Perfecto Mobile Ltd.

TERMS OF LICENSE AND SERVICE AGREEMENT

  1. PLEASE READ THE FOLLOWING DOCUMENT CAREFULLY. This is a legal agreement between you and Perfecto Mobile Ltd. (as well as its affiliates) (“Perfecto Mobile”, “we” or “us” – as applicable) which governs your use of the web-based service of Perfecto Mobile, which provides customers with a hosted based access to real mobile devices (phones and tablets) to evaluate mobile applications and mobile websites on mobile devices (the “Service”) and the Licensed Program (as such is defined below), as well as such other services rendered by Perfecto Mobile. This agreement and all of Perfecto Mobile’s rules and policies constitute the ”Agreement” between you and Perfecto Mobile. TO AGREE TO THESE TERMS, CLICK THE “I AGREE” BUTTON. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK “I AGREE” AND DO NOT USE THE SERVICES AND/OR THE LICENSED PROGRAM. This Agreement limits our liabilities and obligations to the terms set forth herein and permits us to change, suspend, or terminate your access to and use of the Service and/or the Licensed Program. If you do not agree to these terms and conditions in their entirety, then you may not register and use the Service and/or the Licensed Program in any way.

    FOR THE SAKE OF CLARITY, THIS AGREEMENT CONSTITUTES A BINDING CONTRACT BETWEEN US AND YOU – A LEGAL ENTITY (A COMPANY, A PARTNERSHIP, OR ANY OTHER LEGAL ENTITY), IDENTIFIED BY THE DETAILS PROVIDED DURING THE REGISTRATION PROCESS (“BUSINESS ENTITY”) OR AN INDIVIDUAL (EMPLOYEE OR OTHERWISE) DESIGNATED BY THE BUSINESS ENTITY TO USE THE SERVICE FOR THE BENEFIT OF THE BUSINESS ENTITY OR OTHERWISE (“USER”). THE TERMS “YOU” AND “YOUR” WILL APPLY COLLECTIVELY AND SEVERALLY TO SUCH BUSINESS ENTITY AND TO SUCH USER, UNLESS OTHERWISE EVIDENT FROM CONTEXT. IF YOU ARE ACTING ON BEHALF OF THE BUSINESS ENTITY FOR THE PROCUREMENT OF LICENSE TO USE THE SERVICE, THEN YOU REPRESENT AND WARRANT THAT YOU ARE DULY AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE BUSINESS ENTITY AND THAT YOU HAVE THE PROPER AUTHORITY TO LEGALLY BIND THE BUSINESS ENTITY BY THIS AGREEMENT. YOU MAY NOT USE THE SERVICE IF YOU ARE UNDER 18 YEARS OF AGE. IF YOU ARE AN ADMINISTRATOR, YOU MUST NOTIFY US OF ALL PERSONS AND/OR ENTITIES TO WHICH YOU SHALL GIVE ACCESS TO THE SERVICE AND/OR LICENSED PROGRAM, AND UNDERSTAND THAT YOU SHALL REMAIN FULLY RESPONSIBLE FOR THEIR COMPLIANCE WITH THE TERMS HEREIN.

    THESE TERMS OF SERVICE CONSIST OF THREE SEPARATE ARTICLES:

    ARTICLE I: THE SERVICE

    ARTICLE II: THE LICENSED PROGRAM

    ARTICLE III: GENERAL PROVISIONS

    YOU WILL ABIDE BY ALL OF THESE ARTICLES AND THESE TERMS AS PRESENTED TO YOU: CHANGES, ADDITIONS, OR DELETIONS ARE NOT ACCEPTABLE.

    ARTICLE I: THE SERVICE

    Right to Use the Service. Subject to the terms of this Agreement, we grant you a worldwide, limited, non-exclusive, revocable, non-transferable, and non assignable, without a right to sub-license or authorize others, right to use the Service internally within the Business Entity.

