Master Services Agreement May 2017 to September 2018

This Master Services Agreement (the “MSA”) is between Motionsoft, Inc. (“Motionsoft“) and the Party identified in the Order Form (the “Customer”) executed by Motionsoft and the Customer that references this MSA, and shall be effective with respect to each Order Form as of the latest date set forth in the Order Form (the “Effective Date”). Each Order Form and this MSA (including its Exhibits and their Attachments) are referred to as the “Complete Agreement” and shall govern the relationship between the Parties relating to the Motionsoft Services expressly identified in the applicable Order Form. Each of Motionsoft and Customer are referred to sometimes herein separately as a “Party” and together as the “Parties”. No other terms or conditions, including terms or conditions contained in any purchase order later exchanged between the Parties as a mechanism for processing and approving payments, shall govern the relationship between the Parties.

1. DEFINITIONS.

Capitalized terms shall have the meanings set forth below in this Section 1 or elsewhere in this Master Subscription Agreement.

1.1 “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 Motionsoft Services pursuant to Customer’s rights under this Agreement, except that Authorized Users specifically exclude Members, and Members will not be considered Authorized Users.

1.2 “Card” means a credit and/or a debt payment instrument provided by Visa, Mastercard or any other payment services organization.

1.3 “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. 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.

1.4 “Customer Data” means the personal information about Members and their accounts provided by or on behalf of Customer through the Motionsoft Services.

1.5 “Customer Materials” means all Customer Data and other intellectual property and work product, computer systems, network access and other resources of Customer or its suppliers required by Motionsoft for the performance of the Motionsoft Services.

1.6 “Member” means an individual, subscriber or other kind of customer of Customer to whom Customer provides services of some kind.

1.7 “Payment Service Provider” means a third party organization, association or financial institution that enables processing of Card payment transactions, electronic fund transfers and automated clearing house (“ACH”) transactions.

1.8 “Motionsoft Services” means the software services (i.e., the services other than Professional Services) ordered by Customer through an Order Form.

1.9 “Order Form” means Motionsoft’s standard purchase order form, executed by both Parties, that sets forth the Motionsoft Services, any restrictions on such use and/or any other relevant information relating to the Motionsoft Services, including the term and fees.

2. FEES AND PAYMENTS.

2.1 Fees Customer agrees to pay the amounts specified in each Order Form and Statement of Work (as is hereinafter defined). Except as otherwise provided in any applicable Order Form(s), all amounts due hereunder shall be due within thirty (30) days after the relevant invoice date.

2.2 Disputed Charges. Customer will notify Motionsoft in writing of any dispute with invoiced charges promptly after receipt of the applicable invoice. If you dispute any charge or funding you must notify Motionsoft within sixty (60) days of the date of the statement where the charge or funding appears. If a disputed charge arises for a transaction, a Chargeback may be submitted for part or the full amount of the transaction. If Customer disputes any charge or funding, Customer must pay the disputed amount in full and immediately notify Motionsoft of the disputed amount and the reason for the dispute. Customer agrees that Customer and Motionsoft will then work together to resolve the disputed amount. If Motionsoft, in its sole discretion, agrees with Customer’s position on the disputed amount, Motionsoft will credit the disputed amount to Customer on the next periodic statement. If Motionsoft, in its sole discretion, does not agree with Customer’s position on the dispute, Customer may terminate this agreement under the conditions of Section 13, “Term and Termination”.

2.3 Taxes. All amounts payable under this Agreement exclude all applicable sales, use and other taxes (other than taxes based on Motonsoft’s net income) and all applicable export and import fees, customs duties and similar charges. Customer is responsible for payment of all such Taxes (other than taxes based on Motionsoft’s net 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 Motionsoft Services. Customer will make all payments required hereunder to Motionsoft free and clear of, and without reduction for, any withholding taxes.
3. ACCESS AND USE.

3.1 License to Use. Motionsoft hereby grants to Customer a limited, non-exclusive, non-transferrable and non-sublicensable license during the Term of the applicable Order Form to access and to use the Motionsoft Services identified in such Order Form pursuant to and in accordance with this Agreement.

