(08/07/2015 to 11/30/2015)
The following terms describe the relationship between Motionsoft™, Inc. (“Motionsoft™“) and the Customer identified below (“Customer“) (each of Motionsoft™ and Customer, a “Party“), and shall be effective as of the Effective Date. These Master Terms describe and set forth the general legal terms governing the relationship, and there may also be one (1) or more addenda describing and setting forth detail about that relationship (“Addenda”), depending upon the particular services to be provided to Customer (collectively, the “Agreement”).This Agreement includes all Addenda that are attached to the Master Terms and that are executed by both Parties.
DEFINITIONS. Certain capitalized terms, if not otherwise defined on the Cover Page to which these Master Terms are attached, shall have the meanings set forth below in this Section 1 or elsewhere in these Master Terms.
“Confidential Information” means any non-public material or information relating to a Party which it discloses or makes available to the other Party under this Agreement, including, by way of example, research, strategies, inventions, processes, formulas, technologies, designs, drawings, finances, or other non-public information or trade secrets that such disclosing Party treats as proprietary or confidential. Without limiting the foregoing, the software and any databases of Motionsoft™ (including any data models and data contained therein that are not specific to Customer) shall constitute Confidential Information of Motionsoft™.
“Customer Data” means the personal information about Members and their accounts provided by or on behalf of Customer under the Agreement and/or through the Motionsoft™ Services.
“Customer Materials” means all Customer Data and other technical data, computer facilities, computer systems, network access, files, documentation, sample output, or other information, data and resources of Customer required by Motionsoft™ for the performance of the Motionsoft™ Services.
“Effective Date” has the meaning set forth on the Order Form.
“Master Terms” means all the provisions, terms and conditions set forth in this document entitled “Motionsoft™ Master Terms.”
“Member” means a member, subscriber, or customer of Customer to whom Customer provides services of some kind.
“Motionsoft™ Services” means the services ordered by Customer through an Order Form and provided by Motionsoft™ under this Agreement, including, but not limited to, access to and use of the of the features and functionality of Motionsoft™ software applications as Hosted Services, B.O.S.S.™, Professional Services and MosoPay, in each case solely to the extent set forth and further described in, and as limited by, the Order Forms executed by the Parties. Any reference to the Motionsoft™ Services in an individual Addendum will be limited to the Motionsoft™ Services provided pursuant to such Addendum.
“Order Form” means Motionsoft™’s standard purchase order form, executed by both Parties, that incorporates these Terms and sets forth the Motionsoft™ Services, any restrictions on such use (e.g., the maximum number of Members), and/or any other relevant information relating to the Motionsoft™ Services; additional terms for Motionsoft™ Services including without limitation, the term and fees; if applicable the schedule of payments for the performance of any services; and any unique additional terms.
GENERAL. These Master Terms contain the general terms and conditions governing the legal relationship between Motionsoft™ and Customer relating to the mutual covenants and obligations of the Parties set forth in the attached and executed Addenda, if any, and related Order Form(s). Motionsoft™’s provision of access to its proprietary software and the provision of services related to such access or services are subject to the terms and conditions contained in this Agreement and any applicable Addenda. However, Customer acknowledges and understands that these Master Terms do not, absent execution of such an Addendum, impose any obligation upon Customer to purchase any such access or services, nor impose any obligation upon Motionsoft™ to provide any such access or services.
ORDER OF PRECEDENCE. Customer agrees that each Addendum is subject to the terms and conditions set forth in this Agreement. In the event of a conflict between these Master Terms and any Addendum, these Master Terms shall govern unless the provisions of the relevant Addendum explicitly state the Parties’ intention that the particular relevant portion of the Addendum should supersede these Master Terms.
FEES AND PAYMENTS.
Fees. In consideration for Motionsoft’s™ performance under this Agreement, Customer agrees to pay such amounts as may be required by each and all Addenda, as applicable. Except as otherwise provided in any applicable Order Forms or Addendum, all amounts due hereunder shall be due within thirty (30) days after the relevant invoice date.
Disputed Charges. Customer must notify Motionsoft™ in writing of any dispute with invoiced charges within thirty (30) days after the date of invoice. Absent such notice, Customer will be deemed to have agreed to the charges as invoiced upon expiration of such time period.
Late Charges. Any portion of any amount payable hereunder that is not paid when due will accrue interest at one and one-half (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.
Taxes. All amounts payable under this Agreement shall exclude all applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges. Customer will be responsible for payment of all such taxes (other than taxes based on Motionsoft™’s income), fees, duties and charges, and any related penalties and interest, arising from the payment of any fees hereunder, the grant of license rights hereunder, or the delivery of services. Customer will make all payments required hereunder to Motionsoft™ free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on any payments hereunder to Motionsoft™ will be Customer’s sole responsibility.
Auditing Rights and Required Records. Motionsoft™ will have the right, at its own expense and upon reasonable prior notice, to audit the use of the Motionsoft™ Services. Customer agrees to cooperate with Motionsoft™’s audit and provide reasonable assistance and access to information. Provided that if such audit reveals that Customer has underpaid Motionsoft™ with respect to any amounts due and payable during the period to which such audit relate, Customer shall promptly pay such amounts as are necessary to rectify such underpayment, together with interest in accordance with Section 4.3, and further provided that if the amount of such underpayment equals or exceeds five percent (5%) of the total amounts due and payable by Customer during the period to which such audit relates, Customer shall reimburse Motionsoft™ for the cost of such audit. Such auditing rights shall extend throughout the Term and for a period of two (2) years after the termination or expiration of this Agreement.
Ownership of Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and shall remain the sole property of the disclosing Party or such third party.
Mutual Confidentiality Obligations. Each Party agrees as follows: (i) to use the Confidential Information only for the purposes described herein; (ii) not to reproduce the Confidential Information and will hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party; (iii) except as required in performance of a Party’s obligations under this Agreement, it will not create any derivative work from Confidential Information disclosed to such Party by the other Party; (iv) to restrict access to the Confidential Information to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing or are otherwise bound to treat such information in accordance with the terms of this Agreement; and (v) to return or destroy all Confidential Information of the other Party in its possession upon termination or expiration of this Agreement.
Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 5.1 and 5.2 shall not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; or (vi) is approved for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (y) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.
RIGHTS AND OBLIGATIONS.
Customer Responsibilities. Certain Customer Materials may be required for the proper operation of the Motionsoft™ Services. Customer shall make available in a timely manner at no charge to Motionsoft™ all Customer Materials required by Motionsoft™ for the performance of the Motionsoft™ Services. Customer shall be responsible for, and assumes the risk of, any problems resulting from, the content, accuracy, completeness and consistency of all Customer Materials. Customer will, at its own expense, obtain all third party consents and/or permissions that may be necessary and appropriate for Motionsoft™’s use and display of the Customer Materials in accordance with this Agreement. Customer acknowledges and agrees that the timely performance by Motionsoft™ of the Motionsoft™ Services is dependent upon Customer performing its obligations under this Agreement, and that any delay or failure to perform by Customer will extend the time for Motionsoft™ to perform.
Communication with Members and Authorized Users. As part of the provision of the Motionsoft™ Services under this Agreement, Motionsoft™ may need to communicate with Members and Customer personnel from time-to-time. Customer hereby grants Motionsoft™ the limited right to communicate with Members and/or Customer personnel Users as may be necessary as part of the provision of the Motionsoft™ Services, in Motionsoft™’s reasonable discretion, and Customer represents and warrants that Customer has all necessary rights and consents to authorize Motionsoft™ to take such actions.
Technical Assistance. Motionsoft™ provides certain limited support services as part of the Motionsoft™ Services, including using reasonable efforts to provide telephone and email support to Customer personnel during its normal business hours (8 AM EST to 8 PM EST) in accordance with Motionsoft™’s then-standard support policies. Customer can designate up to two (2) persons, which designees will be eligible to receive technical assistance from Motionsoft™ (“Eligible Support Recipients”). Such designees may be changed at any time by written notice. Except for such Eligible Support Recipients, Customer will be solely responsible for the support of all Customer personnel and Members using Motionsoft™ Services. Subject to the terms and conditions of this Agreement including the payment of the applicable fees, Motionsoft™ will provide technical assistance to Eligible Support Recipients during Motionsoft™’s ordinary and customary business hours in accordance with its standard policies and procedures, with the understanding that such policies do not provide for any on-site support. To the extent the Parties agree that Motionsoft™ will provide on-site technical assistance, Customer will b pay a fee to Motionsoft™, in an amount determined by Motionsoft™’ then-standard hourly rates for such support, and Customer will further reimburse Motionsoft™ for expenses related to travel and/or living expenses incurred by Motionsoft™ personnel in the provision of such on-site support.
