Information – Company shall provide Mobile Mentor with all information required by Mobile Mentor to undertake its role. Company will promptly advise Mobile Mentor of any material changes that may impact Mobile Mentor’s ability to fulfil its role. Company shall use all reasonable efforts to ensure that the information is accurate and complete.

Warranties – Mobile Mentor agrees to perform the services in a professional manner using trained personnel and within the terms of this Agreement.  In addition, Mobile Mentor warrants that it shall perform the Support Tasks in a professional manner as specified in: Service Definition, always. Subject to all applicable law and to the fullest extent permitted by law, all other warranties (statutory, implied, or otherwise) are hereby negated or excluded.

Fee and Invoicing – Company shall pay the Charges to Mobile Mentor for the services.  Mobile Mentor and Company shall consult on any changes, in writing, to the Charges one month prior to any changes.

Mobile Mentor shall provide Company with an itemised monthly invoice.

Invoices will be provided to Company on the 1st of each month for services provided in that month. Such invoices shall be payable no later than the 20th of the month.  Late payments will incur interest at 2% above the Federal Reserve cash rate from when payment is due until it is paid.

Authorisation – Company’s Authorised Person may from time to time instruct Mobile Mentor to incur Expenses and bind Company on all matters relating to the additional Expenses under this Agreement and Company shall immediately pay Mobile Mentor and/or the supplier directly (at Mobile Mentor’s direction) for such Expenses incurred by Company Authorised Person.

Service Levels – Mobile Mentor must, as a minimum, meet the Service Levels as defined: Service Level Agreement

Access - Company shall provide Mobile Mentor with required system and API access to the Company’s Microsoft-365 tenant as defined: Systems and API Access

System Alterations - Company shall not make alterations, changes, edits, or any other kind of modification to systems under management by Mobile Mentor within Company’s Microsoft-365 tenant and integrated systems as defined: Systems and API Access

Advanced Notification of System Changes - Company shall notify Mobile Mentor of any material change to any system that interacts with managed users. Company shall notify Mobile Mentor no less than 5 business days in advance of the change. Example systems listed in: Advanced Notice Systems

Measurement and Reporting of Service Levels – Mobile Mentor will provide a monthly report to Company on its performance under the Support Tasks relative to the Service Levels.  Should Mobile Mentor fail to meet the specified Service Levels, Mobile Mentor shall take all reasonable steps to ensure it rectifies the same.

Termination – Either party may terminate this Agreement with 90 days written notice.

The Agreement will terminate in the event either party becomes insolvent, commits an act of bankruptcy, is placed in receivership, liquidation, voluntary administration, or statutory management.

On termination of this Agreement, Company shall pay any moneys owing and upon such payment, Mobile Mentor shall return all of Company's confidential information and assets in Mobile Mentor’s possession to Company.  Termination does not prejudice the parties' right to remedies which was accrued prior to termination of this Agreement.

On termination, those clauses intended to survive termination of the Agreement, primarily Confidential Information and Intellectual Property Rights, shall survive termination of this Agreement.

Force Majeure – Neither party will be liable to the other party for failure or delay in the performance of any of its obligations under this Agreement if, and to the extent that, such failure or delay is because of any matter or thing beyond the reasonable control of such party.

Liability – The aggregate liability of either party (whether in contract, tort or otherwise) shall at no time exceed the annual value of this agreement.  For the avoidance of doubt, all loss of profits, indirect or consequential losses or damages are hereby excluded.  No claim shall be bought by either party after 12 months from the termination of this Agreement or 12 months after a breach is known or should have been reasonably known to Company, whichever is the earlier.

Indemnification - Each party (an “Indemnifying Party”) hereby agrees to indemnify, defend and hold the other party (an “Indemnified Party”) harmless from and against any and all loss, damage, cost, expense or liability, including reasonable attorneys’ fees, (collectively, “Damages”) that arise from, or are related to the negligent acts, negligent omissions or intentional wrongful misconduct of the Indemnifying Party and/or the Indemnifying Party’s employees or subcontractors, and from any Damages arising from or related to the Indemnifying Party’s uncured, material breach of this Agreement. The Indemnifying Party further agrees to indemnify, defend, save and hold harmless the Indemnified Party, its offices, agents and employees, from all Damages arising out of any alleged infringement of copyrights, patent rights and/or the unauthorized or unlicensed use of any material, property or other work in connection with the performance of the Services; provided however, that such Damages are the direct result of the Indemnifying Party’s actions and not due to the Indemnified Party’s fault, in whole or in part.

