BY AND BETWEEN:
Mobinergy SAS, a french simplified joint-stock company (société par actions simplifiée) with share capital of € 10.000, incorporated and registered in France with company number 822 632 238 RCS Rennes, whose registered office is at 10 Rue Saint Médard 35410 Chateaugiron (FRANCE),
Hereinafter referred as “Mobinergy”
ON THE ONE HAND
AND the customer as identified online on the Exodus subscription form and/or by the identification process set by the Reseller,
Hereinafter referred as the “Customer”
ON THE OTHER HAND
Hereinafter referred to jointly as the “Parties” and separately as the “Party”.
Mobinergy supplies a software as a service (SaaS) solution called Exodus which helps companies to facilitate the migration of their mobile devices from an EMM to another EMM.
Customer plans to migrate is current EMM to an another EMM.
The Exodus Solution has been presented to Customer by a Reseller.
Prior to the acceptance of this agreement, Customer acknowledges having be able to consult the Exodus Solution’s documentation online (https://docs.exodus.tools/) and/or having received all useful information and other elements necessary about the Exodus Solution from the Reseller to give its informed consent.
In particular, Customer acknowledges that:
- it remains responsible of making backups of its information system before the EMM migration;
- the Exodus Solution does not make any backup of Customer’s information system;
- the Exodus Solution only executes automatically the instructions given by its Administrator through the Exodus Dashboard;
- Customer’s Administrator must have advanced EMM skills to use the Exodus Solution.
THE CUSTOMER ACKNOWLEDGES THAT IT HAS READ THESE TERMS OF SERVICE, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON WHO ACCEPTS ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THESE TERMS OF SERVICE ON CUSTOMER’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS.
IT HAS THEREFORE BEEN AGREED AS FOLLOWS.
Unless expressly provided otherwise herein, the terms and expressions beginning with a capital letter and used in the body of this agreement shall refer to the definitions given below.
“Administrator” means an Exodus Solution user with administrator rights and privileges, who is therefore allowed by Customer to sign-in and manage the Exodus Dashboard. Administrator may be an in-house IT staff or a Third-Consultant.
“Business Day” refers to any day which is not a Saturday, Sunday or public holiday in France.
“Customer Data” means data in electronic form, notably personal information, input or collected through the Exodus Solution or through the Exodus Application, by or from Customer, its Administrator and/or its End-User.
“Data Processor Agreement” means the data processor clauses attached thereto in appendix 1, made by and between Customer as data controller, on the one hand, and Mobinergy as data processor, on the other hand.
“Documentation” means the online documentation of the Exodus Solution, accessible at the following URL: https://docs.exodus.tools.
“Effective Date” means the date of the online acceptance of the Terms of Service made by the Customer.
“EMM” means Enterprise mobility management.
“EMM Migration” means a project of migration created by Customer on the Exodus Solution.
“End-User” means an individual who belongs to Customer’s Organization and who is authorized by the Customer to use the Exodus Application.
“Enrollment” enrolling a device means linking via a Profile File an EMM services to a designated device. Un-Enrollment means suppressing the link between a device and an EMM solution.
“EULA” means the End-User Licence Agreement of the Exodus Application.
“Exodus Application” means the Exodus mobile application called “Exodus Companion” and used by Customer End-Users to migrate their device.
“Exodus Dashboard” means the Exodus Solution administrative console which allows the Administrator to control and manage an EMM migration.
“Exodus Solution” means the software as a service solution supplied by Mobinergy and accessible at the following URL: http://www.exodus.tools.
“Normal Business Hours” refer 9.00 AM to 6.00 PM UTC+01:00 (CET) time, each Business Day.
“Profile File” a profile file is a standard XML file sent from an EMM instance to a device to offer management capacities on this same device via the EMM instance.
“Reseller” means an independent contractor authorized by Mobinergy to distribute the Exodus Solution to Customer.
“Services” means any service in relation with the Exodus Solution ordered by Customer and provided by Mobinergy.
“SLA” means Mobinergy’s standard service level agreement as described in section 6.
“Source EMM” means the current Customer’s environment and all the elements about its configuration.