Non-solicitation. Customer acknowledges and agrees that the employees and consultants of Motionsoft™ are a valuable asset to Motionsoft™ and are difficult to replace. Accordingly, Customer agrees that, for a period of one (1) year after the termination or expiration of this Addendum, it will not offer employment or engagement (whether as an employee, independent contractor or consultant) to any Motionsoft™ employee or consultant. Customer agrees that for each individual that Customer hires in violation of this Section 12.2, Customer will pay to Motionsoft™ liquidated damages equal to fifty percent (50%) of the annual cumulative value of salary and benefits paid or payable to that individual by either Customer or Motionsoft™, whichever amount is greater.
OWNERSHIP AND PROPRIETARY RIGHTS.
Motionsoft™. Except as expressly set forth in an Addendum, Customer acknowledges that Motionsoft™ and its licensors own all right, title, and interest, including all patent, copyright, trade secret, trademark, moral rights, mask work rights, and other intellectual property rights (“Intellectual Property Rights”) in and to the Motionsoft™ Services (including all components thereof) and any other work product, developments, inventions, technology or materials provided under this Agreement. Motionsoft™ expressly reserves all rights not expressly granted to Customer in this Agreement. Customer shall not engage in any act or omission that would impair Motionsoft™’s and/or its licensors’ Intellectual Property Rights in the Motionsoft™ Services, and any other materials, information, processes or subject matter proprietary to Motionsoft™. formation, processes or subject matter proprietary to Motionsoft™. Customer further acknowledges that Motionsoft™ retains the right to use the foregoing for any purpose in Motionsoft™’s sole discretion.
Customer Materials. Customer retains all right, title and interest in and to the Customer Materials, and Motionsoft™ acknowledges that it neither owns nor acquires any additional rights in and to the Customer Materials not expressly granted by this Agreement. Motionsoft™ further acknowledges that Customer retains the right to use the Customer Materials for any purpose in Customer’s sole discretion. Customer hereby grants to Motionsoft™ a non-exclusive, non-transferable right and license to: (a) use any Customer Materials during the Term for the limited purposes of performing Motionsoft™’s obligations under this Agreement; and (b) on a perpetual basis, to use, copy, display, disclose, modify and distribute the Customer Data solely to create and compile aggregated data and/or statistics; provided, however, in any such aggregated data or statistics, Motionsoft™ will ensure that the Customer Data is used in aggregated form only and in a manner that is not directly attributable to or identified with Customer or any Members.
Trademark License. Subject to the terms of this Agreement, each Party (“Licensor”) grants the other Party (“Licensee”) a limited, non-exclusive, non-transferable, royalty-free right and license to use, display and perform the Licensor’s trade name and logo and trademarks or service marks (collectively, “Marks”), solely for the purpose of the Licensee fulfilling its obligations or exercising its rights hereunder. Licensee will use Licensor’s Marks in conformance with any trademark usage policy Licensor may communicate to Licensee from time to time. Licensee’s use of Licensor’s Marks will be subject to Licensor’s quality control procedures. Licensee will not use Licensor’s Marks in a manner that Licensor reasonably believes dilutes, tarnishes or blurs the value of Licensor’s Marks. Licensee acknowledges that Licensee’s use of Licensor’s Marks will not create in Licensee, nor will Licensee represent it has, any right, title or interest in or to Licensor’s Marks other than the license granted by Licensor above. Licensee will not challenge the validity of or attempt to register any of Licensor’s Marks, nor will it adopt any derivative or confusingly similar names, brands or marks or create any combination marks with Licensor’s Marks. Licensee acknowledges Licensor’s ownership and exclusive right to use Licensor’s Marks and agrees that all goodwill arising as a result of Licensee’s use of Licensor’s Marks will inure solely to the benefit of Licensor.
Feedback. Motionsoft™ in its sole discretion, may utilize, all comments and suggestions, whether written or oral, furnished by Customer or its employees or Members to Motionsoft™ in connection with their use or access of any Motionsoft™ Services (all such reports, comments and suggestions, collectively, “Feedback”). Customer hereby grants Motionsoft™ a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into Motionsoft™ products and services.
Mutual. Each Party represents and warrants to the other that the execution and performance of this Agreement does not and shall not violate any other contract, obligation, or instrument to which it is a party, or which is binding upon it, including terms relating to covenants not to compete and confidentiality obligations. Each Party acknowledges that this Agreement may be subject to certain additional representations and warranties that may be set forth in one (1) or more Addenda to this Agreement, as applicable to the subject matter of each such Addendum.
Motionsoft™ Warranties. Motionsoft™ represents and warrants that its provision of the Motionsoft™ Services will comply with all applicable state and federal laws, rules and regulations.
Customer Warranties. Customer represents and warrants that: (a) it will, at its own expense, obtain sufficient rights and all third party consents and/or permissions that may be necessary and appropriate to permit Motionsoft™’s access to and use of the Customer Materials; (b) its provision of the Customer Materials hereunder will comply with all applicable state and federal laws, rules and regulations and not violate any person’s right of privacy or publicity; and (c) Customer will promptly communicate to Motionsoft™ any Member opt-outs or requests related to Motionsoft™’s provision of the Motionsoft™ Services.
No Other Warranties. SUBJECT TO ANY APPLICABLE WARRANTIES SET FORTH IN ANY ADDENDA TO THIS AGREEMENT, EXCEPT AS EXPRESSLY WARRANTED IN THIS AGREEMENT, THE Motionsoft™ SERVICES, AND ANY OTHER MATERIALS, SOFTWARE, DATA AND/OR SERVICES PROVIDED BY Motionsoft™ ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND Motionsoft™ EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY ADDITIONAL OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, NON-INTERFERENCE, VALUE OR ACCURACY OF DATA, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, FITNESS FOR A PARTICULAR PURPOSE. NO WARRANTY IS MADE BY Motionsoft™ ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE. Motionsoft™ DOES NOT WARRANT THAT THE Motionsoft™ APPLICATION OR ANY OTHER INFORMATION, MATERIALS, TECHNOLOGY OR SERVICES PROVIDED UNDER THIS AGREEMENT WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. CUSTOMER ACKNOWLEDGES THAT Motionsoft™’S OBLIGATIONS UNDER THIS AGREEMENT ARE FOR THE BENEFIT OF CUSTOMER ONLY. Motionsoft™’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. Motionsoft™ IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
LIMITATION OF LIABILITY.
LIMITATIONS. IN NO EVENT SHALL EITHER PARTY, NOR CARD BRANDS, BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF Motionsoft™ TO CUSTOMER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE GREATER OF (I) FIVE THOUSAND DOLLARS (U.S. $5,000.00) OR (II) THE TOTAL AMOUNT OF ALL FEES PAID TO Motionsoft™ BY CUSTOMER IN THE SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM AROSE UNDER THE APPLICABLE ADDENDUM. THE LIMITATIONS OF LIABILITY IN THIS SECTION 9.1 ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
Essential Basis. The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the Parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Agreement, including, without limitation, the economic terms, would be substantially different.
By Motionsoft™. Motionsoft™ shall defend, indemnify, and hold Customer harmless against all third-party costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities to the extent arising out of any third-party claim that the Motionsoft™ Services infringe any U.S. patent issued as of the Effective Date or any copyrights or trade secrets under applicable laws of any jurisdiction within the United States. Notwithstanding the foregoing, Motionsoft™ shall have no obligation or liability to the extent that the alleged infringement arises from a Customer Indemnity Responsibility.Upon the occurrence of a claim for which indemnity is or may be due under this Section 10.1, or in the event that Motionsoft™ believes that such a claim is likely, Motionsoft™ may, at its option (a) modify the Motionsoft™ Services so that it becomes non-infringing, or substitute functionally equivalent software or services; (b) procure the rights to use such infringing component(s); or (c) terminate this Agreement on written notice to Customer and refund to Customer any prepaid but unused fees. The obligations set forth in this Section 10 shall constitute Motionsoft™’s entire liability and Customer’s sole remedy for any actual or alleged infringement or misappropriation.
Indemnification by Customer. Customer shall indemnify, hold harmless, and, at Motionsoft™’s option, defend Motionsoft™ from and against all losses, expenses (including reasonable attorneys’ fees), damages, and liabilities resulting from any third party claim arising from: (a) Customer’s breach of any representation or warranty under this Agreement; (b) the Customer Materials; (c) Customer’s use of the Motionsoft™ Services in breach of this Agreement or as specified in any Motionsoft™ written documentation; or (d) modification of the Motionsoft™ Services by any person other than Motionsoft™ or its authorized agents (circumstances under clauses (a) through (d), each, a, “Customer Indemnity Responsibility).