Independent Contractor – This Agreement does not constitute an agency, partnership, joint venture, (employment relationship or any other relationship between Mobile Mentor and Company.

Confidential Information – Subject to the terms of this Agreement, each party shall keep confidential all information that is of a confidential nature.

Intellectual Property Rights – The parties acknowledge that all Intellectual Property Rights in relation to:

all Deliverables, materials provided before, during or after performing the Support Tasks under this Agreement are owned by Mobile Mentor; and

all Service Components directly provided by Mobile Mentor under this Agreement are owned by Mobile Mentor.

Dispute Resolution – Company’s authorised representative and Mobile Mentor's authorised representative named in the Agreement, shall endeavour to resolve any disputes arising out of this Agreement in good faith. Should the parties’ representatives be unable to resolve the dispute within 30 Business Days, the parties may refer the dispute to the senior managers of each party.  If the senior managers are unable to resolve the dispute within further 15 Business Days, the parties are free to pursue their respective legal remedies in the appropriate forum.

In the event of a dispute, all parties to this Agreement are obligated to adhere to the terms and conditions of this Agreement while any dispute is being resolved, unless such dispute prevents performance of this Agreement.  Neither party shall deduct or set off any disputed amount against any proper amount that is due and owing until such time as the amount in dispute is resolved and settled.

Notices – Any notice permitted or required to be given under this Agreement will be via electronic mail or mailed by pre-paid registered mail to the address specified in the Agreement.  The notice is deemed received if sent by electronic mail, by the next Business Day if the sender has proper confirmation of transmission and receipt.

Variations and Assignments – The parties are not entitled to transfer, novate or assign their respective rights or obligations under this Agreement without the prior written consent of the other party, which will not be unreasonably withheld.

Governing Law and Jurisdiction - This Agreement is governed by the laws of Tennessee and the parties submit to the non-exclusive jurisdiction of the Courts of Tennessee in respect of any dispute or proceeding arising out of this Agreement.

Claiming Partner of Record – Company agrees to list Mobile Mentor as the Claiming Partner of Record (CPOR) provider for Microsoft Intune and other managed systems listed in: Systems and API Access

Licensing – Company agrees to purchase Microsoft licenses from Mobile Mentor except when agreed to by both parties, in writing.

Reseller of Record – Company agrees to accept Mobile Mentor and its Microsoft licensing distributor as resellers within the Microsoft Partner portal.

Definitions

In this Agreement, unless the context otherwise requires, the following definitions shall have the following meanings:

• "Company" means the subscribing company
• "Agreement" means this service agreement together with the Endpoint Management notices provided and any amendments made from time to time;
• "Authorised Person" means a User who may instruct Mobile Mentor to incur Expenses by the User unless otherwise specified in the Agreement;
• "Business Day" means a day on which banks are open for general banking business in the country stated in the Agreement
• "Charges" means the charges, prices, or amounts however expressed to be payable by Company to Mobile Mentor as specified in the Agreement.
• "Deliverables" means any deliverables forming part of, resulting from, or required in order for Mobile Mentor to perform its Support Tasks (as defined below);
• “Territory” means the country stated in the Agreement
• "Device" means an iOS, iPadOS, Android, MacOS or Windows 10 device that is enrolled in Company’s Microsoft Intune environment;
• "Expense" means an expense arising from an instruction given or action undertaken by Mobile Mentor on behalf of Company, but billable by the supplier directly to Company of a type and for a maximum value per occurrence as specified in the Agreement;
• "Intellectual Property Rights" means all intellectual and industrial property rights (registered or otherwise) and interests (including common law rights and interests) owned or held by a party to this Agreement, or lawfully used by that party;
• "Modern Management Services" or "MMS" means the individual support tasks listed for each Service Component as specified in: Service Definition indicated as being performed by Mobile Mentor and Company as specified in: Service Definition (including without limitation, the provision of Deliverables and/or materials provided by Mobile Mentor before, during or after performing the Support Tasks);
• "Service Component" means each action as defined in: Service Definition;
• "Support Tasks" means the individual support tasks listed for each Service Component as specified in: Service Definition indicated as being performed by Mobile Mentor;
• "Service Levels" or "SLAs" means in relation to each Service Component the service levels described for that Service Component as specified in:  Service Definition;
• "Term" means the term of this Agreement as specified in the Agreement; and
• "Users" means any user within Company’s tenant with a Microsoft Intune service plan assigned and enabled, whose userType is Member and whose user account is enabled. User count will be determined on the 1^st of each month for which the Company is subscribed.

Published: 19/Jan/2022