These Motility Software Solutions Terms and Conditions (the “Terms” or together with any applicable Exhibit(s), the “Agreement”) are incorporated by reference into any Exhibit executed by Motility Software Solutions, Inc. (“Motility”) and Customer (as identified in the Exhibit) which states that it is subject to these Terms. Customer may also be referred to herein as “You” or “Your.” These Terms will govern all access to and use of the Services as identified in the Exhibit. Motility and Customer are referred to herein individually as “Party” and collectively as “Parties.”
1. Definitions.
1.1. “Authorized Users” means Customer’s employees that are authorized to use and access the Services only for Customer’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.
1.2. “Customer Data” means data (1) collected or stored by Customer in connection with the use of the Services; or (2) provided by Customer to Motility.
1.3. “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.
1.4. “Documentation” means any written, electronic, or recorded manuals, technical information, or explanatory materials provided to Customer by Motility.
1.5. “Fees” shall mean fees, including any applicable taxes, for the Services, or any other fees payable my Customer to Motility under this Agreement, set forth in the Exhibit.
1.6. “First Billing Date” means the first day of the month following the month the Go Live Date falls in.
1.7. “Go Live Date” means the date that the Services are made available to Customer, as determined by Motility.
1.8. “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.
1.9. “Services” means all items and services purchased by Customer pursuant to an Exhibit, including Software, Third Party Products, and training.
1.10. “Software” means the software as a service product provided by Motility and accessed by Authorized Users via a supported Internet browser as set forth in the Documentation pursuant to any Exhibit hereto, including any updates or upgrades thereto.
1.11. “Third Party Product” means a product, software, or service provided by a third party, that is (i) embedded within the Software; or (ii) used in connection with the Services. For avoidance of doubt, “Third Party Product” includes Form Contract Products, as defined below.
1.12. “Third Party Terms and Conditions” means the terms and conditions required by a third party that govern Customer’s use of Third Party Product(s), or any other services provided to Customer by a third party and which Customer agrees to be bound by for use or access to such product or service by (i) Customer’s use of the product or service, (ii) Customer’s agreement to these Terms and Conditions, or (iii) Customer’s agreement to such terms in a separate agreement with the third party if required.
2. Delivery of Software. All Software shall be deemed delivered on the Go Live Date. All use of the Software shall be limited to the number of licenses listed in an applicable Exhibit.
3. Pricing, Fees and Payment.
3.1. Billing. Billing shall begin on the First Billing Date. Customer shall pay Motility the all Fees set forth in the applicable Exhibit in return for the Services. Unless expressly stated otherwise on the Exhibit, Fees shall be due and payable within thirty (30) days from the date of each invoice. Customer shall pay Motility a late fee of two percent (2.0%) per month or the maximum non-usurious rate permitted by law, whichever is lower, on all past due amounts. Payment shall be made at the address or bank account set forth on the invoice provided to Customer.
3.2. Taxes. Customer agrees to pay all taxes in connection with transactions under this Agreement that Motility is at any time obligated to pay or collect according to the laws of the state where Customer is domiciled. Such taxes may include, but are not limited to, state and local sales and use taxes, or other such taxes, including taxes which may be billed retroactively as a result of an audit imposed by any government entity on the provision, sale, or use of any product or service provided under this Agreement, but excluding any taxes based on the net income of Motility. If Motility is obligated by state law to pay or collect such taxes, then Customer shall either pay such taxes through Motility, or Customer shall provide to Motility written proof of direct payment of such taxes to the taxing authority.
3.3. Recurring Fees. Motility shall have the right to revise or increase Fees at any time without further notice to Customer. 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 (2%) 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 Customer under this Agreement, nor Fees for Services which Motility no longer offers for sale, each of which will not be included in the calculation above.
3.4. Additional Purchases. For purposes of clarity, the foregoing limitation shall not limit Motility’s ability to charge for additional Fees incurred as a result of Customer’s purchase of additional Services.
3.5. No Accord in Satisfaction. No statement on any check or any letter accompanying any payment will be deemed an accord and satisfaction, and Motility may accept such payment without prejudice to Motility’s right to recover the balance of amounts due under this Agreement or pursue any other remedy available in this Agreement, at law, or in equity.