“Target EMM” means the target Customer’s environment and all the elements about its configuration.
“Terms of Service” means all the terms and conditions contained therein and each appendix.
“Third-Consultant” means a third-party IT consultant, independent of each Party, and who is designated by Customer to advise it during the EMM Migration and, in particular, to access to the Exodus Dashboard as Customer’s Administrator.
“Third-Country” means any country which is not a European Union member state nor a European Economic Area member state (EU member state plus Iceland, Liechtenstein, Norway).
“Token” means a single right to use the Exodus Solution to migrate a single mobile device.
The Terms of Services shall apply to each and every Service provided by Mobinergy.
Exodus Solution purpose is to facilitate the configuration of Customer’s mobile devices after an EMM Migration performed by Customer, by automating the un-Enrollment to the Source EMM and the re-Enrollment to the Target EMM on each mobile device selected by Customer and in accordance with the specific instructions given by the Administrator on the Exodus Dashboard.
Exodus Application helps each End-User to configure automatically and step-by-step their own mobile device from the Source EMM to the Target EMM.
Customer is able to track the progress of its EMM migration through the Exodus Dashboard for each End-User, allowing Customer to assist only End-Users who are experiencing difficulties.
3. PROCEDURE FOR ORDERING
Unless otherwise agreed with Mobinergy, Customer must order Services from a Reseller.
The Reseller is and remains Customer’s commercial contact for the duration of the Terms of Service.
Any price and fees must be paid to the Reseller.
Customer acknowledges that Mobinergy may delay the provision of the Services ordered as long as Mobinergy has not received payment of all amounts due to use the desired number of Tokens.
These Terms of Service shall come into force on the Effective Date and remain in force until the completion or termination of the EMM Migration.
An EMM Migration will be deemed as completed when all End-Users status have been marked as “Re-Enrolled” or when the Administrator has consumed all available Tokens.
5.1. Description of the Services
Mobinergy must provide to Customer, with reasonable care and skills:
- a right to access and use the Exodus Solution, in accordance with the conditions laid down in section 5.4;
- an Administrator account to access and use the Exodus Dashboard;
- a right to use the Exodus Application for each End-User, in accordance with the conditions laid down in section 5.5;
- the level of quality of the services mentioned in section 6.
5.2. Exodus Solution’s features
The Parties acknowledges that the main features of the Exodus Solution are solely the following:
- to execute the EMM configuration instructions given by Customer’s Administrator on the Exodus Dashboard in order to migrate from a Source EMM to a Target EMM;
- to invite each End-User to install and use the Exodus Application on their mobile device;
- to update via the Exodus Application the configuration of each End-User mobile device by uninstalling the former Source EMM configuration and installing the new Target EMM configuration;
- to track the progress of Customer’s EMM migration through indicators on the Exodus Dashboard (i.e: ‘User not informed’, ‘User Informed’, ‘Un-enrolling’, ‘Un-enrolled’, ‘Re-enrolling’, ‘Re-Enrolled’).
The features mentioned above are the main reasons for which Customer has accepted these Terms of Service. Considering the above, Mobinergy undertakes not to remove any of the hereabove mentioned features during an upgrade of the Exodus Solution.
Any other Exodus functionalities not listed therein must be considered by Customer are a non-essential feature that Mobinergy may delete in whole or in part during an upgrade of the Exodus Solution.
5.3. Features not included
Customer acknowledges that the Services do NOT make any backup of any type of Customer’s information systems, and notably of Customer’s EMM or End-User’s mobile devices.
Customer acknowledges that the un-Enrollment from the Source EMM on each mobile device to migrate will causes a deletion of all the data contained on it. Therefore, it is the sole responsibility of Customer to make a backup of all data contained on each of its mobile devices prior to the EMM Migration.
5.4. Right to Use and Access the Exodus Solution
During the Terms of Service, and subject to the compliance of its obligations contained in these Terms, Customer is hereby granted a non-exclusive, limited, non-transferable, revocable right to access and use the Exodus Solution for its sole internal purposes.
