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Master Service Agreement
MOBILEGUARD INC.
This Master Service Agreement ("Agreement") are made and executed to be effective as of the date
specified on the signature page hereof, by and between MOBILEGUARD INC., a Nevada corporation
("MobileGuard"), and the entities identified on the signature page attached here to (referred to as
"Customer").
W ITN ESSETH:
WHEREAS, MobileGuard is a provider of mobile compliance services and solutions for enterprises; and
WHEREAS, Customer is an enterprise who wishes to utilize MobileGuard's services;
NOW, THEREFORE, in consideration of the covenants and undertakings herein contained and the mutual
benefits to be derived here from, the parties agree as follows:
SCOPE AND STRUCTURE
This Agreement specifies the general terms and conditions pursuant to which MobileGuard will perform
certain services for Customer. Additional terms and conditions pursuant to which the parties may
perform specific services or types of services will be set forth in "Service Schedules" that will be made
and entered into by and between the parties, and upon the execution of each such Service Agreement,
shall be attached to and incorporated herein and be subject to the terms and conditions of this
Agreement. Unless otherwise specified herein or implicit in the context hereof, the term "Agreement"
used herein shall include any and all Service Schedules hereto in effect from time to time.
Each Service Agreement incorporated in this Agreement shall contain its own expiration and termination
provisions and shall expire or terminate individually in accordance with such provisions. This Agreement
shall remain in full force and effect in accordance with the term hereof from its Effective Date until it
expires or is terminated in accordance with the provisions hereof, even if no Service Schedules are in
effect at any given time.
In the event of any conflict or inconsistency between the provisions of this Agreement (excluding Service
Agreements) and any individual Service Agreement, the provisions of the Service Agreement shall control.
1. COMPENSATION.
a. Customer agrees that the compensation to be paid by Customer for services performed pursuant
to this Agreement shall be as specified in the applicable Service Agreement. MobileGuard shall not raise
prices for services provided hereunder by more than 2.5%annually. Customer acknowledges and agrees
that database access charges imposed by a third party are beyond MobileGuard's control and may be
changed by such third party at any time during the term of this Agreement.
2. BILLING AND PAYMENT.
a. Time
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MobileGuard shall invoice Customer monthly for any previously unbilled services. The
billing period for any month (or portion thereof), including the billing cutoff period shall
be selected by MobileGuard and MobileGuard will provide Customer with thirty (30)
day advance written notice regarding any change to the billing period. Payment to
MobileGuard for any undisputed invoices issued to Customer shall be due within thirty
(30) days of Customer's receipt thereof. Payments are applied to the oldest outstanding
amounts first.
b. Billing
MobileGuard shall bill Customer as described above for each of the charges set forth in
the Service Agreement.
C. Payment.
All payments made under this Agreement shall be made in US dollars.
3. DISPUTES.
a. Payment.
Customer has the right to dispute any amount invoiced to Customer. A notification of
disputed charges plus any Customer documentation supporting Customer's claim shall
be sent to MobileGuard at the address as set forth in this Agreement. Customer's right
to dispute as set forth above does not relieve Customer from its obligation to pay any
undisputed amount by the applicable due date.
b. Adjustments
Any adjustments relating to a disputed amount shall be reflected on the invoice issued
by MobileGuard for the billing period after resolution. If the dispute, in whole or in part,
ultimately is resolved in favor of the Customer, MobileGuard shall return to Customer
any amount by which Customer has overpaid, together with interest from the date
overpayment, was received by MobileGuard. If the dispute, in whole or in part, ultimately
is resolved in favor of MobileGuard, Customer shall pay MobileGuard any amount by
which Customer has underpaid.
C. Informal Resolution.
The parties agree that they shall attempt to resolve any dispute regarding any right,
obligation, duty, or liability arising out of the provisions of this Agreement or any Service
Agreement through informal discussions or negotiations prior to resorting to any formal
legal process. If, at any time following the commencement of any such discussions or
negotiations, either party determines such discussions or negotiations are not likely to
result in a reasonable resolution of the dispute, it may send to the other party a written
statement of the issues or problems being discussed or negotiated ("Dispute
Statement").
4. TERM.
a. The term of this Agreement (excluding Service Agreements) shall commence on the
Effective Date and shall continue in full force and effect until terminated without any
termination charge or liability by either party pursuant to written notice delivered by the
terminating party to the other party not less than sixty (60) days prior to the intended
termination date. Notwithstanding the foregoing sentence, this Agreement shall continue
in full force and effect for so long as any Service Agreement hereto is in effect, and this
Agreement may not be terminated pursuant to the foregoing sentence unless every
Service Agreement in effect at a given time may, by its terms, also be terminated at or
prior to such time.
S. TERMINATION.
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a. Breach.
In addition to pursuing all other rights and remedies, and except as to termination for
nonpayment by Customer, if either party breaches this Agreement (including any
incorporated Service Agreement), the non -breaching party may terminate the affected
Service Agreements, or this entire Agreement if it is affected by such breach, thirty (30)
days after delivery of written notification to the breaching party if such breaching party
does not cure such breach within said thirty (30) days. In the event Customer terminates
this Agreement or an affected Service Agreement pursuant to this Section S.B,
MobileGuard shall provide Customer with a prorated refund of any prepaid fees for
services not provided as a result of such termination.
b. Other Termination by Customer.
Any Service Agreement may provide other termination rights for terminating such Service
Agreement.
C. Non -Payment.
Notwithstanding any other provisions of this Agreement, MobileGuard shall have the
right to terminate Customer's service and this Agreement without further notice if an
undisputed invoice for services provided hereunder by MobileGuard is not paid in full
within sixty (60) days after the due date of such invoice, and such invoice remains unpaid
for ten (10) business days after Customer's receipt of written notice of such non-payment
from MobileGuard.
6. USAGE.
a. Forecasts.
Upon the annual renewal of a Service Agreement, and at MobileGuard's request,
Customer shall provide to MobileGuard within thirty (30) days, an estimate "Forecast" of
its usage for each service described in the respective Service Agreement. MobileGuard
shall use such Forecasts only for the purposes of projecting total system usage.
7. INTELLECTUAL PROPERTY RIGHTS
a. General.
Subject to the limited license and rights granted hereunder, MobileGuard reserves and
retains all right, title and interest, including the Intellectual Property Rights, in and to all
of the hardware, software and other components that are necessary for the Services
provided under each Service Agreement and provided or made available to customers by
MobileGuard. For purposes of this Master Terms & Conditions, "Intellectual Property
Rights" means any and all patent, copyright, rights in trademarks, trade secret rights and
other intellectual property or proprietary rights arising under the laws of any jurisdiction.
To the extent any services provided by MobileGuard to Customer allow Customer to
access or generate any output or report specifically for Customer, Customer shall own
such output or report.
8. LIMITATION OF LIABILITY AND INDEMNIFICATION
a. INDEMNIFICATION
MobileGuard shall at its expense indemnify, defend, and hold harmless Customer, Customer's
subsidiaries, and Customer's and such subsidiaries' respective officers, directors,
employees, and field sales force members ("Customer Indemnified Parties") against any
claim made or brought against any Customer Indemnified Party by a third party alleging
that any of the services as provided to Customer hereunder and/or the use of such
services by Customer infringes the intellectual property rights of a third party (each, a
"Customer Claim"), including, without limitation, paying any damages awarded by a court
or agreed to by MobileGuard in a settlement with respect to such Customer Claim and
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paying for all related reasonable expenses and costs (including, without limitation, any
reasonable legal fees) incurred by any Customer Indemnified Party; provided, that (a)
Customer promptly gives written notice of the claim to MobileGuard, (b) gives
MobileGuard sole control of the defense and settlement of the Customer Claim (provided
that MobileGuard may not agree to any settlement that imposes any liability or
obligation on Customer); and (c) provides to MobileGuard, at MobileGuard's cost, all
reasonable assistance.
b. MobileGuard shall have no obligation under this paragraph or otherwise regarding a
claim to the extent that the claim arises from (a) a Customer Indemnified Party's use
of the services other than as contemplated by this Agreement, (b) any modifications to
the services made by any entity other than MobileGuard or one authorized by
MobileGuard, or (c) any combination of the services with other services or technologies
that are not provided, approved, or recommended by MobileGuard or with which the
services provided by MobileGuard are not reasonably expected to be combined.