4. Ownership.
4.1. Customer Data. Customer shall own all right, title, and interest in and to any Customer Data. Customer grants to Motility a royalty-free, fully-paid up, non-exclusive license to use, reproduce, modify, create derivative works based upon, display, distribute, share, process, and transmit such Customer Data during the Term: (i) to provide the Services to Customer; (ii) for any use, provided that such Customer Data is not personally identifiable; (iii) as necessary to monitor and improve the Services (including the development of new features and functionality); and (iv) as necessary for Motility to perform its obligations under this Agreement. Customer represents and warrants that Customer has the right to use, and the ability to grant Motility the right to use, all Customer Data and information provided to or accessed by Motility hereunder and that Customer has complied with all applicable laws in its collection of the Customer Data. For avoidance of doubt, Motility may share Customer Data with third parties to the extent necessary to provide the Service purchased by Customer hereunder. Customer further grants to Motility the nonexclusive, non-terminable, royalty-free license to use and distribute Customer Data in connection with other products and services offered by Motility and its affiliates. Customer shall be solely responsible for any and all Customer Data backup procedures. Customer shall be responsible for Customer Data in possession of Customer and Authorized Users and all security or breaches of Customer Data caused by acts or omissions of Customer or Customer’s Authorized Users.
4.2. Motility Intellectual Property. Motility (or its respective licensors, as the case may be) shall retain exclusive ownership of all right, title, and interest in and to the Documentation, Services (including without limitation templates, object code, source code, middleware, APIs, interfaces, connectors, software layers, shims, work flows, engines, flow charts, and documentation), Software, trademarks, modifications, improvements, updates, and upgrades, and any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or any other party relating to the Documentation, the Services, 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 Customer any rights of ownership in or related to the Motility Intellectual Property or any Third Party Product. The Motility name, the Motility logo, and the product names associated with the Services are trademarks of Motility or third parties, and no right or license is granted to their use. Customer shall comply with and leave intact any proprietary, trademark, copyright, or patent notice included on any of the Documentation or Services. Any copyright notice in connection with the Documentation or Services shall not cause, or be construed as causing, the Documentation or Services to be published copyrighted works in the public domain. Customer expressly acknowledges that the Documentation and Services constitute valuable proprietary property, Confidential Information, and trade secrets that embody substantial creative efforts of, and that are valuable to, Motility and/or its licensors. Customer agrees to keep confidential all proprietary information and trade secrets provided by Motility to Customer under this Agreement. Customer further agrees and stipulates that any demonstration of all or any part of the Documentation or Services before, during, or after the consummation of this Agreement does not constitute any waiver or relinquishment of Motility’s or its licensor’s rights in its proprietary property, Confidential Information, or trade secrets.
4.3. Limited Software License. During the Term and in exchange for the Fees, Motility grants to Customer a limited, non-transferable, non-exclusive, revokable license to use or access the Software for its lawful internal business purposes only. Customer shall not reverse engineer, decompile, reproduce, publish, license, sublicense, transfer, or divulge the Documentation or Services or otherwise make available the Documentation or Services or its embodiment to others. Customer shall not (a) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the Documentation or Services in any way; (b) modify or make derivative works based upon the Documentation or Services; or (c) create Internet “links” to the Documentation or Services or “frame” or “mirror” any content on any other server or wireless or Internet-based device. All Documentation and Services are provided to Customer “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 Customer are reserved by Motility and its licensors. Customer 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 violates 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 or the data contained therein; or (v) attempt to gain unauthorized access to the Services or its related systems or networks.
4.4. Confidentiality. Each Party acknowledges that the other Party may disclose its Confidential Information to the other in its 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 and exercising its rights hereunder; and (iii)provide the other Party’s Confidential Information only to those of its employees that need to know such information in order for said Party to fulfill its obligations or exercise its rights under this Agreement. . As used herein, “Confidential Information” means (a) 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, but is not limited to, all Software code, algorithms and Motility trade secrets used or embedded in the Software and provided in or with the Services; or (b) any information that a reasonable person would consider, from the nature of the information and circumstances of the disclosure, is confidential to the disclosing Party.