Procedures. The indemnification obligations set forth above are conditioned on the indemnified party: (i) promptly notifying the indemnifying party of any claim which may be subject to an indemnification obligation; (ii) granting the indemnifying party sole control over the defense and/or settlement of any such claim; and (iii) assisting the indemnifying party as reasonably requested and at the indemnifying party’s sole expense. Notwithstanding the foregoing, the indemnifying party shall not settle any third-party claim against the indemnified party unless such settlement completely and forever releases the indemnified party with respect thereto or unless the indemnified party provides its prior written consent to such settlement.
TERM AND TERMINATION.
Agreement. This Agreement shall become effective upon the Effective Date and shall continue for the length of time in which any Order Forms hereunder remain in effect, unless or until terminated pursuant to Sections 11.2 or 11.3. Notwithstanding the foregoing, this Agreement shall remain in effect for a period of not less than one (1) year from the Effective Date unless earlier terminated in accordance with Section 11.2 or 11.3.
Termination for Breach. Either Party may terminate this Agreement immediately upon written notice in the event that the other Party materially breaches this Agreement and fails to cure such breach (or to commence diligent efforts to cure such breach that are reasonably acceptable to the terminating Party) within thirty (30) days after receiving written notice thereof.
Termination Upon Bankruptcy, Insolvency, Etc. Either Party may terminate this Agreement immediately upon written notice after the other Party has executed an assignment for the benefit of creditors or filed for relief under any applicable bankruptcy, reorganization, moratorium, or similar debtor relief laws, or in the event that a receiver has been appointed for the other Party or any of its assets or properties, or an involuntary petition in bankruptcy has been filed against such other Party, which proceeding or petition has not been dismissed, vacated, or stayed within thirty (30) days.
Termination of Individual Addenda. In addition to each Party’s rights under Sections 11.2 and 11.3, each Party may terminate any particular Addendum according to any provision therein permitting such termination, provided that this Agreement (including these Master Terms and any other Addenda) shall remain in full force and effect in accordance with their respect terms.
Suspension of Service. If Customer fails to pay undisputed amounts in accordance with this Agreement or, if and as necessary to protect the security of the Motionsoft™ Services, Motionsoft™ may, in addition to any of its other rights or remedies, to immediately suspend the Motionsoft™ Services to Customer, without liability to Customer until such amounts are paid in full or such threat is resolved, as applicable.
Accrued Obligations. Termination of this Agreement and/or any particular Addendum shall not release the Parties from any liability which, at the time of termination, has already accrued or which thereafter may accrue with respect to any act or omission before termination, or from any obligation which is expressly stated in this Agreement and/or any applicable Addendum to survive termination. Notwithstanding the foregoing, the Party terminating this Agreement or any Addenda as permitted by any provision in this Section 10 shall incur no additional liability merely by virtue of such termination.
Termination of this Agreement and/or any applicable Addendum, regardless of cause or nature, shall be without prejudice to any other rights or remedies of the Parties and shall be without liability for any loss or damage occasioned thereby.
Effect of Termination. Upon any termination of this Agreement, each Party shall (i) immediately discontinue all use of the other Party’s Confidential Information; and (ii) shall promptly pay all amounts due and remaining payable hereunder.
Survival of Obligations. The provisions of Sections 4, 5, 6.2, 7 through 10, 11.6, 11.7, 11.8 and 12, as well as Customer’s obligations to pay any amounts due and outstanding hereunder, shall survive termination or expiration of this Agreement.
Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof, and neither of the Parties will be bound by any conditions, inducements or representations other than as expressly provided for herein.
Applicable Law. This agreement and the rights and obligations of the Parties hereunder shall be construed in accordance with, and shall be governed by, the laws of the State of Maryland, without giving effect to its rules regarding conflicts of laws. Each Party agrees that any and all causes of action between the Parties arising from or in relation to this agreement shall be brought exclusively in the state and federal courts located in Montgomery County, Maryland.
Force Majeure. Motionsoft™ will be excused from performance of its obligations under this Agreement if such a failure to perform results from compliance with any requirement of applicable law, acts of god, fire, strike, embargo, terrorist attack, war, insurrection or riot or other causes beyond the reasonable control of Motionsoft™. Any delay resulting from any of such causes will extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.
Notices. All notices required by or relating to this Agreement will be in writing and will be sent by means of certified mail, postage prepaid, to the Parties to the Agreement at the addresses set forth on the Order Form, with a copy for any notices to Motionsoft™ sent to Fitzgerald & Rhodes LLP, 1735 17th Street, N. W., Washington, D.C. 20009, Attention: David Sylvester. Such notices will be effective on the date indicated in such confirmation.
Assignment. Customer will not assign its rights or delegate its obligations under this Agreement without Motionsoft™’s prior written consent, and, absent such consent, any purported assignment or delegation by Customer will be null, void and of no effect. This Agreement will be binding upon and inure to the benefit of Motionsoft™ and Customer and their successors and permitted assigns.
Independent Contractors. The Parties acknowledge and agree that the relationship arising from this Agreement does not constitute or create any joint venture, partnership, employment relationship or franchise between them, and the Parties are acting as independent contractors in making and performing this Agreement.
Amendment. No amendment to this Agreement will be valid unless such amendment is made in writing and is signed by the authorized representatives of the Parties.
Waiver. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.
Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
Causes of Action. No action arising from or related to this Agreement may be brought by either Party more than one (1) year after the cause of action has accrued, except that an action for non-payment may be brought within two (2) years after the date such amount was due.
No Third Party Beneficiaries. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
a. Sponsored Merchant warrants that it does not hold third party beneficiary rights to any agreements between Motionsoft and Card Brands and at no time will attempt to enforce any such agreements against American Express.
b. Sponsored Merchants confers on Card Brands third party beneficiary rights, but not obligations, to the Agreement between Motionsoft and Sponsored Merchant and all subsequent addendums (collectively the “Agreement”) and, as such, Card Brands have the express right to enforce the terms of the Agreement against the Sponsored Merchant.
Government End-Users. Each of the components that constitute the Motionsoft™ Services is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and/or “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Motionsoft™ Services with only those rights set forth herein.
Counterparts; Headings. This Agreement may be executed in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement. The headings in this Agreement are inserted merely for the purpose of convenience and will not affect the meaning or interpretation of this Agreement.
Publicity. Motionsoft™ may publicly refer to Customer, including on Motionsoft™’s website and in sales presentations, as a Motionsoft™ customer and may use Customer’s logo for such purposes. Similarly, Customer may publicly refer to itself as a customer of Motionsoft™, including on Customer’s website and in sales presentations.
This HOSTED SERVICES ADDENDUM (the “Hosted Services Addendum”) is an addendum to, and is hereby incorporated into, the Motionsoft™ Master Agreement between Motionsoft™ and Customer, including the Master Terms and other Addenda incorporated therein (collectively, the “Agreement”). Capitalized terms used in this Hosted Services Addendum that are not otherwise defined in this Hosted Services Addendum have the meaning set forth in the Master Terms.
ACCESS AND USE
Provision of Access. Subject to the terms and conditions contained in this Agreement, Motionsoft™ hereby grants to Customer a non-exclusive, non-transferable right to access the features and functions of MosoMRM and any other applicable Motionsoft™ Services ordered pursuant to an Order Form, subject to any restriction set forth therein (“Hosted Services”). On or as soon as reasonably practicable after the Effective Date, Motionsoft™ will provide to Customer the necessary passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer to access the Hosted Services.
Additional Features. Additional terms, as set forth in Exhibit A, will apply in the event Customer orders the following Hosted Services: myClub, Advanced Reporting or Benchmarking.
Responsibility for Hosting. Motionsoft™ will, at its own expense, provide for the hosting of the Hosted Services, with the understanding that Motionsoft™ will not be required to bear any responsibility for any telecommunications, software or hardware required by Customer to access the Hosted Services through the Internet. Customer shall be responsible for and assumes the risk, responsibility and expense of acquiring, installing and maintaining all connectivity equipment, hardware, software and other equipment as may be necessary for it and its Authorized Users to connect to, access, and use the Hosted Services.