C. If in MobileGuard's opinion a Customer Claim is likely to be made, or if an existing
Customer Claim may cause MobileGuard liability, MobileGuard may in its discretion (a)
obtain a license to enable Customer to continue to use the potentially infringing portion
of the services, (b) modify the services (without any loss or degradation of features,
functionality, or performance) to avoid the potential infringement, or (c) if the foregoing
cannot be achieved after using reasonable commercial efforts, terminate this
Agreement, an affected Service Agreement, or the infringing portion of the services and
refund the amount of any pre -paid fees applicable to the portion of the terminated
services to be provided after the termination date.
9. WARRANTY; DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY.
a. MOBILEGUARD AGREES TO USE ITS BEST EFFORTS TO PROVIDE PROMPT AND EFFICIENT
SERVICE THROUGHOUT THE TERM OF THIS AGREEMENT. Each party represents and
warrants that it has the legal power to enter into this Agreement and grant the rights
provided in this Agreement. MobileGuard represents and warrants that (a) it will provide
services to Customer in a professional, competent, and timely manner by appropriately
qualified MobileGuard personnel in accordance with this Agreement and consistent with
MOBILEGUARD's best practices; (b) the services provided to Customer will conform to
the description of the services set forth in this Agreement and the applicable Service
Schedules as well as any other documentation that MobileGuard provides to Customer
describing the services; (c) MobileGuard will provide adequate training, as needed, to
Customer on the use of the services; (d) the services will comply with all applicable
federal, state, and local laws, rules, and regulations; (e) the services will be free from
viruses and other destructive programs; (0 there is no pending or threatened litigation
involving MobileGuard that may impair or interfere with the Customer's right to use the
services; and (g) the services will not infringe the intellectual property rights of any third
party.
b. Except for those specifically set forth IN THIS AGREEMENT, MOBILEGUARD MAKES NO
OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO GOODS OR SERVICES
PROVIDED PURSUANT TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
EXCEPT AS SET FORTH IN THIS SECTIONI0.13, NO REPRESENTATION OR STATEMENT MADE
BY MOBILEGUARD OR ANY OF ITS AGENTS OR EMPLOYEES, ORAL OR WRITTEN,
INCLUDING, BUT NOT LIMITED TO, ANY SPECIFICATIONS, DESCRIPTIONS OR STATEMENTS
PROVIDED OR MADE TO CUSTOMER BY MOBILEGUARD SHALL BE BINDING UPON
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MOBILEGUARD AS A WARRANTY OR OTHERWISE. EXCEPT AS PROVIDED IN SECTION 9
HEREINABOVE AND EXCEPT FOR A BREACH OF SECTION XI BELOW, NEITHER PARTY SHALL
HAVE ANY LIABILITY WITH RESPECT TO THIS AGREEMENT FOR ANY LOST INCOME OR
PROFITS OR ANY INDIRECT, SPECIAL, OR . CONSEQUENTIAL DAMAGES OF ANY KIND
WHATSOEVER, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT FOR A BREACH OF SECTION XI BELOW AND THE INDEMNIFICATIONS
OBLIGATIONS SET FORTH IN SECTION IX.A HEREINABOVE, NEITHER PARTY'S LIABILITY TO
THE OTHER PARTY, WHETHER ARISING OUT OF CONTRACT, NEGLIGENCE OR OTHERWISE,
FOR ANY ACTS OR OMISSIONS IN CONNECTION WITH SERVICES PROVIDED PURSUANT
TO THIS AGREEMENT SHALL EXCEED THE GREATER OF 1) $100,000 OR, II) TWO TIMES THE
AMOUNT PAID BY CUSTOMER TO MOBILEGUARD UNDER THIS AGREEMENT DURING THE
FIRST TWELVE (12) MONTHS PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF
SUCH ACT OR OMISSION.
10. CHANGE REQUESTS.
a. Change Request Process.
Customer may request MobileGuard to modify, customize, or enhance the services as
specifically described in a Service Agreement by submitting a written request with a
description of the requested work (each, a "Change Request") to MobileGuard. Any such
Change Request shall be subject to the terms of this Agreement and the Services
Agreement. MobileGuard will review received Change Requests and provide to Customer
(i) a written description of the work MobileGuard anticipates performing in order to
effectuate requested change(s) or provide additional services (including any deliverables
(ii) a schedule for commencing and completing such work, and (iii) the price associated
with such change(s) or services. If Customer elects to have MobileGuard perform the
changes or services requested, Customer will send written authorization to commence
work on a Change Request by an authorized representative, and MobileGuard shall
commence the requested work and invoice Customer according to the terms of this
Agreement. A Change Request shall not be effective until signed and approved by
authorized representatives of both parties.
11. INTELLECTUAL PROPERTY RIGHTS.
a. Unless otherwise specified in a Service Agreement, MobileGuard reserves and retains
ownership and all right, title and interest in the Intellectual Property Rights appurtenant
to any modifications or enhancements that are made pursuant to any Change Request,
that are not specifically applicable to Customer, and that do not contain any Proprietary
Information (as defined below) of Customer. MobileGuard hereby grants to Customer a
non-exclusive, royalty -free, non -transferable right and license to use such modifications
and enhancements for Customer's business purposes during the term of the applicable
Service Agreement.
b. PROPRIETARY INFORMATION.
i. No License.
Unless otherwise specified in a Service Agreement, all computer programs,
software, drawings, diagrams, specifications and other materials now or
hereafter developed or licensed by MobileGuard or which may be developed by
MobileGuard in connection with delivering services to Customer, whether or not
developed at the specific request of Customer, shall remain the property of
MobileGuard and Customer acquires no sublicense or rights in the same by virtue
of this Agreement or the provision of services hereunder. MobileGuard's
property rights referenced in the prior sentence shall not extend to any property
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of Customer existing prior to the execution of this Agreement or an applicable
Service Agreement or any Proprietary Information (as defined below) of
Customer. All confidential, proprietary or other non-public materials clearly
marked or identified as such by either party or reasonably should be understood
to be proprietary or confidential given the nature of the information and the
circumstances of disclosure will be deemed to be Proprietary Information of that
party hereunder.
ii. Identification of Proprietary Information.
