These Terms and Conditions are incorporated by reference into a Motility Order Form executed by Motility Software Solutions, Inc. (“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, Addendum or Schedules referenced or attached to the Order Form or these Terms (collectively, “Agreement”). Client Bby executing this Order Form, Client 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.
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 two percent (2.0%) per month or the maximum non-usurious rate permitted by law 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. 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.
3.3. Motility shall have the right to revise or increase Fees at any time without further notice to Client. Such increase will be by an amount based on the percentage rate of price increases for all goods and services as determined by the Bureau of Labor Statistics of the U.S. Department of Labor (Consumer Price Index) plus two percent or to Motility’s then-prevailing price. The foregoing limitation does not apply to third party fees, costs and related price increases which may be passed along to Client under this Agreement, nor Fees for Software, Services, and Products which Motility no longer offers for sale.
3.4. 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. Form Contract Products which may be considered Embedded Third-Party Products are also subject to the terms of Section 5.5 and any conflict between this Section 4.10 and Section 5.5 shall be governed by Section 5.5. Excluding Form Contract Products which are subject to Section 5.5, 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’s 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. Form Contract Products are also subject to the terms of Section 5.5 and any conflict between this Section 4.17 and Section 5.5 shall be governed by Section 5.5. Excluding Form Contract Products which are subject to Section 5.5, 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’s 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, reproduce, modify, create derivative works based upon, display, distribute, process and transmit such Client Data during the term of this Agreement: (i) to provide the Software, Products and Services to Client; (ii) for Motility usage provided that such Client Data is not personally identifiable; (iii) as necessary to monitor and improve the Software, Products and Services (including the development of new features and functionality); or (iv) as reasonably necessary to perform Motility’s obligations under this Agreement. Further, Client warrants to Motility that Client has the right to use and grant Motility the right to use all Client Data and information provided to or accessed by Motility in connection with the Services, that Client approves and grants to Motility the nonexclusive, non-terminable, royalty-free license to use and distribute Client Data in connection with other products and services offered by Motility and its affiliates, and that Client has complied with all applicable laws in collecting the Client Data. 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. Client Data will not be shared with any third party unless Client has ordered a particular Product or Service that would require disclosure to such third party, or unless Client has previously given written consent to share such Client Data. Motility will not permit access to or sell any Client Data to a third party without first obtaining Client’s express written permission. By agreeing to the Agreement, Client is providing express written consent to Motility to use, reproduce, modify, create derivative works based upon, display, transmit and distribute Client Data. This consent applies solely to Products and Services Client receives pursuant to an Order Form, or as otherwise agreed to and provided by Motility. Client may revoke this consent at any time. Any such revocation shall be deemed effective ten (10) business days following Motility’s receipt of Client’s written revocation. Revocation of consent will not change Client’s contractual obligations under this Agreement. This signed revocation notice may be emailed to:
motilityconnectsetup@motilitysoftware.com.
5.2. Motility Intellectual Property. Motility shall own and retain exclusive ownership of all right, title and interest in and to the Documentation, Services, Products, and Software (including without limit templates, object code, source code, middleware, APIs, interfaces, connectors, software layers, shims, work flows, engines, flow charts, documentation), modifications, improvements, Updates, and Upgrade, any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Client or any other party relating to the Documentation, Services, Products, and Software, and all related Intellectual Property Rights and Derivative Works thereof (collectively, the “Motility Intellectual Property”). This Agreement is not a sale and does not convey to Client any rights of ownership in or related to the Documentation, Services, Products, or Software. The Motility name, the Motility logo, and the product names associated with the Software, Products, and Services are trademarks of Motility or third parties, and no right or license is granted to their use. Client shall comply with and leave intact any proprietary, trademark, copyright or patent notice included on any of the Documentation, Services, Products, or Software. Any copyright notice in connection with the Documentation, Services, Products, or Software shall not cause, or be construed as causing, the Documentation, Services, Products, or Software materials to be published copyrighted works in the public domain. Client expressly acknowledges that the Documentation, Services, Products, or Software constitute valuable proprietary property, include confidential information and constitute trade secrets that embody substantial creative efforts and that are valuable to Motility. Client agrees to keep confidential all proprietary information and trade secrets provided by Motility to Client under this Agreement. Client further agrees and stipulates that any demonstration of all or any part of the Documentation, Services, Products, or Software before, during or after the consummation of this Agreement does not constitute any waiver or relinquishment of Motility’s rights in its proprietary property, confidential information or trade secrets.
