Mojo Products and Services License Agreement
THIS MOJO PRODUCT LICENSE AND SERVICES LICENSE AGREEMENT (“AGREEMENT”) GOVERNS YOUR ACQUISITION AND USE OF MOJO PRODUCTS. READ THIS AGREEMENT CAREFULLY. IT IS A LEGALLY BINDING AGREEMENT AND SETS FORTH THE TERMS AND CONDITIONS FOR USE OF THE MOJO PRODUCTS. IF YOU CLICK: (A) “I HAVE READ AND AGREE TO THE LICENSING AGREEMENT ABOVE”: OR (B) THE SIGN IN BOX ON THE MOJO CLOUD CONSOLE; OR OTHERWISE DOWNLOAD, USE OR ACTIVATE THE MOJO PRODUCTS; YOU ARE INDICATING YOUR ACCEPTANCE AND AGREEING TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE THE MOJO PRODUCTS.
IF YOU PAID FOR THE MOJO PRODUCT(S) AND DID NOT HAVE AN OPPORTUNITY TO REVIEW THIS AGREEMENT PRIOR TO PURCHASING IT AND DO NOT AGREE TO THIS AGREEMENT, CONTACT YOUR PLACE OF PURCHASE TO RETURN THE PRODUCT FOR A REFUND IN ACCORDANCE WITH ITS REFUND POLICIES.
PLEASE SEE SECTION 11 REGARDING YOUR CONSENT TO MOJO’S COLLECTION AND USE OF CERTAIN DATA.
1.1 “You” or “Your” shall mean any person, entity or organization that purchases and/or operates Mojo products.
1.2 “Your Customers” shall mean Your current or potential customers excluding any Mojo Competitor.
1.3 “Documentation” shall mean the end-user technical documentation that Mojo supplies with the Hardware (if any) and Software. Advertising and marketing materials are not Documentation.
1.4 “Error” shall mean a reproducible failure of the Software to perform in substantial conformity with its Documentation.
1.5 “Hardware” shall mean the server hardware (appliance or VM) and access point. Not all Mojo Products come with hardware.
1.6 “Intellectual Property Rights” shall mean copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contractual rights of non-disclosure or any other intellectual property or proprietary rights, however arising, throughout the world.
1.7 “Maintenance” shall mean access to Mojo technical support (24 x 7 – English only), Mojo’s online documentation/training and Product Updates, Upgrades and bug fixes as a function of an active cloud subscription or on premise based service.
1.8 “Mojo” shall mean Mojo Networks, Inc.
1.9 “Mojo Competitor” shall mean any person or entity that is engaged in the development, marketing or distribution of products or services that compete with the Mojo Products.
1.10 “Mojo Products” shall mean Software, Hardware and/or cloud services supplied by or on behalf of Mojo.
1.11 “Release” shall mean any Update or Upgrade if and when these are made available by Mojo. In the event of a dispute as to whether a particular Release is an Update or an Upgrade, Mojo's published designation will be final.
1.12 “Software” shall mean the software (in object code format) created or licensed by Mojo and licensed to You either as a standalone product or pre-installed on Mojo Hardware, and any Release thereto.
1.13 “Update” shall mean, if and when available, any error corrections, fixes, workarounds or other Maintenance releases with respect to the Software provided by Mojo that do not add functionality to the Software.
1.14 “Upgrade” shall mean, if and when available, new releases or versions of the Software that materially improve the functionality of, or add material functional capabilities to, the Software. Mojo may charge additional license fees for Upgrades.
2. CONTROLLING AGREEMENT
This electronic Agreement is the entire agreement between You and Mojo and supersedes all prior or contemporaneous agreements, understandings, and communications, whether written or oral unless there is a written agreement executed by an authorized officer of Mojo. In such event, that agreement shall only supersede this Agreement to the extent such agreement conflicts with this Agreement. Any terms and conditions in Your paper or electronic purchase order, request for proposal or quotation, or a response to those documents are superseded by this electronic Agreement. If a third party reseller accepts Your purchase order and an officer of Mojo does not sign it and return it to You, Mojo is not accepting its terms and conditions. Mojo is not obligated under any reseller’s agreement with You unless an officer of Mojo signs the agreement. Certain third party software may be necessary to operate or run the Software; You are responsible for obtaining and licensing such third party software. Third party software is governed by the license agreement provided by that third party.