Each party may make available or otherwise disclose to the other parry during
the negotiation or performance of this Agreement certain business information,
including information that is proprietary to a third party. Except as otherwise
stated herein, all such information shall be considered the confidential and
proprietary information of the party disclosing such information ("Disclosing
Party") if, (i) when disclosed in writing, it is clearly marked as confidential and/or
proprietary, and if, when disclosed orally, it is clearly identified at the time of
disclosure as being confidential and/or proprietary, or (ii) it should be reasonably
understood as proprietary or confidential given the nature of the information and
the circumstances of disclosure ("Proprietary Information"). For the purposes of
this Agreement, "Receiving Party" shall mean the party to whom Proprietary
Information is disclosed. By way of example, Customer Proprietary Information
includes, but is not limited to, (a) data, content or information submitted to
MobileGuard by an end user of Customer and messages or communications of
Customer or its end users that are subject to the services provided by
MobileGuard, (b) any technical and/or business information relating to
Customer's products, research and development, production, costs, information
systems, profit or margin information, finances, marketing, business processes
or procedures, future business plans, and (c) any information, data or materials
containing personally identifiable information regarding current, prospective or
former applicants, policy owners, insured's, payers, beneficiaries, annuitants,
employees, agents, and/or clients of Customer and/or its subsidiaries or affiliates.
iii. Exclusions
Notwithstanding anything to the contrary in this Section 11, Proprietary
Information shall not include information that the Receiving Party can
demonstrate: (i) was known to the Receiving Parry prior to disclosure by the
Disclosing Party and that is free from any obligation to keep it confidential; (ii)
was independently developed by the Receiving Party without reference to or
knowledge of the Disclosing Party's Proprietary Information; (iii) is within the
public domain through no action on the part of the Receiving Party; (iv) was
received from a third party who was under no obligation to keep such
information confidential; or (v) was authorized by the Disclosing Party for release
prior to such release.
iv. Permitted Uses.
1. Confidentiality.
Except as required by law, each party agrees to protect the Proprietary
Information of the other party by exercising at least the degree of care
that it exercises with respect to maintaining the confidentiality of its own
Proprietary Information that it desires not to be disclosed to any third
party, but in no event less than the financial industry's degree of care
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whether through regulation or otherwise. Each party agrees not to use
Proprietary Information of the other party except for the purpose of
performing its obligations under this Agreement or a Service Agreement.
Customer will restrict disclosure of MobileGuard's Proprietary
Information solely to those of employees, contractors, field sales force
members and end users of Customer or Customer's subsidiaries with a
need to know and will not disclose MobileGuard's Proprietary
Information to any other third party without MobileGuard's prior written
authorization. MobileGuard will restrict disclosure of Proprietary
Information of Customer solely to those of its employees with a need to
know and will not disclose Proprietary Information of Customer to any
third party without Customer's prior written authorization. Each parry
will advise its employees who receive or have access to the other party's
Proprietary Information of the obligation of confidentiality hereunder.
Each party will notify the other party promptly of any theft, loss or
misplacement of the other party's Proprietary Information, in whatever
form, and of any disclosure of any such Proprietary Information in
violation of this Agreement.
2. Planning and Billing
MobileGuard shall be permitted to make use of Proprietary Information
obtained through the operation of the services provided to Customer
under this Agreement solely and only to the extent necessary for the
following purposes: estimation of facilities usage, engineering and
network planning of facilities, and measurement for billing purposes.
Except as set forth in the preceding sentence, Customer does not
consent to the use or release of such Proprietary Information, or reports
reflecting or containing, in whole or in part, such Proprietary Information
which is otherwise subject to the terms of this Section 11.
3. Commingling of Information. Each parry acknowledges that its
Proprietary Information may be commingled with Proprietary
Information of the other party and that each party must have access to
and use of its own Proprietary Information in order to conduct its
business. Accordingly, each party shall, to the extent practical, use good
faith efforts to ensure that its Proprietary Information shall be masked
or rendered mechanically inaccessible to the other party.
Return of Proprietary Information.
At the termination or expiration of this Agreement or a Service Agreement or at the
Disclosing Party's request at any time, the Receiving Party shall return or destroy any and
all tangible copies and erase from its computer systems ("Eliminate (d)") the Proprietary
Information of the Disclosing Party that the Receiving Party no longer needs in connection
with providing, receiving, or using the services under this Agreement or the Service
Agreement. Such request shall describe with reasonable particularity the Proprietary
Information to be eliminated. Within thirty (30) days of such termination/expiration or
receipt of such a request, the Receiving Party shall either eliminate the Information
described in the request, or, if required by law or regulation to retain copies of such
Proprietary Information, notify the Disclosing Party of and comply with such
requirement.
Discovery.
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If a demand under legal or regulatory authority of competent jurisdiction or a
requirement of law for the discovery or disclosure of Proprietary Information is made
known to the Receiving Party, the Receiving Party shall give the Disclosing Party notice of
the demand or requirement (if not legally prohibited from doing so) prior to disclosing
the Proprietary Information and shall, upon the request and at the expense of the
Disclosing Party, obtain or cooperate in any efforts by the Disclosing Party to seek
reasonable arrangements to protect the confidential and proprietary nature of such
Proprietary Information.
e. Duration of Obligations.
The obligations described in this Section 11, as they relate to Proprietary Information
under a specific Service Agreement, shall survive the termination of such Service
Agreement and this Agreement and shall continue for as long as the Receiving Party
possesses or has access to Proprietary Information of the Disclosing party.
f. Injunctive Relief.
Both parties agree that a breach of any of the obligations set forth in this Section 11
would irreparably damage and create undue hardships for the other party. Therefore,
the non -breaching party shall be entitled to immediate court ordered injunctive relief to
stop any apparent breach of this Section 11, such remedy being in addition to any other
remedies available to such non -breaching party.
g. Audit.
MobileGuard specifically agrees that Customer, and any third party retained by
Customer for such purpose, shall have the right at its discretion to visit any relevant
MobileGuard) s business site and to audit the security of the relevant MobileGuard sites,
procedures, systems, and equipment. Any MobileGuard site visit and/or audit of
MobileGuard) s procedures, systems and equipment shall be subject to such reasonable
MobileGuard policies and practices as are in effect for MobileGuard site visits and audits
to maintain the security of MobileGuardl s site and the confidentiality of information
which is proprietary and confidential to MobileGuard.
h. On -Site Service.
All employees or authorized contractors of MobileGuard who, on behalf of MobileGuard,
regularly provide services on -site at Customer's business premises shall sign Customer's
then existing "Statement on Confidentiality & Other Company Policies" on an annual
basis.
i. Offshore Restriction.
MobileGuard shall not do either of the following without the prior written consent of
Customer: (i) store any Proprietary Information of Customer outside of the United
States, (ii) access remotely from outside the United States any Proprietary Information
of Customer, or (iii) perform any services outside of the United States for or on behalf of
Customer.
j. Ownership.
Except as required by law, all Proprietary Information disclosed in connection with the
performance, receipt, or use of the services under this Agreement or a Service Agreement
shall be and remain the absolute and exclusive property of the Disclosing Party.
k. MobileGuard Security System.
MobileGuard represents and warrants that MobileGuard has appropriate procedures and
systems to protect the security and confidentiality of any Proprietary Information of
Customer to which it has access, including without limitation, any Proprietary
Information discarded by MobileGuard. MobileGuard agrees to maintain throughout the
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term of this Agreement appropriate procedures and systems to protect the security and
confidentiality of any Proprietary Information of Customer to which it has access.
12. FORCE MAIEURE.
a. Neither party shall be held liable for any delay or failure of performance of any part of
this Agreement arising out of or resulting from any cause beyond its control and without
its fault or negligence, including, without limitation, acts of God, acts or omissions of civil
or military authority, government regulations, embargoes, epidemics, war, terrorist acts,
riots, civil commotion or civil uprisings, insurrections, or nuclear accidents. If such delay
or failure occurs, the non -delaying party may without penalty elect to: (a) terminate this
Agreement and all of the Service Schedules thereof, or terminate any of the Service
Agreements, for services not already received, if such Force Majeure condition results in
a delay or failure to perform which continues for more than thirty {30) days; or (b)
suspend such services for the duration of the delaying cause, obtain elsewhere the
services to be bought or sold hereunder, and resume performance under this Agreement
once the delaying cause ceases.