3.2 Access and Use. Customer may permit Authorized Users to access and use the features and functions of the Motionsoft Services in accordance with this Agreement.

3.3 Responsibility for Hosting. Motionsoft will, at its own expense, provide for the hosting of the Motionsoft Services, with the understanding that Motionsoft will not be required to bear any responsibility for any telecommunications and/or network expenses required by Customer to access the Motionsoft 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 access and use the Motionsoft Services. Motionsoft will use commercially reasonable efforts to provide the Motionsoft Service in accordance with the Service Levels set forth in Exhibit A to this Agreement.

3.4 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 Motionsoft 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 Motionsoft Services; or (c) allow third parties to gain access to the Motionsoft Services, except that Members are permitted to access certain Motionsoft Services. Customer will ensure that its use of the Motionsoft Services complies with all applicable laws, statutes, regulations or rules.
4. SUPPORT AND TRAINING.

4.1 Support and Technical Assistance. Motionsoft will provide telephone and email technical support to Customer personnel during its normal business hours (8 AM ET to 8 PM ET) in accordance with Motionsoft’s then-standard support policies. Such support does not include training. Premium support and/or training obligations may be set forth in an Order Form for an additional fee. Motionsoft will have no obligation to provide any support directly to any Member, and Motionsoft may refer all Members directly to Customer for support. Customer can designate up to two (2) persons per location, which designees will be eligible to receive technical support from Motionsoft (“Eligible Support Recipients”). Such designees may be changed by Customer at any time by written notice to Motionsoft. Except for such Eligible Support Recipients, Customer will be solely responsible for the support of all Authorized User and Members accessing the Motionsoft Services.

4.2 Training. Customer may request Motionsoft to provide training services related to the Motionsoft Services. Until the Customer has ordered training services pursuant to an Order Form, Motionsoft will have no obligation to provide training services to Customer.
5. TERMS APPLICABLE TO PARTICULAR MOTIONSOFT SERVICES.

5.1 MoSoPay. “MoSoPay” means the payment gateway portion of the Motionsoft Services by which Motionsoft transmits information to a Payment Service Provider. If Customer maintains the direct relationship with a Payment Service Provider and employs MoSoPay solely to transmit cardholder data between the Motionsoft Services and Customer’s Payment Service Provider, then: (i) Customer authorizes Motionsoft to share information learned pursuant to this Agreement with the Merchant Service Provider, including any cardholder Data; and (ii) Motionsoft will be responsible only for cardholder data properly submitted by Customer to Motionsoft using the encrypted fields within the Motionsoft Services designated for cardholder data that is transmitted to Motionsoft in an encrypted manner. If Customer uses Motionsoft’s Merchant Service Provider, then the terms and conditions of Exhibit B apply to Customer in connection with its use of, and Motionsoft’s provision of, MoSoPay.

5.2 B.O.S.S. and Full Service. The Motionsoft Services consisting of the Back Office Support Services, including the member outreach and accounts receivable management modules (referred to herein as “B.O.S.S.”) and the Motionsoft Services consisting of Member account management (referred to herein as “Full Service”), may be ordered pursuant to an Order Form. When the Motionsoft Services known as B.O.S.S. or Full Service are provided to Customer, the following terms and conditions shall apply. To perform B.O.S.S. or Full Service, Motionsoft will need to communicate with Members (including the use of an automatic telephone dialing system and a bulk email system) and to access Member’s database records. Customer authorizes Motionsoft to have access to all Member accounts, post payments, schedule payment arrangements, and to perform account management as part of the Motionsoft Services, and Customer hereby grants Motionsoft the limited right to communicate with Members and/or Customer personnel as in Motionsoft’s reasonable discretion may be necessary as part of the provision of the Motionsoft Services. Customer represents and warrants that Customer has all necessary rights and consents to authorize Motionsoft to engage in such communications and to otherwise take such actions and that Customer will, at its own expense, obtain sufficient rights and all third-party consents and/or permissions, including from Members, that may be necessary and appropriate to permit Motionsoft’s communications and access to and use of the Customer Materials. Customer further represents and warrants that both Customer’s provision of the Customer Materials to Motionsoft, and the contents of all communications with Members using the Motionsoft Services, as well as the process employed to communicate with Members, complies with all applicable state and federal laws, rules and regulations. Customer will promptly communicate to Motionsoft any Member opt-outs or other requests to not be contacted.

