Terms of Service
Effective Date: 1st Jan, 2021
This “NuovoTeam” Terms of Service Agreement (the “Agreement”) is between you and ProMobi Technologies Pvt Ltd (India - U74900PN2014PTC150210) (“ProMobi”). If you are agreeing to this Agreement not as an individual but on behalf of your company, then “Customer” or “you” means your company, and you are binding your company to this Agreement. ProMobi may modify this Agreement from time to time, subject to the terms in Section 16.7 (Changes to this Agreement) below.
By clicking on the “I agree” (or similar button/link/checkbox) that is presented to you at the time of your Order, or by using or accessing ProMobi products, you indicate your assent to be bound by this Agreement.
The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to any Service (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement.
As used in this Agreement, “ProMobi” means (a) ProMobi Technologies Pvt. Ltd., an Indian corporation with registered office at 303, Welworth Classic PLNo:2+3, SNo: 22/2, Wadgaonsheri, Pune, MH 411014, India.
ProMobi Products: This agreement governs (A) ProMobi’s software subscriptions to online software-as-a-service products
Revisions to this agreement: From time to time, ProMobi may modify this Agreement. Unless otherwise specified by ProMobi, changes to this term will be effective upon renewal of Customer’s current Subscription Term (as defined below) or entry into a new purchase order form. ProMobi will use reasonable effort to inform Customer of the changes through communications via Customer’s account, email or other means. In some cases Customer may be required to click to accept the new terms or otherwise agree to the modified agreement before renewing the Subscription Term or entering into a new purchase order form, and in any event continued use of the ProMobi’s products or services after the updated terms of this Agreement goes into effect will constitute Customer’s acceptance of such updated terms. If ProMobi specifies that changes to the new terms will take effect prior to Customer’s next renewal or purchase order (due to legal compliance or product change reasons) and Customer objects to such changes, Customer may terminate the applicable Subscription Term and receive as its sole remedy a refund of any fees Customer has pre-paid for use of the applicable Services for the terminated portion of the Subscription Term.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE ANY SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT. THIS AGREEMENT CONTAINS MANDATORY ARBITRATION PROVISIONS THAT REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS. PLEASE READ IT CAREFULLY.
“NuovoTeam” means a proprietary business communication and employee productivity software developed, owned and marketed by ProMobi as software-as-a-service solution. In this agreement it will further be referred as “NuovoTeam” only.
“Affiliate” means any entity under the control of Customer where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity.
“AUP” means ProMobi’s Acceptable Use Policy.
“Contractor” means an independent contractor or consultant who is not a competitor of ProMobi.
“Customer Data” means any data of any type that is submitted to the Services by or on behalf of Customer, including without limitation: (a) data submitted, uploaded or imported to the Services by Customer (including from Third Party Platforms) and (b) data provided by or about People (including chat and message logs) that are collected from the Customer use of the Services.
“Customer Properties” means Customer’s devices, apps, files owned and operated by (or for the benefit of) Customer through which Customer uses the Services to manage their account and devices.
“Dashboard” means NuovoTeam’s user interface for accessing and administering the Services that Customer may access via the web or the NuovoTeam Apps.
“Documentation” means the technical user documentation provided with the Services.
“Feedback” means comments, questions, suggestions or other feedback relating to any ProMobi product or service.
“ProMobi App” means any mobile application or desktop client software included in the applicable Service that is made available by ProMobi.
“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.
“People” (in the singular, “Person”) means Customer’s end user customers, potential customers, and other users of and visitors to the Customer Properties.
“Permitted User” means an employee or Contractor of Customer or its Affiliate who is authorized to access the Service.
“Sensitive Personal Information” means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”); or (iii) any other personal data of an EU citizen deemed to be in a “special category” (as identified in EU Data Protection Directive 95/46/EC or any successor directive or regulation).
“Taxes” means any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of ProMobi.