13. SEVERABILITY.
a. In the event any provision of this Agreement shall be held invalid or unenforceable by
any court or regulatory authority of competent jurisdiction and if such invalidity or
unenforceability shall materially impair achieving the purpose and intent of this
Agreement, then this entire Agreement shall be invalid and unenforceable. Otherwise,
this Agreement shall be construed as if not containing the particular provision or
provisions hereof held to be invalid or unenforceable, and the rights and obligations of
the parties shall be construed and enforced accordingly.
14. DATA SECURITY.
a. With respect to the system and environment MobileGuard uses to provide services,
including those for data storage and transmission, MobileGuard agrees as follows:
L MobileGuard shall employ generally accepted industry security methods and
internal security operating protocols to prevent intrusion into the service
MobileGuard provides to Customer or interception of data or communications by
unauthorized third parties. Such practices shall include, without limitation:
encryption of data for storage and for transmission; firewall protection;
password protection; review of firewall logs and intrusion detection notifications
on a daily basis; and update of virus definitions and security patches on an as -
needed basis. Without limiting to the generality of the foregoing, MobileGuard
agrees not to review or disclose to a third party the content of mobile
communications in connection with any mobile communication monitoring and
archiving services MobileGuard provides to Customer except MobileGuard may
screen such content in an automated manner with keywords supplied by
Customer. Further in connection with such mobile communication monitoring
and archiving services, MobileGuard agrees to encrypt such communications in a
manner acceptable to Customer when storing or sending to Customer such
communications. MobileGuard shall conduct background screening for all of its
employees and approved contractors or subcontractors who provide services to
Customer or have access to Customer Proprietary Information, including,
without limitation, criminal background check and drug test. In addition,
MobileGuard shall train its employees and approved contractors and
subcontractors who handle Customer Proprietary Information on security
standards and activities. MobileGuard shall take necessary security measures to
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ensure that Customer Proprietary Information cannot be downloaded to or
printed from any devices that its employees, contractors or subcontractors can
remove from MobileGuard's business premises, including, without limitation,
desktops, laptops, and USB flash drives. In storing or processing Customer Data
(as defined below), MobileGuard shall not comingle Customer Data with any
data from other clients or customers of MobileGuard. Customer Data means (i)
data, content or information submitted or made available to MobileGuard by an
end user of Customer and messages or communications of Customer or its end
users that are subject to services provided by MobileGuard ("User Data") and
(ii) other data, content or information that is submitted by Customer to
MobileGuard or that is owned or controlled by Customer and accessed by
MobileGuard in connection with any services that MobileGuard provides to
Customer.
ii. MobileGuard will only use servers located in secure facilities in the U.S. and
administered by Rackspace US, Inc. ("Rackspace") or a comparable hosting
provider ("Hosting Provider") to provide services to Customer. MobileGuard
represents and warrants that each Hosting Provider used by MobileGuard will
cause to be conducted, on at least an annual basis, an SSAE 16 Type II (or
equivalent) security audit by a reputable security specialist who shall identify in
a written report (a copy of which shall be promptly delivered to Customer upon
request and which shall be MobileGuard's Proprietary Information) any readily
identifiable security vulnerabilities in connection with the applicable Hosting
Provider's services that MobileGuard uses and the operating environment
thereof. In the event MobileGuard will use any Hosting Provider other than
Rackspace to provide services to Customer, MobileGuard shall provide ninety (90)
days advance written notice to Customer setting forth the identity of the new
Hosting Provider so that Customer may investigate and review security related
issues regarding the new Hosting Provider. During such ninety (90) day period,
Customer may elect to terminate this Agreement or an affected Service
Agreement without any early termination liability by providing MobileGuard with
written notice if Customer determines that the new Hosting Provider is not
acceptable based on reasonable security concerns.
iii. Except for sending Customer Data to Customer, MobileGuard shall keep
Customer Data solely in its Hosting Provider's facility or facilities located in the
United States and shall not allow such data to leave such facility or facilities in any
form.
Within twenty-four (24) hours of discovery, MobileGuard shall notify Customer should it
discover any breach of the security provisions set forth in this Agreement or a loss,
interception, unauthorized disclosure or other compromise of Customer Data and shall
immediately coordinate with Customer to investigate and remedy such breach(es) in a
diligent and timely manner. Except as may be strictly required by applicable law,
MobileGuard agrees that it will not inform any third party of any such security breach
involving Customer Data without Customer's prior written consent; however, if such
disclosure is required by applicable law, MobileGuard agrees to work with Customer
regarding the content of such disclosure so as to minimize any potential adverse impact
upon affected parties.
MobileGuard shall maintain backup servers as well as a complete and current backup
copy of the system that MobileGuard uses to provide services to Customer and the data
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processed through the system ("Backup Materials"). Backup Materials shall be
maintained at a separate physical location located in the United States. If access or use of
the service is interrupted, the appropriate backup shall be activated within four (4) hours
to minimize disruptions.
15. DISASTER RECOVERY PLAN.
a. MobileGuard shall implement and maintain, at all times, an appropriate disaster and
recovery plan and provide Customer with a written copy of the plan upon request. In
addition, MobileGuard shall provide Customer with a copy of any future third parry
certification report(s) that review and/or certify the disaster and recovery plan when
such report(s) is made available to MobileGuard.
16. RETENTION OF USER DATA.
a. MobileGuard shall retain User Data for a period ("Retention Period") of thirty (30) days
(or another duration if otherwise specified in a Service Agreement) in a manner that
allows Customer to retrieve and review such data during the Retention Period.
MobileGuard shall delete User Data immediately upon expiration of the Retention Period
for such data in a secure manner to prevent unauthorized access to such data.
17. SUBCONTRACTOR.
a. MobileGuard may use a third party (a "Subcontractor") to perform its obligations under
this Agreement but only under the following conditions. Prior to any Subcontractor
providing services for Customer: (a) MobileGuard shall provide written notice to
Customer setting forth the identity of the Subcontractor and a description of the services
the Subcontractor will be providing; (b) Customer shall expect Subcontractor has met all
MobileGuard's standards for contractors relating to relevant business sites, procedures,
systems, and equipment and MobileGuard shall have deemed the Subcontractor to have
sufficiently secure business sites, procedures, and equipment; and (c) Subcontractor shall
have executed a confidentiality agreement with terms at least as stringent as the
confidentiality obligations in this Agreement. In addition, if the Subcontractor will be
storing or having access to Customer Proprietary Information at a physical location other
than a Hosting Provider's facility set forth in Sections XIV.B and XIV.0 above, then, prior
to such Subcontractor performing any such services, (a) Customer shall have had an
opportunity to conduct a security audit of such Subcontractor's relevant business sites,
procedures, systems, and equipment and Customer shall have deemed such
Subcontractor to have sufficiently secure business sites, procedures, and equipment and
(b) MobileGuard shall have secured for the benefit of Customer the contractual right for
Customer to conduct the above audit. Notwithstanding the provision of any services by
a Subcontractor, MobileGuard shall remain fully liable under the terms of this
Agreement for any of the services provided by a Subcontractor, including any breach of
any obligation, to the same extent as if the services had been provided directly by
MobileGuard.