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 lawful internal business purposes only, 24/7 with the exception of maintenance during the Term of the Agreement. Client shall not reverse engineer, decompile, reproduce, publish, license, sublicense, transfer, or divulge the Documentation, Services, Products, or Software or otherwise make available the Documentation, Services, Products, or Software or its embodiment to others beyond the express conditions of this Agreement. Client shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Documentation, Services, Products, or Software in any way; (ii) modify or make derivative works based upon the Documentation, Services, Products, or Software; or (iii) create Internet “links” to the Documentation or Software or “frame” or “mirror” any content on any other server or wireless or Internet-based device. All Documentation, Services, Products, or Software are provided to Client “AS IS” and Motility shall not be responsible to perform corrections or modifications except as expressly provided under this Agreement. All rights not expressly granted to Client are reserved by Motility and its licensors. Client shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or that violate third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Services, Products, or Software or the data contained therein; or (v) attempt to gain unauthorized access to the Services, Products, or Software or its related systems or networks.
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.
5.5. 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 with no warranty as to the legal sufficiency of the Products, and with the express disclaimer of all implied warranties, including, but not limited to implied warranties of merchantability, noninfringement or fitness for a particular purpose 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 attorneys 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. FTC Safeguards Rule. The Federal Trade Commission (FTC) Standards for Safeguarding Customer Information (16 CFR Part 314) (the “Safeguards Rule”) applies to parties considered to be financial institutions within the FTC’s jurisdiction under the Gramm-Leach-Bliley (GLB) Act. The Safeguards Rule requires those parties to secure records and information from and about customers. This Section applies to the extent Client is subject to the Safeguards Rule, Client shares with Motility its “Customer Information” (as defined in the Safeguards Rule), and in circumstances in which Motility is a “Service-Provider” (as defined in the Safeguards Rule) with regard to such information.
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Motility will implement and maintain safeguards appropriate to protect the security, confidentiality, and integrity of Client’s Customer Information.
Client will develop, implement and maintain a comprehensive information security program sufficient to ensure the security, integrity, and confidentiality of Customer Information of the type shared with or disclosed to Motility. It is also Client’s responsibility to: (i) disclose to Motility any relevant risks you identify regarding Client’s Customer Information; and (ii) identify the employee(s) who coordinate Client’s Information Security Program.
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Client is solely responsible for its compliance obligations under the Safeguards Rule. Motility’s provision of Software, Products and Services to Client does not constitute, nor shall it be deemed to constitute, a guarantee that Client’s business is in compliance with any statute or regulation. Motility’s review or approval of any of Client’s systems, applications, processes, or procedures does not constitute, nor shall it be deemed to constitute, the assumption by Motility of any responsibility or liability for compliance by Client with any statute or regulation.
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Client agrees that Client and third parties acting on Client’s behalf have no right or authority to access or audit Motility’s systems, applications, processes, procedures, or practices, except to the extent specifically authorized by Motility.
If Client believes Motility’s efforts to safeguard Customer Information affect Client in a materially adverse manner and Client promptly notifies Motility in writing, stating the basis of Client’s belief, Motility will work with Client in good faith to resolve Client’s complaint. If after sixty (60) days Client and Motility are unable to resolve Client’s complaint, then, at Motility’s option, Motility will either permit Client to discontinue the affected Software, Product, or Service without liability or Client will submit to binding arbitration as described in the Agreement. Client shall pay all amounts incurred and remain otherwise fully obligated for any Software, Product, or Service up through the effective date of such discontinuance or arbitration decision. THIS IS CLIENT’S ONLY REMEDY AND MOTILITY’S ONLY OBLIGATION UNDER THIS SECTION.
7. 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.
8. 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 MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE PRODUCTS, LICENSED SOFTWARE, SERVICES OR ANY CONTENT. MOTILITY DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE PRODUCTS, LICENSED SOFTWARE OR SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED, FREE FROM ERRORS OR BUGS, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE PRODUCTS, LICENSED SOFTWARE AND SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA OR CONTENT WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIALS PURCHASED OR OBTAINED BY CLIENT THROUGH THE SERVICES WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE PRODUCTS, LICENSED SOFTWARE AND SERVICES OR THE SERVER(S) THAT MAKE THE LICENSED SOFTWARE AND SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE PRODUCTS, LICENSED SOFTWARE, SERVICES AND ALL CONTENT ARE PROVIDED TO CLIENT STRICTLY ON AN “AS IS” BASIS. 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.
9. 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.