3. LICENSE GRANT
3.1 Limited License. All Software is licensed, not sold and subject to this Agreement. All Hardware is provided subject to the license granted in this Agreement and Your purchase of Maintenance. For each unit of Hardware and/or Software, Mojo grants You a non-exclusive, non-transferable (except as provided in the Section entitled Assignment), non-sublicensable license for: (a) on premise WiFi, for so long as you are in good standing and have purchased Mojo Maintenance for all of the Hardware You have purchased; or (b) for Mojo cloud service WiFi, for so long as you are in good standing and your subscription to the Mojo cloud service remains active, to use such Software and Hardware. The Software and Hardware are licensed for Your own (or Your customer’s own), internal business purposes unless You have purchased or been given a demonstration version or audit version of the Software. If You have a demonstration version of the Software, You may use the Software solely to provide demonstrations to Your Customers. If You have an audit version of the Software, You may use it to provide services to Your Customers. You may make and retain one copy of the Software for back-up and disaster recovery purposes so long as You clearly mark it as a “back-up” or similar language.
3.2 Restrictions on Use. Except as expressly provided for in this Agreement, You shall not: (a) adapt, alter, publicly display, publicly perform, translate, create derivative works of or otherwise modify the Software; (b) sublicense, lease, rent, loan, distribute or otherwise transfer the Software to any third party (except as provided in the Section entitled Assignment); (c) allow third parties to access or use the Software or Hardware, including but not Limited to ASP, OEM, or time-sharing arrangements. You shall not reverse engineer, decompile, disassemble or otherwise attempt to derive the source code for the Software except to the extent expressly permitted by applicable law to obtain information necessary to render the Software interoperable with other software; provided, however, that You must first request such information from Mojo and Mojo may, in its discretion, either provide such information to You or impose reasonable conditions, including a reasonable fee, on such use of the source code for the Software to ensure that Mojo's and its suppliers' proprietary rights in the source code for the Software are protected; You shall not remove, alter or obscure any proprietary notices on the Software or Documentation. Under no circumstances may You install or execute the Software on more than one computer at the same time. Except to the extent necessary to provide a demonstration or services to Your Customer when You have purchased or been given the demonstration version or audit version of the Software, respectively, You shall not capture screenshots of the Software and share it with other people without Mojo’s written consent.
3.3 Installation. You are responsible for installing the Software and Hardware (if any) unless You purchase installation services from Mojo or a third party pursuant to a separate agreement.
4. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
4.1 Proprietary Rights. You acknowledge and agree that the Software and Hardware, including but not limited to their sequence, structure, organization and source code, contains Intellectual Property Rights of Mojo and its suppliers. The Software is licensed and not sold to You, and no title or ownership to such Software or the Intellectual Property Rights embodied therein passes as a result of this Agreement or any act pursuant to this Agreement. The Software (and all Intellectual Property Rights therein) is the exclusive property of Mojo and its suppliers, and all rights in and to the Software not expressly granted to You in this Agreement, are reserved. Mojo owns all copies of the Software, however made. The Software, Hardware and related materials contain trade secrets of Mojo and You shall not provide the Software, Hardware, Documentation, or details regarding the operation of the Software and/or Hardware, or any other Mojo confidential and/or proprietary information to any third party.
4.2 Confidential Information. “Confidential Information” means all information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that is designated in writing or identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure. For the avoidance of doubt, all non-public information regarding the Disclosing Party’s business, network environment, personnel, products and services are the Confidential Information of the Disclosing Party, and the terms of this Agreement, the Software, the Documentation and any other technical material or other documentation relating to the Mojo Products are the Confidential Information of Mojo. The Receiving Party will: (a) not use the Disclosing Party’s Confidential Information for any purpose other than in furtherance of this Agreement; (b) not disclose such Confidential Information to any person or entity, other than its affiliates, employees, consultants, agents and professional advisers (“Representatives”) who have a “need to know” for the Receiving Party to exercise its rights or perform its obligations hereunder, provided that such Representatives are bound by agreements, obligations or duties respecting such Confidential Information in accordance with the terms of this Section 4.2; and (c) use reasonable measures to protect the confidentiality of such Confidential Information. If the Receiving Party is required by applicable law or court order to make any disclosure of such Confidential Information, it will, if legally permissible, first give written notice of such requirement to the Disclosing Party, and, to the extent within its control, permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in its Confidential Information, and provide full cooperation to the Disclosing Party in seeking to obtain such protection. Confidential Information shall not include information that the Receiving Party can document: (i) was rightfully in its possession or known to it, without restriction on disclosure, prior to receipt; (ii) is or has become public knowledge or publicly available through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party acknowledges that unauthorized disclosure of the Disclosing Party’s Confidential Information could cause substantial harm to the Disclosing Party for which damages alone might not be a sufficient remedy and, therefore, that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief without having to post a bond or other security, in addition to whatever other remedies it might have at law or equity.