18. ACCESS TO CUSTOMER SYSTEM.
a. Customer, in its sole discretion, may permit MobileGuard to have on-line access to
designated computer systems of Customer in order to facilitate MobileGuard's ability to
perform its obligations under this Agreement. Such access shall be used only in
furtherance of MobileGuard's duties under this Agreement and may not be used for any
other purpose. If such access is granted, MobileGuard shall give to Customer the names
of MobileGuard's employees who have a legitimate business need for such access to
Customer's computer systems, and Customer shall provide a separate user identification
code for each person. MobileGuard, at its own expense, shall provide and maintain any
11
hardware, telecommunications services and software not furnished by Customer which
is needed to communicate reliably with Customer's computer systems. MobileGuard
shall ensure that: (a) computer access is limited to those employees with a legitimate
business need whose names have been furnished to Customer; and (b) such employees
with access agree to keep any information so obtained strictly confidential, to use such
information only to perform MobileGuard's contract obligations to Customer and to
cease accessing Customer's computer systems when no longer required to perform work
under this Agreement. MobileGuard shall promptly notify Customer if it becomes aware
of any unauthorized access to Customer's computer systems or unauthorized use of the
information on the systems. Any information to which MobileGuard, its officers,
employees, subcontractors or agents becomes privy as a result of such access shall be
deemed Proprietary Information and protected by the provisions of this Agreement.
MobileGuard shall cooperate with Customer in the investigation of any apparent
unauthorized access by MobileGuard to Customer computer or electronic data storage
systems or unauthorized release of Customer Proprietary Information by MobileGuard.
MobileGuard warrants and agrees that its personnel will not remotely access Customer's
system from a networked computer unless the network is protected from all third party
networks by a firewall that is maintained with all patches up to date by a 7x24
administrative staff. Said firewall must be certified by the International Computer
Security Association (ICSA) (or an equivalent certification as determined by Customer) if
the connection to Customer's network is an ongoing connection such as frame relay or T
1 line.
19. INSURANCE.
a. MobileGuard shall maintain, at its own cost and expense, from companies and in form
and substance reasonably acceptable to Customer the following policies of insurance:
i. Commercial General Liability Insurance with a combined single limit of no less
than $2,000,000:00 for injury to or death of persons and loss or damage to
property, no less than $1,000,000 each occurrence limit for all bodily injury or
property damage incurred in any one (1) occurrence, no less than $1,000,000
each occurrence limit for Personal Injury and Advertising Injury, no less than
$2,000,000 Products/Completed Operations Aggregate limit, no less than
$1,000,000 each occurrence limit for Products/Completed Operations, and no
less than $1,000,000 Damage to Premises Rented to You (Fire Legal Liability). The
policy shall insure over the acts of MobileGuard, its employees and agents on and
with respect to any property owned by Customer.
ii. Professional Liability (Errors & Omissions) Insurance with limits of at least
$1,000,000 each claim or wrongful act.
iii. Internet Liability and Network Protection (Cyber risk) Insurance with limits of at
least $1,000,000 each claim or wrongful act.
iv. Workers' Compensation with statutory limits as required in each state where the
services are performed and Employer's liability insurance with a limit of not less than
$500,000 per accident including occupational disease coverage with a limit of not less
than $500,000 per employee, and a disease policy limit of not less than $500,OOO.1n
states where Workers' Compensation insurance is a monopolistic state -run system,
MobileGuard shall add Stop Gap Employers Liability with limits not less than $500,000
each accident or disease.
V. Comprehensive Automobile Liability covering ownership, operation and
maintenance of all owned and/or hired automobiles used in connection with
12
performance of the services, with a minimum limit of $1,000,000 each
occurrence.
vi. Commercial Excess I Umbrella policy (following form) with a combined single
limit of no less than $1,000,000.00 each occurrence to cover claims in excess of
the applicable limits under the Commercial General Liability Insurance, the
Workers' Compensation and Employer's liability insurance, and the
Comprehensive Automobile Liability Insurance.
b. Customer shall be named as an additional insured to the Commercial General Liability
and Commercial Automobile Liability policies with respect to work performed under this
Agreement. MobileGuard and its insurers shall waive any and all rights of subrogation
against Customer. MobileGuard shall also require its agents or subcontractors who may
enter upon Customer's premises or conduct work associated with this Areement to
maintain the same coverages required herein. Should insurance policy limits be
exhausted or should MobileGuard or its agents or subcontractors fail to maintain the
required insurance coverages, neither MobileGuard nor any of its agents and
subcontractors will in any way be relieved from liability provided for herein to Customer
should a loss occur. For any claims relating to this Agreement, the MobileGuard's or its
agent's or subcontractor's insurance shall be deemed to be primary and not contributing
to or in excess of any similar coverage purchased by Customer. Within ten (10) days after
the date set forth above and annually thereafter, MobileGuard shall provide Customer
with a copy of such policies indicating that the insurance coverage is in effect. The policies
shall further require a thirty (30) day notice to Customer of cancellation, non -renewal
or material change. Failure of Customer to demand such copies or to identify any
deficiency in the insurance provided shall not be construed as or deemed to be a waiver
of MobileGuard's (or its agents' or subcontractors') obligation to maintain such
insurance.
20. MISCELLANEOUS.
a. Amendments; Waivers.
i. Except as otherwise expressly provided herein, this Agreement may be amended
only by an instrument in writing signed by an authorized representative of each
party subsequent to the Effective Date of this Agreement. No waiver of any
provision of this Agreement and no consent of any default hereunder shall be
effective unless and until the same shall be reduced to writing and signed by the
duly authorized representative of the party against wham such waiver or consent
is claimed. No course of dealing or failure of either party to enforce any provision
of this Agreement shall be construed as a waiver of such provision or of any other
right under this Agreement.
b. Successors and Assigns.
L This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns; provided, however, this
Agreement shall not be assigned by either party hereto without the prior written
consent of the other party hereto, except as provided in the next succeeding
sentence, which consent shall not be unreasonably withheld. If another
corporation which is a parent, a wholly -owned or controlled subsidiary of a
parent ("Sister Company") or a wholly -owned or controlled subsidiary of one of
the parties hereto shall succeed to some or all of the business of the corporation
which is a party hereto, such party hereto may assign this Agreement to such
parent, subsidiary or Sister Company, without the consent of the other party, if
13
•
such parent, subsidiary or Sister Company shall expressly undertake in writing the
performance of the obligation and duties of the party hereto that it is succeeding
pursuant to such assignment.
C. Bankruptcy.
i. During the term of this Agreement, the filing of any Customer bankruptcy,
voluntary or involuntary, or any other event involving an assignment of
Customer's assets for the benefit of creditors, shall give MobileGuard the right,
at its option, and to the extent allowed by law, to require Customer to make
future payments under this Agreement in advance each month.
d. Independent Contractors.
i. Each party agrees that it shall perform its duties, obligations and services
hereunder as an independent contractor and not as the agent, employee or
servant of the other party. Except as expressly provided in any Service
Agreement, neither party, nor any person employed or furnished by such party,
shall be deemed the agent, employee, or servant of the other party or be entitled
to any benefits available to any employees of such other party. Each party has
and hereby retains the right to exercise full control and supervision over the
performance of its obligations under this Agreement, and retains full control over
the employment, supervision, direction, compensation, and termination of all of
its employees assisting in the performance of such obligations. Each party shall
be solely responsible for all matters relating to the compensation of its
respective employees, including payment of all employment taxes and
withholdings. Nothing in this Agreement shall be deemed or construed as
creating a partnership, joint venture or any similar relationship between the
parties.
e. Compliance with Law.
i. Each party agrees to perform all of its obligations and undertakings prescribed in
this Agreement in compliance with all applicable tariffs, laws, orders, rules and
regulations, specifically including, without limitation, all applicable rules and
regulations of any regulatory agency having jurisdiction over Customer which
may affect the matters covered by this Agreement.
f. Third -Party Beneficiaries.
i. This Agreement shall not provide any person or entity not a party to this
Agreement with any remedy, claim, liability, reimbursement, cause of action or
other right in excess of those existing without reference to this Agreement.