These rights are granted to Customer and to any affiliate thereof (i.e. all Customer’s subsidiaries and any company, owner or entity entitled to use Customer’s trademarks and represented by Customer for the purpose of entering into these Terms), and to any third party for whom access to and use of the Exodus Solution is required for Customer’s business and/or affiliated companies (in particular Third-Consultant).
Resale and distribution of the Exodus Solution are and remain strictly prohibited.
5.5. Exodus Application EULA
During the Terms of Service, subject to the compliance of its obligations contained in these Terms and within the limits of the number of Tokens purchased, Customer is hereby granted a non-exclusive right to allow its End-User to install, download, perform, use and execute the Exodus Application on End-User mobile devices.
End-Users must comply with the Customer’s obligations set out in sections 8.3, 8.4, 8.5.
Prior to its EMM Migration, Customer must purchase from the Reseller as many Tokens as mobile devices it wishes to migrate.
A Token can only be used once and for a single mobile device migration from a Source EMM to a Target EMM.
Mobinergy shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for planned maintenance carried out outside Normal Business Hours, provided that Mobinergy has used a reasonable endeavor to give Customer at least a 12 hours notification in advance.
Notwithstanding the above, Mobinergy is allowed to perform unscheduled maintenance inside Normal Business Hours, and without prior notification, in case of vital maintenance or serious security issue for the Exodus Solution or for the information system hosting it.
7. TECHNICAL SUPPORT
Mobinergy will only provide for Customer a standard customer support service by email (firstname.lastname@example.org), during the Normal Business Hours and undertakes to answer to Customer’s requests within 24 Normal Business Hours delay after reception.
Customer support is solely provided for the solving of Exodus Solution’s use issues. Considering the above, Mobinergy will not give any advice as to Customer EMM Migration operations nor Customer information system configuration. Customer shall have the necessary skills to perform its EMM Migration alone or to be assisted by a Third-Consultant.
Mobinergy will only provide technical support to Customer Administrator. Therefore, End-Users are not eligible to the benefit of the technical support.
Prior to contact the technical support, Customer undertakes to consult the Exodus Documentation, which contains Frequently Asked Questions and Troubleshooting and Resolve common issues.
8. CUSTOMER’S OBLIGATIONS
8.1. Pre-requisite of EMM Migration
Before the performance of any EMM Migration, Customer must ensure the following pre-requisite:
- to make a backup of its Current EMM and all information contained;
- to make a backup of all its information system;
- to duplicate all its information and data from its Source EMM to its Target EMM, in order to allow its End-Users to retrieve their data after the EMM Migration;
- to recommend and warn to its End-Users to make a backup of all the information contained in their mobile device prior to execute the Exodus Application;
- to provide all the necessary EMM configuration information and necessary instructions on the Exodus Dashboard and to check their accuracy prior to start the EMM Migration.
Customer undertakes to consult and read the Exodus Documentation and to use the Services in accordance with this Documentation.
8.3. Credentials and accounts
Customer is solely responsible for maintaining the confidentiality of the credentials (login and password information) of any of its accounts.
Customer shall take reasonable steps to prevent unauthorized access to the Services, including without limitation by protecting its passwords and other log-in information. Customer shall notify Mobinergy immediately of any known or suspected unauthorized use of the Services or breach of its security and shall use best efforts to stop said breach.
Customer is and remains fully responsible and liable for:
(a) Customer’s and other End-Users’ use of the Services, including without limitation unauthorized End-User conduct and any End-User conduct that would violate the EULA or the requirements of these Terms of Service applicable to Customer;
(b) and any use of the Services through any Customer’s account, whether authorized or unauthorized.
Therefore, Mobinergy will not be liable for any acts or omissions by Customer, including any damages of any kind incurred as a result of such acts or omissions.
