SaaS Terms of Service
Last Modified: April 2, 2020
These Mobile Doorman SaaS Terms and Conditions (“SaaS Terms”) form part of the Service Order between Subscriber and Paragon Mobile, Inc., d/b/a “Mobile Doorman” (“Mobile Doorman”). Unless expressly indicated to the contrary herein, the defined terms used herein shall have the meanings ascribed to them in the Service Order. In the event of any inconsistency between these SaaS Terms and the terms of the Service Order, the Service Order shall control. In all other respects the Service Order is and shall remain in full force and effect. These SaaS Terms are subject to modification from time to time without prior notice, and Subscriber’s continued use of the Mobile Doorman SaaS services (“SaaS Service”) shall be deemed acceptance of any such SaaS Terms modification.
- Services. During the Subscription Term, subject to Subscriber’s payment of all Monthly Subscription Fees, Mobile Doorman will provide to Subscriber the Services as described in the Service Order.
- Maintenance. During the Term of this Agreement, Mobile Doorman will apply updates, patches and bug fixes to the SaaS Service as may, from time to time, be developed and applied by Mobile Doorman and made generally available to its other subscribers.
- Independent Contractor Status. With regard to any obligations performed under this Agreement (including Services performed by Mobile Doorman and/or its subcontractors), Mobile Doorman’s relationship with Subscriber will be that of an independent contractor and not an employee or agent of Subscriber. Nothing in this Agreement shall be interpreted and/or construed as creating and/or establishing the relationship of employer and employee between Subscriber and either Mobile Doorman, any personnel of Mobile Doorman and/or any subcontractors of Mobile Doorman.
- Subcontractors. Mobile Doorman may retain subcontractors to provide Services, and Subscriber agrees to cooperate with such subcontractors to the same extent that Subscriber shall cooperate with Mobile Doorman. Mobile Doorman shall remain responsible for the Services performed by any of its subcontractors to the same extent as if such Services were being performed by Mobile Doorman.
- Third Party Service Providers. Subscriber hereby acknowledges and agrees that Mobile Doorman utilizes third-party service providers to host and provide the SaaS Services and to store Subscriber content and data, and the protection of such data will be in accordance with such third-party service providers’ safeguards for the protection, security and confidentiality of Subscriber’s content and data. Subscriber is responsible for properly configuring and using the SaaS Services and taking appropriate steps to maintain security, protection and backup of all Subscriber content and data.
SaaS Services License Grant.
- Subject to the terms and conditions of these SaaS Terms, the Service Order and the User Terms , including without limitation payment of the applicable Monthly Subscription Fee, Mobile Doorman hereby grants to Subscriber and Users the right to access and use the SaaS Services during the Subscription Term solely for Subscriber’s internal business purposes and Users’ personal purposes. Subscriber shall not permit any third party other than Subscriber employees and Users to use or access the SaaS Services, nor shall Subscriber use the SaaS Services for the benefit of any third party other than Users.
Term and Termination
- Term. The Service Order shall commence on the Service Order Effective Date and shall continue for a period of one (1) year thereafter (“Initial Term”). Upon expiration of the Initial Term, the Service Order will automatically renew for additional one (1) year periods (each a “Renewal Term”) ,unless either party provides written notice of non-renewal pursuant to Section 3.b., below. The Initial Term, together with any and all Renewal Terms, shall be collectively referred to herein as the “Term”. Termination. Either party may terminate this Agreement at any time upon thirty (30) days’ prior written notice to the other party.
- Mobile Doorman Essential Customers. Upon signature of the Mobile Doorman Essential sign-up form, the contract is effective and will renew each month. Either party can cancel the contract with 30-day notice, at which point the app will be removed and staff will no longer have access.
Fees and Payment Terms.
- Mobile Doorman Essential Customers. For those customers that have signed up for the cost-free communication tool Mobile Doorman Essential, the below fee clarifications do not apply. There is no expiration on the cost-free access of Mobile Doorman Essential. If customers wish to transfer to the Mobile Doorman Premium (paid) app, they must reach out to their Mobile Doorman representative to sign a new master services agreement.
- Set-Up Fees. Subscriber agrees to pay a one-time set-up fee (“Set-Up Fee”) in the amount set forth in the Service Order. Mobile Doorman will provide Subscriber with an invoice for such Set-Up Fee upon execution of the Service Order, which shall be due and payable in accordance with Section 4.d, below.