g. Attorney's Fees.
i. If an action is commenced to seek a determination or enforce any of the
provisions of this Agreement with any court or regulatory authority of
competent jurisdiction, including without limitation, an arbitration proceeding,
the prevailing party shall, in addition to its other remedies, be entitled to seek to
recover reasonable attorney's fees, arbitration fees and court costs, including
such fees and costs on appeal, from the other party.
h. Governing Law.
i. This Agreement shall be governed by and construed in accordance with the laws
of the State of Washington. Venue for any action hereunder shall be in King
County, Washington.
i. Notices
14
0 •
i. Except as otherwise expressly provided herein, all notices, demands or
communications given by either party to the other party pursuant to this
Agreement shall be in writing and shall be deemed to have been delivered on the
date delivered in person, receipt acknowledged, or deposited, postage prepaid,
certified mail, return receipt requested, or by courier delivery service for which
a receipt is provided, and addressed to such designated representative and
address as either party may from time to time provide by written notice to the
other party. Unless and until a different designation is made, such representative
and address for each party shall be as set forth on the signature page of this
Agreement.
j. Executed in Counterparts.
i. This Agreement may be executed in any number of counterparts, each of which
shall be an original. All such counterparts shall together constitute but one and
the same document.
k. Headings.
i. The headings in this Agreement are for convenience only and shall not be
construed to define or limit any of the terms herein or affect the meaning or
interpretation of this Agreement.
I. Integration.
i. This Agreement constitutes the entire understanding between the parties
concerning the subject matter hereof. All other representations, statements,
negotiations, understandings, proposals and undertakings, whether oral or in
writing, with respect to the subject matter hereof, are superseded and replaced
by this Agreement. Without limiting to the generality of the foregoing, the
parties agree that no purported click -wrap, shrink-wrap, or similar agreements
regarding the subject matter of this Agreement (including any incorporated
Service Agreement) shall have any force or effect.
M. Survival.
i. Any provision or clause of this Agreement that by its nature shall survive the
expiration or termination of this Agreement and any liability or obligation of
either party to the other for acts or omissions prior to the expiration or
termination of this Agreement or any part hereof, including, without limitation,
either party's obligation to make payment for services rendered prior to the
effective date of such expiration or termination, shall survive the expiration or
termination of this Agreement or any part hereof.
n. Publicity.
i. MobileGuard agrees that it will not use the name, trade name, trademarks,
service marks and/or logo of Customer or Customer's subsidiaries or affiliates in
news releases, advertising, sales activities, brochures or similar written materials
or activities without the prior written consent of Customer.
IN WITNESS WHEREOF, this Agreement has been executed for and on behalf of each party by and through
its authorized representative to be effective on the last date set forth below (the "Effective Date").
Each party represents and warrants that it has not altered this Agreement in any manner other than as
agreed to in writing by the parties or as an inter -delineation initialed by both parties.
The signatories to this Agreement hereby warrant and represent that they have the authority to execute
this Agreement on behalf of the entity or entities for which they sign.
MOBILEGUARD INC.
By:
Name: Todd M. Cohan
Title: CEO
Date:
CITY OF AUBURN, WASHINGTON
By: I `11a 1 1
Name: hancy Bt
91,
Title: MaXXor
Date: IL' 31 15
R*jN&V -. Ql�
MobileGuard Name and Address:
20 Nassau Street
Suite 214
Princeton, NJ 08542
Customer Name and Address:
25 West Main Street
Exhibit A
MobileGuard Service Schedule
for NetGuard on Verizon
Auburn, WA 98001
This MobileGuard Service Schedule (this "Schedule") is made and entered into by and between
MobileGuard Inc. (together with its successors and/or assigns, "MobileGuard"), a Nevada corporation,
and the entity identified on the signature page hereof ("Customer"). This Schedule is a "Service
Schedule" as defined in the MobileGuard Master Service Agreement by and between the parties hereto
and, as such, all the terms and provisions of such MobileGuard Master Service Agreement are
incorporated herein and shall remain in full force and effect. To the extent that the terms contained
herein vary from or conflict with the MobileGuard Master Service Agreement, the terms contained herein
shall govern and control.
I. INTRODUCTION.
16
0
A. MobileGuard is in the business of marketing, selling and supporting services that
captures and archives SMS and MMS messages sent from and received by mobile devices (the
"MobileGuard Service").
B. Customer is an enterprise seeking to utilize the MobileGuard Service for its own internal
and compliance purposes.
II. SCOPE OF SERVICES.
A. Service. Subject to the terms and conditions hereof, MobileGuard agrees to provide
Customer with the mobile messaging capture and archiving service described generally in the
MobileGuard Service Description attached hereto as Appendix A (the "Service Description").
MobileGuard shall deliver all captured messages to Customer in a mutually agreed format and
venue, and shall not change such format or venue without the express written consent of an
authorized representative of Customer.
B. Technical Support. The MobileGuard Network Operations Center will monitor the
MobileGuard Service to ensure proper functioning of the service and to provide reasonable and
appropriate trouble -shooting and response related to the service. All information relating to the
technical support that MobileGuard shall provide with respect to the Service and the procedures
that Customer shall follow in order to obtain such technical support, including, without limitation,
procedures for initiating a support ticket and means of contacting MobileGuard technical
personnel are set forth in Service Level Schedule (Appendix C).
III. CUSTOMER OBLIGATIONS.
Customer shall not: (i) permit third parties to use or have access to the MobileGuard Service; (ii)
grant licenses, leases or other rights in the MobileGuard Service; (iii) modify or expand any
warranties or representations, if any, that may be made or implied to Customer herein by
MobileGuard to cover Customer's business partners; or (iv) assume or create any obligations
on MobileGuard's behalf.
IV. COMPENSATION, BILLING AND PAYMENT.
Customer shall pay MobileGuard for the service provided herein in accordance with the
compensation schedule annexed hereto as Appendix B.
V. TERM, TERMINATION AND EFFECT OF TERMINATION OR EXPIRATION.
A. Term. The initial term of this Schedule shall begin on the Effective Date and shall
continue for a period of three (3) years from the Service Date ("Initial Term"). At the expiration
of the Initial Term this Schedule will extend for successive twelve (12) month terms ("Renewal
Term") provided MobileGuard furnishes Customer with written notice of the Renewal Term
ninety (90) days prior to the expiration of the previous Renewal Term or Initial Term as the case
may be. Either party has the right to terminate this Schedule with or without cause by giving the
other party written notice of termination at least ninety (90) days prior to effective date of
termination.
17
B. Upon any termination or expiration of this Schedule, MobileGuard and/or its affiliates
shall retain title and ownership to The MobileGuard Service and the associated infrastructure,
including without limitation all Control Data (as defined below). As between Customer and
MobileGuard, Customer will possess and control the Message Content upon any termination or
expiration of this Schedule.
VI. PROTECTION OF PROPRIETARY RIGHTS.
A. Customer acknowledges that the MobileGuard Service is provided on a Software -as -a -
Service (SaaS) basis pursuant to this Schedule and, therefore, that other than as specifically set
forth in this Schedule, no right, title or interest in or to the MobileGuard Service or any related
intellectual property is transferred or licensed.
B. Neither party shall remove, alter, cover or obfuscate any copyright, notice, trademark or
other proprietary rights notice placed by the other in connection with any tangible embodiment
of MobileGuard Services, or any portion thereof.
C. MobileGuard shall retain all title, patent, copyright and other intellectual property right
that it has to the MobileGuard Service, and all associated software, programming and devices.