Any granting of the right to use in respect of these Terms of Service shall not give rise to a transfer of ownership to the benefit of Customer who shall in consequence refrain from directly or indirectly damaging Mobinergy’s ownership rights, and in particular Customer shall refrain from:
- reproducing all or part of the Exodus Solution or Exodus Application other than in the cases stipulated in these Terms of Service;
- modifying or adapting the Exodus Solution or Exodus Application for troubleshooting purposes or for repairing errors without the prior consent of Mobinergy;
- unless otherwise provided in these Terms of Service, renting, sharing or sub-licencing the Exodus Solution and Exodus Application or granting any sort of right whatsoever either in connection with the Exodus Solution, the Exodus Application or a part thereof to a third party, including any subsidiary, without the prior consent of Mobinergy;
- translating, performing reverse engineering, decompiling, disassembling in whole or in part the Exodus Solution, the Exodus Application, unless this complies with the conditions set forth in section L. 112-6-1 of the French Intellectual Property Code. More generally, Customer shall refrain from making any reproductions on any medium whatsoever and by any means whatsoever.
- Should any interoperability problems arise between the Exodus Solution and the Exodus Application, Customer undertakes to inform Mobinergy thereof and seek possible solutions thereto with the help of the latter;
- withdrawing or altering any identification items relative to the Exodus Solution or the Exodus Application, the ownership manual, or labels or markings on these.
THESE TERMS OF SERVICE MAY NOT BE SOLD OR TRANSFERRED TO A THIRD PARTY WITHOUT THE PRIOR AUTHORISATION OF Mobinergy.
Consequently, any other form of transfer free of charge or for cash is strictly prohibited.
Unless stipulated to the contrary in regard to these Terms of Service, Customer undertakes:
i) never to allow a third party (except for Third-Consultant) to these Terms of Service to use the Exodus Solution in any form whatsoever and to take all reasonable and appropriate action to ensure that no unauthorized use of the Exodus Solution or Exodus Application is undertaken;
ii) never to allow a third party to these Terms of Service to avail of the use or functionalities of the Exodus Solution by way of a « time sharing » agreement or any other arrangement.
9. INTELLECTUAL PROPERTY
9.1. Ownership of Mobinergy
Without prejudice to the rights granted to Customer in sections 5.4 and 5.5, Mobinergy is and shall remain the owner of the intellectual property rights on the Exodus Solution and the Exodus Application.
Customer may reproduce and use the Exodus documentation solely as necessary to complete its EMM Migration and support its End-User.
9.2. Ownership of Customer
Customer shall remain the owner of the full set of Customer Data and information transmitted, as well as any data and information handled by Mobinergy for the performance of the Terms of Service.
10. DATA PRIVACY
10.1. Processing of Customer Data
In order to supply its Service, Mobinergy needs to process some Customer Data.
Customer remains the data controller of its Customer Data. Mobinergy will only act as data processor.
In accordance with the European Data Protection Regulation, namely the regulation 2016/679 of 27 April 2016 “General Data Protection Regulation”, a Data Processor Agreement is made by and between Customer and Mobinergy.
Such Data Processor Agreement is attached in appendix 1.
10.2. Hosting and geographical location
Unless otherwise agreed with Mobinergy, Customer Data will be hosted in the European Union or inside the European Economic Area.
11. CONFIDENTIALITY OF CUSTOMER DATA
The Parties hereby agree that Customer Data shall in particular and in a non-exhaustive manner be deemed to be confidential information.
Mobinergy commits to keeping secret any Customer Data it may become privy to before, during and after the provision of the Service for a period of 2 (two) years from the time of expiry of these Terms of Service. Mobinergy shall refrain in particular from making any use thereof which does not come within the scope of the contractual obligations set forth in these Terms of Service or from circulating said Customer Data, unless Customer specifically consents thereto.
Customer Data shall be destroyed further to Customer written express request or Customer action on the Exodus Dashboard.
Notwithstanding the foregoing, Mobinergy reserves the right to transfer certain parts of Customer Data to sub-contractors within the strict limit of the above mentioned needs which are conducive to performance of the Service and its end purpose, and it undertakes in particular to ensure that said sub-contractor is bound by the same confidentiality obligations as those set forth in these provisions.
