. In the event of a conflict between these Terms of Use and the Privacy Policy, these Terms of Use shall prevail. The Agreement governs Your access to the use of the Mobibi Platform and constitutes a binding legal agreement between You and Mobibi, Inc. YOU ACKNOWLEDGE AND AGREE THAT, BY EXECUTING AN ORDER FORM REFERENCING THESE TERMS OF USE AND ACCESSING THE MOBIBI, INC PLATFORM, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS OF USE. IF YOU DO NOT AGREE TO THESE TERMS OF USE, PLEASE CONTACT MOBIBI, INC AS SOON AS POSSIBLE AND DO NOT ACCESS OR USE THE MOBIBI PLATFORM.
  1. DEFINITIONS
Mobibi Platform means Mobibi, Inc’s hosted, online software application, accessible via web browser at the URL https://app.mobibi.com/ and any other URLs as Mobibi, Inc may designate from time-to-time and any optional third party services ordered by You and provided to You through Mobibi, Inc. Mobibi PlatformData means any data collected through Your use of the Mobibi Platform including Subscriber Data, Publisher Data, and usage and performance data.   Subscriber Data means any data that: (a) collects via Mobibi Pixel on Your properties; (b) Your proprietary data input by You or Your Authorized Users in the Mobibi Platform; (c) Your proprietary data received by the Mobibi Platform from Your Publishers; and (d) Subscriber Content that is stored or processed by the Mobibi Platform.   Aggregated Use Data means data concerning the use, performance, and measurement data created by, or made available through the Mobibi Platform. This data may be related to or derived from Your use of the Mobibi Platform.   Personal Data means any data related to an identified or identifiable individual natural person; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to its physical, physiological, mental, economic, cultural, or social identity.   Fees means the charges specified in an Order Form   Order Form means a Mobibi Platform order form that specifies the Fees, configuration, subscription period, and other details of the Mobibi Platform to be provided by Mobibi, Inc to You.   “Effective Date” means the date on which the Order Form is completed and provided to Mobibi, Inc.   Authorized User means Your employees, consultants, contractors, customers, and agents that have been assigned a Credential to access and use the Mobibi Platform, registered to access and use the Mobibi Platform, and agree to comply with the terms and conditions of the Agreement.   Credential" means the user identification and password to the Mobibi Platform delivered to You by Mobibi, Inc, or set by You via the Mobibi Platform.   Documentation means materials provided via the Mobibi Platform in the help and support sections of the Mobibi Platform.   Viruses means software viruses, or other harmful computer codes, agents, scripts, files, or programs.   Intellectual Property Rights means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, with respect to Mobibi, data generated by or otherwise derived from Your use of Mobibi Platform and any other intellectual property rights recognized in any country or jurisdiction in the world.   Feedback means comments and suggestions for improvements relating to the Mobibi Platform provided voluntarily by You to Mobibi, Inc.   Publisher(s)” means one or more third parties, who provide You or Your Authorized Users with services or accounts that may be accessed via the Mobibi Platform.   Confidential Information means any written, machine-reproducible, or visual materials that are labeled as proprietary, confidential, or with words of similar meaning, and all information that is orally or visually disclosed, if not so marked, if it is identified as proprietary or confidential at the time of its disclosure or in a writing provided within 30 days after disclosure. Mobibi, Inc Confidential Information includes, without limitation, the Mobibi Platform and any software used for the provision of the Mobibi Platform, whether in source or executable code, documentation, nonpublic financial information, pricing other than pricing publicly disclosed on Mobibi, Inc ’s website, business plans, techniques, methods, processes, and the results of any performance tests of the Mobibi Platform.   Affiliate means an entity that, directly or indirectly, through one or more intermediaries, owns or controls, is owned or controlled by, or is under common ownership or control with, a party; as used in this definition, the term “control” means the ownership of at least 50% of the equity of that entity or possessing the power to direct or cause the direction of the management of that entity.  