- Subscription Fees Mobile Doorman will provide Subscriber with an invoice on a monthly basis for Monthly Subscription Fees pursuant to the Service Order. Such Monthly Subscription Fees shall be due and payable in accordance with Section 4.d, below. The Set-Up Fees and Monthly Subscription Fees shall collectively be referred to herein as the “Fees”.
- Fee Changes. Notwithstanding anything herein to the contrary, Mobile Doorman may, in its sole discretion, increase some or all of the Fees for any Renewal Term by providing thirty (30) days prior notice to Subscriber.
- Invoices and Payments. In consideration for Mobile Doorman’s provision of Services described herein and in the Service Order, Subscriber agrees to pay all Fees set forth in the Service Order pursuant to the Service Order’s payment terms.
- Taxes. Any Fees invoiced to Subscriber exclude all applicable sales, use, VAT, duties and other taxes arising from Subscriber’s and Users’ use of the SaaS Services, and Subscriber shall be solely responsible for payment of all such taxes and any related penalties and interest, except for taxes based on Mobile Doorman’s net income and/or payroll taxes. Subscriber will make all payments to Mobile Doorman free and clear of, and without reduction for, any taxes.
- No Right to Set-Off. All Fees due and payable by Subscriber to Mobile Doorman under the Service Order shall be paid in full without any deduction, set-off, counterclaim or withholding of any kind.
- Set-Up Obligations. Subscriber understands that successful completion of Mobile Doorman’s set-up Services under the Service Order is expressly conditioned upon Subscriber’s timely performance of its obligations set forth in the Service Order in accordance with any timelines set forth therein. Subscriber acknowledges and agrees that any delay not caused by Mobile Doorman: (i) will relieve Mobile Doorman of its obligations to meet any stated timelines to the extent of such delay; and (ii) notwithstanding anything herein to the contrary, may result in increased Fees payable to Mobile Doorman to cover costs arising from such delay.
- Subscriber License. Because Mobile Doorman will set up the SaaS Services such that the user interface of the SaaS Services shall be branded with Subscriber’s property name and/or logos (the “White Label App”), Subscriber hereby grants to Mobile Doorman a nonexclusive, nontransferable worldwide license to use, copy, store, publicly display, transmit, reproduce and distribute Subscriber’s logos, trademarks and/or service marks (collectively, “Subscriber Trademarks”) as necessary for Mobile Doorman to provide the White Label App pursuant to the Service Order. Mobile Doorman shall not do or cause to be done any act or anything contesting or in any way impairing or reducing Subscriber’s right, title and interest in the Subscriber Trademarks. Mobile Doorman acknowledges that its use of the Subscriber Trademarks shall not bestow upon Mobile Doorman any right, title or interest, in or to the Subscriber Trademarks, and that all such uses shall inure to the exclusive benefit of Subscriber. Subscriber agrees that Mobile Doorman may identify Subscriber as a user of the SaaS Services in presentations to other subscribers, potential subscribers, investors, analysts, and other parties.
Proprietary Rights and Mobile Doorman Property.
- Ownership by Mobile Doorman. Mobile Doorman (and/or its licensors) retains all rights, title, interest to and ownership of, any and all IP rights and proprietary rights with respect to the SaaS Services, the White Label App, other Services, all automation scripts, automation tools, API, connectors, work product, enhancements, improvements, modifications, compilations, derivative works, suggestions, ideas, inventions, discoveries, processes, computer processes, specifications, operating instructions, notes, training materials, documentation, and all other materials provided and/or made available to Subscriber and/or Users by Mobile Doorman hereunder (collectively “Mobile Doorman Materials” ). “IP” means all intellectual property including without limitation all patents, inventions, trademarks, service marks, trade names and trade dress, copyrights and copyrightable works, trade secrets, know-how, design rights and database rights. Except for the rights expressly granted to Subscriber herein and in the Service Order, all rights in all Mobile Doorman Materials are expressly reserved by Mobile Doorman.
- Subscriber Covenants. Subscriber covenants that it shall not challenge or contest in any way the validity of the Mobile Doorman Materials and their ownership by Mobile Doorman, nor challenge or contest any registration related thereto. Subscriber shall not: (i) remove or destroy any trademark or proprietary legend on or in any Mobile Doorman Materials; (ii) modify, enhance, or create a derivative work of any Mobile Doorman Materials; (iii) transfer, distribute, assign, sublicense, rent, lease, time share or sell any Mobile Doorman Materials; (iv) decompile, disassemble, reverse compile, reverse engineer or otherwise attempt to reconstruct the source code for any Mobile Doorman Materials; or (v) make a copy of any Mobile Doorman Materials.