5.3  MyClub. “MyClub Service” and “MoSoClub Service” means the Motionsoft Services known as MoSoClub. “Customer Content” means any content provided by Customer and/or developed by or on behalf of Customer as part of the Member-facing portal operated by Motionsoft on behalf of Customer as part of the MyClub Service. Customer Content will be considered Customer Materials under the Agreement. Customer represents and warrants that any Customer Content hosted by Motionsoft as part of the MyClub Service 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. Customer agrees that any use of the Motionsoft Services contrary to or in violation of the representations and warranties of Customer in this section constitutes unauthorized and improper use of the Motionsoft Services. 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 commercially reasonable efforts to notify Customer of such removal. Motionsoft reserves the right to terminate this Agreement if Customer repeatedly infringes third-party copyright rights upon prompt notification to Motionsoft by the copyright owner or the copyright owner’s legal agent. Motionsoft may condition Members’ use of the MyClub Service on their acceptance of and compliance with Motionsoft’s standard terms of service.
6. PROFESSIONAL SERVICES.

6.1 Professional Services. The Parties anticipate that Customer may desire to, but is not obligated to, engage Motionsoft to perform certain professional services for Customer separate from the Motionsoft Services. Such professional services will be expressly identified as “Professional Services” in the Order Form under which they are provided, and may be further detailed in a “Statement of Work” (also referred to herein as a “SOW”). Motionsoft shall perform the Professional Services in a professional manner in accordance with commonly accepted industry standards.

6.2 Issuance of Statement of Work. When requested by Customer or desired by Motionsoft, Motionsoft shall prepare a draft Statement of Work as an exhibit to the Order Form describing the Professional Services to be performed. Until the acceptance in writing of the proposed SOW, Motionsoft shall have no obligation to perform the proposed Professional Services and Customer shall have no obligation to pay for any Professional Services. Each SOW, regardless of whether it relates to the same subject matter as any previously executed SOW(s), shall become effective upon the date of execution by the authorized representatives of Motionsoft.

6.3 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. Modifications in any SOW shall become effective only when a written change request is executed by the authorized representatives of Motionsoft.

6.4 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.
7. CONFIDENTIALITY.

7.1 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 (collectively, the “Other Party’s Confidential Information”). 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.

7.2 Mutual Confidentiality Obligations. Each Party agrees: (i) to use the Other Party’s Confidential Information only for the provision and use of the Motionsoft Services or as otherwise approved in writing by the disclosing Party; (ii) not to reproduce the Other Party’s Confidential Information (excluding digital copies maintained in accordance with archiving practices) and to hold in confidence and protect the Other Party’s 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, to not create any derivative work from the Other Party’s Confidential Information; (iv) to restrict access to the Other Party’s 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 not use or disclose such Confidential Information in at least as restrictive a manner as provided in the terms of this Agreement; and (v) to return or destroy all of the Other Party’s Confidential Information in its possession upon termination or expiration of this Agreement (excluding any Confidential Information retained as digital copies in accordance with archiving practices for use solely for archival purposes).

7.3 Confidentiality Exceptions. The obligations in Section 2 shall not apply to Confidential Information that: (i) is publicly available or in the public domain at the time disclosed; (ii) later 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 in writing for use or disclosure by the disclosing Party without restriction. The obligations in Section 7.2 shall not apply to Confidential Information to the limited extent required: (i) 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 (ii) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.

8. CERTAIN CUSTOMER RIGHTS AND OBLIGATIONS.

8.1 Customer Materials. 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 may extend the time for Motionsoft to perform its obligations under this Agreement.

8.2 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 Authorized 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/or 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 Motionsoft.