  1. MOBIBI PLATFORM
  2.1 License. Subject to Your compliance with these Terms of Use, Mobibi, Inc grants to you a limited, worldwide, non-exclusive, non-transferable (except as permitted in these Terms of Use), revocable license to use the Mobibi Platform as described on an applicable Order Form and Documentation during the Term solely for Your own internal business purposes.   2.2 Modifying and Terminating the Mobibi Platform. Mobibi, Inc may make changes to the Mobibi Platform at any time. If You do not wish to continue to use the modified Mobibi Platform, You may elect to terminate your subscription as provided in the applicable Order Form.   2.3. Restrictions. You and Your Authorized Users shall not:  
  • knowingly permit access to the Mobibi Platform by anyone other than Your Authorized Users;
  • copy, modify, distribute, resell, display, or rent any portion of Mobibi Platform except as permitted under the Terms of Use;
  • attempt to disassemble, duplicate, copy, modify, decompile, frame, mirror, create derivative works from, reverse engineer, or distribute any portion of the Mobibi Platform or permit any third party to do so;
  • subject to Your rights permitted under these Terms of Use, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Mobibi Platform and/or Documentation available to any third party except Your Authorized Users and customers, or attempt to obtain, or assist third parties in obtaining, access to the Mobibi Platform and/or Documentation;
  • use the Mobibi Platform to transmit any unsolicited commercial communications unless permitted by law;
  • use the Mobibi Platform to send, store, or transmit data that may violate the intellectual property rights of any third party, or which have been unlawfully obtained;
  • send, store, or transmit materials or data into the Mobibi Platform containing Viruses, or use the Mobibi Platform to transmit Viruses to third parties;
  • use the Mobibi Platform to store, transmit, or process data that: (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (ii) facilitates illegal activity; (iii) depicts sexually explicit images; (iv) promotes unlawful violence; (v) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability; or (vi) is otherwise illegal or causes damage or injury to any person or property; and
  • except as permitted herein, share with any third parties, any Credentials, account numbers, and account profiles for the Mobibi Platform.
  Mobibi, Inc reserves the right, without liability or prejudice to any other rights, to immediately disable Your access to Mobibi Platform if Mobibi, Inc reasonably believes You have violated this Section 2.3.  
  1. PROPRIETARY RIGHTS.
  3.1 Ownership. Mobibi, Inc and its licensors exclusively own and retain all rights, title, and interest in and to the Mobibi Platform, including all copies of any software used for the provision of the Mobibi Platform and all Intellectual Property Rights therein and relating thereto. All rights not expressly granted to You in the Terms of Use are reserved by Mobibi, Inc.         3.2 Feedback. You hereby grant to Mobibi, Inc a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, fully paid-up license to use, modify, and incorporate Your Feedback into the Mobibi Platform and to further market, distribute, and sell the Mobibi Platform with Your Feedback incorporated therein.   3.3 Subscriber Data. You shall exclusively own all rights, title, and interest in and to the Subscriber Data. You hereby grant to Mobibi, Inc a non-exclusive, worldwide, royalty-free, fully paid-up license during the Term and the follow-on period to: (i) collect, analyze, use, store, and transmit the Mobibi Platform Data; (ii) combine and aggregate the Mobibi Platform Data with other data to perform the Mobibi Platform; and (iii) to disclose the Mobibi Platform Data as required by law. You grant Mobibi, Inc a worldwide, irrevocable, non-exclusive, transferable, fully paid-up, and royalty-free license to aggregate, use, display, reproduce, distribute, and analyze Aggregated Mobibi Platform Data in any format and through any applicable channels for any legal purposes.   3.4 Aggregated Use Data. You acknowledge and agree that Mobibi, Inc may collect Aggregated Use Data related to Your use of the Mobibi Platform collected in accordance with these Terms of Use in order to continue to develop, improve functionality of, and provide bug-fixes for the Mobibi Platform. Mobibi, Inc is the sole owner of Aggregated Use Data.  
  1. PRIVACY AND DATA SECURITY.
  4.1 Personally Identifiable Data. You may not transfer, or cause to be transferred, or input Personal Data into the Mobibi Platform without notifying Mobibi, Inc in writing. To the extent that Mobibi Platform Data is collected by, or on behalf of, You or Your customers from end users by the Mobibi Platform, You represent and warrant that all appropriate consents and waivers have been or will be obtained from such end-user(s).   4.2 Privacy Policies and Opt-outs. If You use Mobibi Platform, You must post on Your website(s) a privacy policy that: (A) complies with all applicable laws, rules, and regulations; (B) accurately discloses the data collection, use, and disclosure practices applicable to such site; and (C) discloses the use of one or more third parties for ad serving and/or data collection activities. The parties agree that their privacy polic(ies) will provide end-users with a conspicuous link to a functional opt-out page so that end-users may opt-out of tracking activities. You may not use Mobibi Platform to collect data derived from end-user or data pertaining to an end-user who has opted-out of having those data collected. The parties agree to use industry-standard security measures in connection with their obligations hereunder, including industry-standard security measures for data transmission and storage.   4.3 Data Security and Storage. Mobibi, Inc shall maintain commercially reasonable, industry standard security practices to transmit, store, and process Mobibi Platform Data. In the event of Mobibi Platform Data loss or corruption, Mobibi, Inc will use commercially reasonable efforts to restore such lost or corrupted data from the latest backup of Mobibi Platform Data maintained by Mobibi, Inc. Mobibi, Inc shall not be responsible for any loss, destruction, alteration, unauthorized disclosure, or corruption of Mobibi Platform Data not directly under the control of Mobibi, Inc.   MOBIBI, INC’S EFFORTS TO RESTORE LOST OR CORRUPTED MOBIBI PLATFORM DATA PURSUANT TO THIS SECTION, SHALL CONSTITUTE MOBIBI, INC ’S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF MOBIBI PLATFORM DATA. Mobibi, Inc reserves the right to modify its data storage practices, so long as those modifications do not reduce or diminish those storage practices in effect as of the Effective Date.  