12. ELECTRONIC EVIDENCE
The Parties undertake to recognize a probative value equivalent to that of a paper document to any electronic document exchanged between them as well as any action carried out online via the Exodus Solution, the Exodus Dashboard or the Exodus Application and stored in Mobinergy 's information system (particularly online acceptance of the Terms of Service, date of acceptance, connection logs, date and hour of any actions or connection, IP addresses). Since Mobinergy's computerized records are kept in reasonable conditions of security, the Parties waive, except proven computer fraud, to invoke any unenforceability, inadmissibility, nullity of evidence that would be reported by means of these computerized records.
13. DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY
13.1. Internet Delays
Customer acknowledges that the Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Mobinergy is not responsible for any delays, delivery failures or other damage resulting from such problems.
EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN SECTION 6, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE EXODUS SOLUTION, AND ALL SERVICES PERFORMED BY THE MOBINERGY ARE PROVIDED “AS IS,” AND MOBINERGY DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. MOBINERGY DOES NOT WARRANT THAT THE APPLICATION SERVICE OR ANY OTHER SERVICES PROVIDED BY MOBINERGY WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE APPLICATION SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
13.3. Exclusions of Remedies; Limitation of Liability.
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF MOBINERGY TO CUSTOMER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CLAIM FOR INDEMNIFICATION OR ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE AMOUNT OF € 25 000. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
13.4. Essential Basis of the Agreement
Customer acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 13 form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in these Terms of Service, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of these Terms of Service would be substantially different.
Either Party represents that it has taken out insurance with a reputedly solvent insurance company for coverage of civil liability, professional operations, fire and criminal liability for bodily, material or immaterial injury caused to the other Party or a third party by its employees during performance of the present contact.
In this respect, either Party undertakes to pay all insurance premiums to enable the beneficiary to assert its rights.
The above insurance coverage shall be taken out for the full duration of the present contract.
In the event of failure by one or other Party to perform its obligations in respect of these Terms of Service, and if such breach is not repaired within thirty (30) days from the time of receipt of a registered letter with acknowledgement of receipt outlining said breach, the other Party shall be free to rescind the Contract ipso jure without any further formality and without prejudice to any damages it may be awarded by way of such breach.
Failing payment of all or part of the price or in the event of non-performance by Customer of any one of its obligations towards Mobinergy, the relevant order and any and all orders in process shall be rescinded ipso jure by Mobinergy, subject to dispatch of a registered letter with acknowledgement of receipt requesting repair of the alleged breach which had not been repaired by Customer within the fifteen-day period following receipt of said letter.
15. FORCE MAJEURE
Other than the events usually taken into account by Case Law in the event of force majeure, the obligations binding on the Parties shall be automatically suspended should any event beyond their control arise preventing normal performance of this contract, e.g.:· earthquakes;· fire; storms; floods; blocking of transport or delivery services for whatever reason; total or partial strikes inside or outside the company; lock-outs; blocking of telecommunications or internet services and networks; electricity outages lasting more than 30 minutes; statutory or regulatory changes to commercialization modes; any other event beyond the parties’ control preventing normal performance of this contract.
The Party which becomes aware of the event shall immediately inform the other Party that performance of its service is impossible and provide justification thereof. Any suspension of obligations shall not induce liability in any form for non-performance of the obligation in question, nor shall it give rise to the payment of damages or late charges.
However, once the supervening event causing suspension of their respective obligations has ceased, the Parties shall endeavor to resume performance of said contractual obligations under normal conditions and as quickly as possible. To this effect, the Party so prevented shall inform the other Party of the resumption of its obligation by registered letter with acknowledgement of receipt or by service of a legal process.
16. GENERAL PROVISIONS
16.1. Entire obligations
The clauses set forth in these Terms of Service constitute the entire obligations binding on the parties in regard to the Services.
No other general or specific condition provided in the documents sent or remitted by the Parties may be added to these Terms of Service, except by way of an addendum to be drawn up and signed by either party.
Should one of the Parties fail to assert its rights in regard to a breach by the other Party of any one of its obligations set forth herein, such failure to assert shall not in any manner be construed to be a waiver of said obligation in the future.
Should any difficulty arise with the interpretation of any of the headings of the clauses herein, or the clause itself, the heading shall be declared null.
Should one or several provisions herein be declared null or by way of application of a law, a regulation or following the final ruling of a court with relevant jurisdiction, the other provisions shall remain in full force and effect.