    Restrictions. Unless otherwise expressly permitted in this Agreement, you may not use or have others use, or provide to third parties, the Service or any part thereof including, without limitation, by reselling, licensing, renting, leasing, transferring, lending, time sharing, assigning, redistributing or displaying the Service or any part thereof. You may not modify, make derivative works of, disassemble, de-compile or reverse engineer any part of the Service software code. You may not access the Service in order to develop or create a similar or competitive product or service. You may not engage in or attempt to engage in: (i) any form of testing, scanning, scraping, probing, robotic navigating, bulk extracting, hacking the Service; (ii) breaching the security of the Service, or any network or server used by the Service, or identifying any security vulnerabilities thereof; (iii) interfering with, circumventing, manipulating, impairing or disrupting the operation, or the functionality of the Service; (iv) working around or circumventing any technical limitations in the Service; or (v) using any tool to enable features or functionalities that are otherwise disabled, inaccessible or undocumented in the Service.

    YOU MAY NOT USE THE SERVICE FOR ANY ACTIVITY THAT CONSTITUTES OR ENCOURAGES CONDUCT THAT WOULD CONSTITUTE A CRIMINAL OFFENSE, GIVE RISE TO CIVIL LIABILITY OR OTHERWISE VIOLATE ANY APPLICABLE LOCAL, STATE, NATIONAL, FOREIGN LAW OR INDUSTRY STANDARD, INCLUDING, WITHOUT LIMITATION, ANY APPLICABLE LAWS AND REGULATIONS GOVERNING PRIVACY, MASS EMAIL, SPAM, EXPORT CONTROL, CONSUMER PROTECTION, UNFAIR COMPETITION AND FALSE ADVERTISING. ADDITIONALLY, YOU MUST NOT USE THE SERVICE FOR ANY ACTIVITY THAT WILL BE DEEMED, OR ENCOURAGES ACTIVITY THAT WILL BE DEEMED AS THREATENING, HARASSING, ANTI-COMPETITIVE, MISLEADING, LIBELOUS, DEFAMATORY, OBSCENE, PORNOGRAPHIC, PROFANE OR OTHERWISE OBJECTIONABLE.

    Modifications to the Service. We may, either partially or in its entirety and without being obligated to provide advance notice – modify, adapt or change the Service, or any of its features, user interface and design, the extent and availability of the content in it and any other aspect related to it. Such modifications may be conveyed to you through updates or upgrades, if we choose to release any. you will have no claim, complaint or demand against us for applying such modifications or for failures incidental to such modifications. In this Agreement, “update” shall mean a release provided by Perfecto Mobile, of a permanent fix to known bugs, errors, malfunctions or problems in the Service, and “upgrade” shall mean a release provided by Perfecto Mobile, of a major revision to the Service which contains significant enhancements or augmentations to the features, functions or capabilities of the Service. If the Service is held to, or we believe it is likely to be held to infringe a copyright, patent or trade secret, we will have the right at our sole discretion and expense to: (i) substitute or modify the Service so that it is non-infringing; or (ii) obtain for you a license to continue using the Service.

    Service Quality, Security and Availability. We will use reasonable efforts to operate the Service efficiently and available at all times. However, as it is a hosted based Service that relies on network, infrastructure, hardware and software, partly managed and operated by third party providers, we do not warrant that the Service will operate in an uninterrupted or error-free manner, or that it will always be available, free from errors or omissions, malfunctions, bugs or failures, including, but not limited to hardware failures, software failures and software communication failures, originating either in us or any other provider, including, without limitation, third party data providers. If we receive a notice of any failure or malfunction, or if we identify them by ourselves, we will use commercially reasonable efforts to regain the Service's full availability as soon as possible. However, such incidents will not be considered a breach of this Agreement, and we shall be excused from the performance of our obligations under this Agreement insofar the performance is prevented or interfered with due to acts or conditions beyond our reasonable control. Service availability may also be affected by planned and unscheduled maintenance by the hosting service provider. Service hosting maintenance may cause disruptions to the functionality of the Service or to your ability to access and use the Service. If possible, we will notify you of such maintenance, within a reasonable time before it takes place. We employ reasonable security measures, as provided in our hosted based service. We further apply encryption and hashing measures to secure your data transmission and the confidentiality of your access details. However, certain risks are nevertheless inherent in the transmission of information over the Internet and the storage of data on network servers. We do not assume responsibility for risks emanating from such transmission and storage of data. WE MAY EMPLOY TECHNOLOGICAL MEASURES TO DETECT AND PREVENT FRAUDULENT OR ABUSIVE USE OF THE SERVICE. WE MAY TERMINATE YOUR ACCOUNT WITHOUT PRIOR NOTICE AND AT OUR SOLE DISCRETION, IF WE DEEM YOUR USE OF THE SERVICE TO BE FRAUDULENT OR ABUSIVE.