8.3 Service Rules. Customer will use the Motionsoft Services only as contemplated by this Agreement and will not, nor will Customer authorize any Authorized User or Member to, use the Motionsoft 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 Motionsoft 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 Motionsoft 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 Motionsoft Services or the data contained therein; (f) attempt to gain unauthorized access to the Motionsoft Services, computer systems or networks related to the Motionsoft Services; or (g) interfere with another Authorized User’s use and enjoyment of the Motionsoft Services.

9. OWNERSHIP AND PROPRIETARY RIGHTS.

9.1 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 rights in and to the Customer Materials not expressly granted by this Agreement. Customer hereby grants to Motionsoft a limited, non-exclusive right and license to: (a) use any Customer Materials during the Term for the limited purposes of performing Motionsoft’s obligations and providing the Motionsoft Services 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.

9.2 Motionsoft. 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 work product, developments, inventions, technology or materials provided under this Agreement.

9.3 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.

9.4 Feedback. Motionsoft in its sole discretion, may utilize, all comments and suggestions, whether written or oral, furnished by Customer or its personnel 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’s products and services, including the Motionsoft Services.

10. WARRANTIES. 

10.1 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.

10.2 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.

10.3 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 and to provide to Customer the Motionsoft Services; (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.

10.4 No Other Warranties. 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 IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. 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 AGREES 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.

11. LIMITATION OF LIABILITY.

11.1 LIMITATIONS. IN NO EVENT SHALL MOTIONSOFT 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 ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES (E.G., EXCLUDING ANY TRANSACTIONAL AND INTERCHANGE FEES) PAID TO MOTIONSOFT BY CUSTOMER UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST AROSE. THE LIMITATIONS OF LIABILITY IN THIS SECTION ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT ANY LIABILITY MAY NOT BE SO EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

11.2 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 the economic terms, would be substantially different.

12. INDEMNIFICATION. 

12.1 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 (as is hereinafter defined). Upon the occurrence of a claim for which indemnity is or may be due under this Section 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 12 shall constitute Motionsoft’s entire liability and Customer’s sole remedy for any actual or alleged infringement or misappropriation.

12.2 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 or relating to: (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 otherwise than as specified in any Motionsoft written documentation; (d) any Member of Customer; (e) modification of the Motionsoft Services by any person other than Motionsoft or its authorized agents; or (f) Customer’s breach of any agreement with its Merchant Service Provider (circumstances under clauses (a) through (f), each, a, “Customer Indemnity Responsibility”).

12.3 Procedures. The indemnification obligations set forth above shall not apply to the extent the indemnified party: (i) does not promptly notify the indemnifying party of any claim which may be subject to an indemnification obligation; (ii) does not grant the indemnifying party sole control over the defense and/or settlement of any such claim; or (iii) does not assist the indemnifying party as reasonably requested. 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 without payment of any consideration other than by the indemnifying party or unless the indemnified party provides its prior written consent to such settlement.

13. TERM AND TERMINATION.

13.1 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 Section 13.2 or 13.3. 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 13.2 or 13.3.

13.2 Termination for Breach. Either Party may terminate this Agreement immediately upon written notice to the other Party 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.

13.3 Termination Upon Bankruptcy, Insolvency, Etc. Either Party may terminate this Agreement immediately upon written notice to the other Party 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 after it was first filed.

13.4 Suspension of Service. If Customer fails to pay undisputed amounts within thirty (30) days after receipt of a second notice (i.e., the first notice following the invoice for such amount) of such amount being due and payable, Motionsoft may suspend the Motionsoft Services to Customer, in addition to any of its other rights or remedies, without liability to Customer until such amounts are paid in full. If necessary to protect the security of the Motionsoft Services or one or more of its customers (including Customer), Motionsoft may immediately suspend the Motionsoft Services to Customer, without liability to Customer, until such threat to the security of the Motionsoft Services or to one or more of its customers (including Customer) is resolved.

