These Terms and Conditions are incorporated by reference into a Motility Order Form executed by Motility and Client (as identified in the Order Form). These Terms and Conditions govern all purchases, licenses, access to and use of the Motility Software, Products and Services identified in the Order Form, Motility and Client are collectively referred to as the “Parties” and individually as a “Party” in these Terms and Conditions.
1. Order Form. By executing the Order Form or by accessing or using the Software, Products and Services identified in the Order Form or otherwise provided or made available to Client by Motility, Client and Motility agree to be bound by these Terms and Conditions as well as any Exhibit or Schedules referenced or attached to the Order Form or these Terms. Client by executing this Order Form is also agreeing to the applicable Third Party Terms and Conditions (as defined in Section 4.24) which may be required by a Third Party for Client’s use of or access to a particular Third Party Product or service. The Order Form shall at a minimum contain the Client’s name and contact information, a description of the Software, Services, Motility Software or Products, and Third Party Products and any other materials being licensed or purchased by Client, and the associated Fees. No terms and conditions from any Client purchase order, invoice or other form shall be considered part of the Agreement. This Order form shall control the purchase and license.
2. Delivery of Software, Products, and Services. All Software shall be delivered electronically and shall be deemed delivered when made available to Client for download or when Client accesses the Software hosted or Services provided by Motility.
3. Pricing, Fees, and Payment. All Software shall be delivered electronically and shall be deemed delivered when made available to Client for download or when Client accesses the Software hosted or Services provided by Motility.
3.1. Client shall pay Motility all Fees for Software, Services and any other materials in the amount and frequency as described in the respective Order Form. Motility shall invoice Client at the beginning of the month the amounts due for the ordered Software, Products and Services. Client will pay all amounts due under this Agreement in U.S. Dollars. Unless expressly stated otherwise on the Order Form, Fees shall be due and payable within thirty (30) days from the date of each invoice. Client shall pay Motility a late fee of one and a half percent (1.5%) per month on all past due amounts. Payment shall be made at the address or bank account set forth on the invoice provided to Client.
3.2. In the event that the access to Services purchased or Software licensed on the applicable Order Form are subscribed to on a month-to-month basis (“Subscription Fee”), and the Subscription Fee for such Services is under One Thousand and Five Hundred dollars ($1,500.00) per month, Client agrees to authorize Motility to debit Client’s bank account for the amount of the Subscription Fee, on a monthly basis, by filling out and executing the attached Appendix A. References to “Fees” shall include both Subscription Fees and other Fees identified in the Agreement.
3.3. Local, state or federal sales, use, value-added, excise or personal property or other similar taxes or duties and any such taxes (“Taxes”) for purchase and licensed of Software, Products and Services shall be in addition to the Fees identified and payable under this Agreement. Client shall be responsible for and pay all such Taxes except those taxes based on the net income of Motility.
3.4. Motility shall have the right to revise the Fees for Software and/or Services at any time. Motility shall have the right to increase fees on an annual basis on the anniversary of the Service Term or any Renewal Term of this Agreement. For purposes of clarity, the foregoing limitation shall not limit Motility’s ability to charge for additional Fees incurred by additional licensed or purchased Software, Services, including Support and Maintenance, Updates, Upgrades, Resale Third Party Products, or any additional requests by Client.
4. Definitions.
4.1. “Authorized Users” means Client, employees, staff, or contract employees of Client that are authorized to use and access the Software, Services or Products only for Client’s internal business purposes pursuant to this Agreement. An Authorized User shall be identified by an account created on the system with a distinct username and password.
4.2. “Client Data” means Data collected by Client in connection with the use of the Software, Service or Products.
4.3. “Client Requirement(s)” means certain documents that describe a process, capability or characteristic required by the Client for the fulfillment of a business purpose, including but not limited to business requirements documents and Functional Specifications.
4.4. “Configuration” means those activities that are undertaken to meet the Client Requirements or Functional Specifications and do not involve changes to Standard Software Source Code, database or other source files, which affect the build process.
4.5. “Customization” means those activities that are undertaken to meet the Client Requirements or Functional Specifications and involve changes to Standard Software Source Code, database or other source files, which affect the build process.