“Third-Party Platform” means any software, software-as-a-service, data sources or other products or services not provided by ProMobi that are integrated with Services as described in the Documentation.
2. ProMobi Services
2.1. Services Overview: ProMobi’s Services are a suite of mobility software-as-a-service solutions offered through a single platform. The Services are designed to enable Customer to manage their corporate owned devices and to provide a Dashboard for accessing and managing Customer Data regarding those devices. Customer may import and export Customer Data between the Services and certain Third-Party Platforms through supported integrations. The Services also include ProMobi Apps or Code deployed on Customer Properties (i.e devices) to enable management functionality.
2.2. Provision of Services: Each Service is provided on a subscription basis for a set term designated on the purchase order form (each, a “Subscription Plan”). ProMobi may also offer Professional Services (as defined in Section 11) related to certain Services. Customer will purchase and ProMobi will provide the specific Services and related Professional Services (if any) as specified in the applicable purchase order form.
2.3. Access to Services: Customer may access and use the Services solely for its own benefit and in accordance with the terms and conditions of this Agreement, the Documentation and any scope of use restrictions designated in the applicable purchase order form (including without limitation the number of devices managed). Use of and access to the Services is permitted only by Permitted Users. If Customer is given API keys or passwords to access the Services on ProMobi’s systems, Customer will require that all Permitted Users keep API keys, user ID and password information strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. If Customer is accessing the Services using credentials provided by a third party (e.g., Google), then Customer will comply with all applicable terms and conditions of such third party regarding provisioning and use of such credentials. Customer will be responsible for any and all actions taken using Customer’s accounts and passwords. If any Permitted User who has access to a user ID is no longer an employee (or Contractor, as set forth below) of Customer, then Customer will immediately delete such user ID and otherwise terminate such Permitted User’s access to the Service. The right to use the Services includes the right to deploy ProMobi Apps and Code on Customer Properties in order to enable employee communication, collaboration and similar functionality and to collect Customer Data for use with the Services as further described below.
2.4. ProMobi Apps: To the extent ProMobi provides ProMobi Apps for use with the Services, subject to all of the terms and conditions of this Agreement, ProMobi grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to use the object code form of the ProMobi Apps internally, but only in connection with Customer’s use of the Service and otherwise in accordance with the Documentation and this Agreement.
2.5. Deployment of ProMobi Apps: Subject to all of the terms and conditions of this Agreement, ProMobi grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to deploy the ProMobi Apps in the form provided by ProMobi on Customer Properties solely to support Customer’s use of the Service and otherwise in accordance with the Documentation and this Agreement. Customer must install ProMobi Apps on the Customer Properties in order to enable features of the Services. Customer will deploy all ProMobi Apps in strict accordance with the Documentation and other instructions provided by ProMobi. Customer acknowledges that any changes made to the Customer Properties after initial deployment of ProMobi Code may cause the Services to cease working or function improperly and that ProMobi will have no responsibility for the impact of any such Customer changes.
2.6. Contractors and Affiliates: Customer may permit its Contractors and its Affiliates’ employees and Contractors to serve as Permitted Users, provided Customer remains responsible for compliance by such individuals with all of the terms and conditions of this Agreement, and any use of the Services by such individuals is for the sole benefit of Customer.
2.7. General Restrictions: Customer will not (and will not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party; (b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party; © reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to ProMobi); (d) copy or modify the Services or any Documentation, or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Services (including without limitation (i) the “Powered by NuovoTeam” designation that may appear as part of the deployment of the Services on Customer Properties and (ii) notices on any reports or data printed from the Services); or (f) publicly disseminate information regarding the performance of the Services.
2.8. NuovoTeam APIs: If ProMobi makes access to any APIs available as part of the Services, then ProMobi reserves the right to place limits on access to such APIs (e.g., limits on numbers of calls or requests). Further, ProMobi may monitor Customer’s usage of such APIs and limit the number of calls or requests Customer may make if ProMobi believes that Customer’s usage is in breach of this Agreement or may negatively affect the Services (or otherwise impose liability on ProMobi).