Confidential Information excludes, however, and neither Party shall have any obligation of confidentiality with respect to information that: (1) was publicly available at the time it was disclosed to the receiving Party, or which, through no act or omission of the receiving Party, becomes publicly available; (2) the receiving Party already rightfully possessed before the disclosing Party disclosed it to the receiving Party; (3) the receiving Party rightfully receives without obligation of confidentiality from a third party and who is entitled to disclose such information without breaching an obligation of confidentiality; or (4) receiving Party develops independently without using the other Party’s Confidential Information. Motility may disclose Confidential Information of Customer to the extent necessary to provide the Services purchased by Customer hereunder.
4.5. Equitable Relief. The Parties agree that a breach of the license or confidentiality provisions of this Agreement by Customer 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 without the necessity of posting bond in addition to any other remedies it may have hereunder or at law.
5. Third Party Products.
5.1 Support. The third party providing the Third-Party Products shall be responsible for providing all support, maintenance, warranties, and reports for such Third-Party Products.
5.2 Subject to Additional Terms. Third Party Products may be subject to Third Party Terms and Conditions if required by the provider of the Third Party Products, in addition to this Agreement. Customer acknowledges that it may need to consent to such Third Party Terms and Conditions in order to use certain Services purchased by Customer hereunder.
5.3 Disclaimer and Indemnification. CUSTOMER ACKNOWLEDGES THAT THE THIRD-PARTY PRODUCTS ARE DELIVERED “AS-IS” AND “WHERE-IS” WITH NO WARRANTY, 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. CUSTOMER AGREES TO HOLD MOTILITY HARMLESS FROM ANY LOSSES, DAMAGES, LIABILITIES, COSTS, CLAIMS AND EXPENSES (INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEYS FEES) ARISING FROM CUSTOMER’S USE OF THE THIRD-PARTY PRODUCTS.
6. Form Contract Products.
6.1 Restrictions on Use. The Parties acknowledge and agree that Customer may have access to certain forms or contracts provided by third parties and/or Motility within or through the Software (“Form Contract Products”). Customer shall not modify, alter, or create Derivative Works from the Form Contract Products at any time, including before or after the Form Contract Products are populated for a transaction. The Form Contract Products are protected by copyright and trademark of the third party that owns that Form Contract Product. Customer may only use the most current versions of the Form Contract Products.
6.2 Customer Responsibilities. Customer must use a laser printer for all printing of the Form Contract Products which can print to the approved or required specifications. Customer is responsible for the legal sufficiency of the Form Contract Products and how they are used and printed.
6.3 Disclaimer and Indemnification. CUSTOMER ACKNOWLEDGES THAT THE FORM CONTRACT PRODUCTS ARE DELIVERED “AS-IS” AND “WHERE-IS” WITH NO WARRANTY AS TO THE LEGAL SUFFICIENCY, 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. MOTILITY IS NOT ENGAGED IN RENDERING LEGAL ADVICE AND CUSTOMER SHOULD CONSULT ITS OWN ATTORNEY REGARDING THE SUFFICENCY OF THE SERVICES, DOCUMENTATION, AND FORM CONTRACT PRODUCTS FOR CUSTOMER’S PURPOSES. THE SERVICES, DOCUMENTATION, AND FORM CONTRACT PRODUCTS MOTILITY PROVIDES ARE NOT INTENDED AND SHOULD NOT BE CONSTRUED AS A SUBSTITUTE FOR AN ATTORNEY’S LEGAL ADVICE ABOUT MEETING ANY LEGAL OR REGULATORY REQUIREMENTS. CUSTOMER REPRESENTS AND WARRANTS THAT IT WILL NOT RELY UPON ANY SERVICES, DOCUMENTATION, OR FORM CONTRACT PRODUCTS AS LEGAL OR REGULATORY AUTHORITY. IF LEGAL ADVICE OR OTHER EXPERT ASSISTANCE IS REQUIRED, THE ADVICE OF A COMPETENT PROFESSIONAL SHOULD BE SOUGHT. Customer agrees to hold Motility and the third-party provider of the Form Contract Products harmless from any losses, damages, liabilities, costs, claims and expenses (including without limitation, reasonable attorneys fees) arising from Customer’s use of the Form Contract Products.