  1. YOUR OBLIGATIONS.
  5.1 Marketing Support. During the Term, You grant Mobibi, Inc the right to publish Your corporate logo on its website and in marketing materials that include examples of Mobibi, Inc customers and publicly acknowledge You as a Mobibi, Inc customer in a press release, the content of which, Mobibi, Inc and You shall mutually approve in advance. Subject to Your agreement, You may participate in a Mobibi, Inc customer case study, provided that Mobibi, Inc covers the costs of Your participation.   5.2 Enforcement. You are responsible for Your Authorized Users’ use of the Mobibi Platform. You shall promptly notify Mobibi, Inc of any suspected or alleged violation of the Agreement by an Authorized User, including any unauthorized use of any password or account or any other known or suspected breach of security of the Mobibi Platform. Mobibi, Inc may suspend or terminate any Authorized User’s access to the Mobibi Platform upon notice to You in the event that Mobibi, Inc reasonably determines that such Authorized User has violated the Terms of Use.   5.3 Telecommunications and Internet Services. You understand that Your Authorized Users’ use of the Mobibi Platform is dependent upon Your access to telecommunications and internet services. You must acquire and maintain at Your own expense such telecommunications and internet services, including, without limitation, any and all fees and taxes of any kind related to the foregoing. Mobibi, Inc shall not be responsible or liable for any data loss or corruption, lost communications, or any other losses or damages caused by Your telecommunications and internet service providers or due to Your utilizing telecommunications and internet services.   5.4 Third Party Interactions. You or Your Authorized Users may maintain accounts with Publishers that may be accessed via the Mobibi Platform. Any such accounts shall be subject to the terms and conditions of Your arrangements with such Publishers, and Mobibi, Inc hereby disclaims any and all responsibilities and liabilities related thereto.  
  1. FEES AND PAYMENT.
  6.1 Fees. In consideration for Mobibi, Inc providing access to the Mobibi Platform, You shall pay to Mobibi, Inc those Fees described in the applicable Order Form.   6.2 Invoices. You agree to provide Mobibi, Inc with complete and accurate billing and contact information when creating Your account during the registration process. The Fees shall commence on the Billing Start Date defined on the applicable Order Form.  Fees will be due even if You do not use the Mobibi Platform during a particular month. At the end of each month, Mobibi, Inc will automatically issue an invoice to You, or bill Your credit card for the Mobibi Platform. Mobibi, Inc will invoice You in accordance with the Order Form and will either (i) bill You in advance for the Fees and bill You at the end of each month for any Fees in excess of the Fees, or (ii) issue You with a single invoice at the end of each month for all Fees. Each invoice is due and payable as described on the Order Form (the “Due Date”).   6.3 API Costs. If You incur third party API costs through Your use of the Mobibi Platform and such API costs are billed to Mobibi, Inc by Your Publishers, Mobibi, Inc will invoice You the applicable API costs at no additional mark up and You agree to pay Mobibi, Inc for such API costs. Mobibi, Inc will provide You with notice if such API costs are imposed on You.   6.4 Disputes and Overdue Payments. If You believe in good faith that Your invoice is incorrect, You must contact Mobibi, Inc in writing within 10 days of Your receipt of the invoice and describe (in reasonable detail) the amount of the disputed charges and the reason for Your good faith disagreement. If Mobibi, Inc has not received payment within 10 days after the Due Date, interest shall accrue on the past due amounts at the rate of 1.5% per month, but in no event greater than the highest rate of interest allowed by law, calculated from the Due Date until the date that payment is received by Mobibi, Inc. You shall reimburse Mobibi, Inc for the reasonable costs of collection, including reasonable attorneys’ fees and costs. If Your account is 30 days or more past due, in addition to any of its other rights or remedies, Mobibi, Inc reserves the right to suspend the Mobibi Platform, without liability to You, until such amounts are paid in full.   6.5 Bank Fees. Mobibi, Inc shall not be responsible for any fees Your financial institution may impose upon You in the payment of Your invoice (including without limitation any transfer fees).   6.6 Taxes. Fees are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT if applicable) (collectively, “Taxes”). You shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Mobibi, Inc’s net income.  