5. LIMITED WARRANTY
5.1 Mojo cloud service WiFi. For so long as your subscription to the Mojo cloud service remains active and in good standing, Mojo provides technical support, Releases and a limited lifetime warranty on access points as set forth at http://www.mojonetworks.com/resource-pdfs/292/mojo-ltd-lifetime-warrany.pdf. Mojo makes no other warranties with respect to any Hardware.
5.2 On premise WiFi. Mojo Products for on premise WiFi solutions are only sold subject to Your purchase of Mojo’s then current Maintenance for all Hardware and Software You have purchased. Mojo Maintenance also entitles you to a limited lifetime warranty on access points as set forth at http://www.mojonetworks.com/resource-pdfs/292/mojo-lifetime-limited- warranty.pdf. Mojo makes no other warranties with respect to any Hardware. For the avoidance of doubt, You may not purchase Hardware or Software on a standalone basis. If You have purchased Mojo Products and Maintenance previously and are no longer under Maintenance, Mojo has the right to charge You for the period You did not have Maintenance in conjunction with a minimum one year Maintenance renewal, with both the period You did not have Maintenance and the renewal subject to an additional 20% surcharge.
5.3 Exclusions. Mojo will have no obligation to correct, and Mojo makes no warranty with respect to, Errors caused by: (a) improper installation of the Software or Hardware; (b) changes that You have made to the Software or Hardware; (c) use of the Software or Hardware in a manner inconsistent with the Documentation; (d) the combination of the Software or Hardware with hardware or software not provided by Mojo; (e) malfunction, modification or relocation of Your servers; or (f) Your failure to make reasonable backups.
5.4 Remedy for Errors. For Errors reported to Mojo during the Term Your exclusive remedy and Mojo's sole liability for breach of this warranty is that Mojo shall, at Mojo’s expense, use commercially reasonable efforts to make available to You, Updates that are intended to correct such Errors. This is Your exclusive remedy and Mojo's sole liability regarding Errors reported.
5.5 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES DESCRIBED IN SECTION 5.1 AND 5.2, MOJO AND ITS AFFILIATES DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RESULT, EFFORT, TITLE AND NON-INFRINGEMENT. THERE IS NO WARRANTY THAT THE SOFTWARE WILL BE ERROR FREE, OR THAT THE SOFTWARE OR HARDWARE WILL OPERATE WITHOUT INTERRUPTION OR WILL FULFILL ANY OF YOUR PARTICULAR PURPOSES OR NEEDS. MOJO PROVIDES NO WARRANTY FOR ANY THIRD PARTY SOFTWARE.
6. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: MOJO, ITS AFFILIATES, SUPPLIERS, RESELLERS AND MANUFACTURERS SHALL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR RELIANCE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE HARDWARE OR THE SOFTWARE, UNDER ANY LEGAL THEORY, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST DATA, BUSINESS INTERRUPTION, PERSONAL INJURY, FOR LOSS OF PRIVACY, NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER, EVEN IF MOJO KNOWS OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. MOJO'S, ITS AFFILIATES’, SUPPLIERS’, RESELLERS’ AND MANUFACTURERS’ TOTAL CUMULATIVE LIABILITY FOR ACTUAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE HARDWARE, OR THE SOFTWARE, SHALL NOT EXCEED THE PRICE PAID BY YOU FOR SUCH HARDWARE OR SOFTWARE, REGARDLESS OF THE CAUSE OR FORM OF ACTION. THIS SECTION SHALL APPLY EVEN IF YOUR EXCLUSIVE REMEDY HAS FAILED OF ITS ESSENTIAL PURPOSE. YOU ACKNOWLEDGE AND AGREE THAT THE PRICES AND FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT MOJO WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
7. INFRINGEMENT INDEMNIFICATION
7.1 Mojo’s Obligation. Subject to the Sections entitled Conditions and Exclusions, if a third party makes a claim against You alleging that the Hardware or Software infringes any U.S. patent or copyright registered or issued as of the date of your acceptance of this Agreement, Mojo shall: (a) pay all reasonable costs to defend You; and (b) pay any damages assessed against You in a final judgment by a court of competent jurisdiction or any settlement that Mojo has agreed upon with such third party.