2.9. Trial Subscriptions: If Customer receives free access or a trial or evaluation subscription to the Service (a “Trial Subscription”), then Customer may use the Services in accordance with the terms and conditions of this Agreement for a period of fourteen (14) days or such other period granted by ProMobi (the “Trial Period”). Trial Subscriptions are permitted solely for Customer’s use to determine whether to purchase a paid subscription to the Services. Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription Term. If Customer does not enter into a paid Subscription Term, this Agreement and Customer’s right to access and use the Services will terminate at the end of the Trial Period. ProMobi has the right to terminate a Trial Subscription at any time for any reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ProMobi WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.
3. Customer Data
3.1. Rights in Customer Data: As between the parties, Customer will retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to ProMobi. Subject to the terms of this Agreement, Customer hereby grants to ProMobi a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Services to Customer.
3.2. Storage of Customer Data: ProMobi does not provide any long term archiving service. ProMobi agrees only that it will not intentionally delete any Customer Data from any Service prior to termination of Customer’s applicable Subscription Term. ProMobi expressly disclaims all other obligations with respect to storage.
3.3. Customer Obligations
a) In General Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to ProMobi that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Data as contemplated in this Agreement (including granting ProMobi the rights in Section 3.1 (Rights in Customer Data)) and that no Customer Data will violate or infringe (i) any third party intellectual property, publicity, privacy or other rights, (ii) any Laws, or (iii) any terms of service, privacy policies or other agreements governing the Customer Properties or Customer’s accounts with any Third-Party Platforms. Customer further represents and warrants that all Customer Data complies with the AUP. Customer will be fully responsible for any Customer Data submitted to the Services by any Person as if it was submitted by Customer.
b) No Sensitive Personal Information. Customer specifically agrees not to use the Services to collect, store, process or transmit any Sensitive Personal Information. Customer acknowledges that ProMobi is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that the Services are neither HIPAA nor PCI DSS compliant. ProMobi will have no liability under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein.
c) Compliance with Laws. Customer agrees to comply with all applicable Laws in its use of the Services. Without limiting the generality of the foregoing, Customer will not engage in any unsolicited advertising, marketing, or other activities using the Services, including without limitation any activities that violate the Telephone Consumer Protection Act of 1991, CAN-SPAM Act of 2003 or any other anti-spam laws and regulations.
3.4. Indemnification by Customer: Customer will indemnify, defend and hold harmless ProMobi 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 any claim arising from or relating to any Customer Data or breach or alleged breach by Customer of Section 3.3 (Customer Obligations). This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of ProMobi at Customer’s expense. Notwithstanding the foregoing sentence, (a) ProMobi may participate in the defense of any claim by counsel of its own choosing, at its cost and expense and (b) Customer will not settle any claim without ProMobi’s prior written consent, unless the settlement fully and unconditionally releases ProMobi and does not require ProMobi to pay any amount, take any action, or admit any liability.
3.5. Aggregated Anonymous Data: Notwithstanding anything to the contrary herein, Customer agrees that ProMobi may obtain and aggregate technical and other data about Customer’s use of the Services that is non-personally identifiable with respect to Customer (“Aggregated Anonymous Data”), and ProMobi may use the Aggregated Anonymous Data to analyze, improve, support and operate the Services and otherwise for any business purpose during and after the term of this Agreement, including without limitation to generate industry benchmark or best practice guidance, recommendations or similar reports for distribution to and consumption by Customer and other ProMobi customers. For clarity, this Section 3.5 does not give ProMobi the right to identify Customer as the source of any Aggregated Anonymous Data.
ProMobi agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of any Service or Customer Data. However, ProMobi will have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond ProMobi’s control. Visit ProMobi’s security practices here.