The Parties choose their residence at the addresses provided in the Technical and Financial Proposal, except in the case of specific derogation by way of an addendum.
Should either Party change its address, it shall notify the other Party thereof by way of registered letter with acknowledgement of receipt.
16.6. Applicable law
These Terms of Service shall be governed by the laws of France and without regard to international law rules of conflict of laws.
This condition shall apply to the rules on form and substance.
16.7. Forum of jurisdiction
IN THE EVENT OF A DISPUTE ARISING IN CONNECTION WITH THE PERFORMANCE OF THE SERVICE, THE PARTIES UNDERTAKE TO COOPERATE TO THE FULLEST EXTENT AND IN GOOD FAITH TO FIND AN AMICABLE SOLUTION THERETO.
SHOULD THE PARTIES FAIL TO REACH A SETTLEMENT, FORUM OF JURISDICTION SHALL BE GIVEN TO THE COURTS OF RENNES (FRANCE), EVEN IN THE CASE OF THIRD-PARTY PROCEEDINGS, URGENT PROCEEDINGS OR OPPOSITION TO AN ORDER TO PAY.
* * *
APPENDIX 1. Data Processor Agreement
The purpose of these clauses is to define the conditions in which Mobinergy (as data processor) undertakes to carry out, on the Customer’s behalf (as data controller), the personal data processing operations defined below.
As part of their contractual relations, the parties shall undertake to comply with the applicable regulations on personal data processing and, in particular, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 which is applicable from 25 May 2018 (hereinafter "the General Data Protection Regulation").
2. DESCRIPTION OF THE PROCESSING BEING SUBCONTRACTED OUT
Mobinergy is authorised to process, on behalf of the Customer, the necessary personal data for providing the Services as described in the hereabove Terms of Service.
The nature of operations carried out on the data is:
- the collection, the recording, the organization, the structuring, the storage, the retrieval, the consultation, the use, the alignment, the combination, the erasure and destruction.
The purposes of the processing are:
- to facilitate the Customer’s EMM Migration;
- to send notifications to End-Users in connection with the Customer’s EMM Migration.
- to identify the End-User’s mobile device in order to proceed on the un-enrollment from the Source EMM and the re-enrollment on the Target EMM;
- to track and monitor the Customer’s EMM Migration by getting status update on the progression of End-User’s migration.
The personal data processed are:
- End-User’s and Customer company name;
- End-User’s email*, Group Name*, Device Serial Number*, Device Model, Device Enrollment Type*;
- End-User’s device status (i.e. "User not informed", “User informed", "Un-enrolling", "Un-enrolled", "Re-enrolling", "Re-enrolled".);
- Customer’s Source EMM credentials* (email, password, API KEY) Host source URL*;
- Customer’s Target EMM credentials* (email, password, API KEY), Target source URL*.
The categories of data subjects are:
- Customer’s End-Users
- Customer’s Administrator
To perform the Service covered herein, the Customer shall provide Mobinergy with the hereabove following marked with an asterisk.
3. DURATION OF THE CONTRACT
This contract enters into force on the Effective Date for the duration of the Terms of Service.
4. MOBINERGY’S OBLIGATIONS WITH RESPECT TO THE CUSTOMER
4.1. Respect the purposes of the processing
Mobinergy shall undertake to process the data solely for the purposes subject to the sub-contracting.
4.2. Respect the Customer’s documented instructions
Mobinergy shall undertake to process the data in accordance with the documented instructions from the Customer appended hereto. Where Mobinergy considers that an instruction infringes the GDPR or any other legal provision of the Union or of Member States bearing on data protection, it shall immediately inform the Customer thereof.
Moreover, where Mobinergy is obliged to transfer personal data to a third country or an international organization, under Union law or Member State law to which the Customer is subject, Mobinergy shall inform the Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
Mobinergy shall undertake to guarantee the confidentiality of personal data processed hereunder.
4.4. Authorized persons
Mobinergy shall undertake to ensure that the persons authorized to process the personal data hereunder:
a. Have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
b. Receive the appropriate personal data protection training.
