MobiBlossom Solutions Inc. uses proprietary mobile application development, delivery and support technologies to create, compile, distribute and support mobile applications that deliver custom client content. MobiBlossom’s innovative technology operates on a “software-as-a-service” subscription model. Mobile applications developed using MobiBlossom technology are dependent on the MobiBlossom support infrastructure and require ongoing subscription to the MobiBlossom services in order to deliver end user functionality.
This Agreement is between MobiBlossom Solutions Inc., including its agents, representatives and assigns (“MobiBlossom”) and subscribing client, including you, your agents, representatives, employees, signatories, directors and officers (the “Subscriber”). BY USING OR SUBSCRIBING TO THE SUBSCRIPTION SERVICES AS DEFINED IN THIS AGREEMENT, YOU THE SUBSCRIBER IRREVOKABLY AGREE TO BE BOUND BY THIS AGREEMENT, INCLUDING THOSE TERMS, CONDITIONS, WARRANTIES AND OBLIGATIONS THAT MAY SURVIVE BEYOND THE TERMINATION OF SUBSCRIPTION SERVICES.
MobiBlossom develops proprietary and confidential technology (“MobiBlossom Technology”) that allows for cost effective creation, compilation, preparation and submission of mobile applications and mobile application updates to public third-party distribution networks including the Apple App Store and the Google Play Store (the “App Stores”). All mobile applications created using MobiBlossom Technology require an ongoing connection with various MobiBlossom systems in order to receive content updates and deliver functionality to end users who install mobile applications created using MobiBlossom Technology on their mobile or other electronic devices. In this Agreement, “Subscription Services” include the use of MobiBlossom Technology and active connection with MobiBlossom systems and any related or ancillary systems, services or technologies required to create and update mobile applications and deliver functionality to end users of mobile applications. Subscription Services may be available in packages offering different prices and features sets (“Subscription Packages”). Subject to a subsequent upgrades or downgrades in services and any changes made to the services by MobiBlossom, the Subscriber will be bound by the Subscription Package chosen when the Subscriber first subscribes to Subscription Services.
MobiBlossom offers custom development services to Subscribers (“Custom Development”). The cost for Development Services will be determined through agreement between MobiBlossom and the Subscriber and are payable separately and in addition to those amounts due for regular Subscription Services. Custom Development is subject to the same limitations, warranties, licensees and other obligations contained within this Agreement as the Subscription Services. Failure to pay for Development Services shall constitute a failure to pay for Subscription Services under this Agreement. MobiBlossom owns all Custom Development and will grant a license to the Subscriber to use MobiBlossom Technology, including the Custom Development, upon payment for Custom Development by the Subscriber, subject to the limitations and conditions in this Agreement.
Payment for Subscription Services are due and payable on the date of subscription to Subscription Services or the end of the trial period, if a trial period is granted at the sole discretion of MobiBlossom, and then payable on the same day thereafter on a monthly or annual basis, depending on whether the Subscriber has subscribed to a monthly or annual payment option. For greater clarity, the period of time between the last payment and the beginning of the next billing cycle is called the current billing cycle. Where a billing cycle begins on the 29th, 30th or 31st, payment will be due on the last day of the month where the month does not include the aforementioned days. Custom Development is payable on the terms agreed upon by MobiBlossom and the Subscriber. Subscriber must pay all fees associated with creating or maintaining any App Store account required to deliver Subscription Services and these payments are never refundable.
MobiBlossom grants to the Subscriber a single non-transferable, non-sublicenseable, non-assignable, limited and non-exclusive license to use MobiBlossom Technology, whether through Subscription Services, Custom Development or a combination thereof , to create and compile a single type of mobile application and any subsequent updates or recompilations of the mobile application (the “Mobile App”), subject to any additional charges or limitations required by MobiBlossom or the App Stores. This license does not offer any form of territorial, technological or functional exclusivity. MobiBlossom offers Subscription Package and other feature sets customized for different mobile application types and industry segments. Each Subscription Service license is limited to a single application type and industry segment.