7. 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 Customer is subject to the Safeguards Rule, Customer 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 Customer’s Customer Information.
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Customer 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 Customer’s responsibility to: (i) disclose to Motility any relevant risks Customer identifies regarding Customer’s Customer Information; and (ii) identify the employee(s) who coordinate Customer’s Information Security Program.
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Customer is solely responsible for its compliance obligations under the Safeguards Rule. Motility’s provision of the Services to Customer does not constitute, nor shall it be deemed to constitute, a guarantee that Customer’s business is in compliance with any statute or regulation. Motility’s review or approval of any of Customer’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 Customer with any statute or regulation.
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Customer agrees that Customer and third parties acting on Customer’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 Customer believes Motility’s efforts to safeguard Customer Information affect Customer in a materially adverse manner and Customer promptly notifies Motility in writing stating the basis of Customer’s belief, Motility will work with Customer in good faith to resolve Customer’s complaint. If after sixty (60) days Customer and Motility are unable to resolve Customer’s complaint, then, at Motility’s option, Motility will either permit Customer to discontinue the affected Service without liability or Customer will submit to binding arbitration as described in the Agreement. Customer shall pay all amounts incurred and remain otherwise fully obligated for all Services other than the discontinued Service up through the effective date of such discontinuance or arbitration decision. THIS IS CUSTOMER’S ONLY REMEDY AND MOTILITY’S ONLY OBLIGATION UNDER THIS SECTION.
8. Indemnity. Customer 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) Customer’s negligence or willful acts; (ii) Customer’s breach of any term of this Agreement; (iii) Customer’s infringement or misappropriation of Intellectual Property Rights or other violation of any other rights of any third party; (iv) any claim related to Customer Data; (v) Customer’s violation of Third Party Terms and Conditions; and (vi) Customer’s use of the Services.
9. 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 SERVICES OR DOCUMENTATION. MOTILITY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE SERVICES, DOCUMENTATION, OR ANY CONTENT THEREOF. MOTILITY DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICES OR DOCUMENTATION WILL BE SECURE, TIMELY, UNINTERRUPTED, FREE FROM ERRORS OR BUGS, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA, (B) THE SERVICES OR DOCUMENTATION WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA OR CONTENT WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY SERVICES, DOCUMENTAITON, INFORMATION, OR OTHER MATERIALS PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICES OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES, DOCUMENTATION, AND ALL CONTENT ARE PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. MOTILITY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
10. Limitation of Liability. THE SERVICES AND MOTILITY’S 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 CUSTOMER FOR ANY SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS, REVENUE, OR PROFITS), REGARDLESS OF WHETHER OR NOT MOTILITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. MOTILITY’S LIABILITY TO CUSTOMER 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 CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT THAT GAVE RISE TO THE CAUSE OF ACTION.
11. Term and Termination.
11.1. Term. This Agreement will begin on the on the date set forth in the applicable Exhibit (the “Effective Date”) and will remain in effect through the end of the term identified in the applicable Exhibit (the “Initial Service Term”). Upon expiration of the Initial Service Term, this Agreement shall automatically renew for like periods (each a “Renewal Term” or together with the Initial Service Term, the “Term”) unless either Party gives the other written notice of its intent not to renew at least sixty (60) days prior to the end of the then-current Term. Customer notification for intent to not renew should be sent to Motility, Attention: Customer Account Services/Terminations Department, One Reynolds Way, Kettering, Ohio 45430. Purchases of all Services, including but not limited to any Third-Party Products, will remain in effect for the Term.