    Intellectual Property - Service. All rights, title and interest, including copyrights, trademarks, trade names, service marks, trade secrets and other intellectual property rights, and any goodwill associated therewith, in and to the Service, including computer code, graphic design, lay-out and the user interfaces of the Service, and all derivatives, improvements and variations thereof, are and will remain at all times, owned by, or licensed to us. Other than what is expressly granted by this Agreement, this Agreement does not grant you any other rights to patents, copyrights, trade marks (whether registered or unregistered), trade names, trade secrets, domain names or any other rights, functions, licenses or content with respect to or in connection with the Service. Your data will be and remain, as between Perfecto Mobile and You, your sole and exclusive property. You provide us a license to use your data for the sole and exclusive purpose of providing the Service, including a license to store, record, transmit, maintain, and display your data only to the extent necessary to provide the Service. You acknowledge that the Service and all elements thereof, including without limitation, its design, structure, capabilities, functionality, business practices, documentation, tutorials, presentations and training material, constitute Perfecto Mobile's confidential information. Accordingly, you must treat all such information as confidential material in a manner no less protective than you use to protect your own similar assets, but in no event less than reasonable care. Without derogating from the foregoing, you will maintain in strict confidentiality any information regarding the Service's functionality, capabilities, structure, design and all other details related thereto, any of our business practices, tutorials and training material, and will not disclose them, or have them disclosed, directly or indirectly to any third party without our prior written consent. Except as expressly set forth herein, no license is granted by one party to the other with respect the Service, or your data. Nothing in this Agreement will be construed to grant to either party any ownership or other interest, in the Service, or your data, except as explicitly provided in this Agreement.

    Your Privacy. We respect your privacy. We will handle your personal information that you provide us or that we collect, including information pertaining to authorized Users, in accordance with our then-current privacy statement, which is incorporated by reference to this agreement. When using the Service, you will comply with all applicable privacy and data protection laws, rules and regulations, including, without limitation by: (i) obtaining any required consent from natural persons to the processing of their personal information by the Service and/or us on computer servers located in the United States, or elsewhere, as may be from time to time and subject to our discretion; (ii) obtaining any required consent from all authorized users, to the collection, processing and use of their personal information by the Service and/or us during the course of registration to and use of, the Service, insofar as such consent is required by any applicable privacy and data protection laws, rules and regulations; (iii) taking full and exclusive responsibility for the privacy and protection of any and all data, of any type, uploaded by your authorized users to the Service data base, whether due to your request, for the use of the Service hereunder or for any other reason. You hereby undertake to indemnify and hold us harmless against any and all claims, demands or lawsuits brought by authorized users or by others on their behalf relating to uploaded data and/or the use of the Service under this Agreement.