Subscriber grants MobiBlossom and its contractors and third party service providers a non-exclusive non-retractable license to store, transmit and make available to the public all logos, pictures, symbols, trademarks, copyrights, written content and any other content or related meta information submitted by the Subscriber through any means to MobiBlossom (the “Subscriber Content”). This license includes all intellectual property rights in the Subscriber Content reasonably required to store, transmit and make the Subscriber Content available to the public through the Subscriber’s Mobile App. The Subscriber agrees to expand the scope and nature of this Subscriber Content license and permit MobiBlossom to assign or sub-license the Subscriber Content as reasonably needed to comply with the terms and conditions of App Stores to which the Mobile App is submitted for distribution.
Subscriber authorizes MobiBlossom to act as an agent for the Subscriber for the purposes of agreeing to the terms, conditions, restrictions, guidelines and other requirements of the App Stores and any related entities (the “App Store Requirements”) on the Subscriber’s behalf, binding the Subscriber thereto. It is agreed and understood by the Subscriber that MobiBlossom does not undertake to advise, review, recommend or represent the interests of the Subscriber in this limited agency. MobiBlossom is not a fiduciary of the Subscriber and the Subscriber is solely responsible for reviewing all App Store Requirements.
MobiBlossom retains all rights of ownership in the MobiBlossom Technology and any related and dependent systems or technologies, including all copyrights, trademarks, trade secrets and other intellectual property. Where Custom Development results in the modification, creation, improvement or other change to MobiBlossom Technology or related technologies, services, documentation, systems or processes, MobiBlossom retains full ownership of the Custom Development, including all related copyright and intellectual property rights, except for those portions of the Custom Development that constitute Subscriber Content.
Subject to the license granted herein and the terms and conditions and other requirements of the App Stores, the Subscriber retains all rights of ownership in Subscriber Content.
While subscribing to the Subscription Services and subject to other limitations contained within this Agreement, the Subscriber owns those components of the Mobile App that are available through the App Stores in a compiled and finished state, subject to the following limitations:
All MobiBlossom Technology, copyrights, trademarks and intellectual property, including any codes, algorithms, notes, production processes, references and identifiable confidential or otherwise technically unique or proprietary information that may be available or discovered from the Mobile App, whether compiled or uncompiled, engineered or reverse engineered, remains the sole and exclusive property of MobiBlossom.
Upon termination or cancellation of Subscription Services or upon any material breach of this Agreement by any party, all ownership rights in the Mobile App will be automatically assigned to MobiBlossom. The Subscriber is prohibited from entering into any agreements with third parties that may attempt to limit or prevent this automatic assignment back to MobiBlossom and the Subscriber will be solely responsible and liable for any damages, claims or enforcement actions made by third parties upon the automatic assignment of the Mobile App back to MobiBlossom in accordance with this Agreement. If the Subscriber re-subscribes to Subscription Services or cures a material breach of this Agreement, ownership of the Mobile App will revert back to the Subscriber until such time as the automatic conditional assignment back MobiBlossom is triggered.
The Subscriber will not have any form of ownership or right to access or review any source code, notes, documentation and other internal, development, confidential or other information that may contain or disclose MobiBlossom Technology or information related to MobiBlossom systems, networks, processes, procedures, relationships or other technology.
MobiBlossom does not own or store data generated by end users or end user interaction except for that information gathered for analytical and statistical purposes and to provide Mobile App functionality. Any end user data generated or captured by MobiBlossom, MobiBlossom Technology or the Mobile App will be made available to the Subscriber where access to that information forms part of the regular Subscription Services and the Subscribers Subscription Package. Upon termination of cancellation of Subscription Services, MobiBlossom will take commercially reasonable steps to delete and remove from its systems any end user data within a reasonable amount of time. Subscriber will provide notice to end users of end user data collection and obtain end user consent for the collection of end user data as provided for in this Agreement and the App Store Requirements. Subscriber is solely responsible for ensuring that provision of notice to end users and obtaining end user consent is done in accordance with the laws and regulations in every jurisdiction where the Mobile App is made available to end users.