11.2. General Termination Policy. Customer may cancel a Service prior to the commencement said Service, provided that Motility receives timely written notice of cancellation from Customer. Customer agrees that cancellation of any Service is conditioned on Customer paying Motility accrued fees for services rendered. For a cancelled Service, Motility will refund any deposit required by the Service less the aforementioned charges and/or bill Customer for these charges, as applicable. Such written notification to cancel Services must be sent to Motility via a nationally recognized overnight courier or by certified or registered mail, postage prepaid and return receipt requested at the address listed in section 11.1.
11.3 Exceptions to Termination Policy. Notwithstanding the foregoing general termination policy, Customer may cancel impacted Services if one the following events occurs by providing written notice (as described in section 11.1) sixty (60) days prior to the requested date of termination, provided that Customer is current in all payment obligations under the Agreement, and provided that Customer is not otherwise in default of the Agreement:
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Services that are replaced by upgraded Motility Services, which replacement is approved in writing by Motility; or,
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All Services attributable to operating a particular location, if said location ceases operations, provided however, that cessation of operations is not the result of a sale of the location’s assets or stock.
11.4 Termination For Convenience. Motility shall have the right to terminate this Agreement for any reason by providing Customer sixty (60) days’ prior written notice.
11.5. Default. If Customer 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 Customer’s business; (iii) by making or proposing to make any sale of Customer’s assets in bulk or out of the ordinary course of Customer’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 Customer’s access to the Services; (b) declare all amounts due and to become due, immediately due and payable; (c) demand that Customer immediately cease use of all the Services, and in the event Customer does not voluntarily comply with such demand, Motility may take necessary measures to disable the Services, including, but not limited to, terminating all passwords and user accounts; (e) terminate this Agreement or any Exhibit; and/or (f) retain all or such portion of payments made by Customer hereunder as necessary to compensate Motility for any damage, loss, liability, cost, or expense caused by such default and receive any additional payments from Customer as may be necessary to compensate Motility for such default. Motility reserves the right to impose a reconnection fee in the event Customer’s access to the Services is suspended and Customer cures its default and thereafter requests access to the Services. Customer agrees to pay Motility’s costs and expenses of collection and enforcement of this Agreement, including all reasonable attorneys’ fees.
11.6. Effect of Termination and Effect of Suspension. Upon any termination or expiration, all access to the Services shall terminate immediately and each Party shall either return or destroy all copies of all Confidential Information belonging to the other Party. Motility shall not be obligated to make the Customer Data available after the termination date.
12. Support.
12.1 Customer may contact Motility at 407-358-2000 or
support@motilitysoftware.com between the hours of 9 a.m. and 6 p.m. Eastern time Monday-Friday, excluding holidays observed by Motility, to receive Basic Support. “Basic Support” is defined as assistance with routine usage questions related to the standard functionality of the software. Basic Support does not include advanced troubleshooting, custom development, integration assistance, or issues arising from third-party software or hardware. Any services beyond Basic Support may be subject to additional fees.
12.2 If Customer has a technical problem that is not covered by Basic Support and requests that Motility provide technical support to address the non-covered problem (“Hourly IT Support”), Motility may agree to do so in its sole discretion. All Hourly IT Support services provided hereunder shall be provided at Motility’s then-current hourly rate and are included in the definition of “Services.” In the event that Customer requests Hourly IT Support, Customer agrees to:
12.2.1 pay for any consultation time, field visit charges, and repairs at Motility’s then-current time and materials rates; and
12.2.2 pay any applicable freight charges for any shipment that is necessary to provide the support requested by Customer.
13. Notices. All notices required or provided for in this Agreement, shall be in writing and shall be addressed to Customer at the address set forth on the Exhibit and to Motility at MotilitySupport@reyrey.com, as the case may be, 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 delivered by hand, overnight courier, or certified mail, return receipt requested with postage prepaid and deemed delivered upon receipt or refusal to receive. No other means of delivery of notices shall be permitted.