    Customer Data. Your data will be and remain your property. You provide us a license to use customer data for the sole and exclusive purpose of providing the Service, including a license to store, record, transmit, maintain, and display customer data only to the extent necessary to provide the Service. It is your sole responsibility to comply with the applicable laws and regulations related to the protection and use of the personal information in the customer data. Except as expressly set forth herein, no license is granted by party to the other with respect the confidential information, the Service, or customer data. Nothing in this Agreement will be construed to grant to either party any ownership or other interest, in the confidential information, Service, or customer data, except as explicitly provided in this Agreement. You acknowledge that we may use anonymous, statistical and aggregated data that is derived from customer data, for our own purposes and that in so far that such use requires consent from data subjects, you represent that you received the necessary consent. You agree that we may collect and store customer data on the service data base for the purposes of delivering the Service to you, and may aggregate non-identifiable customer data with non-identifiable anonymous meta-data from other Perfecto Mobile users and third parties to create anonymous aggregated meta-data that does not identify any individual customer or the metrics or information pertaining to any customer or its authorized users. We will solely own all rights to aggregated data, and have the irrevocable right to maintain, store, use and disclose aggregated data. You represent and warrant that, to the extent required, you have obtained all necessary rights and licenses to the data stored on the service data base for use as contemplated herein and that our use of the data stored on the service data base as set forth herein will not violate any intellectual property rights or privacy rights of any third party. We will take precautions to maintain the confidentiality of your data with the same degree of care as to our own proprietary data, but in no case less than reasonable care. Notwithstanding the foregoing, each party agrees and acknowledges that the other party may, wholly or partially disclose confidential information to the extent such disclosure is required in order to comply with a legal obligation including, orders, subpoenas, decrees or request prescribed by a competent judicial, administrative or regulatory authority.

    Trial Version: Limitation of Liability; No Warranty. In the event that you use any version of the Service Perfecto Mobile deems suitable only for limited distribution and is not the fully featured and fully functional service, then: YOU REPRESENT AND WARRANT THAT YOU HAVE RECEIVED FROM US ALL THE INFORMATION REQUESTED BY YOU WITH REGARD TO THE SERVICE AND ITS USE. YOU UNDERSTAND AND AGREE, THAT THE SERVICE MAY NOT PERFORM AT THE LEVEL OF PERFORMANCE OR COMPATIBILITY AS A FINAL, GENERALLY AVAILABLE SERVICE. YOU UNDERSTAND AND AGREE THAT THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY (IF ANY) WARRANTIES, DUTIES AND CONDITIONS OF OR RELATED TO: MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS, WORKMANLIKE EFFORT AND LACK OF NEGLIGENCE. ALSO, THERE IS NO WARRANTY, DUTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, AND CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF SERVICE REMAINS WITH YOU. IN NO EVENT SHALL WE BE LIABLE TO YOU AND/OR ANY THIRD PARTY, FOR ANY DIRECT, SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY (INCLUDING OF GOOD FAITH OR OF REASONABLE CARE), NEGLIGENCE, AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SERVICE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

    Commercial Version: Limitation of Liability and Limited Warranty. In the event that you use any version of the Service Perfecto Mobile deems suitable for commercial distribution as a fully featured and fully functional service, then: THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY (IF ANY) WARRANTIES, DUTIES AND CONDITIONS OF OR RELATED TO: MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS, WORKMANLIKE EFFORT AND LACK OF NEGLIGENCE. ALSO, THERE IS NO WARRANTY, DUTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT THE SERVICE IS INHERENTLY COMPLEX AND MAY THEREFORE NOT BE COMPLETELY FREE OF ERRORS. YOU FURTHER ACKNOWLEDGE THAT THE PERFORMANCE OF THE SERVICE MAY BE AFFECTED BY ANY NUMBER OF FACTORS, INCLUDING WITHOUT LIMITATION, TECHNICAL FAILURE OF THE SERVICE, ACTS OR OMISSIONS OF THIRD PARTIES AND OTHER CAUSES REASONABLY BEYOND OUR CONTROL. WE WILL NOT BE LIABLE (WHETHER UNDER CONTRACT, TORT, INCLUDING NEGLIGENCE OR OTHERWISE) TO YOU, OR TO ANY THIRD PARTY FOR ANY LOSS OR DAMAGE, INCLUDING INDIRECT, SPECIAL CONSEQUENTIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER, AND INCLUDING, WITHOUT LIMITATION, ANY LOSS OR DAMAGE TO BUSINESS EARNINGS, LOST PROFITS AND OR GOODWILL, SUFFERED BY ANY PERSON, ARISING FROM AND/OR RELATED TO DELIVERY, USE, PERFORMANCE OF OR INABILITY TO USE THE SERVICE AND/OR ANY OF ITS COMPONENTS, WHETHER FORESEEABLE OR NOT, EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

    IN NO EVENT, EXCEPT FOR THOSE LIABILITIES STEMMING FROM PERFECTO MOBILE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, SHALL PERFECTO MOBILE BE RESPONSIBLE TO THE OTHER PARTY OR ANY PARTY FOR ANY DIRECT LIABLITY ARISING OUT OF, RELATED TO OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR ANY MATTER RELATING HERETO OR ARISING HEREUNDER, ON AN AGGREGATE BASIS IN EXCESS OF THE ACTUAL CASH CONSIDERATION RECEIVED BY PERFECTO MOBILE FROM SUCH PARTY FOR THE USE OF THE SERVICE HEREUNDER.