It is the sole responsibility of Subscriber to ensure that all required Subscriber Content is added via Subscription Services in a timely manner and that the Subscriber Content complies with all App Store Requirements. While MobiBlossom will make commercially reasonable efforts to have Subscriber’s Mobile App approved by the App Stores in a timely fashion, the Mobile App will not be submitted to the App Stores for approval until all required Subscriber Content has been added by the Subscriber. Where a Subscriber’s Mobile App is rejected or removed from the App Stores, MobiBlossom reserves the right to charge the Subscriber on an hourly or fixed basis for additional work required to re-submit or contest the removal of the Mobile App from the App Stores. Where a Subscriber is in breach of the App Store Requirements, MobiBlossom reserves the right to treat such breach as a breach of this Agreement.
The Subscriber may upgrade or downgrade their Subscription Services to a new Subscription Package at any time upon providing written notice to MobiBlossom and following the steps outlined at www.mobiblossom.com or as instructed customer service personnel. If the Subscriber upgrades to a more expensive Subscription Package, MobiBlossom may charge the Subscriber a pro-rata charge of the difference in Subscription Package cost prior to the next billing cycle. If the Subscriber downgrades to a less expensive Subscription Package, the change in Subscription Package price will be reflected in the amount payable for the next billing period. No refunds will be issued for downgrades within the current billing period. Subscriber acknowledges and agrees that an upgrade or downgrade in Subscription Services may require an end user to upgrade or update the Mobile App on the end user’s device before the upgrade or downgrade in Subscription Services applies to the Mobile App installed on the end user device.
The Subscriber may cancel the Subscription Services at any time by following the steps outlined at www.mobiblossom.com or as instructed by customer service personnel. MobiBlossom will not provide the Subscriber with any pro-rata refund if the Subscriber cancels Subscription Services prior to the end of the current billing cycle. No refunds will be issued for any App Store related fees or costs.
MobiBlossom reserves the right to terminate the Subscribers Subscription Services for failure to pay for Subscription Services, Custom Development or for any other breach of this Agreement or the App Store Requirements. No refunds will be issued for any unused portion of the current billing cycle or for any App Store related fees or costs.
THE SUBSCRIBER UNDERSTANDS THAT MOBILE APPS ARE DEPENDENT ON SUBSCRIPTION SERVICES TO OPERATE. UPON CANCELLATION OF SUBSCRIPTION SERVICES, ALL MOBILE APPS INSTALLED ON END USER DEVICES WILL NO LONGER WORK OR PROVIDE ANY FUNCTIONALITY ON END USER DEVICES AND WILL EVENTUALLY BE REMOVED FROM THE APP STORES.
The parties to this Agreement will not use any confidential information obtained from the other party for its own benefit or for any purpose other than as intended by the parties under this Agreement. The parties further agree that neither will use the Subscription Services or any confidential information of the other to compete with the other party in its business, nor provide confidential information to any third party.
Neither party will use any of the other party’s confidential information for any purpose except to fulfill its respective obligations under this Agreement, and shall not disclose confidential information to any person except to its representatives who need to know the information for purposes of this Agreement or the Subscription Services, or except where disclosure is required or authorized by law or requested or required by administrative process or proceeding or governmental/regulatory authority (including any self-regulatory organization having jurisdiction or claiming to have jurisdiction over the receiving party)(”Legal Process“), or with prior written consent of the other party. In the event that a party is legally compelled under Legal Process, through whatever means, to provide access to confidential information, then the disclosing party undertakes, to the extent legally permissible, to provide the other party with notice of such an event as promptly as is reasonably practicable, so as to afford the other party the opportunity to limit, monitor, control or prevent the disclosure, unless the disclosing party is requested during an inspection, investigation or examination, or is otherwise prohibited by law, from providing notice to the other party. The Subscriber is responsible for all costs associated with any legally compelled disclosure. Nothing in this Agreement shall cause a party to fail to honor or comply with any Legal Process on a timely basis.