7.2 Conditions. Mojo shall be obligated to pay these costs only if You: (a) notify Mojo promptly in writing of any such claim; (b) give Mojo full information and assistance in settling and/or defending the claim; and (c) give Mojo full authority and control of the defense and settlement of any such claim. You may also participate in the defense at Your own expense.
7.3 Exclusions. Mojo shall not be liable for: (a) any costs or expenses incurred by You without Mojo’s prior written authorization; (b) any use of the Hardware or Software not in accordance with this Agreement or the Documentation; (c) for any claim based on the use or a combination of the Hardware or Software with any other software, firmware, hardware or data not provided or approved by Mojo; (d) use of any Release of the Software other than the most current Release made available to You; (e) any alterations or modification of the Hardware or Software by any person other than Mojo or its authorized agents; or (f) Your use of the Mojo products in a manner that cause violation of any wireless communication and radio interference regulations that are in force in the region where Mojo devices are deployed.
7.4. Cure. In the event Mojo is required, or in Mojo’s sole opinion is likely to be required, to indemnify You under the Section entitled Mojo’s Obligation, Mojo shall do one of the following: (a) obtain the right for You to continue using the Hardware or Software; (b) replace or modify the Hardware or Software with a functional equivalent that is non-infringing; or (c) terminate this Agreement and arrange for a refund any fees You paid for the affected Hardware or Software, prorated over 3 years.
8. RISKS AND YOUR OBLIGATIONS
Mojo Products may be capable of operating at frequencies beyond those allowed in Your region and locating and disabling targeted wireless devices and computers. YOU HEREBY AGREE THAT USE OF THE MOJO PRODUCTS IS AT YOUR SOLE RISK. If a third party makes a claim against Mojo arising out of Your use of the Mojo Products or Your breach of this Agreement, You shall: (a) pay all costs to defend Mojo; and (b) pay any damages assessed against Mojo in a final judgment by a court of competent jurisdiction or any settlement that You agreed upon with such third party. If You fail to meet Your obligations under this Section, Mojo shall have full authority and control of the defense and/or settlement of any such claim at Your expense.
9. EXPORT RESTRICTIONS
You acknowledge that the Software is subject to U.S. export jurisdiction. You agree to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end- use, and destination restrictions issued by U.S. and other governments. You assume sole responsibility for any required export approval and/or licenses and all related costs.
You shall not acquire, ship, transfer or re-export, directly or indirectly, the Hardware and/or Software to proscribed, embargoed, or prohibited countries or their nationals, denied destinations, nor use it for nuclear activities, chemical biological weapons or missile projects. Proscribed countries, destinations, and people are set forth in the United States Export Administration Regulations, and the Office of Foreign Asset Control’s Specially Designated Nationals list, and are subject to change without further notice from Mojo.
10. U.S. GOVERNMENT END USERS
The Software covered under this Agreement, is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software and any other software and documentation covered under this Agreement with only those rights set forth therein.
11. CONSENT TO USE OF INFORMATION
You agree that Mojo and its affiliates may collect and use information that may be personally identifiable to You or users of Your network, to provide product functionality. There are two types of information that may be collected and used.
11.1 Information about Devices. Upon installation and/or activation, the Mojo Products collect information about devices in and around Your network, including, but not limited to, Media Access Control (MAC) addresses and Internet Protocol (IP) addresses of devices in the wired network(s) where Mojo Products are installed, and of devices that are in the radio frequency (RF) proximity of location(s) where the Mojo Products are installed. The Mojo Products may also collect additional information about these devices such as information about device activity, host name, configuration, operating system, and login identities used from the devices. The collection of this information is enabled by default and is essential to provide wireless connectivity, monitoring and security for Your network. You consent to the collection and use of this information by Mojo for the operation of these features as described above. You may choose not to give us this information by not using the Mojo Products.
