RECOVERY CONNECT NETWORK SERVICES AGREEMENT
BY CLICKING THE “I ACCEPT” BUTTON DISPLAYED AND/OR BY USE OF THE SERVICES (AS DEFINED BELOW), YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS GOVERNING YOUR USE OF THE RECOVERY CONNECT SOFTWARE APPLICATIONS AND RELATED SERVICES OFFERED BY MBSI AND MADE AVAILABLE TO YOU BY MBSI. 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 TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE “I DECLINE” BUTTON AND YOU MAY NOT USE THE SERVICE.
As part of the Service, MBSI will provide You with use of the Service, including a browser interface and data encryption, transmission, access and storage. You agree to comply with the terms and conditions of this Agreement, any Additional License Agreement Terms that are specific to each of the Apps, and any terms and conditions made available on MBSI’s website, including MBSI’s privacy and security policies.
1. License Grant & Restrictions
MBSI hereby grants You a non-exclusive, non-transferable, worldwide right to use the Services, solely for Your own internal business operations, subject to the terms and conditions of this Agreement. All rights not expressly granted to You are reserved by MBSI. The licenses for all Apps may require Your acceptance of Additional License Agreement Terms that are specific to each of the Apps as well as specific fees and charges for certain features of the Apps, all of which will be incorporated into this Agreement as You accept them.
You may not access the Service if You are a direct competitor of MBSI, except with MBSI’s prior written consent. In addition, You may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or Service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service.
You may use the Service for Your normal business operations only and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
2. Privacy & Security; Disclosure
MBSI’s privacy and security policies may be viewed at www.MBSiCorp.com/Privacy. MBSI reserves the right to modify its privacy and security policies in its sole discretion from time to time. Users, when they initially log in, may be asked whether or not they wish to receive marketing and other non-critical Service-related communications from MBSI from time to time, and the preferred manner of contact to receive such communications (i.e. email, text messaging). Users may opt out of receiving such communications at that time or at any subsequent time by changing their preference under their account settings. Please note that because the Service includes one or more hosted software applications, MBSI occasionally may need to provide all Users with critical information about the Service, including important announcements regarding the operation of the Service (whether or not they have opted out as described above).
3. Your Responsibilities
You are responsible for all activity occurring under Your User accounts and shall abide by all applicable local, state, national and foreign laws, and regulations in connection with Your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify MBSI immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to MBSI immediately and use reasonable efforts to stop immediately any improper or illegal copying or distribution of Content that is known or suspected by You or Your Users; and (iii) not impersonate any User or provide false identity information to gain access to or use the Service.
You are responsible for providing all hardware and software required to access the Service, including connectivity software and connections required to access the Internet. MBSI does not supply any hardware in conjunction with the Service and uses publicly available infrastructure provided by third parties to deliver the Service. MBSI has no responsibility or liability for the failure of any third party hardware or software.
4. Account Information and Data
MBSI does not own any Customer Data or related information or material that You submit in the course of using the Service. However, by accessing the Service and transmitting Customer Data, You grant MBSI a fully-paid up, royalty-free, transferrable license to use the Customer Data for
purposes of providing the Service. You, not MBSI, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and MBSI shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data due to your actions or inaction. MBSI reserves the right to withhold, remove and/or discard Customer Data without notice for any material breach of this Agreement, including, without limitation, Your non-payment of Services-related fees and charges. Upon termination for cause by MBSI, Your right to access or use Customer Data immediately ceases, and MBSI shall have no obligation to maintain or forward any Customer Data.
You agree that MBSI may collect and use data and related information associated with or derived from Your use of the Service, including but not limited to information about Your location, device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to You (if any) related to the Service. MBSI may also use this information and Customer Data for MBSI business purposes including (but not limited to) tracking, reporting, and analytical purposes and to improve its products or to provide services or technologies. You agree that MBSI may also disseminate aggregated data and certain transactional data derived from Customer Data to third parties for the provision of the Service and related uses. All data and Content that is not Customer Data that is transmitted, created, or otherwise used in conjunction with the Service is owned exclusively by MBSI or MBSI customers or affiliates.
5. Intellectual Property Ownership
MBSI alone shall own all right, title and interest, including all related Intellectual Property Rights, in and to the MBSI Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the use of the Service. This Agreement does not constitute a sale and does not convey to You any rights of ownership in or related to the Service, the MBSI Technology or the Intellectual Property Rights owned or licensed by MBSI. The MBSI names and trademarks, including logos, and the product names associated with the Services are trademarks of MBSI or third parties, and no right or license is granted to use them is granted hereunder.