4.6. “Customized Software” means the Customizations to the Standard Software in object code form only, and any Updates to such Customizations delivered by Motility to Client.
4.7. “Defect” means a failure of the Software to substantially conform to the Specifications set forth in the Documentation.
4.8. "Derivative Work" as defined under the U.S. Copyright Act, 17 U.S.C. 101, et seq., and U.S. Federal law, means a work that is based on one or more preexisting works and that, if prepared without authorization of the copyright owner of such preexisting work, would constitute copyright infringement under U.S. law.
4.9. “Documentation” means any written, electronic, or recorded work provided to Client in connection with the Software, Services or Product that describes the functions and features of the Software or Products, including the published specification of the Software or Product.
4.10. “Embedded Third Party Product” means those Third Party Products for which Motility has a license to (i) embed within the Software, or (ii) use in connection with Software or Services provided by Motility. For purposes of clarity, Embedded Third Party Products shall be supported by Motility as part of the Software and/or Customization. Also, for purposes of clarity, use of Embedded Third Party Products by Client may also be subject to Third Party Terms and Conditions if required by the Third Party provider in addition to the terms and conditions of this Agreement. Motility shall have no responsibility or liability to Client or such Third Parties for any actions, omissions, breaches or negligence of Client as it relates to use of such Embedded Third Party Products and such Third Party Terms and Conditions, including without limit, any claims, damages, costs, liabilities, expenses or fees (including attorney fees).
4.11. “Fees” shall mean fees for Software, Services, Products or any other fees under this Agreement, set forth in the Order Form.
4.12. “Hosted Software” means software licensed or for which access is provided by Motility by Motility hosting the software on behalf of Client or providing access as SAAS delivery.
4.13. “Intellectual Property Rights” means copyright rights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the laws of the United States, or any other state, country or jurisdiction.
4.14. “Non-Hosted Software” means Software or Products which Motility licenses and provides for Client to run on Client’s servers and network.
4.15. “Order Form” means a valid quote that provides pricing for the Software, Products and Services that Client may affirmatively acknowledge and execute to license or purchase Software, Products and Services.
4.16. “Products” means those products licensed, sold or to which Motility provides access to Client including Resale Third Party Products, Embedded Third Party Products, Form Contract Products and Motility products and Software.
4.17. “Resale Third Party Products” means those Third Party Products for which Motility has the necessary rights to resell the Third Party Product either via a reseller agreement or similar contractual instrument. For purposes of clarity, a Third Party Vendor providing the Third Party Product shall be responsible for providing support, maintenance and all warranties and reports for such Third Party Products, except for Form Contract Products, for which Motility will provide first level support to Client. For sake of clarity, use of such Resale Third Party Products by Client may also be subject to Third Party Terms and Conditions (if required by the third party) in addition to the terms and conditions of this Agreement. Motility shall have no responsibility or liability to Client or such Third Parties for any actions, omissions, breaches or negligence of Client as it relates to use of such products and such Third Party Terms and Conditions, including without limit, any claims, damages, costs, liabilities, expenses or fees (including attorney fees).
4.18. “SaaS” means the Software and/or Client Data for which Client is provided access in a Software as a Services or similar manner which such SaaS software are hosted by Motility and accessed by Authorized Users via a supported Internet browser as set forth in the Documentation.
4.19. “Services” means Maintenance and Support services, configuration, technical services and any other services provided under this Agreement and/or a corresponding Order Form.
4.20. “Software” means the Standard Software, the Customized Software, Updates or Upgrades thereto, provided by Motility for license or access in any mode.
4.21. “Specifications” means the Software, hardware, interfaces, system specifications and coding provided by Motility for Standard Software or for specific Client Requirements identified in an Order. and any functional specifications of the Software as set forth in the Documentation.
4.22. “Standard Software” means Motility’s proprietary computer software programs described on the respective Order Form in object code form only, and any Updates or Upgrades thereto delivered by Motility to Client in object code form.
4.23. “Third Party Product” means a product, software, or service provided by a Third Party Vendor, including Resale Third Party Products, Embedded Third Party Products and Form Contract Products.