13.5 Early Termination Fees.

13.5.1 Processing Fees: Motionsoft shall have the right, but not the obligation, to charge Customer a processing early termination fee (“Processing Early Termination Fee”) should Customer terminate this Agreement without cause, prior to the expiration of the current Term, such Processing Early Termination Fee shall be calculated on an averaged net basis of processing fees charged to Customer over the three (3) months of processing prior to the receipt of the Termination notification by Motionsoft, for the duration of the contract Term. Such Processing Early Termination Fee is due and payable withing fifteen (15) days of the delivery of Customer’s termination notice to Motionsoft.

13.5.2 SaaS Fees: Motionsoft shall have the right to charge Customer a SasS early termination fee ( “SaaS Early Termination Fee”) should Customer terminate this Agreement prior to the expiration of the current Term. Such SaaS Early Termination Fee shall be the remaining unpaid monthly SaaS fee for all of the remaining periods. Such SaaS Termination Fee is due and payable withing fifteen (15) days of the delivery of Customer’s termination notice to Motionsoft.

13.6 Accrued Obligations. Termination of this Agreement 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 to survive termination. Notwithstanding the foregoing, the Party terminating this Agreement as permitted by any provision in this Section 13 shall incur no additional liability merely by virtue of such termination. Termination of this Agreement, 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.

13.7 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.

13.8 Survival of Obligations. The provisions of Sections 2, 7, 9, 10, 11, 12, 6, 13.7, 13.8, 14, as well as any other terms that by their nature should survive, shall survive termination or expiration of this Agreement.

14. MISCELLANEOUS. 

14.1 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.

14.2 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 (other than the enforcement of judgments) 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.

14.3 Continuous Development. The Parties acknowledge and agree that Motionsoft may continually develop, deliver and provide to Customer ongoing innovation to the Motionsoft Services in the form of new features, functionality, capabilities and services. Motionsoft reserves the right to modify the Motionsoft 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 Motionsoft Services, Motionsoft may condition Customer’s receipt of such functionality on Customer’s payment of additional fees, provided Customer may elect to continue to use the version of the Motionsoft Services that Motionsoft makes generally available (without such features) without paying additional fees. If any modification materially and adversely affects the functionality of the Motionsoft 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 Motionsoft Services within thirty (30) days of Motionsoft receiving such notice, Customer may terminate this Agreement as its sole and exclusive remedy for such modification.

14.4 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.

14.5 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. Such notices will be effective on the date indicated in such confirmation. Notices of any change of address by one Party must be sent to the other Party five (5) days before such change of address takes effect.

14.6 Assignments. Customer may 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.

14.7 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.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. The effective date of any Amendment shall be the date upon which Motionsoft executes the Amendment.

14.8 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. The effective date of any Amendment shall be the date upon which Motionsoft executes the Amendment.

14.9 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.

14.10 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.

14.11 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.

14.12 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.

14.13 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.

14.14 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.

14.15 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.

EXHIBIT A

SERVICE LEVELS

 
1. DEFINITIONS. The following capitalized terms (hereinafter “Defined Term(s)”) will have the definitions set forth below. Should any Defined Term in this Exhibit A conflict with a Defined Term in the Agreement or in any other Exhibit or Attachment, the Defined Term in the Agreement shall rule.

1.1 “Availability” means, 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.

1.2 “Chronic Failure” means frequent but low-impact failures of the Motionsoft system that takes little time to correct. Chronic failures seemingly are low-cost events but over the life of the system they add up to losses far greater than those incurred from other failures.

1.3 “Excluded Downtime” means any Scheduled Downtime or any other downtime of the Motionsoft Services 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 the Master Subscription Agreement or this Exhibit A; (iii) incompatibility of Customer’s or Customer’s software with the Motionsoft Services; (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.

1.4 “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 Motionsoft Services 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 to Customer prior to modifying such Scheduled Downtime.

1.5 “Total Time” shall mean the total number of minutes in any calendar month, to the extent included within the term of this Agreement.

1.6 “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 Motionsoft Services, according to the access protocols, other than Excluded Downtime.

2. AVAILABILITY.

2.1 Service Level. Motionsoft will use reasonable commercial efforts to ensure that Availability (expressed on a percentage basis) equals or exceeds ninety nine point five percent (99.5%) (“Service Level”) during each calendar month for access by Customer.