  2. ARTICLE II: LICENSED PROGRAM

    License. In consideration of the payment of the service fees and usage fees set forth herein and performance of your undertakings herein contained, Perfecto Mobile grants you a non-exclusive, non-transferable, non-assignable license (the “License”) to use Perfecto Mobile's remote manual and automated access to mobile handsets software/the package of computer programs and data identified in Exhibit A attached hereto, as may be customized, updated and/or upgraded by Perfecto Mobile from time to time, in machine-readable form only, all subject to the following terms and conditions. Such programs and data, as may be updated and/or upgraded, together constitute the “Licensed Program”, and in such context you may be referred to as the “Licensee”. This Agreement confers no title or ownership and is not a sale of any rights in the Licensed Program. All rights not expressly granted to you are reserved solely to Perfecto Mobile and/or its licensors. Nothing herein should be construed as granting you, by implication, estoppel or otherwise, a license relating to the Licensed Program other than as expressly stated herein.

    Scope of Rights; Restrictions on Use. Pursuant to the License granted hereunder, you may: (i) run the Licensed Program on Perfecto Mobile's servers; and (ii) use the Licensed Program solely within your organization and solely for the purpose of testing and evaluating your own software and/or products in connection with third parties' hand-held phones, smart phones and PDAs. You agree that you will not (i) reverse engineer, disassemble, decompile or attempt to derive the architecture or design, or any source code contained in the Licensed Program, (ii) modify the Licensed Program, (iii) otherwise translate or use the Licensed Program except as specifically allowed by this Agreement, or allow any person or entity the right to do any of the foregoing; (iv) sublicense, transfer and/or assign the Licensed Program to any third party, whether with or without consideration; (v) render any services to third parties, using the Licensed Program (vi) allow any third parties to use the Licensed Program. You may not make any copies of the Licensed Program or any portions thereof. The Licensed Program may now or in the future (following update and/or upgrades thereto) contain or be derived from materials licensed from third party licensors. Such third party materials may be subject to restrictions in addition to those listed herein, which restrictions, if any, may be announced by Perfecto Mobile from time to time, and shall be deemed an integral part hereof for all purposes. Third-party licensors are intended beneficiaries under this Agreement and independently may protect their rights in the Licensed Program (if and to the extent such exist) in the event of any infringement

    Proprietary Protection; Confidentiality – Licensed Program. Title to and ownership of the Licensed Program, any accompanying documentation, all related concepts, technical know-how and all Intellectual Property Rights related to the foregoing, including any modifications, customizations, revisions, bug fixes, enhancements, improvements and derivative versions thereof (collectively, “Derivative Works”), developed by Perfecto Mobile or any one else, including yourself, and all rights therein, including all Intellectual Property Rights applicable thereto, shall remain vested in Perfecto Mobile and, except for the expressed limited License granted hereunder, you shall have no rights in or claims with respect thereto. “Intellectual Property Rights” means any patent, patent application, trade secret, trademark, copyright, industrial design or any other intellectual property right registered or unregistered in any country throughout the world. To the extent it shall be determined that you have any right in connection with the Licensed Program other than the limited specific License hereunder, you hereby irrevocably: (i) assign to Perfecto Mobile, whenever and in perpetuity, any right, title and interest, whether now existing or later arising, that you may have in or to the Licensed Program and any Derivative Works and related Intellectual Property Rights; and (ii) agree to take any lawful action, which We reasonably request to vest or protect your right, title and interest in the Licensed Program and any Derivative Works (at your sole cost). You acknowledge that all data and information contained in or relating to the Licensed Program or any transaction between the parties hereto is highly confidential. You undertake to retain all such information in confidence, not to disclose it to any third party and to exercise towards it at least the same degree of care and protection that you take to safeguard your own proprietary information, but in no event less than a reasonable degree of care. You may use such information only internally and only to the extent required to exercise the License granted hereunder.