- Assignment to Mobile Doorman. To the extent any rights of ownership in any Mobile Doorman Materials might, for any reason, otherwise vest in Subscriber, Subscriber hereby irrevocably assigns all such ownership rights, title and interest to Mobile Doorman. Mobile Doorman confirms that it has all the rights necessary to provide the SaaS Services described herein, and has the ability to grant all the rights it purports to grant under, and in accordance with, the terms herein and in the Service Order.
- Ownership by Subscriber. Notwithstanding the foregoing, Mobile Doorman Materials will not include any Subscriber content or data, which shall be owned exclusively by Subscriber.
- Performance Warranty. Mobile Doorman warrants that the SaaS Services, when used as permitted hereunder and in the Service Order and in accordance with any user documentation, will perform substantially in accordance with the user documentation. Mobile Doorman does not warrant that the Subscriber’s use of the SaaS Services will be error-free or uninterrupted. Subscriber’s sole and exclusive remedy, and Mobile Doorman’s sole and exclusive liability for any breach of this Section 7.a, is for Mobile Doorman to use commercially reasonable efforts to correct any reproducible defect and/or limitation in the SaaS Services; provided that Subscriber notifies Mobile Doorman in writing or via electronic mail with sufficient detail to enable Mobile Doorman to recreate such defect or limitation. If Mobile Doorman determines that it is unable to correct any such reported defect or limitation, Mobile Doorman will notify Subscriber of such inability and will, if requested by Subscriber in writing promptly upon receipt of such notice from Mobile Doorman, refund any fees on a pro rata basis that have been prepaid by Subscriber for the remainder of the then-current Initial Term or Renewal Term. In the event of the foregoing, the Service Order and Subscriber’s and Users’ rights to use the SaaS Services will automatically and immediately terminate.
- Subscriber Warranty. Subscriber represents and warrants that: (i) it will, at all times, comply with all applicable local, state, federal, and foreign laws in using the Service; and (ii) it has the requisite legal and corporate power, right and authority to enter into the Service Order.
- Disclaimer of Other Warranties. EXCEPT AS EXPRESSLY WARRANTED HEREIN AND IN THE SERVICE ORDER, THE PARTIES DISCLAIM ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, SYSTEM INTEGRATION, SECURITY, AND/OR QUIET ENJOYMENT, AND DISCLAIM ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, TRADE PRACTICE OR COURSE OF PERFORMANCE. MOBILE DOORMAN DOES NOT WARRANT AND/OR GUARANTEE CONTINUOUS AND/OR UNINTERRUPTED USE OF, AND/OR ACCESS TO, THE SERVICES AND/OR THAT THE SERVICES WILL BE FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, AND/OR ANY OTHER PROGRAM LIMITATIONS, AND/OR THAT ALL DEFECTS (INCLUDING, BUT NOT LIMITED TO, MINOR OR COSMETIC DEFECTS THAT DO NOT SIGNIFICANTLY AND ADVERSELY AFFECT FUNCTIONALITY AND/OR FEATURES) WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION AND/OR ADVICE GIVEN BY MOBILE DOORMAN AND/OR ANY OF ITS REPRESENTATIVES SHALL INCREASE THE SCOPE OF ANY WARRANTIES AND/OR CREATE ANY WARRANTIES NOT EXPRESSLY SET FORTH HEREIN. MOBILE DOORMAN IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES AND/OR OTHER LOSS AND/OR DAMAGE RESULTING FROM: (I) TRANSFER OF DATA OVER COMMUNICATION NETWORKS SUCH AS THE INTERNET; AND/OR (II) INABILITY TO ACCESS AND/OR GET ACCURATE DATA FROM THIRD-PARTY SYSTEMS AND/OR APPLICATIONS THAT THE SERVICES ARE DEPENDENT ON.