2.2 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.

2.3 Reporting Downtime. Customer may report Unscheduled Downtime by sending an email to support@motionsoft.com. 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.

2.4 Service Credits. If the Motionsoft Services do 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 Motionsoft Services 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 Motionsoft Services 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.

2.5 Failure to Meet Service Level. In the event Customer experiences either: (i) three (3) consecutive months with Availability lower than ninety five percent (95%); or (ii) five (5) calendar months in any twelve (12) month period with Availability lower than ninety five (95%,) Customer may, within thirty (30) days of such event, terminate this Agreement and any Motionsoft 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.

EXHIBIT B
MOSOPAY

1. DEFINITIONS.

The following capitalized terms (hereinafter “Defined Terms”) will have the definitions set forth below. Should any Defined Term in this Exhibit B conflict with a Defined Term in the Agreement, the Defined Term in the Agreement shall prevail. Should any Defined Term in this Exhibit B conflict with a Defined Term in the Agreement, the Defined Term in the Agreement shall prevail. Should any Defined Term in this Exhibit B conflict with a Defined Term in Exhibit A, but not in the Agreement, the Defined Term in Exhibit A shall prevail.

1.1 “Applicable Law(s)” 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, hereinafter “NACHA”) 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.

1.2 “Business Day” means any day except Saturdays, Sundays and United States federal holidays.

1.3 “Chargeback” means a reversal of a Card payment in which the Card issuer or Card payment provider: (a) credits the amounts charged to the 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 Card issuer or Card payment provider for the benefit of Customer, regardless of whether the credit is processed with the consent of the Customer.

1.4 “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.

1.5 “Customer Services” means services provided by Customer to Members generally in the course of Member’s business.

1.6 “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.

1.7 “Member Account” means the Card account, bank account, or other payment instrument that a Member uses to pay Customer for a Transaction.

1.8 “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.

1.9 “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.

1.10 “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.

2. OVERVIEW.

2.1 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 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.

2.2 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.

2.3 Processor. The Parties agree that the Global Payments Direct, Inc. Merchant Service Agreement, available at https://www.motionsoft.net/legal/eula/ is incorporated into and made a part of this Agreement and Customer shall comply with all such terms. Should any term or condition in the Global Payments Direct, Inc Merchant Service Agreement, the terms and conditions of the this MSA shall prevail.

2.4 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.

2.5 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.

3. TRANSACTIONS AND PROCESSING.

3.1 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 Attachment A to this Exhibit B.

3.2 ACH Transactions. Motionsoft will process each entry or file in accordance with the processing schedule agreed to by the Parties, as documented in the Work Order, unless such agreed processing schedule is overiden by the rules and processing schedules of NACHA, 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 commercially reasonable efforts to transmit the entries or files to the ACH by the next applicable deadline of the next Business Day.

3.3 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 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.

3.4 Authorization. For any Transaction made with a 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.

3.5 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.

3.6 Transmissions. Motionsoft will provide Customer with a fixed schedule of dates and times 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.

3.7 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.

3.8 Issues with Transfer. In the event that items not honored by a payee’s bank, 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 twenty four (24) hours of notification to Customer.

3.9 Taxes. If in a given calendar year Customer receives: (i) more than US$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.

3.10 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 is true, accurate, not misleading and complete. Motionsoft and its service providers will use commercially 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 this Section 3.10 will prevail.

 3.11 Reserve. Customer authorizes Motionsoft to establish and maintain a reasonable reserve (hereinafter the “Reserve”) to cover Motionsoft’s financial risk 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. Motionsoft retains the right in its sole discretion to increase or decrease the amount of the Reserve. Should Motionsoft increase the amount of the Reserve, Customer may terminate this Agreement under the conditions of Section 13 of the Master Subscription Agreement.   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 any and all Reserves for a period not to exceed one hundred eighty (180) days.