    Use of Open Source Codes. You acknowledges that the Licensed Program contains and/or contacts the following open code softwares, and that therefore, and without derogating from any other terms of this Agreement, the following terms and conditions apply to your use of the Licensed Program:

    Limited Warranty and Limitation of Liability – Licensed Program. PERFECTO MOBILE IS NOT RESPONSIBLE FOR OBSOLESCENCE OF THE LICENSED PROGRAM. WE ASSUME NO RESPONSIBILITY FOR THE USE OF SUPERSEDED, OUTDATED, OR UNCORRECTED VERSIONS OF THE LICENSED PROGRAM. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PERFECTO MOBILE DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES WITH RESPECT TO THE LICENSED PROGRAM, INCLUDING ITS CONDITION, ITS CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, ANY NEGLIGENCE, AND ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE.
    PERFECTO MOBILE'S CUMULATIVE LIABILITY TO YOU FOR ALL CLAIMS IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF LICENSE FEES PAID TO PERFECTO MOBILE BY YOU UNDER THIS AGREEMENT DURING THE 6 MONTH PERIOD PRECEDING THE CLAIM GIVING RISE TO THE LIABILITY. IN NO EVENT SHALL PERFECTO MOBILE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, LOSS OF PRIVACY OR FAILURE TO MEET ANY DUTY), ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE LICENSED PROGRAM, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IF PERFECTO MOBILE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

    ARTICLE III: GENERAL PROVISIONS

    Fees and Payments. By entering into this Agreement you hereby agree to pay service and/or license fees as per any separate arrangement with Perfecto Mobile (“Fees”). We reserve the right to change the Fees as per our arrangement with you, from time to time, at Perfecto Mobile’s discretion. Payment of the Fees will be a prior condition for access to the Service, using the Licensed Program and according usage of such applications and features in respect thereof. You will not currently be obligated to pay fees for the Licensed Program downloaded and installed after accepting these Terms of Service, provided however, that we reserve that right at any time, and at our sole discretion, to charge fees for the installation and usage of the Licensed Program, upon delivery of prior notice to you. Charges may be made to the credit card which details were provided upon registration. You may update your billing details by notifying us at: [email protected]

    Assignment of Rights. You may not assign or transfer any rights you have arising from this Agreement or in connection with the Service and/or Licensed Program, without our prior written consent. Any assignment or transfer of your rights under this Agreement will be null and void. You agree that in the event of a merger or acquisition of Perfecto Mobile with a third party, or if we organize the operation of the Service and/or Licensed Program within a different framework, or through another legal structure or entity, or if we are acquired by, or merged into or with another entity we may assign this Agreement and our rights and obligations in relation to the Service and/or Licensed Program, to that third party, provided that the third party undertakes our obligations to you under this Agreement. Additionally, you agree that we may assign this Agreement and our rights and obligations in relation to the Service and/or Licensed Program, to affiliates of Perfecto Mobile that are involved in the provision and sale of the Service and/or Licensed Program. Any assignment or transfer in violation of this subsection is void.

    Complete Terms and Severability. This Agreement constitutes the entire and complete agreement between you and us concerning any use of, or in connection with the Service and/or Licensed Program. If any provision of this Agreement is held invalid or unenforceable, that provision must be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties and the remaining provisions will remain in full force and effect. No waiver, concession, extension, representation, alteration, addition or derogation from the Agreement, or pursuant to the Agreement, will be effective unless consented to explicitly and executed by both parties. Failure of a party to demand performance of any provision of the Agreement will not constitute a waiver of any right under the Agreement.