- Limitation of Liability. In no event will Mobile Doorman and/or any of its representatives be liable to Subscriber or any third party for any (i) lost revenue, profits and/or data, (ii) cost of cover or replacement, and/or (iii) special, indirect, consequential, incidental and/or punitive damages of any kind arising from and/or related to these SaaS Terms and/or the Service Order, however caused and regardless of the theory of liability, even if Mobile Doorman and/or one of its representatives has been advised of the possibility of such damages. Furthermore, neither Mobile Doorman nor any of its representatives shall be liable to Subscriber and/or any third party for any liabilities and/or damages caused by, connected with and/or related to any access to, and/or use of, Subscriber’s or any User’s userID(s), password(s), other user access information and/or other access mechanism by any unauthorized person regardless of the theory of liability. In no event shall Mobile Doorman’s liability for direct damages, whether in contract, tort (including negligence) and/or otherwise, exceed the payments received by Mobile Doorman from Subscriber during the twelve (12) month period immediately preceding the date of such claim. The foregoing limitations of liability will apply in addition to any exclusive remedies for breach of warranty set forth herein, and will apply even if any warranty fails of its essential purpose. The limitations of liability set forth herein are fundamental elements of the basis for Mobile Doorman allowing Subscriber and Users access to the SaaS services and for providing the Services, and are a part of the basis for the bargain between Subscriber and Mobile Doorman. Mobile Doorman would not have provided Subscriber and Users the right to access and/or use the SaaS Services, and would not have performed the Services, without such limitations.
- Confidential Information. Each party may receive (“Receiving Party”) information from the other party (“Disclosing Party”) that is not generally known to others, including but not limited to any trade secret, know-how, proprietary information, software, computer code, source code, object code, HTML code, benchmark, competitive analysis, design, schematic, technique, research project, work in process, future development, suggestion, scientific plan, engineering plan, marketing plan, business plan, financial matter, personnel matter, legal matter, product, pricing, fees, supplier, customer, client, employee, contractor, investor, and other information which is not readily available to the public, and all copies and notes relating to the foregoing, regardless whether prepared by the Disclosing Party, the Receiving Party or any third party, regardless whether transmitted orally, visually, in writing or in some other form, and regardless whether marked as confidential or proprietary (collectively, "Confidential Information"). Confidential Information shall also include these SaaS Terms and the Service Order.
- Receiving Party. Receiving Party agrees not to disclose the Disclosing Party’s Confidential Information except as necessary and appropriate to exercise its rights or perform its obligations hereunder or in the Service Order. Receiving Party may disclose the Disclosing Party’s Confidential Information only to Receiving Party’s officers, directors, employees, agents and subcontractors (excluding any competitor of the Disclosing Party) (collectively, “Representatives” ) who have a bona fide need to know such Confidential Information solely in connection with the Service Order. The Receiving Party will cause such Representatives to comply with these SaaS Terms, and will assume full responsibility for any failure by such Representatives to comply with these SaaS Terms . The Receiving Party will not transfer and/or disclose any Confidential Information to any third party without the Disclosing Party’s prior written consent. The Receiving Party will not use any Confidential Information for any purpose other than to perform its obligations or exercise its rights under the Service Order.
- Exclusions. Confidential Information does not include information that: (i) is obtained by the Receiving Party from the public domain without breach of these SaaS Terms and independently of the Receiving Party’s knowledge of any Confidential Information; (ii) was lawfully and demonstrably in the possession of the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; (iii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, and without reliance on any individual who has or had access to the Disclosing Party’s Confidential Information; and/or (iv) becomes known by the Receiving Party from a third party independently of the Receiving Party’s knowledge of the Confidential Information and is not subject to an obligation of confidentiality.
- Legal Requirement. If the Receiving Party is requested and/or required to disclose any of the Disclosing Party’s Confidential Information under a subpoena, court order, statute, law, rule, regulation and/or other similar requirement (a "Legal Requirement" ), the Receiving Party will, if lawfully permitted to do so, provide prompt notice of such Legal Requirement to the Disclosing Party so that the Disclosing Party may seek an appropriate protective order and/or other appropriate remedy and/or waive compliance with the provisions of these SaaS Terms.
- Disposition of Confidential Information on Termination. Upon termination of the Service Order and/or upon the Disclosing Party’s written request, the Receiving Party will return to the Disclosing Party all copies of Confidential Information in the Receiving Party’s possession and/or within its control. Alternatively, with Disclosing Party’s prior written consent, the Receiving Party may destroy such Confidential Information, provided that the Confidential Information is (i) destroyed in accordance with applicable law, rule and/or regulation and (ii) is rendered unreadable, undecipherable and otherwise incapable of reconstruction, in which case an officer of the Receiving Party will certify in writing to the Disclosing Party that all such Confidential Information has been so destroyed. The obligations with respect to Confidential Information, as set forth in this Section 11, shall continue in force and effect for a period of five (5) years after termination of the Service Order. Notwithstanding the foregoing, in the event any portions of such Confidential Information constitute trade secrets under applicable law, the Receiving Party’s obligations with respect to confidentiality and non-use shall continue for so long as such trade secret status is maintained.