D. All substantive message data processed, distributed and disseminated by the
MobileGuard Service ("Message Content") shall, as between Customer and MobileGuard,
belong to the particular end user subscriber who originates such information. Except as may be
necessary to ensure proper operation of the MobileGuard Service, MobileGuard will not
otherwise monitor, use or manipulate the Message Content. EXCEPT FOR THE DELIVERY OF
CUSTOMER'S MESSAGE CONTENT IN PROPERLY READABLE FORM FREE OF MOBILEGUARD
ERRORS OR OMISSIONS MOBILEGUARD MAKES NO REPRESENTATION OR WARRANTY OF ANY
KIND REGARDING THE MESSAGE CONTENT, OR REGARDING ANY INTERACTIVE ACTIONS OR
OMISSIONS BY OR ON BEHALF OF CUSTOMER'S END USER SUBSCRIBERS, AND HEREBY DISCLAIMS
ANY RESPONSIBILITY IN CONNECTION THEREWITH EXCEPT WITH RESPECT TO ITS USE THEREOF
TO ENSURE PROPER OPERATION.
E. Data generated or collected by MobileGuard through the MobileGuard Service,
including, without limitation, transmission and delivery times and addresses with respect to
messages processed, distributed and disseminated through operation of the MobileGuard
Service that is other than the Message Content, is referred to as the "Control Data." All Control
Data shall be owned by MobileGuard. All access to or use of any of the Control Data except and
to the extent expressly authorized by MobileGuard is prohibited. Any unauthorized access or use
by or through Customer voids all representations and warranties, implied or express, by
MobileGuard, and relieves MobileGuard from any responsibility, performance or the like in
connection therewith.
F. Any software developed by MobileGuard or any of its affiliates incidental to the
performance of the MobileGuard Service, regardless of cost and regardless of which party
covers or reimburses such cost, shall be owned exclusively by MobileGuard and/or such
affiliates, and may be used only by or for the benefit of MobileGuard and/or its affiliates, except
with MobileGuard's express written permission to the contrary. The parties agree to execute any
18
•
and all necessary documentation to perfect the ownership rights of MobileGuard and/or its
affiliates in any such software.
VII. LICENSE GRANT.
MobileGuard hereby grants to Customer during the Initial Term and during any Renewal Term, a
non-exclusive, royalty -free (subject to the Compensation payable pursuant to Exhibit B hereof),
non -transferable right and license to use the object code to the MobileGuard application software
components described in Exhibit A hereto (and all Related Documentation) solely to the extent necessary
to utilize the MobileGuard Service for Customer's own internal compliance purposes and for the purposes
stated in Exhibit A hereto and to otherwise to perform its obligations and exercise its rights under this
Schedule. For purposes of this Schedule, "Related Documentation" means documentation (regardless of
the format or media in which expressed) that describes the function and use (and installation, operation
and maintenance) of software, which may include the specifications, technical manuals, schematics, user
manuals, procedures manuals, system manuals, statements of principles of operation, flow diagrams, and
file descriptions.
Vill. MISCELLANEOUS.
A. Publicity. MobileGuard shall not make any announcement publicly or otherwise
that Customer has become a customer through any press release, public announcement or other
public disclosure without prior approval from the customer.
B. Governing Law. This Schedule shall be governed by and construed in accordance with the
laws of the State of Washington, without regard to the conflicts of laws provisions thereof.
Venue for any action hereunder shall be in King County, Washington.
C. Incorporation by Reference. Appendices A and B attached hereto are respectively by
each and every reference thereto incorporated herein by reference.
IN WITNESS WHEREOF, this Schedule has been executed for and on behalf of each party by and through
its authorized representative to be effective the date of the last signature hereto (the "Effective Date").
The signatories to this Schedule hereby warrant and represent that they have the authority to execute
this Schedule on behalf of the entity or entities for which they sign.
MOBILEGUARD, INC.: CITY OF AUBURN, WASHINGTON
By:
Name: Todd M. Cohan
Title: CEO
Date:
By:
Name: Nancy Backus
Title: Mayor
Date:
19
1
Address:
20 Nassau Street
Suite 214
Princeton, NJ 08542
Address:
25 West Main Street
Auburn WA 98001
20
1]
APPENDIX A
TO THE
MOBILEGUARD SERVICE SCHEDULE
MobileGuard NetGuard" Service Description
General
The MobileGuard NetGuard'" Service provides a complete solution for the monitoring, capture and
archiving of SMS and MMS messages sent from company mobile devices on a supported wireless
carrier network. MobileGuard warrants and represents that all text messages are identified, collected,
and archived in a format that is easily accessible, allowing companies to establish meaningful internal
compliance policies regarding mobile devices and to meet compliance mandates from all relevant
regulatory bodies. MobileGuard presently supports Android®, Blackberry®, iPhone®, Windows" and non-
smartphone operating systems capable of sending and receiving SMS and MMS messages on a supported
wireless carrier network.
MobileGuard features include:
— Comprehensive capture & archiving of SMS and MMS messages
— Encryption
— Search and retrieval
— Policy management
— Intelligent Storage Manager
— Proactive SMS Blocking/Monitoring
— Easy to use Roles -based Web user interface ("User Interface")
— Reporting & Statistics
The MobileGuard Service has robust monitoring, archiving and search capabilities. First and foremost,
enterprises can set their own automatic flagging of messages for compliance and supervisory review
based upon message content, recipients, and/or senders. The solution also provides other web -based
configurable policy enforcement workflow tools for reviewing and annotating conversations. The
advanced search capabilities allow for quick and efficient retrieval of messages.
With the MobileGuard Service administration console, managers of enterprise IT departments have
immediate web based administrative console for the end users of mobile devices which provides a
single point of reporting for each mobile device. This console provides real-time usage reports and data
visualization charts. In addition, MobileGuard supports ad hoc reporting delivered on demand, or
scheduled to email, ftp, or file shares.
MobileGuard Service Features under this Service Schedule shall include:
21
•
Message Capture and Instant Archival - All mobile messaging on company -issued or
reimbursed smartphones (Android, Blackberry, iPhone and Windows) is archived in an
unwriteable, inerasable format, ensuring that no message tampering is possible; provides
access to file backup features (calendar, contacts, etc.) to ensure data retrieval should a mobile
device become inactive, lost or stolen.
Message Thread Rebuild - allows users to recreate conversations threads between users in
chronological order, (time and date stamped)
i+ Search- Advanced search capabilities (keyword, phrase, date, internal/external, flagged, open,
closed, reviewed) allows for quick and efficient retrieval of messages. Immediately creates audit
log files and records all search/query activity by the administrator. Results can be exported to
multiple file types immediately or schedules.
> Monitor & Alert Functions- flag specific keywords or phrases in order to closely monitor high- risk
employees, establish ethical walls between departments. Alert to changes to a mobile device's
date & time settings to notify of inaccuracies of date/time stamp on archived messages.
v Audit Logs- all archive access is logged to guarantee integrity of data and to meet e-discovery legal
requirements; in the event of an audit or legal discovery, the discovery manager logs any access
and all records discovered. The discovery manager can give you:
o An audit trail of any actions taken during an investigation.
o Free text search for easier record retrieval.
o Ability to save records in regards to an investigation.
o Stop record deletion when records were accessed during an investigation.
i Intelligent Uninstallation Protection- provides resistance to an employee removing the client
application and provides intelligence that notifies company compliance administrators when the
application is not in use.
> Comprehensive Reporting - creates automatic reports to detail any flagged messages,
unmapped devices or user history as defined by the company policy; IT administrators can also
customize their own reports -- Reporting is configurable and parameters fully customizable.
i Message storage - Message archiving can be stored onsite or offsite, with ability to create
mirrored storage and web access for authorized personnel.
i System administration - System is actively monitored from archival level down to individual user.