Usage Restrictions. Customer and its Authorized Users will not: (a) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Hosted Services are compiled or interpreted, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to obtain or use such code; (b) create any derivative product from any of the Hosted Services; or (c) allow third parties to gain access to the Hosted Services, except that Members are permitted to access certain Hosted Services. Customer will ensure that its use of the Hosted Services complies with all applicable laws, statutes, regulations or rules.
CUSTOMER RIGHTS AND RESPONSIBILITIES.
Authorized Users. Customer may permit any Authorized Users to access and use the features and functions of the Hosted Services in accordance with this Agreement. “Authorized User” means any Customer employee or contractor or such other individual as may be authorized by an Order Form, by virtue of such individual’s relationship to, or permissions from, Customer, to access or use the Hosted Services pursuant to Customer’s rights under this Agreement, except that Authorized Users specifically exclude Members and will not be considered Members.
Access to Services. Customer (a) will provide to Motionsoft™ information and other assistance as necessary to enable Motionsoft™ to establish usernames to be used by Authorized Users; (b) is responsible for maintaining the confidentiality of all Administrative Users’ usernames and passwords; (c) is solely responsible for all activities that occur under these usernames; (d) agrees not to allow a third party to use its account, usernames or passwords at any time; and (e) agrees to notify Motionsoft™ promptly of any actual or suspected unauthorized use of its account, Authorized User usernames or passwords, or any other breach or suspected breach of this Agreement. Motionsoft™ reserves the right to terminate any username and password that Motionsoft™ reasonably determines may be suspect. Customer acknowledges and agrees that, as between Customer and Motionsoft™, Customer will be responsible for all acts and omissions of Authorized Users, and any act or omission by such Authorized Users which, if undertaken by Customer, would constitute a breach of this Agreement, will be deemed a breach of this Agreement by Customer.
Service Rules. Customer will use the Hosted Services as contemplated by this Agreement and will not, nor will Customer authorize any Authorized User or Member to, use the Hosted Services to: (a) send any form of duplicative and unsolicited messages, other than marketing and promotional messages to Members and prospective Members as contemplated by the Hosted Service; (b) harvest, collect, gather or assemble information or data regarding other users or Members without their consent; (c) transmit through or post on the Hosted Services unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar, or obscene material or material harmful to minors; (d) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (e) interfere with or disrupt the integrity or performance of the Hosted Services or the data contained therein; (f) attempt to gain unauthorized access to the Hosted Services, computer systems or networks related to the Hosted Services; or (g) interfere with another user’s use and enjoyment of the Hosted Services.
Motionsoft™ RIGHTS AND OBLIGATIONS.
Availability. Motionsoft™ will use commercially reasonable efforts to provide the MoSoMRM Hosted Service in accordance with the Service Levels set forth in Exhibit B to this Hosted Services Addendum.
Training. Customer may request for Motionsoft™ to provide training services related to the Hosted Services. Until the Customer has ordered training services pursuant to an Order Form under the Professional Services Addendum or a separate agreement, Motionsoft™ will have no obligation to provide training services to Customer.
Continuous Development. The Parties acknowledge and agree that Motionsoft™ may continually develop, deliver and provide to Customer ongoing innovation to the Hosted Services in the form of new features, functionality, capabilities and services. Accordingly, Motionsoft™ reserves the right to modify the Hosted Services from time to time. Some modifications will be provided to Customer at no additional charge. In the event Motionsoft™ adds additional functionality to the Hosted Services, Motionsoft™ may condition the implementation of such modifications on Customer’s payment of additional fees, and Customer will not be entitled to such new functionality unless Customer pays such fees, provided Customer may continue to use the version of the Hosted Services that Motionsoft™ makes generally available (without such features) without paying additional fees. If any modification materially and adversely affects the functionality of the Hosted Services, Customer may provide written notice to Motionsoft™ within thirty (30) days of such change and, if Motionsoft™ is unable to provide substantially the same functionality to Customer in the Hosted Services within thirty (30) days of Motionsoft™ receiving such notice, Customer may terminate the applicable Order Form as its sole and exclusive remedy for such modification.
Limitations of Warranty and Liability. Except as expressly set forth in Section 3 of this Hosted Services Addendum, Motionsoft™ makes no representations or warranties under this Hosted Services Addendum, and Customer acknowledges that this Hosted Services Addendum is subject to all disclaimers and limitations or liability set forth in the Master Terms.
Collected Data. “Collected Data” means data collected by Motionsoft™ in its performance of the Hosted Services under this Hosted Services Addendum. To the extent that any Collected Data is collected by Motionsoft™, such Collected Data will be solely owned by Motionsoft™ and may be used by Motionsoft™ for any lawful purpose, provided that the Collected Data is used only in an anonymized and aggregated form and in a manner that does not permit the identification of Customer or any Authorized User. Motionsoft™ agrees to comply with applicable privacy and other laws and regulations respecting the dissemination and use of such Collected Data.
TERM AND TERMINATION
Term. This Hosted Services Addendum shall commence on the date of execution by both Parties (the “Hosted Services Addendum Effective Date”) and shall remain in effect unless and until the Agreement is terminated pursuant to the provisions of the Master Terms or this Hosted Services Addendum is terminated pursuant to Section 4.2 or by mutual written agreement.
Termination for Breach. Either Party may terminate this Hosted Services Addendum immediately upon written notice in the event that the other Party materially breaches this Hosted Services Addendum and fails to cure such breach (or to commence diligent efforts to cure such breach that are reasonably acceptable to the terminating Party) within thirty (30) days after receiving written notice thereof.
Effect of Termination. Within thirty (30) business days after the effective date of any termination of this Hosted Services Addendum, Motionsoft™ will make available to Customer any Customer Data in a csv file or another electronic format designated by Motionsoft™, provided such format does not violate applicable law. After such thirty (30) day period, Motionsoft™ will have no obligation to maintain or provide any Customer Data to Customer, though Motionsoft™ may maintain such Customer Data in its discretion after such period of time and/or provide it to Customer in accordance with Motionsoft™’s then-standard fees.
Survival of Obligations. The provisions of Sections 1.4, 3.4, 3.5, 4, 5.3 and 5.4 will survive termination or expiration of this Hosted Services Addendum.
The Following Terms Apply if Customer Orders the myClub Service
“Customer Content” means any content provided by Customer and/or developed by or on behalf of Customer as part of the Member-facing web portal operated by Motionsoft™ on behalf of Customer as part of the myClub Service. Customer Content will be considered Customer Materials under the Agreement.
Content. Customer represents and warrants that any Customer Content hosted by Motionsoft™ as part of the myClub Services will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Motionsoft™’s system or data; or (e) otherwise violate the rights of a third party including any right of privacy or publicity. Motionsoft™ is not obligated to back up any Customer Content; the Customer is solely responsible for creating backup copies of any Customer Content at Customer’s sole cost and expense. Customer agrees that any use of the Hosted Services contrary to or in violation of the representations and warranties of Customer in this section constitutes unauthorized and improper use of the Hosted Services.
Display. Motionsoft™ reserves the right, but does not have the obligation, to monitor all Customer Content made available on the myClub portal. In the event that Motionsoft™ determines that any Customer Content breaches this Agreement or any other Motionsoft™ policy, Motionsoft™ reserves the right, in its discretion, to edit, refuse to post, or to remove any such Customer Content from the myClub portal. Motionsoft™ will use reasonable efforts to notify Customer of such removal.
Copyright Policy. Motionsoft™ reserves the right to terminate its agreement with any Customer who repeatedly infringes third party copyright rights upon prompt notification to Motionsoft™ by the copyright owner or the copyright owner’s legal agent.
Access. Motionsoft™ may condition Members’ use of myClub on their acceptance of and compliance with Motionsoft™’s standard terms of service.
Support. Customer will be responsible for all support to Members. Motionsoft™ will have no obligation to provide any support to Members directly, unless otherwise agreed in writing by Customer and Motionsoft™.
The Following Terms Apply if Customer Orders Advanced Reporting
“Motionsoft™ Report” shall mean the electronic reports prepared by Motionsoft™ and delivered to Customer, as applicable, describing those customers’ use of Customer’s services.
Customer owns each tangible Motionsoft™ Report created as part of the Advanced Reporting application, including any sample reports, and all right, title and interest therein, provided that Motionsoft™ retains ownership in: (a) the design, look, and feel of any reports; (b) any graphical elements contained therein; (c) all content other than the Customer Data; and (d) any Intellectual Property Rights therein. Each of (a), (b), (c), and (d) will be owned by Motionsoft™ and be Motionsoft™’s Confidential Information.