  1. CONFIDENTIALITY
  7.1 Definition and Exclusions. By virtue of this Agreement, the parties may have access to each other’s Confidential Information. Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence.   7.2 Use and Nondisclosure. During the Term and for a period of three years after expiration or termination of the Agreement, neither party shall make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under the Terms of Use. Each party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the Agreement, but in no event will either party use less effort to protect the Confidential Information of the other party than it uses to protect its own Confidential Information of like importance. Each party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with the obligations set forth herein. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency or court order, provided that before disclosing such information the disclosing party must provide the non-disclosing party with sufficient advance notice of the request for the information to enable the non-disclosing party to exercise any rights it may have to challenge or limit the requestor’s authority to receive such Confidential Information. Furthermore, You acknowledge and agree that, upon expiration or termination of the Agreement, Mobibi, Inc shall either destroy or deliver MOBIBI PLATFORM Data back to You and shall have no other obligation to You regarding such Subscriber Data under this Agreement.  
  1. WARRANTY
  8.1 Warranty for MOBIBI PLATFORM. Mobibi, Inc warrants that the Mobibi Platform shall perform materially in accordance with the Documentation, which may be updated from time to time by Mobibi, Inc, and the Mobibi Platform will not contain or transmit to You any Viruses, worms, time bombs, Trojan horses, or other harmful or malicious code, files, scripts, agents or programs.   8.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS OF USE, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT OR THE MOBIBI PLATFORM. WITHOUT LIMITING THE FOREGOING, MOBIBI, INC DISCLAIMS ANY WARRANTY THAT THE MOBIBI PLATFORM WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. MOBIBI, INC FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE MOBIBI PLATFORM AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. MOBIBI, INC FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM MOBIBI, INC OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES, AND SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY IN SUCH JURISDICTIONS.  
  1. TERM AND TERMINATION
  9.1 Term. These Terms of Use shall commence on the Effective Date and shall remain in effect so long as the current or any subsequent Order Form(s) for the Mobibi Platform that references these Terms of Use is in effect.   9.2 Termination for Cause. Either party may terminate this Agreement upon written notice: (A) if the other party materially breaches this Agreement and fails to correct the breach within 30 days following written notice specifying the breach; (B) if there is an adjudication of bankruptcy of any party under any bankruptcy or insolvency law; or (C) if a receiver for business or property of the other property is appointed or the other party makes any general assignment for the benefit of its creditors. Mobibi, Inc may terminate a trial account or free account at any time in its sole discretion.   9.3 Rights and Obligations Upon Expiration or Termination. (A) Upon expiration or termination of this Agreement: (i) Your and Your Authorized Users’ right to access and use the Mobibi Platform shall immediately terminate; (ii) You and Your Authorized Users shall immediately cease all use of the Mobibi Platform; and (iii) the parties will make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party.   (B) Mobibi, Inc will destroy or dispose of Your Mobibi Platform Data in its possession unless Mobibi, Inc receives, no later than 30 days after the expiration or termination date, a written request to deliver to You the then-most recent back-up of Your Mobibi Platform Data. Mobibi, Inc shall make commercially reasonable efforts to deliver the back-up copy to You within 30 days of receipt of such request. If requested by Mobibi, Inc, You shall pay reasonable expenses incurred by Mobibi, Inc in returning any data to You. You agree and acknowledge that Mobibi, Inc has no obligation to retain and may delete Your Mobibi Platform Data after 30 days from the expiration or termination date of the Agreement. Mobibi, Inc may retain all Aggregated Subscriber Data upon termination or expiration of the Agreement.   (C) Notwithstanding the foregoing, if the Agreement is terminated as a result of Your breach, Mobibi, Inc shall have no obligation to deliver any copy of the Mobibi Platform Data to You, and may delete such Mobibi Platform Data at any time after termination of the Agreement.   (D) Upon expiration or termination of this Agreement, Mobibi, Inc  shall stop using Your corporate logo; provided, however, (i) Mobibi, Inc  shall have a reasonable time to remove Your corporate logo from Mobibi, Inc’s website as well as from any promotional materials, (ii) Mobibi, Inc shall be entitled to distribute all of the promotional materials printed during the Term that include Your corporate logo, name, and related information, and (iii) Mobibi, Inc shall not be required to remove any such printed materials from circulation.   9.4 Survival. Section 7 shall survive any expiration or termination of this Agreement for so long as either of the parties has any rights, duties or obligations thereunder. Sections 2.3, 3, 7, 9.3, 9.4, 10, 11, and 12.1 shall survive any expiration or termination of this Agreement.     You will defend, indemnify, and hold Mobibi, Inc, its directors, officers, employees, agents, partners, suppliers, and licensors harmless from any third party claim or demand, including reasonable attorneys' fees, relating to or arising from: (a) content You submitted, posted, transmitted, or otherwise made available under your account using the Mobibi Platform; (b) your use of the Mobibi Platform and activities occurring using your account information; (c) any violation by you of the Terms of Use; and (d) your violation of any third party rights. This indemnification will survive the termination or expiration of the Terms of Use and any applicable Order Form.  