    Modifications to these Terms. This Agreement is subject to modifications from time to time, provided that it is not our intent that such modifications substantially affect the rights granted to you in this Agreement. In the event that we modify this Agreement, the updated Agreement will be posted on our website at: www.perfectomobile.com and will be accessible via the logon window of your user Account, at least thirty (30) calendar days before the updated Agreement takes effect. Before accessing the Service and/or Licensed Program again, we will ask you to accept the updated Agreement. If you do not agree to the modified Agreement, then your account and access to the Service and Licensed Program will all be automatically terminated. It is your responsibility to check this Agreement periodically for changes. Your continued use of the Service and/or Licensed Program after such amendment and notice constitutes your agreement to such changes.

    Term and Termination. Unless terminated earlier in accordance with the terms set forth in this Agreement, the term of this Agreement will be one (1) year, starting from completion of the registration process, or, if subscribed for trial version, 30 days extendable by both parties mutually, or with respect to the Licensed Program, for so long as you are authorized to use the Licensed Program in accordance with the Agreement (the “Term”). We may suspend or terminate your access to the Service and Licensed Program or block your future access to the Service and Licensed Program, without notice, if you fail to comply with any of the terms of this Agreement (which may include, inter alia, without limitation, failure to timely pay the Service Fee and/or any other fees due to us from you and/or a breach of any limitation on use of the Licensed Program and/or of any of the confidentiality undertakings herein). Upon termination of this Agreement, all rights granted to you will immediately and automatically terminate and revert to us. Immediately upon termination of this Agreement for any reason, you shall return or destroy, as requested by Perfecto Mobile, all other materials pertaining to the Service and/or the Licensed Program (including all documentation relating thereto). You shall not be entitled to any refund as a result of termination. In such event, you must cease using the Service and the Licensed Software and your license to use such is terminated. You may also stop using the Service at any time, or otherwise terminate your subscription hereunder, at which point your license to use the Service expires. Each party may terminate the Agreement by sending the other party a termination notice, at least 30 days prior to the end of the term or any renewal term (if any). In such case, the Agreement will be terminated at the end of the term or renewal term accordingly. You can send a termination notice to us through e-mail to: [email protected]. Termination notices by us will be sent using any of the contact details that you provided during the registration process. Perfecto Mobile may also terminate the Agreement immediately without notice if you fail to provide your consent to a modified version of this Agreement, under the terms herein under, and upon termination of the Service. Upon termination of this Agreement, we will terminate your access to the Service and permanently delete your account. Upon termination of this Agreement, we may also permanently delete any data on hosted storage (meaning digital data on computers and servers operated by Perfecto Mobile or by a third party) generated by or in connection with your use of the Service; and you must cease any and all use of the Service. Termination of this Agreement by us will be in addition to, and not in lieu of, any equitable or other remedies available to us, and without prejudice to the rights (including our rights to charge fees for the period preceding the termination date) and remedies that may have accrued prior to such termination.

    No-Competition; Your Representations. You represent and warrant that you are not a competitor of Perfecto Mobile and you are not using the Service and/or Licensed Program to engage in, or permit others to engage in competition with Perfecto Mobile. You represent and warrant that: (i) you examined the Service and/or Licensed Program and found it suitable to your needs; (ii) you are aware of and acknowledge the capabilities and limitations of the Service and/or Licensed Program; (iii) you have all permissions and licenses, including under any applicable corporate policies, confidentiality and non-competition agreements, to upload customer data to the Service and use it through the Service.

    Indemnification. You agree to indemnify and hold us (and our shareholders, officers, directors, employees, agents, affiliates, and licensors) harmless from any claim, costs, losses, damages, liabilities, judgments, expenses (including reasonable fees of attorneys and other professionals), payments, loss, loss of profits or any other damage, direct or indirect, pecuniary or non-pecuniary of any kind incurred, arising out of or in connection with, or incident to, whether directly or indirectly with any claim, action or proceeding (“claims”) by a third party arising out of (i) your or authorized users’ use of the service; (ii) your noncompliance with or breach of any of these terms, or (iii) the unauthorized use of the service by any other person using your user information; or (iv) conduct you have engaged in or permitted others to engage in, that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, national or foreign law. At our option, you shall assume control of the defense and settlement of any claim subject to indemnification by you (provided that, in such event, we may at any time thereafter elect to take over control of the defense and settlement of any such claim, and in any event, you shall not settle any such claim without our prior written consent). If you have breached this Agreement and we take no legal action against you, then we will not be considered to have given up our rights to pursue any legal course of action in relation to the breach. At our option, you shall assume control of the defense and settlement of any claim subject to indemnification by you (provided that, in such event, we may at any time thereafter elect to take over control of the defense and settlement of any such claim, and in any event, you shall not settle any such claim without our prior written consent).