DEFINITIONS. The following capitalized terms will have the definitions set forth below:
“Availability” will mean, with respect to any particular calendar month, the ratio obtained by subtracting Unscheduled Downtime during such month from the Total Time during such month, and thereafter dividing the difference so obtained by the Total Time during such month.
“Excluded Downtime” means any Scheduled Downtime or any other downtime of the MoSoMRM Hosted Service occurring as a result of (i) Customer’s breach of any provision of this Agreement; (ii) non-compliance by Customer or a Customer with any provision of this Exhibit B; (iii) incompatibility of Customer’s or Customer’s software with the MoSoMRM Hosted Service; (iv) poor or inadequate performance of Customer’s systems; or (v) force majeure events, including the failure of any telecommunications services or systems not under the control of Motionsoft™.
“Scheduled Downtime” means the total amount of time during any calendar month, measured in minutes, during which Customer and its Customer are not able to access the MoSoMRM Hosted Service due to planned system maintenance performed by Motionsoft™, as set forth in the table below or emergency maintenance performed by Motionsoft™. Motionsoft™ shall use reasonable commercial efforts to perform scheduled system maintenance. Motionsoft™ shall use reasonable commercial efforts to notify Customer in advance of any emergency maintenance. Planned system maintenance is defined in the table below. Motionsoft™ reserves the right to reasonably change the times set forth in the table below, provided that Motionsoft™ provides reasonable prior notice prior to modifying such Scheduled Downtime.
When Scheduled Downtime may occur on a regular basis:
Purpose of Scheduled Downtime:
Maximum Duration of Scheduled Downtime:
Application and System Maintenance/Upgrades
Up to 3 hours
(01:00 to 04:00 ET)
“Total Time” shall mean the total number of minutes in any calendar month, to the extent included within the term of this Agreement.
“Unscheduled Downtime” will mean the total amount of time during any calendar month, measured in minutes, during which Customer is not able to access the features and functions of the MoSoMRM Hosted Service, according to the access protocols, other than Excluded Downtime.
Service Level. Motionsoft™ will use reasonable commercial efforts to ensure that Availability (expressed on a percentage basis) equals or exceeds 99.5% (“Service Level”) during each calendar month for access by Customer.
Customer Responsibilities. Except as otherwise agreed between the Parties in a separate written agreement, Customer is responsible for (i) maintenance and management of its computer network(s), servers, software, and any equipment or services related to maintenance and management of the foregoing; and (ii) correctly configuring their systems in accordance with the Agreement. The obligations of Motionsoft™ set forth in this Exhibit will be excused, and it will not be a Chronic Failure, to the extent any failures to meet such obligations result in whole or in part from Customer’s failure to meet the foregoing requirements.
Reporting Downtime. Customer may report Unscheduled Downtime by sending an email to support@Motionsoft™.net. During business hours, Motionsoft™ will exercise commercially reasonable efforts to respond to reports of Unscheduled Downtime within one hundred and eighty (180) minutes of each such report. Customer must promptly notify Motionsoft™ in the event Unscheduled Downtime occurs. Unscheduled Downtime will be deemed to begin when Motionsoft™ receives accurate notification thereof from Customer, or when Motionsoft™ first becomes aware of such Unscheduled Downtime, whichever first occurs.
Service Credits. If the MoSoMRM Hosted Service does not achieve the Service Level set forth in Section 2.1, Customer shall be entitled to a service credit by multiplying the Customer’s fees for the MoSoMRM Hosted Service in the month in which the Service Credit was incurred by the percentage shown in the table that corresponds to the actual availability of the MoSoMRM Hosted Service during that month (“Service Credit”), provided that in no event will the Service Credit in any one month exceed the fees paid or payable in such month.
Hosted Services Availability Percentage
99.5% and higher
99.0% or over, but below 99.5%
98.0% or over, but below 99.0%
95.0% or over, but below 98.0%
Failure to Meet Service Level. In the event Customer experiences either (i) three (3) consecutive months with Availability lower than 95% or (ii) five (5) calendar months in any twelve (12) month period with Availability lower than 95%, Customer may, within thirty (30) days of such event, terminate this Hosted Services Addendum and any Hosted Services ordered under the Order Form upon written notice as Customer’s sole and exclusive remedy, and Motionsoft™’s sole and exclusive liability, for such failure.
This PROFESSIONAL SERVICES ADDENDUM (the “Professional Services Addendum”) is an addendum to, and is hereby incorporated into, the Motionsoft™ Master Agreement between Motionsoft™ and the customer identified in the signature block below (“Customer”), including the Master Terms and other Addenda incorporated therein (collectively, the “Agreement”).Capitalized terms used in this Professional Services Addendum that are not otherwise defined in this Professional Services Addendum have the meaning set forth in the Master Terms.
Professional Services. The Parties anticipate that customer may desire to engage Motionsoft™ to perform certain services to Customer, including services that relate to services ordered or obtained by Customer under separate Addenda or Order Forms to this Agreement, in each case in accordance with the terms and conditions set forth in this Professional Services Addendum. Motionsoft™ shall use commercially reasonable efforts to perform the services as set forth in SOWs (as defined below) separately executed by the Parties (the “Professional Services”). Motionsoft™ shall perform the Professional Services in a professional manner in accordance with industry standards.
Issuance of Statement of Work. Customer may request that Motionsoft™ perform services by delivering a written request describing the proposed Professional Services. Motionsoft™ shall prepare a draft work statement as an exhibit to the Order Form (each, a “Statement of Work” or “SOW”). Such SOW shall describe the fees, costs and expenses payable by Customer to Motionsoft™ in connection with the performance of such services. Customer, within five (5) business days after receipt of the proposed SOW, shall notify Motionsoft™ of its acceptance of such SOW. Until the acceptance in writing of the proposed SOW, Motionsoft™ shall have no obligation to perform the proposed Professional Services, provided that this Professional Services Addendum shall remain in full force and effect in accordance with Section 5.1. Each SOW, regardless of whether it relates to the same subject matter as any previously executed SOW(s), shall become effective upon execution by authorized representatives of both Parties.
Modifications. Customer may at any time request a modification to the Professional Services to be performed pursuant to any particular SOW by written request to Motionsoft™ specifying the desired modifications. Motionsoft™ shall, within a reasonable time following receipt of such request, submit an estimate of the cost for such modifications and a revised estimate of the time for performance of the Professional Services pursuant to the SOW. If accepted in writing by Customer, such modifications in the SOW shall be performed under the terms of this Professional Services Addendum. Modifications in any SOW shall become effective only when a written change request is executed by authorized representatives of both parties.
Suitability. Motionsoft™ shall assign employees and subcontractors with qualifications suitable for the work described in the relevant SOW. Motionsoft™ may replace or change employees and subcontractors in its sole discretion with other suitably qualified employees or subcontractors.
FEES AND PAYMENTS. In consideration of the Professional Services, Customer shall pay to Motionsoft™ such fees as required by the applicable SOW (including expenses for which reimbursement is contemplated in the applicable SOW). Except as provided above, each Party will be responsible for its own expenses incurred in rendering performance under this Professional Services Addendum and each applicable SOW. Unless otherwise contemplated in a particular SOW, Motionsoft™ will issue invoices to Customer on a monthly basis for amounts due under this Professional Services Addendum.
PROPRIETARY RIGHTS. Customer shall own any deliverable that embodies its Confidential Information to the extent that it embodies Customer’s Confidential Information. Except to the extent that the same constitutes or embodies Customer’s Confidential Information, ownership of all work product, developments, inventions, technology or materials provided under this Agreement shall be solely owned by Motionsoft™.
LIMITATION OF WARRANTIES AND LIABILITY. Motionsoft™ makes no representations or warranties under this Professional Services Addendum, and Customer acknowledges that this Professional Services Addendum is subject to all disclaimers and limitations or liability set forth in the Master Terms.
Term. This Professional Services Addendum shall commence on the date of execution by both Parties (the “Professional Services Addendum Effective Date”) and shall remain in effect unless and until the Agreement is terminated pursuant to the provisions of the Master Terms or this Professional Services Addendum is terminated pursuant to Section 5.2 or by mutual written agreement.
Termination for Breach. Either Party may terminate this Professional Services Addendum immediately upon written notice in the event that the other Party materially breaches this Professional Services Addendum and fails to cure such breach (or to commence diligent efforts to cure such breach that are reasonably acceptable to the terminating Party) within thirty (30) days after receiving written notice thereof.
Effect of Termination. In the event of termination or expiration of this Professional Services Addendum, Customer shall promptly pay to Motionsoft™ all amounts due and outstanding.