  1. LIMITATION OF LIABILITY.
  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR LIABILITY ARISING FROM A PARTY’S BREACH OF ITS OBLIGATIONS HEREIN REGARDING CONFIDENTIAL INFORMATION, A BREACH OF SECTION 2.3 (RESTRICTIONS), OR IN CONNECTION WITH THE INDEMNIFICATION OF THIRD PARTY CLAIMS RELATING TO INFRINGEMENT OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS, (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE, OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, AND (B) IN NO EVENT SHALL MOBIBI, INC’S AGGREGATE LIABILITY TO YOU AND ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR YOUR ACCESS TO AND USE OF THE MOBIBI PLATFORM EXCEED THE TOTAL MONTHLY SUBSCRIPTION FEES PAID OR PAYABLE BY YOU IN THE 12-MONTH PERIOD PRECEDING THE CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, or of damages for personal injury, so the above limitations or exclusions of damages may not apply to You.     12.1 Governing Law. Unless otherwise specified in an attached Country Schedule, the Terms of Use and all matters arising out of or relating to the Terms of Use shall be governed by the laws of the State of California, without regard to its conflict of laws provisions; provided that the Terms of Use will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act, even if that law is adopted in California. If You are outside of the United States, the parties agree that rights and obligations of the parties under the Terms of Use shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods. Any legal action or proceeding relating to these Terms of Use shall be brought exclusively in the federal or state courts, as applicable, located Los Angeles, California. You hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.   12.2 Waiver and Severability. The waiver by either party of any default or breach of the Terms of Use shall be in writing and shall not constitute a waiver of any other or subsequent default or breach. In the event any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement shall remain in full force and effect.   12.3 Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of Fees due) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.   12.4 Compliance with Laws. Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, the applicable export laws and regulations of the United States.   12.5 Relationship Between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.   12.6 Assignment. You may not assign Your rights under these Terms of Use without prior written consent of Mobibi, Inc unless in connection with a merger, acquisition, or sale of all or substantially all of Your assets, and provided that the surviving entity has agreed to be bound by these Terms of Use. Mobibi, Inc may assign its rights hereunder to any entity without prior notice or consent from You.   12.7 Entire Agreement. These Terms of Use together with each Order Form and any exhibits hereto constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of the Terms of Use. In the event of any inconsistency between the applicable Order Form and these Terms of Use (or its exhibits), these Terms of Use (or its exhibits) shall control, unless the Order Form expressly states that such term supersedes the conflicting term of these Terms of Use.   12.8 Modification. Mobibi, Inc reserves the right to change these Terms of Use at any time. The updated version (“Modified Terms”) will be effective upon the date of posting unless indicated otherwise in the Modified Terms. You can review the most current version of the Terms of Use at any time at https://www.mobibi.com/terms-of-use. Your continued use of the Mobibi Platform after the Modified Terms becomes effective constitutes your binding acceptance of the Modified Terms. If you do not agree to any updated version, you must terminate your registration within 14 days of the effective date of the Modified Terms, as posted on the Last Updated Date available at the above link.   12.9 Equitable Relief. The parties agree that a breach by either party of any confidentiality or proprietary rights provision of these Terms of Use may cause that party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, either party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.   12.10 No Third-Party Beneficiaries. Unless specified otherwise in the Agreement, no third party shall have any rights or obligations under the Agreement.   12.11 Headings. The headings in these Terms of Use are for the convenience of reference only and have no legal effect.   12.12 Notice. Mobibi, Inc may give notice to You by email to Your email address on record in Mobibi, Inc’s account information. You may give notice to Mobibi, Inc by sending an email to legal@mobibi.com.

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