11.2 Information about Wireless Users. Information about Wireless Users. In addition to information described in Section 11.1, Mojo Products have the ability to capture additional information depending on which features You choose to enable. If You choose to enable any optional functionality in Mojo Products that takes as input or collects information about users accessing Your wireless network (“User Identities”), Mojo will receive and store such information in accordance with the data entry and/or configuration settings You make in Mojo Products. By way of example and not limitation, if you choose to enable captive portal functionality along with guestbook, social media, SMS or web form plugins, Mojo will receive and store User Identities input by You or configured by You to be collected from users of Your wireless network. Mojo will receive and store User Identities utilizing data protection tools and techniques in accordance with industry practices. Mojo will automatically correlate User Identities with device activity information, including but not limited to the identity of a user’s device, time stamps of a user’s wireless access to/presence near wireless network, data volume transacted through the wireless network by a user and websites accessed by a user (“Metadata”). Although Mojo receives and stores User Identities as input by You, or configured by You to be collected from users of Your wireless network and correlates User Identities and Metadata (together, “Your Data”), You own Your Data. You are solely responsible for ensuring, and You hereby represent and warrant, that Your provision, collection, processing, and use of Your Data will (and for so long as You use the Mojo Products will continue to), comply with applicable laws and third party terms and conditions of use, and privacy and security best practices. You hereby agree to indemnify and hold Mojo harmless for any loss, damage, expense, cost or claim (including reasonable attorneys’ fees), arising from Your failure to comply with this provision or applicable laws. You hereby grant Mojo a non-exclusive, non-transferable license to use Your Data, for the purposes of providing users wireless access to Your network and providing analytics for Your network.
12.1 Term. This Agreement shall commence on the date of your acceptance of this Agreement and continue in full force and effect for: (a) on premise WiFi solutions for so long as have purchased Mojo Maintenance for all of the Hardware You have purchased; or (b) for Mojo cloud service WiFi, for so long as your subscription to the Mojo cloud service remains active unless terminated earlier as described in the Section titled Termination (the “Term”).
12.2 Termination. Either party may immediately terminate this Agreement in the event the other party commits a material breach of any provision of this Agreement which is not cured within thirty (30) days of written notice from the non-breaching party. Such notice by the complaining party shall expressly state the reasons for the claimed breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach. )Upon termination of this Agreement for any reason: (a) all license rights granted in this Agreement will immediately terminate and You must promptly stop all use of the Mojo Products; and (b) Mojo's limited lifetime warranty and obligation to provide technical support, Releases and services under any separate service agreement terminates.
12.3 Survival. The Sections entitled Controlling Agreement, Restrictions on Use, Proprietary Rights, Limited Warranty, Limitation of Liability, Risks and Your Obligations, Export Restrictions, the representation and warranty and indemnification provisions of Consent to Use of Information, Termination, Governing Law and Venue and Severability shall survive the expiration or termination of this Agreement.
12.4 Assignment. You may not assign or transfer, by operation of law, merger or otherwise, any of Your rights or delegate any of Your duties under this Agreement (including without limitation, the licenses with respect to the Software), to any third party without Mojo’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void. Mojo may assign its rights or delegate its obligations under this Agreement.
12.5 Governing Law and Venue. This Agreement will be governed by the laws of the State of California. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought exclusively in a federal or state court seated in Santa Clara, California, and in no other venue. Each party irrevocably consents to the personal jurisdiction and venue in, and agrees to service of process issued by, any such court. Notwithstanding the foregoing, Mojo reserves the right to file a suit or action in any court of competent jurisdiction as Mojo deems necessary to protect its Intellectual Property Rights.
12.6 Equitable Relief. You agree that the Software and Hardware contains Mojo’s valuable trade secrets and proprietary information and that any actual or threatened disclosure or misappropriation of such information would constitute immediate, irreparable harm to Mojo for which monetary damages would be an inadequate remedy. Therefore, in addition to any other rights and remedies which may be available to Mojo at law or in equity, any such actual or threatened disclosure may be stopped through injunctive proceedings without the posting of a bond.
12.7 Waivers and Amendments. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. This Agreement may be amended only by a written document signed by You and Mojo.
12.8 Severability. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.