Survival. The provisions of Sections 2 through 4, 5.3 and 5.4 will survive the termination or expiration of this Professional Services Addendum.
This B.O.S.S.™ ADDENDUM (the “BOSS Addendum”) is an addendum to, and is hereby incorporated into, the Motionsoft™ Master Agreement between Motionsoft™™ and the customer identified in the signature block below (“Customer”), including the Master Terms and other Addenda incorporated therein (collectively, the “Agreement”). Capitalized terms used in this B.O.S.S.™ Addendum that are not otherwise defined in this B.O.S.S.™ Addendum have the meaning set forth in the Master Terms.
Services. Subject to the terms and conditions of the Agreement, Motionsoft™ shall perform the back office support services set forth in the applicable Order Form, including the member outreach and accounts receivable management (collectively, “B.O.S.S.™”). Motionsoft™ will perform B.O.S.S.™ in a professional manner in accordance with industry standards.
Timely Performance. Customer acknowledges and agrees that the timely performance by Motionsoft™ of B.O.S.S.™ is dependent upon Customer performing its obligations under this Agreement, and that any delay or failure to perform by Customer will extend the time for Motionsoft™ to perform.
Access Authorization: To perform B.O.S.S.™, Motionsoft™ will require access to Customer’s Member database. Motionsoft™ will create unique access ID’s for B.O.S.S.™ and will advise Customer what those ID’s are. This B.O.S.S.™ Addendum authorizes Motionsoft™ to have access to all Member accounts, post payments and schedule payment arrangements within Customer’s system. Customer represents and warrants that it will, at its own expense, obtain sufficient rights and all third party consents and/or permissions that may be necessary and appropriate to permit Motionsoft™’s access to and use of the Customer Materials in accordance herein. Customer represents and warrants that both Customer’s provision of the Customer Materials to Motionsoft™ and the contemplated provision of B.O.S.S.™ hereunder will in all cases comply with all applicable state and federal laws, rules and regulations. Customer will ensure Motionsoft™ will have the right to contact Members on Customer’s behalf. Customer will promptly communicate to Motionsoft™ any Member opt-outs or other requests to not be called. Customer will indemnity, defend and hold Motionsoft™ harmless from any claim arising from Motionsoft™’s performance of B.O.S.S.™ in accordance with this Agreement and the applicable Order Form.
FEES AND PAYMENTS. In consideration of B.O.S.S.™, Customer shall pay to Motionsoft™ such fees as required by the applicable Order Form (including expenses for which reimbursement is contemplated in the applicable Order Form). Except as provided above, each Party will be responsible for its own expenses incurred in rendering performance under this B.O.S.S.™ Addendum and each applicable Order Form. Unless otherwise contemplated in a particular Order Form, Motionsoft™ will issue invoices to Customer on a monthly basis for amounts due under this B.O.S.S.™ Addendum.
PROPRIETARY RIGHTS. Customer shall own any deliverable that embodies its Confidential Information to the extent that it embodies Customer’s Confidential Information. Except to the extent that the same constitutes or embodies Customer’s Confidential Information, ownership of all work product, developments, inventions, technology or materials provided under this Agreement shall be solely owned by Motionsoft™.
LIMITATION OF WARRANTIES AND LIABILITY. Motionsoft™ makes no representations or warranties under this BOSS Addendum, and Customer acknowledges that this B.O.S.S.™ Addendum is subject to all disclaimers and limitations or liability set forth in the Master Terms.
Term. This B.O.S.S.™ Addendum shall commence on the date of execution by both Parties (the “B.O.S.S.™ Addendum Effective Date”) and shall remain in effect unless and until the Agreement is terminated pursuant to the provisions of the Master Terms or this B.O.S.S.™ Addendum is terminated pursuant to Section 5.2 or by mutual written agreement.
Termination for Breach. Either Party may terminate this B.O.S.S.™ Addendum immediately upon written notice in the event that the other Party materially breaches this B.O.S.S.™ Addendum and fails to cure such breach (or to commence diligent efforts to cure such breach that are reasonably acceptable to the terminating Party) within thirty (30) days after receiving written notice thereof.
Effect of Termination. In the event of termination or expiration of this B.O.S.S.™ Addendum, Customer shall promptly pay to Motionsoft™ all amounts due and outstanding.
Survival. The provisions of Sections 1.3 through 4, 5.3 and 5.4 will survive the termination or expiration of this B.O.S.S.™ Addendum.
This MOSOPAY ADDENDUM (the “MosoPay Addendum”) is an addendum to, and is hereby incorporated into, the Motionsoft™ Master Agreement between Motionsoft™ and Customer, including the Master Terms and other Addenda incorporated therein (collectively, the “Agreement”). Capitalized terms used in this MosoPay Addendum that are not otherwise defined in this MosoPay Addendum have the meaning set forth in the Master Terms.
“Applicable Law” means: (a) any U.S. federal, state, local or other law or statute, including without limitation the USA Patriot Act and the federal Bank Secrecy Act; (b) any rule or regulation, including the by-laws, operating rules, regulations and guidelines and technical standards promulgated from time to time by any Network or payment processing agent (including the rules of the National Automated Clearing House Association) as amended from time to time, or issued by a governmental authority (including courts) with jurisdiction over, as applicable, Motionsoft™ or Customer or their respective affiliates or contractors, with respect to the provision of the Services, including the U.S. Office of Foreign Assets Control or the Board of Governors of the Federal Reserve System pursuant to the Electronic Fund Transfer Act (15 U.S.C. 1693 et seq.) as currently implemented under 12 CFR 205 (“Regulation E”); and (c) any judicial, governmental, or administrative order, judgment, decree or ruling, in each case as applicable to either Party, its affiliates or the subject matter or transactions contemplated by this Agreement.
“Business Day” means any day except Saturdays, Sundays and United States federal holidays.
“Chargeback” means a reversal of a credit card payment in which the credit card issuer or credit card payment provider: (a) credits the amounts charged to the credit card account of a Member in connection with MosoPay, after the Member successfully disputes the Transaction; and/or (b) deducts such amounts from the account established with the credit card issuer or credit card payment provider for the benefit of Customer, regardless of whether the credit is processed with consent.
“Customer Deposit Account” means the demand deposit account of Customer maintained at a financial institution located in the United States that is designated by Customer and reasonably acceptable to Motionsoft™ for receipt of funds from the processing of Transactions through the Automated Clearing House network.
“Customer Services” means services provided by Customer to Members generally in the course of Member’s business.
“Disputes” means any disagreements, litigation, or other disputes between Customer and a Member or between Customer and a third party arising from the use of MosoPay.
“Member Account” means the credit card account, debit card account, bank account, or other payment instrument that a Member uses to pay Customer for a Transaction.
“MosoPay” means the services by which Motionsoft™ directly or through a third party processes payments on behalf of Customer.
“Motionsoft™ Fees” means, to the extent set forth on an Order Form: (a) on a daily basis in arrears, Discount Fees (except for those fees which are only billed monthly) and Transaction Fee; and (b) on the final day of each month, in addition to the fees in (a), the Monthly Fees, Return and/or Decline Fees, Discount Fees that are billed at the end of each month (including cross-border fees), fees for Chargebacks, and if the amounts paid to date in such month are less than the Monthly Minimum, the difference to meet such minimum.
“Network” means an organization or association that operates links to enable the interchange or the processing of electronic fund transfers among the participants in the organization.
“Transaction” means the processing of a payment through MosoPay that results in the debiting or charging to a Member Account of the monetary amount billed to Member and the issuance of funds to the Customer Deposit Account.
Description. Customer acknowledges and agrees that: (a) any transactions are between Customer and the Member and not with Motionsoft™; (b) Motionsoft™ is a third-party service provider and payment processor facilitating Transactions for Customer and is not a party to any Transaction; (c) Motionsoft™ is not a buyer or a seller in connection with any Transaction; and (d) Motionsoft™ will not be responsible for and does not control any aspect of the services provided by Customer. This means that Motionsoft™ originates, relays, collects, analyzes and relays information generated in connection with these payments. Motionsoft™ will process the Transaction on behalf of Customer through the appropriate Network, including without limitation credit card or debit card networks, and deposit the funds with Customer. Customer understands that all Transactions and MosoPay will be subject to Applicable Laws. Motionsoft™ may suspend and/or terminate MosoPay if Customer does not comply with the applicable standards set by Motionsoft™ or its service providers.