    Equitable Relief. You acknowledge that we will be irreparably harmed if your obligations and undertakings herein are not specifically enforced, and that we would not have an adequate remedy at law in the event of actual or threatened violation by yourself of such obligations and undertakings. Therefore, you agree that we are entitled to seek and obtain an injunction, without bond, and/or any other appropriate decree of specific performance or any other appropriate equitable relief in the event of actual or threatened violation by yourself of any of the terms hereof.

    Compliance with Export Restrictions. You hereby agree and undertake that the Service and/or Licensed Program will not be used directly or indirectly, by any third party that resides in any country or in any manner prohibited by the United States export laws and rules. You hereby represent and warrant that you are not incorporated or a citizen, or otherwise located within, one of the embargoed nations, including without limitation Iran, Iraq, Libya, Syria, Sudan, Cuba, and North Korea, or any other country as to which the United States government has placed an embargo against the shipment of products, which embargo is in effect during the term of this Agreement.

    Non-Exclusivity. Nothing herein will be deemed to preclude us from providing the Service and/or Licensed Program to any other person. We may use subcontractors to perform our duties, or any part thereof under this Agreement. However, our right to subcontract any of the Service does not relieve us from any of our duties or obligations toward you under this Agreement.

    Governing Law; Jurisdiction. This Agreement and your use of the Service will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, U.S.A., without giving effect to any choice of law or conflict of law rules or provisions, whether Federal, or of the Commonwealth of Massachusetts or of any other jurisdiction, which would result in the application of the laws of a jurisdiction other than the Commonwealth of Massachusetts. You agree to resolve any dispute or claim that you may have against us and to submit to personal jurisdiction in the exclusive jurisdiction of state and federal courts of the District of Massachusetts. It is hereby agreed by the parties that in the event of a lawsuit, the losing party shall cover all of the prevailing party’s legal expenses.

    Force Majeure. Neither party will be liable for delays or any failure to perform the Service or in respect of the Licensed Program or this Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party.

    No Agency. The Agreement does not create in any way a partnership, joint venture, employment relationship, franchise, agency or any other similar relationship between the parties. Nothing in the Agreement shall be interpreted or construed as creating or establishing any such relationship.

    Headings. The headings are included for convenience only and take no part in the interpretation, or construing of the Agreement.

    Survival. Any provisions related to proprietary protection, confidentiality, intellectual property, limitation of liability and warranty, customer data, indemnification, and all provisions in Article III shall survive the termination or expiration of this Agreement, and shall continue to remain in full force and effect.

    Contact Us. You may contact us with any question about the Service and/or Licensed Program, through the channels listed on our web site at: www.perfectomobile.com. We will make our best efforts to address your inquiry promptly.

    EXHIBIT A

    GENERAL DESCRIPTION OF FUNCTIONALITY OF LICENSED PROGRAM

    The Licensed Program enables the users thereof, among other things, to conduct the following activities:Applying personal user settings in the service.

    • Accessing and browsing Perfecto Mobile service.
    • Service subscription and payment.
    • Browsing through the service handsets made available by Perfecto Mobile from time to time.
    • Accessing and operating handsets made available by Perfecto Mobile from time to time.
    • Performing automated operations (test typing and Widgets)
    • Transferring files through and from handset; Installing applications on handsets made available by Perfecto Mobile from time to time
    • Sharing handsets, automated solutions (wizards), scripts, reports and any of the service data with other persons through the service designated functionality.
    • Generating reports including operation sequence and video recording
    • Viewing and manipulating reports.
    • Capturing handset user experience.
    • Uploading data into the service repository.
    • Editing and execution automated solutions.
    • Writing, editing and executing automated scripts.