6. Third Party Interactions
During use of the Service, You may enter into correspondence with, purchase goods and/or services from, or participate in business activities with third parties who are also using the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between You and the applicable third-party. MBSI and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between You and any such third-party. MBSI does not endorse any sites on the Internet that are linked through the Service. MBSI provides these links to You only as a matter of convenience, and in no event shall MBSI or its licensors be responsible for any content, products, services, or other materials on or available from such sites or the owners of any site not owned or controlled by MBSI. MBSI provides the Service to You pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require Your agreement to additional or different license or other terms prior to Your use of or access to such software, hardware or services.
7. Charges and Payment of Fees
You acknowledge that the use of certain Apps may require Your payment of fees and charges, including transaction fees. You will be notified of all such fees in advance of incurring any such fees. You agree to keep a valid credit card on file via the Service and all fees and charges for the Apps shall be billed to the credit card on file or as otherwise agreed in the Additional License Agreement Terms associated with the Apps. Failure to maintain valid credit card information on file with MBSI may result in termination of the Service. All payment obligations are non-cancelable and all amounts paid are nonrefundable. You are responsible for paying for all User licenses established during the License Term, whether or not such User licenses are actively used. An authorized License Administrator may add Users and Apps by providing the information necessary. Added licenses will be subject to the following: (i) added User licenses will run coterminous with the License Term; and (ii) the license fee for the added User licenses and Apps will be in addition to any then existing App fees. MBSI reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least thirty (30) days prior notice to You, which notice may be provided by e-mail or posted at www.MBSiCorp.com/RC-Apps-Fees. In the event You elect not to accept any modification of fees and charges initiated by MBSI, You must notify MBSI in writing and discontinue use of the Service at least fifteen days prior to the expiration of the 30 day period.
Billing and renewal are specific for each App and the current pricing and billing terms for all Apps can be found at www.MBSiCorp.com/RC-Apps-Fees. Your credit card on file will be billed automatically (without notice to you, unless required by applicable law) as set forth in the Additional License Agreement Terms for each App, unless otherwise agreed in the terms of service associated with the App, until you notify MBSI to cancel. MBSI’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and You shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on MBSI’s income. The charges will appear on Your credit card statement as MBSi Corp. In the event You elect to terminate any App(s), You must contact the Recovery Connect App Exchange Customer Service Team at (602) 864-7847).
You agree to provide MBSI with complete and accurate contact information for billing purposes. This information includes Your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator. You agree to update Your billing information within 30 days of any change to Your billing information. If the billing information You have provided is incomplete, out of date, false, or fraudulent, MBSI reserves the right to terminate Your access to the Service in addition to any other legal remedies.
You agree to pay all fees for Services invoiced within thirty (30) days of the date of invoice. Delinquent invoices and accounts in arrears are subject to interest charges in the amount of 1.5%
per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection.
If You believe in good faith that any invoice for the Service is incorrect, You must contact MBSI in writing within thirty (30) days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
9. Non-Payment and Suspension
In addition to any other rights granted to MBSI herein, MBSI reserves the right to suspend or terminate this Agreement and Your access to the Service if Your account becomes delinquent. You will continue to be charged for User licenses during any period of suspension. If You or MBSI initiates termination of this Agreement, You will be obligated to pay the balance due on Your account computed in accordance with the Charges and Payment of Fees section above. You agree that MBSI may charge such unpaid fees to Your credit card or otherwise bill You for such unpaid fees.
MBSI reserves the right to impose a reconnection fee in the event You are suspended and thereafter request access to the Service. You agree and acknowledge that MBSI has no obligation to retain Customer Data for delinquent accounts and that such Customer Data may be irretrievably deleted if Your account is thirty (30) days or more delinquent.
10. Termination in General
This Agreement becomes effective on the Effective Date and shall continue until terminated by MBSI or You as set forth herein. Either party may terminate this Agreement or reduce the number of User licenses, by notifying the other party in writing at least fifteen (15) business days prior to the desired date of termination or modification of the number of User licenses. Your termination of this Agreement and discontinuation of the Service shall not reduce or eliminate the amount due for use of the Services prior to the date of termination.
11. Termination for Cause
Any breach of Your payment obligations or Your breach of the terms and conditions of this Agreement, including without limitation the unauthorized use of the MBSI Technology or Service will be deemed a material breach of this Agreement. MBSI may in such event, in its sole discretion, terminate Your password(s), account(s) or use of the Service. You agree and acknowledge that MBSI has no obligation to retain the Customer Data, and may delete such Customer Data, if You have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such material breach has not been cured within thirty (30) days of receiving written notice of such material breach.
12. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. MBSI represents and warrants that it will provide the Service in a manner consistent
with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the documentation for the Services under normal use and circumstances. You represent and warrant that You have not falsely identified Yourself nor provided any false information to gain access to the Service and that the billing information You provided to MBSI is and will remain correct.
You shall indemnify and hold MBSI, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by You of Your representations and warranties; or (iii) a claim arising from the breach by You or Your Users of this Agreement.
14. Disclaimer of Warranties
EXCEPT AS EXPRESSLY SET FORTH HEREIN, MBSI MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY CONTENT. MBSI AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICES OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL OTHER CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY UCC WARRANTIES AND ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY MBSI.
15. Internet Delays
THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. MBSI IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
16. Limitation of Liability
IN NO EVENT SHALL MBSI’S AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL MBSI BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF MBSI HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
17. Additional Rights
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to You.
18. Local Access
MBSI and its licensors make no representation that the Service is appropriate or available for use in other locations. If You use the Service from outside the United States of America, You are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States law is prohibited.
MBSI may give notice by means of a general notice on the Service, electronic mail to Your e-mail address on record in MBSI’s account information, or by written communication sent by first class mail or pre-paid post to Your address on record in MBSI’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to MBSI (such notice shall be deemed given when received by MBSI) at any time by letter delivered by nationally recognized overnight delivery Service or first class postage prepaid mail to MBSI at the following address 2301 W Dunlap Ave Suite 211, Phoenix, AZ 85021.
20. Modification to Terms
MBSI reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute Your consent to such changes.
21. Assignment; Change in Control
This Agreement may not be assigned by You without the prior written approval of MBSI. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control that results or would result in a direct competitor of MBSI directly or indirectly owning or controlling 25% or more of any individual or entity licensed to use the Service hereunder shall entitle MBSI to terminate this Agreement for cause immediately upon written notice.
a. Governing Law. This Agreement shall be governed by Arizona law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service and shall be subject to the exclusive jurisdiction of the state and federal courts located in Maricopa County, Arizona.
b. Arbitration. Any dispute, claim or controversy arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, or relating to the Services, shall be settled by arbitration administered by the American Arbitration Association (the “Arbitration Association”) under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. YOU AGREE THAT, BY USING THE SERVICES, YOU AND MBSI ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, CLASS ARBITRATION, OR CONSOLIDATION WITH OTHER ARBITRATIONS. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision.
The arbitration will be conducted by a single arbitrator who is knowledgeable in commercial disputes and who is selected by mutual agreement of the parties or, failing such agreement, will be selected according to the Arbitration Association rules. Each party shall bear its own costs and expenses, and only the prevailing party shall be entitled to an award of reasonable attorney’s fees. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with this Agreement.
A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to MBSI must be addressed to: 2301 W Dunlap Ave Suite 211, Phoenix, AZ 85021, Attention: General Counsel. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought. If MBSI and You do not reach an agreement to resolve the claim within 30 days after the Notice is received, You or MBSI may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by MBSI or You shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which You or MBSI is entitled.
c. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
d. Relationship of Parties. No joint venture, partnership, employment, or agency relationship exists between You and MBSI as a result of this Agreement or use of the Service.
e. Waiver. The failure of MBSI to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by MBSI in writing.
f. Entire Agreement. This Agreement, together with any applicable Additional License Agreement Terms associated with any App You elect to use, comprises the entire agreement between You and MBSI and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
administer Your use of the Service; “License Term(s)” means the period(s) during which You and any Users are licensed to use the Service; “MBSI” means MBSi Corp., a Nevada corporation, having its principal place of business at 2301 W Dunlap Ave Suite 211, Phoenix, AZ 85021, as well as all officers, employees, agents and third party partners, licensors, or authorized agents; “MBSI Technology” means all of MBSI’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to You by MBSI in providing the Service; “Service(s)” means the specific edition of MBSI’s Recovery Connect online collateral repossession management and reporting software, including all related administrative functions such as billing, reporting, data analysis, or other services identified, developed, operated, and maintained by MBSI, accessible via www.MBSiCorp.com or another designated web site or IP address. The term “Services” may also include desktop Applications, offline or mobile device Applications, and related components that you may subscribe to and may be made available to you by MBSI, to which You are being granted access under this Agreement, including the MBSI Technology and the Content; “User(s)” means Your employees, representatives, consultants, contractors or agents who You have authorized to use the Service and have been supplied user identifications and passwords by You (or by MBSI at Your request). “You” or “Your” refers to the individual that accepts this Agreement and the entity or organization that You represent, if any.
24. Questions or Additional Information
If You have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to firstname.lastname@example.org.[/vc_column_text][/vc_column][/vc_row]