For information on how Subscriber and End User information is collected, used and disclosed by MobiBlossom, please refer to MobiBlossom’s Privacy Statement available at www.MobiBlossom.com. Notwithstanding this policy, by accepting the terms of this Agreement, Subscriber is deemed to have consented to the use and disclosure of information of Subscriber by MobiBlossom for purposes relating to the Subscription Services, including marketing and promotion initiatives of MobiBlossom.
MobiBlossom has the right to refer to Subscriber, directly and indirectly, in marketing materials, case studies and on MobiBlossom’s website to indicate that Subscriber uses the Subscription Services and for general information and marketing purposes regarding MobiBlossom’s customer base. MobiBlossom shall not issue any press release announcing the engagement or use by the Subscriber of the Subscription Services without the express prior written consent of Subscriber.
MobiBlossom is not responsible for any additional fees, charges, or taxes imposed by Subscriber’s local authorities, State or Province, other than any applicable GST/PST/HST due on fees payable by the Subscriber for Subscription Services in Canada, in which case MobiBlossom, will bill to and collect from Subscriber and remit to the government authorities. Any other taxes or fees which may be due, including taxes or fees payable on products or services sold through the Mobile App must be filed and paid to the proper authorities directly by Subscriber.
PayPal or another third party payment processor as established by the Subscriber is used to processes payments for the sale of products and services through the Mobile App. It is the sole responsibility of the Subscriber to comply with the PayPal or other payment processor terms and conditions of use. MobiBlossom is not a party to the contractual agreements between the Subscriber and PayPal or the Subscriber and the Subscriber’s customers or end users and is not responsible for any claims or damages that arise thereof.
Licensee agrees that Licensee and its employees will not, directly or indirectly, in any manner whatsoever:
MobiBlossom may update the Mobile App upon a Subscriber upgrade or downgrade of Subscription Services and at any time without the consent of the Subscriber if MobiBlossom determines, in its sole discretion, that an update will be beneficial to the operation of the Mobile App or MobiBlossom Technology. Subject to any costs, fees or charges required by MobiBlossom or the App Stores, the Subscriber may update or change the Subscriber Content in the Mobile App while subscribing to Subscription Services by following instructions provided by www.MobiBlossom.com or customer service staff.
MOBIBLOSSOM USES COMMERCIALLY REASONABLE EFFORTS TO ENSURE THAT MOBILE APPS ARE COMPATIBLE WITH POPULAR MOBILE OPERATING SYSTEMS AND DEVICES CREATED BY COMMON GLOBAL MANUFACTURORS. MOBIBLOSSOM SPECIFICALLY DISCLAIMS AND DOES NOT WARRANT THAT THE MOBILE APP WILL WORK ON ANY PARTICULAR OPERATING SYSTEM OR MOBILE DEVICE. MOBIBLOSSOM RESERVES THE RIGHT TO LIMIT MOBILE APP COMPATIBILITY TO THOSE RELEASES OR VERSIONS OF MOBILE OPERATING SYSTEMS AND DEVICES THAT MAINTAIN A MAJORITY SHARE IN THE MOBILE OPERATING SYSTEM AND MOBILE DEVICE MARKETS. MOBIBLOSSOM IS COMMITTED TO MAKING COMMERCIALLY REASONABLE EFFORTS TO PROVIDE SUBSCRIBER WITH ACCESS TO THE SUBSCRIPTION SERVICES AND TO ENSURE A HIGH LEVEL OF SERVICE AVAILABILITY, SECURITY AND REDUNDANCY, SUBJECT TO MOBIBLOSSOM’S AND SUBSCRIBER’S THIRD PARTY VENDORS’ COOPERATION AND COMPLIANCE WITH THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, TEMPORARY UNAVAILABILITY OF THE SERVICES MAY OCCUR AS A RESULT OF SCHEDULED MAINTENANCE, SOFTWARE RELEASES, HARDWARE RELEASES, SECURITY ISSUES OR CONNECTIVITY ISSUES. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, SUBSCRIBER EXPRESSLY UNDERSTANDS AND AGREES THAT SUBSCRIBER’S USE OF THE SUBSCRIPTION SERVICES AND MOBILE APP IS AT ITS SOLE RISK. THE SUBSCRIPTION SERVICES, MOBIBLOSSOM TECHNOLOGY, THE MOBILE APP AND ALL OTHER SERVIES ARE PROVIDED BY MOBIBLOSSOM, AND ACCEPTED BY SUBSCRIBER, ON AN "AS IS" AND "AS AVAILABLE" BASIS. MOBIBLOSSOM AND ITS SUPPLIERS AND PARTNERS, TO THE FULLEST EXTENT PERMITTED BY LAW, OTHERWISE DISCLAIM ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF TITLE, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT OF PROPRIETARY OR THIRD PARTY RIGHTS, OR ABOUT THE ACCURACY, SECURITY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF ITS SERVICES, SOFTWARE, OR CONTENT. FURTHER, NOTWITHSTANDING THE FOREGOING, MOBIBLOSSOM DOES NOT WARRANT THAT THE SERVICES ARE ERROR FREE. HOWEVER, MOBIBLOSSOM AGREES TO USE COMMERCIALLY REASONABLE EFFORTS TO ADDRESS AND/OR CORRECT ANY ERRORS, CONCERNS AND MALFUNCTIONS REPORTED BY SUBSCRIBER DURING THE TERM OF THIS AGREEMENT. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT SUBSCRIBER'S DISCRETION AND RISK AND SUBSCRIBER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS SYSTEMS OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY SUBSCRIBER FROM MOBIBLOSSOM OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
Subscriber releases MobiBlossom from and agrees to defend, indemnify, and hold harmless MobiBlossom, its affiliates, officers, directors, employees, agents and partners from and against any claims, actions, suits, demands, proceedings (collectively “Claims”) and damages, liabilities, obligations, costs or expenses, including without limitation, reasonable legal fees (collectively “Damages”), in any way directly or indirectly connected with, arising out of or resulting from Subscriber's:(a) negligent or wrongful use of the Services, (b) breach of this Agreement, (c) publishing of Subscriber Content, (d) Claims originating from end users of the Mobile App or (e) combination of the Services with other products, processes, or material not provided or approved in writing by MobiBlossom, whether or not due to any act, error, omission or negligence by MobiBlossom or any of its affiliates, officers, directors, employees, agents or others whom it is in law responsible.
Notwithstanding any other provision of this Agreement, or any other related agreements, in no event shall MobiBlossom be liable to the other party , its clients, or any other party (any of which, a "Person") under or in relation to this Agreement for any Claims or Damages for any special, direct, indirect, incidental, consequential, or punitive damages (including loss of use, loss of production, loss of profits or revenues, loss of markets, economic loss, loss of good will, exemplary loss, anticipated or otherwise), that may be suffered or incurred by any Person, resulting from any matter under or relating to this Agreement or the use of, inability to use or access, or performance of any of the Services, and notwithstanding that such party may have been advised of the possibility of any such Claims or Damages and regardless of whether any of the foregoing is determined to constitute a fundamental breach or failure of essential purpose.
Notwithstanding any other provision of this Agreement, the total monetary liability of MobiBlossom in respect of all Claims and Damages for any matter relating to the Subscription Services, Mobile App or this Agreement, whether in contract or tort or under any other theory of liability, including without limitation for any breach of or default under this Agreement or any misrepresentation or negligence, in the aggregate, shall not exceed the amount of fees Subscriber has paid to MobiBlossom under this Agreement in the three months preceding the Claim. This limit is cumulative and the existence of more than one Claim will not enlarge the limit. The parties acknowledge that these limitations of liability and the allocation of risk, including waiver of consequential damages, are an essential element of the bargain between the parties and part of the consideration for the agreed upon prices and fees, and in their absence the prices and fees and this Agreement would be substantially different.