4.24. “Third Party Terms and Conditions” means the terms and conditions required by Third Party that govern Client’s use of Third Party Product(s), Embedded Third Party Product(s), Resale Third Party Product(s) or services provided by a Third Party and which Client agrees to be bound by for use or access to such product or service by (i) Client’s use of the product or service, (ii) Client’s agreement to these Terms and Conditions or (iii) Client’s agreement to such terms in a separate agreement with the Third Party if required.
4.25. “Updates” means any addition or change to the Software or Documentation that corrects Defects in the Software or Documentation, supports new releases of the operating systems with which the Software is designed to operate, supports new input/output devices, or provides other updates or corrections to the Software.
4.26. “Upgrade” means a subsequent major release of the Motility Software that Motility makes generally available to its supported customers. Upgrades shall not include any release, option, feature, functionality or future program that Motility licenses separately to its general customer base for an upgrade Fee.
5. Ownership.
5.1. Client Data. Client shall own all rights, title, and interest in and to any Client Data. Client grants and agrees to grant to Motility a limited, royalty-free, fully-paid up, non-exclusive license to use, process and transmit such Client Data: (i) to provide the Software, Products and Services to Client; (ii) for Motility usage provided that such Client Data is not personally identifiable; and (iii) as necessary to monitor and improve the Software, Products and Services (including the development of new features and functionality). Unless expressly stated otherwise in an Order Form or where Client has elected the Hosted or SaaS model in an Order Form, Client shall be solely responsible for the security of any and all Client Data housed in the Software. Client shall be solely responsible for any and all Client Data backup procedures and of the actual Client Data that has been stored in backup or on Client hosting of non-hosted Software. Client shall be responsible for Client Data in possession of Client and Authorized Users and all security or breaches for Client Data while in Client’s possession, for Client hosted non-hosted Software and others caused by acts or omissions of Client or Client’s End Users.
5.2. Motility Intellectual Property. Motility shall own and retain exclusive ownership of all right, title and interest in and to the Documentation and Software (including without limit templates, object code, source code, middleware, APIs, interfaces, connectors, software layers, shims, workflows, engines, flow charts, documentation), modifications, improvements, Updates, and Upgrade and all related Intellectual Property Rights and Derivative Works thereof (collectively, the "Motility Intellectual Property").
5.3. Limited Software License. Upon payment in full and for such duration of payments of the amounts due hereunder for the Software, Client shall have a limited, non-transferable, non-exclusive license to use or access the Software and Services for its internal business purposes, 24/7 with the exception of scheduled maintenance during the Term of the Agreement.
5.4. Confidentiality. Each Party acknowledges that the other party may disclose its Confidential Information to the other in the performance of this Agreement. Accordingly, each Party shall: (i) keep the Confidential Information disclosed by the other Party confidential; (ii) use Confidential Information only for purposes of fulfilling its obligations hereunder; and (iii) disclose such Confidential Information only to the receiving Party’s employees who have a need to know and only for the purposes of fulfilling this Agreement. As used herein, “Confidential Information” means information in the possession or under the control of a Party of a proprietary nature relating to the technical, marketing, product and/or business affairs or proprietary and trade secret information of that Party in oral, graphic, written, electronic or machine readable form and includes all Motility Software code, algorithms and Motility trade secrets used or embedded in the Software and provided in or with the Services. Equitable Relief. The Parties agree that a material breach of the license or confidentiality provisions of this Agreement would cause irreparable injury to Motility for which monetary damages would not be an adequate remedy, and therefore Motility shall be entitled to equitable relief in addition to any other remedies it may have hereunder or at law.