5. Third-Party Platform Integrations
The Services may support integrations with certain Third-Party Platforms. In order for the Services to communicate with such Third-Party Platforms, Customer may be required to input credentials in order for the Services to access and receive relevant information from such Third-Party Platforms. By enabling use of the Services with any Third-Party Platform, Customer authorizes ProMobi to access Customer’s accounts with such Third-Party Platform for the purposes described in this Agreement. Customer is solely responsible for complying with any relevant terms and conditions of the Third-Party Platforms and maintaining appropriate accounts in good standing with the providers of the Third-Party Platforms. Customer acknowledges and agrees that ProMobi has no responsibility or liability for any Third-Party Platform or any Customer Data exported to a Third-Party Platform. ProMobi does not guarantee that the Services will maintain integrations with any Third-Party Platform and ProMobi may disable integrations of the Services with any Third-Party Platform at any time with or without notice to Customer. For clarity, this Agreement governs Customer’s use of and access to the Services, even if accessed through an integration with a Third-Party Platform.
6.1. NuovoTeam Technology: This is a subscription agreement for access to and use of the Services. Customer acknowledges that it is obtaining only a limited right to the Services and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that ProMobi or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services and all Documentation, professional services deliverables and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, “NuovoTeam Technology”). Except as expressly set forth in this Agreement, no rights in any NuovoTeam Technology are granted to Customer. Further, Customer acknowledges that the Services are offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of any of the Services, except for ProMobi Code and the ProMobi Apps in the format provided by ProMobi.
6.2. Feedback. Customer, from time to time, may submit Feedback to ProMobi. ProMobi may freely use or exploit Feedback in connection with any of its products or services.
7. Subscription Term, Fees & Payment
7.1. Subscription Term and Renewals: Unless otherwise specified on the applicable purchase order, each Subscription Term will have to be renewed explicitly, you will receive an email notification about the expiry of your Subscription Term at least thirty (30) days prior to expiration of the then-current Subscription Term.
7.2. Fees and Payment: All fees are as set forth in the applicable purchase order and will be paid by Customer within thirty (30) days of invoice, unless (a) Customer is paying via Credit Card (as defined below) or (b) otherwise specified in the applicable purchase order. Except as expressly set forth in Section 9 (Limited Warranty) and Section 14 (Indemnification), all fees are non-refundable. The rates in the purchase order and/or invoices are valid for the initial twelve (12) month period of each Subscription Term and thereafter may be subject to an automatic adjustment increase of up to ten percent (10%) per year. Customer is responsible for paying all Taxes, and all Taxes are excluded from any fees set forth in the applicable purchase order. If Customer is required by Law to withhold any Taxes from Customer’s payment, the fees payable by Customer will be increased as necessary so that after making any required withholdings, ProMobi receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such withholdings been made. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
7.3. Payment Via Credit Card: If you are purchasing the Services via credit card, debit card or other payment card (“Credit Card”), the following terms apply:
- Foreign Transaction Fees. Customer acknowledges that for certain Credit Cards, the issuer of Customer’s Credit Card may charge a foreign transaction fee or other charges.
- Invalid Payment: If a payment is not successfully settled due to expiration of a Credit Card, insufficient funds, or otherwise, Customer remains responsible for any amounts not remitted to ProMobi and ProMobi may, in its sole discretion, either (i) invoice Customer directly for the deficient amount, or (ii) terminate the Subscription Term as well as this Agreement.
- Payment of Outstanding Fees. Upon any termination or expiration of the Subscription Term, ProMobi will invoice Customer directly for any outstanding fees for Customer’s use of the Services during the Subscription Term, after which ProMobi will not charge for any additional fees, once the outstanding amount is paid in full.
7.4. Suspension of Service. If Customer’s account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), ProMobi reserves the right to suspend Customer’s access to the applicable Service (and any related services) without liability to Customer until such amounts are paid in full. ProMobi also reserves the right to suspend C