14. Dispute 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 Customer 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 Customer 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 between the Parties may be resolved by class action or class arbitration. The Parties agree that any arbitration proceeding will take place in Houston, Texas, unless otherwise agreed in writing by Motility and Customer. At Motility’s sole discretion: (a) collection of accrued amounts owing to Motility, and (b) enforcement and protection of Motility’s intellectual property rights, each may be excepted from this arbitration requirement, and the Parties agree to be subject solely and exclusively to the jurisdiction of the courts of Harris County, Texas for any such collection efforts or intellectual property protection efforts. Customer agrees to reimburse Motility for any and all expenses, including reasonable attorneys’ fees, that Motility may incur in collection of amounts due under this Agreement, in undertaking the remedies provided for by this Agreement, and in the enforcement of this Agreement.
15. Liquidated Damages
The Parties agree that, in the event Customer defaults in any of the ways listed in Section 11.5 of this Agreement, Motility is entitled to damages for breach of contract. The parties, further, agree that Motility will be entitled to liquidated damages in an amount equal to seventy percent (70%) of the total fees otherwise payable by Customer during the Term that would have remained after default (except that, if the applicable term has less than six (6) months remaining, Customer agrees to pay seventy percent (70%) of six (6) months of such fees). These liquidated damages are a compromise which Customer and Motility have determined to be fair and reasonable in view of the harm to Motility and the difficulties of proof of loss and the impracticality of determining same. The liquidated damages apply only for damages related to fees which accrue after default. The parties agree that this provision does not constitute a penalty. In addition to the liquidated damages, Motility will be entitled to all damages attributable to Customer’s default which are not based upon fees due after default, including, but not limited to, any one-time license fees, set-up fees, third party fees and any other fees for Services provided prior to default.
16. General Terms.
16.1. 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, epidemics, pandemics, interruptions in third-party telecommunications or internet equipment or service, misuse of the Services by Customer, or any other causes, contingencies, or circumstances not subject to Motility’s reasonable control.
16.2. Entire Agreement. This Agreement, including any Exhibits executed by the Parties, represents the entire agreement of the Parties on its subject and it supersedes and replaces any prior oral or written agreement between the Parties on its subject. Customer agrees to abide by the terms and conditions of this Agreement, which may be updated by Motility from time to time. Such updates shall become effective when posted online.
16.3. Relationship of the Parties. 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.
16.4. Amendment. Customer may not change, terminate, or attempt to waive any of the provisions hereof except in a writing signed by an authorized representative of both Parties.
16.5. Governing Law/Severability. This Agreement will be governed by and construed in accordance with the laws of the State of Texas, exclusive of choice of law rules. 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, and all other provisions hereof shall remain in full force and effect.
16.6. Limitations. No action, regardless of form, arising out of this Agreement may be brought by either Party more than one (1) year after the cause of action has occurred. This limitation shall not apply to collection of any accrued amounts owed by Customer to Motility.
16.7. Waiver. 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.
16.8. Joint & Several Liability. The Parties acknowledge and agree that each individual location that uses any of the Services under this Agreement is jointly and severally liable for the entire contractual obligation. Customer represents that the person executing the Agreement on behalf of Customer is authorized to bind Customer and each location to this acknowledgement of joint and several liability, and that no further signatures are required.
16.9. Headings. The section headings used herein are for reference and convenience only and shall not enter into the interpretation of this Agreement.
16.10. Binding Nature. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns as permitted hereunder. Customer represents and warrants that Customer shall comply with all applicable federal, state, and local laws, rules, and regulations.
16.11. Construction. The Parties waive any common law or statutory rule of construction that ambiguity should be construed against the drafter of this Agreement and agree that the language in all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning.
16.12. Survival. 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.
16.13. Assignment. Motility may assign any of its rights and responsibilities under this agreement in whole or in part without the consent of, or notice to, Customer. Customer 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.
16.14. Respect for Personnel. Customer 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 one (1) year following the expiration or termination of this Agreement, Customer shall not knowingly solicit for employment or employ any employee of Motility’s until the expiration of one (1) year following such employee’s termination of employment with Motility. If Customer fails to abide by the restrictions contained herein, then Customer agrees to pay to Motility a placement fee of one hundred and fifty percent (150%) of the former employee’s total gross earnings during the employee’s last twelve (12) months of employment by Motility, which Customer shall pay to Motility within ten (10) days of demand.