Form Contract Products. In accessing or using forms, contracts or products provided by Third Party providers with or through Motility Software or products (“Form Contract Products”) in any transaction, Client agrees to adhere to the following terms and conditions: (i) Client shall have no rights to, and shall not, modify, alter or create derivative works of the Form Contract Products at any time, including before or after the Form Contract Products are populated for a transaction; (ii) The Form Contract Products are provided in the correct font, size, and color based on the specified state’s requirements and must be used by Client without alteration or modification; (iii) Client must use a laser printer for all printing of the Form Contract Products which can print to the approved or required specifications; (iv) The Form Contract Products are protected by copyright and trademark of the Third Party providers; (v) Client may only use the current versions of the Form Contract Product forms, as provided by Motility, in its transactions; (vi) Client is responsible for the legal sufficiency of the Form Contract Products and how they are used and printed; (vii) Client acknowledges that the Form Contract Products are delivered “AS-IS” and “WHERE-IS” and without warranties associated with the use of the Form Contract Products; and (viii) Client agrees to hold the Third Party provider of the Form Contract and Products Company harmless from any losses, damages, liabilities, costs, claims and expenses (including without limitation, reasonable attorney fees) arising from Client’s use of the Form Contract Products, except to the extent any of the foregoing arise from or relate to any action brought against Client to the extent such action is based on a claim that the Form Contract Products or trademarks infringe on any patent, trademark, copyright, trade secret or other proprietary right belonging to a different Third Party.
6. Indemnity. Client shall indemnify, defend and hold harmless Motility, its agents, employees, directors, affiliates, parents and subsidiaries, from and against any and all third party claims, damages, liabilities, costs and expenses, including reasonable attorney fees and court costs, incurred by Motility, arising out of or related to: (i) Client’s gross negligence or willful acts; (ii) Client’s breach of confidentiality obligations, the license or terms of this Agreement or Motility’s Intellectual Property rights; (iii) the infringement or misappropriation of Intellectual Property Rights or other violation of any other rights of any third party arising from Client’s actions, including without limitation, Client’s use of the Software or Services in any altered form or manner beyond or in breach of the License and any breach of, negligence or intentional acts in violation of any Third Party Terms and Conditions.
7. Disclaimer of Warranties. MOTILITY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), WITH RESPECT TO THE SOFTWARE, PRODUCTS OR SERVICES. MOTILITY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THIS SUBSECTION SHALL BE ENFORCEABLE TO THE EXTENT ALLOWED BY APPLICABLE LAW.
8. Exclusive Remedy. IF CLIENT FINDS WHAT IT BELIEVES TO BE DEFECTS IN THE MEDIUM CONTAINING A COPY OF THE SOFTWARE AND NOTIFIES MOTILITY OF SUCH ERRORS OR DEFECT IN WRITING, MOTILITY WILL USE REASONABLE EFFORTS TO CORRECT PROMPTLY ANY SUCH DEFECTS OR TO PROVIDE A SUBSTITUTE COPY OF THE SOFTWARE. THIS AND ANY OTHER EXPRESS REMEDIES IN THIS AGREEMENT ARE SOLE AND EXCLUSIVE REMEDY FOR ANY EXPRESS OR IMPLIED WARRANTIES HEREUNDER.
9. Limitation of Liability. IN NO EVENT SHALL MOTILITY BE LIABLE TO CLIENT FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE, ACCESS, AVAILABILITY OR PERFORMANCE OF THE SOFTWARE, PRODUCTS OR SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. MOTILITY’S LIABILITY TO CLIENT FOR DIRECT DAMAGES, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AGGREGATE AMOUNT PAID TO MOTILITY BY CLIENT DURING THE PRIOR TWELVE MONTHS UNDER THE AGREEMENT.
10. Term and Termination.
10.1. Term. This Agreement will begin on the Order Date and will remain in effect for the Service Term set forth in the Order Form. Purchases of any Add-on services, including but not limited to any Resale Third Party Products, will remain in effect for the same Service Term length as the Software Package. Unless earlier terminated as specified in this Agreement, upon expiration of the Service Term, this agreement shall automatically renew for consecutive renewal terms (each, a “Renewal Term”) equal to 12 months, unless sixty (60) days written notice of its intent not to renew is provided to the other Party prior to the expiration of the Service Term or any Renewal Term.
10.2. Termination For convenience. Motility shall have the right to terminate this Agreement for convenience at any time, by providing Client sixty (60) days written notice.
10.3. Termination or Suspension for Cause. Motility shall have the right to terminate this Agreement, or suspend and any and all Software licenses or access, Order Forms or other ancillary documents incorporated hereunder, in Motility’s discretion, if: (i) Client or any Authorized user breaches any material term or obligations of this Agreement, including without limit, the license rights, Motility’s Intellectual Property rights, confidentiality obligation, and Client fails to cure such breach within thirty (30) days after written notice thereof; (ii) Client fails to timely pay any and all amounts due under any Order or this Agreement; or (iii) if a Client becomes insolvent or proceedings are initiated by or against the Party under any law relating to bankruptcy, insolvency or the relief of debtors.