4.5. Privacy by design / by default
Mobinergy shall undertake to take into consideration in terms of tools, products, applications or services, the principles of data protection by design and by default.
Mobinergy may engage another processor (hereinafter "the sub-processor") to conduct specific processing activities. In this case, Mobinergy shall inform the Customer, in writing beforehand, of any intended changes concerning the addition or replacement of other processors. This information must clearly indicate which processing activities are being subcontracted out, the name and contact details of the sub-processor and the dates of the subcontract. The Customer has a minimum timeframe of 7 (seven) days from the date on which it receives said information to object thereto. Such sub-contracting is only possible where the Customer has not objected thereto within the agreed timeframe.
The sub-processor is obliged to comply with the obligations hereunder on behalf of and on instructions from the Customer. It is the Mobinergy’s responsibility to ensure that the sub-processor provides the same sufficient guarantees to implement appropriate technical and organisational measures in such a manner that processing meets the equirements of the General Data Protection Regulation. Where the sub-processor fails to fulfil its data protection obligations, Mobinergy remains fully liable with regard to the Customer for the subprocessor's performance of its obligations.
Mobinergy’s current sub-processor are listed below:
Google Inc. (Google Cloud)
to Host our Data
Mailgun Technologies, Inc.
To send email
4.7. Data subjects’ rights to information
It is the Customer’s responsibility to inform the data subjects concerned by the processing operations at the time data are being collected.
4.8. Exercise of data subjects’ right
Mobinergy shall assist the Customer, insofar as this is possible, for the fulfilment of its obligation to respond to requests for exercising the data subject's rights: right of access, to rectification, erasure and to object, right to restriction of processing, right to data portability, right not to be subject to an automated individual decision (including profiling).
Where the data subjects submit requests to Mobinergy to exercise their rights, the processor must forward these requests as soon as they are received by email to the Customer.
4.9. Notification of personal data breaches
Mobinergy shall notify the Customer of any personal data breach not later than 24 (twenty-four) hours after having become aware of it and via the following means: email. Said notification shall be sent along with any necessary documentation to enable the controller, where necessary, to notify this breach to the competent supervisory authority.
4.10. Assistance lent by Mobinergy to the Customer regarding compliance with its obligations
Mobinergy assists the Customer in carrying out data protection impact assessments.
Mobinergy assists the Customer with regard to prior consultation of the supervisory authority.
4.11. Security measures
The processor undertakes to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the GDPR.
4.12. Fate of data
At the end of the service bearing on the processing of such data, Mobinergy undertakes to destroy all personal data.
Once an EMM Migration is deemed completed, the customer can delete this same EMM Migration directly on the Exodus Dashboard, it will delete all related data. Once the Customer has completed all it’s intended EMM Migrations, consumed his allocated Tokens, and at the request of the Customer, Mobinergy undertakes to destroy all personal data.
4.13. Records of categories of processing activities
Mobinergy states that it maintains a written record of all categories of processing activities carried out on behalf of the controller, containing:
- the name and contact details of the controller on behalf of which the processor is acting,
- any other processors and, where applicable, the data protection officer;
- the categories of processing carried out on behalf of the controller;
- where applicable, transfers of personal data to a third country or an international organisation, including the identification of that third country or international organisation and, in the case of transfers referred to in the second subparagraph of Article 49(1) of the GDPR, the documentation of suitable safeguards;
- where possible, a general description of the technical and organisational security measures, including inter alia:
o the pseudonymisation and encryption of personal data;
o the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
o the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident;
o a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
Mobinergy provides the Customer with the necessary documentation for demonstrating compliance with all of its obligations and for allowing the Customer or any of other auditor authorized to conduct audits, including inspections, and for contribution to such audits.
5. Customer’s obligations with respect to Mobinergy
The Customer undertakes to:
- provide Mobinergy with the data mentioned in section 2 of the Data Processor Agreement;
- document, in writing, any instruction bearing on the processing of data by Mobinergy;
- ensure, before and throughout the processing, compliance with the obligations set out in the GDPR on the processor’s part;
- supervise the processing, including, by conducting audits and inspections with Mobinergy.