Our Role. As a Customer payment processor, Motionsoft™ must enter into agreements with Networks, other processors and banks. These third parties require that some Motionsoft™ users enter into an agreement with Motionsoft™’s payment processor of record. If Customer is such a user, Motionsoft™ will provide Customer a separate agreement that Customer must complete in order to use MosoPay. This may happen during the registration process or at some other time. If Customer fails to complete such agreement, Motionsoft™ may terminate this Agreement. Without limiting the foregoing, Customer acknowledges that Motionsoft™ is subject to certain requirements imposed on it by its service providers and Networks, and such service providers and Networks may modify such requirements. In the event of any such modification, Motionsoft™ may modify the terms for MosoPay, provided that Customer (within ten (10) days of learning of the modification) may elect as its sole and exclusive remedy for such modification to terminate MosoPay with thirty (30) days notice solely in the event any such modification materially and adversely affects Customer and Motionsoft™ is unable to rectify such situation.
Processor. The parties agree that the Global Payments Direct, Inc. Merchant Service Agreement, available at https://www.motionsoft.net/eula-global/ is incorporated into and made a part of this Agreement and Customer shall comply with all such terms.
Customer Obligations. Customer will comply with all Applicable Laws and any Customer policies (including its privacy policies). Customer will provide reasonable advance notice to Motionsoft™ of any material changes regarding Customer’s operations, which could affect Motionsoft™’s ability to deliver the service outlined in this Agreement.
Publicity. Motionsoft™ may publicly refer to Customer, including on Motionsoft™’s website and in sales presentations, as a Motionsoft™ customer and may use Customer’s logo for such purposes.
TRANSACTIONS AND PROCESSING.
Permissible Transactions. Customer may only use MosoPay to process a Transaction for Customer Services purchased by a Member through a legitimate, bona fide sale of the Customer Services. MosoPay may not be used to process a Transaction for Customer, or otherwise transfer money between a Member and Customer, that does not directly result from a Member’s purchase of Customer Services. Customer may not use MosoPay to provide cash advances to Members or to facilitate the purchase by Members of cash equivalents (e.g., travelers checks, money orders); provided however, that Customer may use MosoPay to facilitate the purchase by Members of a gift certificate or stored value card generally made available by Customer. Motionsoft™ may establish general practices and limits concerning use of MosoPay, including without limitation individual or aggregate transaction limits on the dollar amount or number of Transactions during one or more specified time periods. Customer may not use MosoPay to process Transactions in connection with an illegal transaction or the sale or exchange of any illegal or prohibited goods or services or any of the other business activities set forth in Exhibit A.
ACH Transactions. Motionsoft™ will process each entry or file in accordance with the processing schedule agreed to by the Parties provided that: (i) the entries or files are received by Motionsoft™’s applicable cut-off time on a Business Day; and (ii) the ACH network is open for settlement on that day. Entries or files will be deemed received by Motionsoft™ when the transmission is completed. If Motionsoft™ receives an entry or file after its processing deadline, Motionsoft™ will not be responsible for failure to meet the deadlines of the ACH operator for processing and transmitting the entries or files. If any of the above requirements are not met, Motionsoft™ will use reasonable efforts to transmit the entries or files to the ACH by the next applicable deadline of the next Business Day.
Prohibited Actions. Customer may not: (a) establish a minimum or maximum Purchase Amount as a condition for Member’s use of MosoPay to pay for Customer Services; (b) require Member to provide Customer with the account numbers of any credit card, debit card, or other payment instrument; (c) add any Service use surcharge to a Transaction; (d) separately process as a Transaction the amount of any tax applicable to a purchase of Customer Services; (e) submit to MosoPay a Transaction that was previously returned as a Chargeback; or (f) permit the use of MosoPay for payment of any debt owed to Customer by Member.
Authorization. For any Transaction made with a credit card, Customer acknowledges that: (a) the receipt of an authorization for a Transaction indicates only that, as of the date of the authorization, the underlying Member Account has sufficient credit with the card issuer for the amount of the Purchase Amount; (b) the authorization is not a confirmation of the Member’s identity; nor is an authorization a guarantee by Motionsoft™ that the transaction will not be subject to a chargeback or other reversal; and (c) Motionsoft™ has no responsibility to Customer to investigate the background or confirm the identity of Members, except to the extent required by applicable law.
Processing Errors. Motionsoft™ will attempt to rectify processing errors that it discovers. If the error resulted in Customer’s receipt of more or less than the correct amount to which Customer was entitled, Motionsoft™ will, as applicable, debit or credit the Customer Deposit Account for the difference. Customer’s failure to notify Motionsoft™ of a processing error within thirty (30) days of when it first appears on Customer’s electronic transaction history will be deemed a waiver of any right to amounts owed to Customer. All items not honored by a payee’s bank or cardholder’s issuing bank will be reported to Customer at the time Motionsoft™ receives notification. Motionsoft™ will incorporate the reason that the item was not honored, as made available by the payee’s bank or card issuer, into the notification. It is necessary for Customer to import the returned item files into Customer’s system in order to update the accounts with accurate information.
Transmissions. Motionsoft™ will provide Customer with a fixed schedule of dates by which Motionsoft™ must receive Customer’s transmissions in order to ensure the drafting of Customer’s respective payment transmission dates. In the event that Customer’s transmissions are not received in compliance with the schedule then they will be processed on the next available scheduled draft date.
Funds Transfer. On the second Business Day following Customer’s draft date, Motionsoft™ will forward to Customer by e-mail a detailed remittance report and Motionsoft™ will initiate an electronic transfer into Customer’s operating account for the remittance amount net of all service fees (including Motionsoft™ Fees and third party fees). All items not honored by a payee’s bank or cardholder’s issuing bank will be reported to Customer at the time Motionsoft™ receives said notification. Incorporated into the notification will be the reason that the item was not honored as made available by the payee’s bank or card issuer. Customer must import the returned item files into Customer’s system to update accounts.
Issues with Transfer. In the event that items not honored by a payee’s bank, credit card company or service fees exceed the amount of Customer’s reserve Customer hereby authorizes Motionsoft™ to electronically recover the overage from Customer’s operating account. If there are insufficient funds in Customer’s operating account Customer agrees to wire or transmit overnight the necessary funds to Motionsoft™ within 24 hours of notification to Customer.
Taxes. If in a given calendar year Customer receives (i) more than $20,000 in gross amount of payments and (ii) more than 200 payments, Motionsoft™ and/or its processor may be required by law to report to the Internal Revenue Service (“IRS”) Customer’s name, address, Tax Identification Number (such as a Social Security Number (SSN), or Employer Identification Number (EIN)), the total dollar amount of the payments Customer received in a calendar year, and the total dollar amount of the payments Customer received for each month in a calendar year.
Information. Customer acknowledges and agrees that Motionsoft™ and its payment service providers (a) collect and store all information (including personal information) necessary to receive payments from Members, and (b) run authorization and verifications processes in connection with the payment method selected by Members. Customer agrees to provide all information requested by Motionsoft™ for the provision of MosoPay (including as may be necessary in an application therefor). Customer represents and warrants all such information will be true, accurate, not misleading and complete. Motionsoft™ and its service providers will use reasonable efforts to protect all such information but DOES NOT MAKE AND HEREBY EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT SECURITY BREACHES WILL NOT OCCUR WITH RESPECT TO ANY INFORMATION COMMUNICATED THROUGH MOSOPAY, THE INTERNET, OR ANY COMMON CARRIER COMMUNICATIONS FACILITY. NEITHER Motionsoft™ NOR ITS SERVICE PROVIDERS SHALL HAVE ANY LIABILITY OF ANY KIND TO CUSTOMER OR MEMBERS WITH RESPECT TO USE OF MOSOPAY OR ANY INFORMATION PROVIDED IN CONNECTION THEREWITH. In the event of a conflict between any provision of Section 5 and this Section 3.10, the provision in Section 3.10 will prevail.
Reserve. Customer authorizes Motionsoft™ to establish and maintain a reasonable reserve for charge backs, stop payment orders and other disputed items. Motionsoft™ will furnish Customer with regular, timely and complete documentation showing what portion, if any, of the funds being retained have been applied to such charge backs, stop payment orders and disputed items. Upon notice of non-renewal or termination, Motionsoft™ may increase the amount of the reserve to cover post-termination Chargebacks and other disputed items. Motionsoft™ may maintain such reserve for a period not to exceed ninety (90) days.
TRANSACTION DISPUTES AND ADJUSTMENTS.