- Notices. All notices, consents and approvals must be delivered via electronic mail (with acknowledgement from the party receiving such electronic mail) to the other party at the address set forth in the Service Order. Notices will be effective upon receipt or three (3) business days after being deposited in the mail as required above, whichever occurs sooner. Either party may change its address by giving written notice of the new address to the other party.
- Assignment. Subscriber may not assign and/or transfer any of its rights under these SaaS Terms or the Service Order to any third party without Mobile Doorman’s prior written consent. Any attempted assignment and/or transfer in violation of the foregoing will be null and void
- Force Majeure. Any delay in the performance of any duties and/or obligations of either party (other than the obligation to pay money) will not be considered a breach of these SaaS Terms or the Service Order, if such delay is caused by any Force Majeure Event; provided that such party uses reasonable efforts under the circumstances to notify the other party of the circumstances causing the delay and resumes performance as soon as possible. A “Force Majeure Event” means any unforeseeable event beyond a party’s reasonable control, including, but not limited to, acts of war, acts of God, earthquake, flood or extreme weather conditions, civil insurrection, strikes, walkouts, or other organized labor interruptions, telecommunications and/or utility interruptions and/or failures, embargo, riot sabotage and/or terrorist acts, explosions, floods and/or other natural disasters.
- Injunctive Relief. The parties agree that a breach of these SaaS Terms and conditions set forth herein and/or of the scope of any of the rights granted hereunder, may result in irreparable and continuing damage to the non-breaching party for which there may be no adequate remedy at law, and such party is therefore entitled to seek injunctive relief as well as such other relief as may be appropriate without the posting of a bond, which is hereby waived.
- Governing Law. All questions concerning the validity, operation, interpretation, and construction of these SaaS Terms and the Service Order will be governed by and determined in accordance with the laws of the State of Illinois, excluding any choice of law rules, which may direct the application of the laws of another jurisdiction.
- Jurisdiction; Venue. ny legal action or proceeding with respect to these SaaS Terms and/or the Service Order and/or any document related hereto may be brought only in the state or federal courts for Cook County, Illinois, and, by execution and delivery of the Service Order, each party hereby accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of such courts. The parties irrevocably waive any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens, which any of them may now or hereafter have to the bringing of any such action or proceeding in such respective jurisdictions. Each party irrevocably consents to the service of process of any of such courts in any such action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to each of the other parties at its address provided herein, such service to become effective thirty (30) days after such mailing.
- Severability. If a court of competent jurisdiction determines that any provision of these SaaS Terms or the Service Order is invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of these SaaS Terms and the Service Order shall remain in full force and effect. To the extent any provision cannot be enforced in accordance with the stated intentions of the parties, such provision shall be deemed not to be a part of these SaaS Terms or the Service Order, while the remainder of these SaaS Terms and the Service Order shall remain in full force and effect. However, if in Mobile Doorman’s opinion deletion of any provisions of these SaaS Terms or the Service Order by operation of this paragraph unreasonably compromises the rights and/or liabilities of Mobile Doorman, Mobile Doorman reserves the right to terminate the Service Order and refund Monthly Subscription Fees pre-paid by Subscriber as Subscriber’s sole and exclusive remedy.
- Entire Agreement; Modifications. These SaaS Terms, the Service Order, and the User Terms collectively constitute the entire agreement between the parties with respect to the subject matter hereof and (i) supersedes all prior and/or contemporaneous oral or written communications, proposals, and representations with respect to its subject matter; and (ii) prevails over any conflicting and/or additional terms of any quote, purchase order, acknowledgment and/or similar communication between the parties. These SaaS Terms and/or the Service Order may be amended only by a writing executed by a duly authorized representative of each party.
- Survival. Any provision of these SaaS Terms and/or the Service Order which, by its nature, would survive termination of these SaaS Terms and/or the Service Order will survive any such termination of these SaaS Terms and/or the Service Order.
- Waiver. The failure by either party at any time to enforce any of the provisions of these SaaS Terms and/or the Service Order and/or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, shall not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of these SaaS Terms and/or the Service Order. The waiver of any default by either party shall not be deemed a continuing waiver, but shall apply solely to the instance to which such waiver is directed.
- Headings. The headings and titles of the Sections of these SaaS Terms are for convenience only and are not intended to define, limit or construe the contents of the provisions contained herein.