4. TRANSACTION DISPUTES AND ADJUSTMENTS.

4.1 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. Customer is solely responsible for Disputes and Motionsoft is not a party to and will not be responsible for any Disputes; provided, that when possible Motionsoft agrees to provide reasonable assistance to Customer in resolving Disputes. Provision of any assistance by Motionsoft to Customer to resolve Disputes does not in any manner absolve Customer of the total responsibility to resolve Disputes.

4.2 Refunds and Adjustments. If Customer allows returns, refunds, 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.

4.3 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.
5. 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.

MOSOPAY
ATTACHMENT A TO EXHIBIT B

As was disclosed in Exhibit B, 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 this Attachment A.

1. Advanced payments greater than one (1) year (any product or service).
2. 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
• Companion/Escort services
• Prostitution
• 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)

3. Aggregators/Third Party Payment Processors- falling outside MasterCard/Visa and any approved Payment Processor approved program requirements (See Payment Facilitators/Internet Payment Service Providers under High Risk/Tier II segment of the policy).
4. Airlines.
5. Any illegal products/services or providing peripheral support of illegal activity.
6. Bidding fee auctions (a/k/a penny auctions).
7. Business/Investment opportunities operating as Get rich quick schemes (including Internet search/ad optimization).
8. Cash advances (except regulated Financial Institutions which are acceptable).
9. Cash gifting.
10. Chain letters.
11. Charities (without evidence /proof of 501( C ) (3) status).
12. Check cashing establishments.
13. Collection agencies or firms involved in recovering/collecting past due receivables.
14. Companion/Escort services.
15. Credit card protection or identity theft service.
16. Credit repair/Restoration.
17. Cruise lines.
18. Currency exchanges.
19. Debt consolidation or reduction services.
20. Drug paraphernalia of any form.
21. Embassy, Foreign Consulate, or other Foreign Government.
22. Essay mills/Paper mills.
23. Extended warranty companies.
24. Foreclosure protection/guarantees.
25. Government grants.
26. Herbal smoking blends and herbal incense.
27. How to books, newsletter, subscription or on line access for ANY industry shown in the Unqualified list.
28. Illegal gambling including Internet/MOTO gambling.
29. Lifetime subscriptions (any product or service).
30. Lottery clubs.
31. Mail order brides and international match-making services.
32. Medical benefits packages (including discount medical cards).
33. Marijuana dispensaries (and affiliated services).
34. Merchants engaged in activity prohibited by the Card Brands.
35. Merchants or Principals listed on MATCH.
36. Merchants, Principals or related entities previously identified by any Card Brand for deceptive practices or any other violation of Card Brand rules.
37. Merchants physically located outside the United States (offshore acquiring).
38. Merchants in a Card Brand excessive chargeback or fraud program or merchants with chargeback or fraud rates over one percent (1%).
39. Merchants that use tactics to evade Card Brand excessive chargeback or fraud monitoring programs.
40. 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).
41. Merchants splitting the sale across multiple transactions.
42. 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).
43. Merchants primarily engaged in the sale of stored value cards in a card not present environment.
44. Merchants engaged in any form of deceptive marketing practices including but not limited to:

• Hidden disclosure
• Bogus claims and endorsements
• Pre-checked opt-in boxes
• Refund/Cancellation Avoidance

45. Money services businesses.
46. Money transfer services.
47. Mortgage/Loan modification.
48. Mortgage reduction services.
49. Multi-level marketing or pyramid/Ponzi schemes where the primary objective is the solicitation of new distributors and not the sale of products/services.
50. 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)

51. Sale of prescription drugs.
52. Sale of tobacco products or other smoking products (including e-Cigarettes/smokeless cigarettes).
53. Sale of firearms and ammunition including black powder (mail/telephone order, internet).
54. Quasi Cash.
55. Replicas/Counterfeit goods-designer name products.
56. Substances designed to mimic illegal drugs (including herbal smoking blends and herbal incense).
57. Travel-Outbound Telemarketing (MCC 5962)-including Discount Travel Clubs, membership or Subscriptions to Travel Services or Newsletters where subscribers may select prepackaged trips.
58. Virtual Currency (that can be monetized, resold, converted, traded into physical/digital goods and services outside the virtual world).