MobiBlossom reserves the right to amend any provision of these Services Terms & Conditions from time to time, so long as amendments are posted at www.mobiblossom.com.
Prices are subject to change and any price changes will take effect on the next billing cycle, whether monthly or annually, upon written Notice to Subscriber of any changes in Prices.
Subscriber acknowledges that MobiBlossom may provide automatic releases and updates to the Subscription Services and the Mobile App from time to time, provided that any such releases and updates do not materially adversely detract from the performance levels of the Services. To the extent possible, releases and updates will be provided upon reasonable Notice by MobiBlossom. MobiBlossom also reserves the right to discontinue any service, temporarily or permanently, upon Notice of at least 30 days. Subscriber agrees that MobiBlossom shall not be liable to Subscriber or any third party for any modification or discontinuance of any of the Subscription Services; provided however, that in the event MobiBlossom discontinues any Subscription Services, MobiBlossom will endeavor to provide Subscriber as much notice as is reasonably practicable.
Subscriber acknowledges that MobiBlossom, as a service provider, is an independent contractor, and the parties agree that no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. Neither party shall have any authority to act for, bind, make any representations or warranties, or assume any obligation or responsibility, express or implied, on behalf of the other party, except as specifically authorized under this Agreement or by written direction of the other party. Each party is solely responsible for all expenses associated with its performance under this Agreement. Nothing in this Agreement shall restrict in any way the freedom of either party to conduct as it sees fit any other business or activity whatsoever.
This Agreement may not be assigned by the Subscriber without MobiBlossom's prior written consent, which will not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, this Agreement may be assigned to an affiliate or successor entity upon 30 days’ Notice to the other party.
This Agreement will enure to the benefit of and is binding upon the parties to this Agreement and their respective heirs, executors, administrators, successors and permitted assigns.
All Notices and required or provided by way of this Agreement shall be in writing and shall be deemed to have been given when delivered (with proof of successful delivery) via: (i) email, (ii) mail (registered or certified, postage prepaid with receipt requested), (iii) courier, or (iv) personally. With respect to Notice via email, each party may rely on Notices as if the sender, on behalf of the party, had given them signed and in writing.
Neither party will be in default of this Agreement nor be liable in damages nor have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by a Force Majeure; provided that, as a condition to the claim of non-liability, the party whose performance is affected will provide the other party prompt written notice, with full details following the occurrence of the cause relied upon. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
This Agreement constitutes the entire understanding and agreement between the parties relating to the subject matter hereof and supersedes any and all prior agreements, correspondence, understandings and discussions, whether written or oral, relative to the subject matter contained herein. Any amendment or variation of this Agreement must be signed and agreed to in writing by an authorized signatory of the Subscriber and MobiBlossom.
If any part of this Agreement is found to be invalid, all other parts of this Agreement remain enforceable. Either party's failure to act with respect to a breach or default by the other party does not waive the non-defaulting party's right to act with respect to subsequent or similar breaches or defaults.
This Agreement shall be governed by and construed in accordance with the laws applicable in the Province of British Columbia and the laws of Canada applicable therein, excluding that body of law governing conflict of laws. Any action or proceeding brought to enforce the terms of this Agreement will be brought in a court of competent authority in Vancouver, British Columbia. The parties submit to the exclusive jurisdiction of this court. EACH PARTY HERETO IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING RELATING TO OR ARISING OUT OF THIS AGREEMENT.
amounts, Prices and Fees are in United States Dollars (USD), unless otherwise indicated.
Subscriber’s use of the Subscription Services includes the ability to enable Subscriber to: (i) electronically enter into agreements via MobiBlossom's website, digital signature or email, (ii) make change orders, (iii) update Subscriber Content in the Mobile App, and (iv) make payments electronically. Subscriber acknowledges that electronic submissions by Subscriber constitutes Subscriber’s agreement and intent to be bound by the same