Disputes Customer is solely responsible for Disputes and Motionsoft™ is not a party to and will not be responsible for any Disputes. Motionsoft™ may provide tools to facilitate communication between Customer and a Member to resolve Disputes. If Customer and a Member are unable to resolve a Dispute, Motionsoft™ may mediate the Dispute upon either party’s request and may propose a non-binding solution at Motionsoft™’s sole discretion. Motionsoft™ is solely responsible for Disputes and Customer is not a party to and will not be responsible for any Disputes; provided, that Customer agrees to provide reasonable assistance to Motionsoft™ in resolving Disputes.
Refunds and Adjustments. If Customer allows returns, cancellations or price adjustments in connection with a Transaction, Customer will initiate a credit to the Member using the refund function of MosoPay within three (3) days of receiving the Member’s request. Refunds cannot exceed the total amount of the Transaction. Customer agrees not to accept cash or any other consideration from a Member in exchange for issuing a refund to a Member. Customer agrees not to give cash refunds to a Member in connection with a Customer Services paid for with MosoPay unless required by law. If Customer provides a refund through a means other than through MosoPay, Customer remains responsible if the Transaction results in a chargeback through MosoPay. Customer acknowledges that even if Customer’s return/cancellation policy prohibits returns or cancellations, Customer may still receive Chargebacks relating to the transactions. Motionsoft™ may reject or delay a refund request from Customer through MosoPay if Motionsoft™ is unable to obtain sufficient funds from Customer to fund the refund
Payment Adjustments. Chargebacks will be reported to Customer upon Motionsoft™’s receipt of same. Customer acknowledges that Members may retain a Chargeback right pursuant to card association and Network rules and/or their agreement with the holder of the Member Account, and Motionsoft™ will have the right (but not the obligation) to pass Chargebacks and any costs resulting therefrom to Customer. As to particular Transactions, Motionsoft™ may withhold payments or reverse previous payments if: (a) a Member makes a claim to Motionsoft™ for a refund or other reversal; or (b) Motionsoft™ believes that the Transactions are invalid, involve misconduct or fraud (such as fraudulent use of a payment instrument), or otherwise violate applicable law, this Agreement, or any Motionsoft™ provided documentation. Customer agrees to cooperate with Motionsoft™ and to provide any information that may be reasonably requested by Motionsoft™ in its investigation of any of the foregoing circumstances. Motionsoft™ may offset any payment obligation that Motionsoft™ may have to Customer under this Agreement against (i) fees owed by Customer, (ii) amounts overpaid to Customer due to a later reversal, refund, chargeback or other adjustment to prior Transactions, and (iii) any other amounts owed by Customer to Motionsoft™ under this Agreement or any other agreement. In the event that Customer incurs a negative balance (i.e. due to negative adjustments exceeding the settlement proceeds for a particular period), Motionsoft™ may debit the Customer Deposit Account for the amount of the negative balance. Furthermore, Motionsoft™ may choose to invoice Customer for any amounts owed by Customer under this Agreement which will be immediately due and payable.
FEES AND PAYMENTS. Motionsoft™ shall have the right to automatically debit the Motionsoft™ Fees prior to the disbursement to Customer’s Deposit Account. Customer hereby authorizes all such debits, and upon any request by Motionsoft™, Customer shall complete any and all documentation required to enable Motionsoft™ to complete such automatic withdrawals. Payment of the Motionsoft™ Fees shall be absolute and unconditional, and shall not be subject to any abatement, reduction, set off, defense, counterclaim, interruption, deferment or recoupment for any reason whatsoever. After the Initial Term, Motionsoft™ may increase any fees at any time upon written notice to Customer with at least sixty (60) days prior notice.
LIMITATIONS OF WARRANTY AND LIABILITY. Motionsoft™ makes no representations or warranties under this MosoPay Addendum, and Customer acknowledges that this MosoPay Addendum is subject to all disclaimers and limitations or liability set forth in the Master Terms.
TERM AND TERMINATION
Term. This MosoPay Addendum shall commence on the date of execution by both Parties (the “MosoPay Addendum Effective Date”) and shall remain in effect unless and until the Agreement is terminated pursuant to the provisions of the Master Terms or this MosoPay Addendum is terminated pursuant to Section 4.2 or by mutual written agreement.
Termination for Breach. Either Party may terminate this MosoPay Addendum immediately upon written notice in the event that the other Party materially breaches this MosoPay Addendum and fails to cure such breach (or to commence diligent efforts to cure such breach that are reasonably acceptable to the terminating Party) within thirty (30) days after receiving written notice thereof.
Effect of Termination. In the event of termination or expiration of this MosoPay Addendum, Customer shall promptly pay to Motionsoft™ all amounts due and outstanding.
Survival. The provisions of Sections 3.3, 4, 5, 6, 7.4 and 7.5 will survive the termination or expiration of this MosoPay Addendum.
Advanced payments greater than 1 year (any product or service)
Any adult products and services including but not limited to:
Audiotext (Phone Sex)
Web based sexually oriented chat
Videotext (images via the Internet)
Sexually oriented dating services
Adult toys, bookstores, strip clubs and other misc adult entertainment, services or products
Memberships, clubs, subscriptions
Any products on the internet containing graphic or nude content
Any illegal activity (i.e., child pornography, bestiality, etc)
Aggregators/Third Party Payment Processors- falling outside MasterCard/Visa and FDMS approved program requirements (See Payment Facilitators/Internet Payment Service Providers under High Risk/Tier II segment of the policy)
Any illegal products/services or providing peripheral support of illegal activity
Bidding fee auctions (a/k/a penny auctions)
Business/Investment opportunities operating as Get rich quick schemes (including Internet search/ad optimization)
Cash advances (except regulated Financial Institutions which are acceptable)
Charities (without evidence /proof of 501( C ) (3) status)
Check cashing establishments
Collection agencies or firms involved in recovering/collecting past due receivables
Credit card protection or identity theft service
Debt consolidation or reduction services
Drug paraphernalia of any form
Embassy, Foreign Consulate, or other Foreign Government
Essay mills/Paper mills
Extended warranty companies
Herbal smoking blends and herbal incense
How to books, newsletter, subscription or on line access for ANY industry shown in the Unqualified list
Illegal gambling including Internet/MOTO gambling
Lifetime subscriptions (any product or service)
Mail order brides and international match-making services
Medical benefits packages (including discount medical cards)
Marijuana dispensaries (and affiliated services)
Merchants engaged in activity prohibited by the Card Brands
Merchants or Principals listed on MATCH
Merchants, Principals or related entities previously identified by any Card Brand for deceptive practices or any other violation of Card Brand rules
Merchants physically located outside the United States (offshore acquiring)
Merchants in a Card Brand excessive chargeback or fraud program or merchants with chargeback or fraud rates over 1%
Merchants that use tactics to evade Card Brand excessive chargeback or fraud monitoring programs
Merchants up-selling or cross-selling products of other merchants and then sharing the cardholder data with the third party or receiving cardholder data from third parties (Data Pass).
Merchants splitting the sale across multiple transactions
Merchants offer rebates or special incentives (i.e., free gift, prize, sweepstakes or the winning of a contest as an inducement to purchase a product/service).
Merchants primarily engaged in the sale of stored value cards in a card not present environment.
Merchants engaged in any form of deceptive marketing practices including but not limited to:
Bogus claims & endorsements
Pre-checked opt in boxes
Money services businesses
Money transfer services
Mortgage reduction services
Multi level marketing or pyramid schemes where the primary objective is the solicitation of new distributors and not the sale of products/services
Negative renewal option following a free or low cost purchase (including but not limited to payment for shipping only model, free or discounted trial periods, etc.) for the following industries:
Nutraceuticals (e.g. acai berry or health related teas or drinks etc)
Pseudo-pharmaceuticals (e.g. weight-loss, anti-aging, muscle building, sexual stimulant supplements, colon cleansers, detox products, hCG, HGH-like substances etc)
Beauty/Cosmetic products (e.g., teeth whitening products, anti-wrinkle creams, tanning sprays etc)
Medical devices and products (e.g. glucose strips etc)
Non face to face sale of prescription drugs
Non face to face sale of tobacco products or other smoking products (including e-Cigarettes/smokeless cigarettes)
Non Face to face sale of firearms (mail/telephone order, internet)
Replicas/Counterfeit goods-designer name products
Substances designed to mimic illegal drugs (including herbal smoking blends & herbal incense)
Travel-Outbound Telemarketing (MCC 5962)-including Discount Travel Clubs, membership or Subscriptions to Travel Services or Newsletters where subscribers may select prepackaged trips.
Virtual Currency (that can be monetized, resold, converted, traded into physical/digital goods & services outside the virtual world