10. Limitation of Liability. MOTILITY’S LICENSED SOFTWARE, PRODUCTS, SERVICES AND PERFORMANCE HEREUNDER MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. MOTILITY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. IN NO EVENT SHALL MOTILITY BE LIABLE TO CLIENT FOR ANY SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS, REVENUE 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.
11. Term and Termination.
11.1. Term. This Agreement will begin on the first day of the month following the month that the Software, Products and/or Services under the Order Form are installed or made available for use by Motility 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 the Service Term, 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.
11.2. Termination For Convenience. Motility shall have the right to terminate this Agreement for convenience at any time and without penalty, by providing Client sixty (60) days written notice.
11.3. Default. If Client defaults in any of the following ways: (i) by failing to pay any amount due hereunder in accordance with this Agreement; (ii) by ceasing or threatening to cease to carry on Client’s business; (iii) by making or proposing to make any sale of Client’s assets in bulk or out of the ordinary course of Client’s business; (iv) by becoming bankrupt or insolvent,; or (v) by otherwise breaching any of the terms of this Agreement, Motility may, in addition to any other legal remedies it may have: (a) suspend all support services; (b) declare all amounts due and to become due, immediately due and payable; (c) demand that Client immediately cease use of all Software and Services, and in the event Client does not voluntarily comply with such demand, Motility may take necessary measures to disable the Software and Services, including, but not limited to, terminating all passwords and user accounts; (e) terminate this Agreement; and (f) retain all or such portion of payments made by Client hereunder as necessary to compensate Motility for any damage, loss, liability, cost or expense caused by such default and receive any additional payments from Client as may be necessary to compensate Motility for such default. Motility reserves the right to impose a reconnection fee in the event Client’s access to the Software or Services is suspended and Client cures their default and thereafter requests access to the Software or Services. Client agrees to pay Motility’s costs and expenses of collection and enforcement of this Agreement, including all reasonable attorneys’ fees.
11.4. 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.
12. 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.
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 in accordance with the terms of this paragraph. Such notice shall be deemed delivered and effective upon receipt or refusal to receive, if delivered by hand, overnight courier, or certified mail, return receipt requested with postage prepaid. No other means of delivery of notices shall be permitted.
14. Dispute of Resolution. The Parties mutually agree that any and all claims, disputes, or controversies arising out of or relating to this Agreement will be submitted to mandatory arbitration in accordance with the commercial rules of the American Arbitration Association (“AAA”). All arbitrators shall be attorneys and shall swear an oath of neutrality. After the arbitration proceeding has been completed, Motility or Client may seek enforcement of the award in accordance with the Federal Arbitration Act. Aside from filing or other fees required to initiate the arbitration, all fees of arbitration will be split evenly between Motility and Client unless an award is made by the arbitrators as otherwise allowed by this Agreement. If a Party does not pay its respective share of arbitration fees, then all claims (including counterclaims) of the non-paying Party shall be dismissed by the arbitrators or AAA, and the non-paying Party shall not be allowed to bring any further claims in the arbitration for affirmative relief. The non-paying Party may still participate in the arbitration to defend claims brought against it. No dispute of any Party to this Agreement may be resolved by class action or class arbitration. The Parties agree that any arbitration proceeding will take place in Orlando, Florida, unless otherwise agreed in writing by Motility and Client.
15. General Terms.
15.1. 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, pandemic, 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, misuse of Software by Client, or any other causes, contingencies, or circumstances not subject to Motility’s reasonable control.
15.2. 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. 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. If any of the provisions or portions of this Agreement are determined to be invalid or unenforceable, such invalid provisions or invalid portions shall be severed from this Agreement. 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. Any terms of this Agreement, which by their nature extend beyond its termination, cancellation or expiration, remain in effect until fulfilled and apply to respective successors and permitted assignees.
15.3. Assignment. Motility may assign any of its rights and responsibilities under this agreement in whole or in part without consent of, or notice to, Client. Client may not assign this Agreement or any rights appurtenant thereto without Motility’s prior written consent, and any attempt to do so shall be void and of no effect. This Agreement shall be binding on all permitted assignees.
15.4. Respect for Personnel. Client acknowledges and agrees that Motility’s personnel have been acquired and trained by Motility at considerable expense. Throughout the term and for a period of 1 year following the expiration or termination of this Agreement, Client shall not knowingly solicit for employment or employ any employee of Motility’s until the expiration of 1 year following such employee’s termination of employment with Motility. If Client fails to abide by the restrictions contained herein, then Client agrees to pay to Motility a placement fee of 150% of the former employee’s total gross earnings during the employee’s last 12 months of employment by Motility, which Client shall pay to Motility within 10 days of demand.