10.4. Effect of Termination and Effect of Suspension. Upon any termination or expiration, all access and Software licenses and corresponding Services, maintenance and support shall terminate immediately. Upon termination, under the Non-Hosted Model, Client will promptly return the Software and Services to Motility or destroy the Software and Services and all copies and portions thereof, in all forms and types of media, and, at Motility’s request, provide Motility with an officer's written certification, certifying to Client's compliance with the foregoing. Each Party shall either return or destroy all copies of all Confidential Information belonging to the other Party. Upon termination, under the Hosted and SaaS Model, Motility will provide Client with a copy of all Client Data in Motility’s possession. Motility shall not be obligated to make the Client Data available after the termination date, unless the Parties agree to such services in writing. Upon any suspension to access or Software licenses, Services, support or maintenance Upon termination, under the Non Hosted Model, Client will promptly return the Software and Services to Motility or destroy the Software and Services and all copies and portions thereof, in all forms and types of media, and, at Motility’s request, provide Motility with an officer's written certification, certifying to Client's compliance with the foregoing. Each Party shall either return or destroy all copies of all Confidential Information belonging to the other Party. Upon termination, under the Hosted and SaaS Model, Motility will provide Client with a copy of all Client Data in Motility’s possession. Motility shall not be obligated to make the Client Data available after the termination date, unless the Parties agree to such services in writing.
11. Maintenance and Support. Motility shall provide standard maintenance and support services as described in the Support and Maintenance Services Level Terms located at www.motilitysoftware.com/terms-conditions/supportsla for the Fee set forth in an Order Form.
12. Availability. Motility guarantees availability of 99.0% or greater as fully described in the Hosted/SaaS Software Service Level Terms located at www.motilitysoftware.com/terms-conditions/sla. Motility continually monitors the status of the Services.
13. Notices. All notices required or provided for in this Agreement, shall be in writing and shall be addressed to Client or Motility as the case may be, at its address set forth on the Order Form or such other address as either such Party may from time to time designate in writing to the other Party. Such notice shall be deemed delivered and effective: (i) upon receipt, if delivered by hand or overnight courier; or (ii) seven (7) days after deposit with the U.S. Postal Service, if sent certified mail, return receipt requested with postage prepaid. No other means of delivery of notices shall be permitted.
14. General Terms.
14.1. Force Majeure. Motility shall not be liable for any delay or failure to perform its obligations due to circumstances beyond Motility’s control, such circumstances to include without limitation natural disasters, terrorism, labor disputes, war, declaration of governments, transportation delays, computer and/or network failures, acts of civil or military authorities, interruptions in third-party telecommunications or internet equipment or service, or misuse of Software by Client.
14.2. Entire Agreement; Relationship of Parties, Governing Law and Jurisdiction. This Agreement, including any and all Exhibits or Addendums attached hereto and any Order Forms, is the entire agreement of the Parties and supersedes any prior representations, agreements, negotiations, or understandings between them, whether written or oral, with respect to the subject matter hereof. The Parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the Parties. Neither Party will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent. No waiver, alteration, or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by duly authorized representatives of the Parties hereto. This Agreement will be governed by and construed in accordance with the laws of the State of Florida. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts in Florida and the Parties hereby consent to personal jurisdiction and venue therein. The invalidity or unenforceability of any provision of this Agreement, or any terms thereof, shall not affect the validity of this Agreement as a whole, which will at all times remain in full force and effect. The failure of either Party to enforce at any time the provisions of this Agreement, or the failure to require at any time performance by the other Party of any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of either Party to enforce each and every such provision thereafter. The express waiver by either Party of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
14.3. Assignment. Motility may assign this agreement in the event of a corporate reorganization, merger, change of control or sale of substantially all of its assets. In no other event shall a Party assign this Agreement without the other Party’s written consent. This Agreement shall be binding on all permitted assignees.