Access to log files on all levels of the system for authorized users.
i Hosted or On -Premise- MobileGuard's solutions are offered either as Hosted or On -Premise.
Hosted solutions require a minimum of 25 devices. On -Premise installations require a minimum
of 200 devices.
22
E
Training
The MobileGuard Service includes:
• A technical session for implementing the application in your infrastructure for on premise
deployments
• An administrative training session to review and understand how to utilize the Admin Console for
the NetGuard service
• A brief session to insure Customer understands how to report customer service issues online, via
email and via telephone, to MobileGuard.
23
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APPENDIX B
TO THE
MOBILEGUARD SERVICE SCHEDULE
Compensation Schedule
Monthly Fees
Devices
Unit Price
Monthly Total
NetGuard
338
$8.00
$2,704.00
One -Time Fees
Devices
Unit Price
One -Time Total
Hosted Implementation
150% discount]
338
$1,475.00
$1,475.00
Activation [50%
discount]
338
$2.50
$845.00
Training [50%
discounted]
One Day
$750.00
$750.00
One -Time Total
$3,070.00
Billing and Payment
21. Time
MobileGuard shall invoice Customer annually for the licenses required for use of NetGuard on
Verizon Wireless.
22. Billing
MobileGuard shall bill Customer as described above for each of the charges set forth in the
Schedule.
23. Payment.
All payments made under this Schedule shall be made in US dollars.
24
•
APPENDIX C TO
MOBILEGUARDTM SERVICE SCHEDULE
Service Level Schedule
Introduction
This document is the Service Level Schedule ("SLA") between MobileGuard and Customer for the
provision by MobileGuard to Customer of MobileGuard Service. MobileGuard and Customer agree to the
terms and conditions set forth in this SLA as provided below.
Service Availability
Subject to the terms herein, the full service availability objective at commercial launch and thereafter
for MobileGuard Service is 99.9% three hundred sixty-five (365) days a year, seven (7) days a week, and
twenty-four (24) hours a day, excluding scheduled downtime/maintenance.
Scheduled Downtime/Maintenance
It is expected that occasional downtime will be required to maintain and enhance MobileGuard Service.
This downtime will be scheduled at least forty-eight (48) hours in advance with notice to Customer and
be performed between the hours of 01:00 AM and 07:00 AM Eastern Standard Time.
Follow-up with Customer
During the course of normal operations, MobileGuard may experience service issues (including but not
limited to slow response and partial service outage). MobileGuard shall follow-up with Customer via
phone or e-mail regarding such issues as set forth in this SLA under Customer Care Process. Such service
issues shall not be considered full service availability of MobileGuard Service.
MobileGuard shall monitor MobileGuard Service three hundred sixty-five (365) days a year, seven (7) days
a week and twenty-four (24) hours a day, and shall use best efforts to address any service issues.
Change Notification
MobileGuard will notify Customer of all application, communications and hosting/platform related
changes, maintenance and upgrades with respect to MobileGuard Service, except for those that will not
impact Customer in any material way, and of all material changes to MobileGuard's infrastructure,
operations and key employees. Customer will provide internal IT network upgrade and change control
information to MobileGuard by means of a mutually agreed format and venue. This will allow Customer
and MobileGuard to complete analysis and testing, if required, to confirm continued services operation.
25
Patches and Fixes
Recognizing the unpredictable nature of bug fixes and patch releases, to the extent commercially
reasonable, MobileGuard will notify Customer in writing of all such changes that affect the use of
MobileGuard Service, at the earliest practicable date prior to commercial release.
Trouble Identification and Resolution Process
Customer shall follow the Trouble Call Procedure, outlined below.
Trouble Call Procedure
24X7X365
• Submit Trouble Ticket via MobileGuard Administrative console at
http://support.mobileguard.com.
• Customer calls MobileGuard at (656) 459-4354 option 3 or sends email to:
Support@MobileGuard.com
• Preliminary troubleshooting and resolution (Tier I) handled by Customer Service Specialist or
On Line Services; if unresolved -
• Applications Analyst or applicable operations personnel contacted.
• If immediate resolution not available, caller given call back time.
• If direct application issue, problem escalated to Application Engineering at MobileGuard.
• Calls returned to Customer within guidelines specified in table below, including updates as to
current status of issue.
Customer Care Process
Customer is responsible for support of the Customer service, the Customer network, and the
telecommunications elements of Customer's wireless network. Listed below are the guidelines for
addressing service issues.
26
L
Severity Levels
SEVERITY
GUIDELINES FOR INCIDENT LEVELS
RESOLUTION
FOLLOW-UP WITH
LEVEL
TARGET
CUSTOMER
1
Major application problem within
Two (2) hours
MobileGuard will seek to
MobileGuard's Span of Control that causes
make first contact with
the system to be down. Urgent attention is
Customer within 15 minutes
required to minimize the business impact.
of notification of incident by
Customer.
Thereafter, updates will be
provided promptly after new
information about the
incident is available.
2
This incident level is reached when the
Six (6) hours
MobileGuard will seek to
following conditions are met due to items
make first contact with
within MobileGuard's Span of Control:
Customer within 15 minutes
• An unplanned incident causing a five
of notification of incident by
percent (5%) to twenty-five percent (25%)
Customer.
loss of message capture and archive
Thereafter, updates will be
capability.
provided promptly after new
• Recent modifications to the system cause
information about the
services to operate in a way that is
incident is available.
materially different from those described in
the service description.
3
This incident level is reached when the
Twenty-four
MobileGuard will seek to
following conditions are met due to items
(24) hours
make first contact with
within MobileGuard's Span of Control:
Customer within 1 hour of
• An unplanned incident causing less than
notification of incident by
five percent (5%) loss of message capture
Customer.
and archive capability.
Thereafter, updates will be
• Recent modifications to the system cause
provided promptly after new
services to operate in a way that is
information about the
materially different from those described in
incident is available.
the product definition for non- essential
features.
4
Incidents and application issues that have
As soon as
MobileGuard will seek to
minimal or no impact on the business and
practicable
make first contact with
do not affect the operation of the system
Customer 72 hours prior to
maintenance. Activity will be
followed by a post-mortem
report detailing the
accomplishments.
5
Feature Requests
Will be a
Feature requests will be dealt
mutually
with during normal business
accepted time
hours. Customer will be
determined by
contacted regarding feature
requestor and
request by end of next
MobileGuard.
business day.
•
For purposes of this document, "MobileGuard's Span of Control' shall be defined as those areas of
functionality and technology, including hardware and software used in the provision of MobileGuard
Service that is under the direct control of MobileGuard.
Support Communication & Problem Escalation
MobileGuard staff answering a service support line shall escalate issues internally referencing the Severity
Level and within the given time frame. Additionally, when there is a particular problem with the
MobileGuard application, the User Interface, or information contained within the User Interface, the
Customer may fill out a support ticket and the situation will be addressed.
Customer Escalation Contact Information
For feature requests, MobileGuard will utilize the contact information provided to it by the
individuals within Customer's organization making the feature requests.
Customer Obligations
Customer will, through MobileGuard escalation contacts, advise MobileGuard of all scheduled
maintenance on its network, including its on- or off -premise email archives that will affect in any
significant manner the sending of messages to or from MobileGuard for processing by the MobileGuard
Service. Customer will also, through MobileGuard escalation contacts, advise MobileGuard of any
unplanned outages in its IT environment relating to the same. Customer will provide reasonable
cooperation, assistance, information, and access to personnel as may be required for MobileGuard to
perform its obligations hereunder.
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