This Framework Services Agreement (the “Agreement”) is made and entered into as of the effective date set forth in the applicable Order (“Effective Date”), between Movley Inc. (“Movley”) and the customer set forth in the applicable Order (“Customer”). This Agreement sets forth the terms pursuant to which Customer will be permitted to use certain of Movley’s professional services and web-based services.
BY ENTERING INTO AN ORDER THAT REFERENCES THIS AGREEMENT, CLICKING “I ACCEPT,” OR BY OTHERWISE ACCESSING OR USING THE SERVICES, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THIS AGREEMENT.
The parties agree as follows:
1. DEFINITIONS
1.1 “Consulting Services”means those professional services set forth in the applicable Order.
1.2 “Documentation” means Movley-provided user documentation, in all forms, relating to the Services (e.g., user manuals, on-line help files).
1.3 “Order” means an order form, statement of work, other ordering document mutually executed by the parties, or online checkout process that references this Agreement.
1.4 “Services” means the Consulting Services and the Software Services.
1.5 “Software Services” means the web-based services set forth in the applicable Order.
1.6 “Scope Limitations” means the limitations on Customer’s use of the Software Services specified in the applicable Order.
2. CONSULTING SERVICES
2.1 Services. Subject to the terms and conditions of this Agreement, Movley will perform for Customer certain Consulting Services. For each project, each party will designate a single point of contact within its organization to manage the project described in an Order (“Project Leader”). The Project Leaders will meet as necessary to manage the Consulting Services to be performed under an Order. Disputes will be escalated to more senior executives if the Project Leaders are unable to resolve a problem. Movley’s Project Leader will provide Customer’s Project Leader with regular reports on the status of the Consulting Services at least once per month.
2.2 Performance Standard. Movley will perform the Consulting Services in accordance with the applicable Order, including any specifications in the Order. Movley will use reasonable efforts to complete the Consulting Services, including the delivery of any deliverables, in accordance with the schedule of times and milestones specified in the Order. Movley may utilize independent contractors to perform all or part of the Consulting Services. Movley will remain solely responsible for the performance of all Consulting Services that are subcontracted.
2.3 Work Product. Except as expressly set forth to the contrary in an Order, all works of authorship, inventions, discoveries, improvements, methods, processes, formulas, designs, techniques, and information (a) conceived, discovered, developed or otherwise made (as necessary to establish authorship, inventorship, or ownership) by Movley, solely or in collaboration with others, in the course of performing the Services; or (b) that form all or part of a deliverable provided as part of the Services, whether developed as part of the Services or separately, but excluding Customer Data (collectively, “Work Product”) will be the sole property of Movley. Upon and subject to final payment by Customer of all amounts owing to Movley under the applicable Order, Movley hereby grants to Customer a nonexclusive, perpetual, worldwide, royalty-free license to use, copy, modify, and prepare derivative works of the Work Product solely for purposes of Customer’s internal business operations only. Any third-party products that are provided by Movley in connection with the Services are provided pursuant to the terms of the applicable third-party agreement, and Movley assumes no responsibility for, and specifically disclaims any liability or obligation with respect to, any third-party products.
3. USE OF THE SOFTWARE SERVICES
3.1 Use of the Software Services. Subject to the terms and conditions of this Agreement, Movley grants to Customer a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 11.3) right during the term of this Agreement to use the Software Services solely in connection with Customer’s internal business operations. Customer’s right to use the Software Services is subject to the Scope Limitations and contingent upon Customer’s compliance with the Scope Limitations.
3.2 Use of the Documentation. Subject to the terms and conditions of this Agreement, Movley grants to Customer a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 11.3) license, without right of sublicense, during the term of this Agreement to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the Software Services in accordance with this Agreement.
3.3 Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize third parties to: (a) rent, lease, or otherwise permit third parties to use the Software Services or Documentation; (b) use the Software Services to provide services to third parties (e.g., as a service bureau); (c) use the Software Services for any benchmarking activity or in connection with the development of any competitive product; nor (d) circumvent or disable any security or other technological features or measures of the Software Services.
3.4 Compliance with Laws. Customer will use the Software Services and Documentation in compliance with all applicable laws and regulations.
3.5 Protection against Unauthorized Use. Customer will use reasonable efforts to prevent any unauthorized use of the Software Services and Documentation and immediately notify Movley in writing of any unauthorized use that comes to Customer’s attention. If there is unauthorized use by anyone who obtained access to the Software Services directly or indirectly through Customer, Customer will take all steps reasonably necessary to terminate the unauthorized use. Customer will cooperate and assist with any actions taken by Movley to prevent or terminate unauthorized use of the Software Services or Documentation.
3.6 Reservation of Rights. Movley grants to Customer a limited right to use the Software Services and Documentation under this Agreement. Customer will not have any rights to the Software Services or Documentation except as expressly granted in this Agreement. Movley reserves to itself all rights to the Software Services and Documentation not expressly granted to Customer in accordance with this Agreement.
3.7 Feedback. If Customer provides any feedback to Movley concerning the functionality and performance of the Services (including identifying potential errors and improvements), Customer hereby assigns to Movley all right, title, and interest in and to the feedback, and Movley is free to use the feedback without payment or restriction.
4. FEES AND PAYMENT
4.1 Fees and Payment Terms. Customer will pay Movley the fees and any other amounts owing under this Agreement, plus any applicable sales, use, excise, or other taxes, as specified in the applicable Order. Unless otherwise specified in the applicable Order, Customer will pay all amounts due within 30 days of the date of the applicable invoice. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Movley to collect any amount that is not paid when due. Amounts due from Customer under this Agreement may not be withheld or offset by Customer against amounts due to Customer for any reason. All amounts payable under this Agreement are denominated in United States dollars, and Customer will pay all such amounts in United States dollars.
4.2 Taxes. Other than net income taxes imposed on Movley, Customer will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement. Customer will pay any additional taxes as are necessary to ensure that the net amounts received by Movley after all such taxes are paid are equal to the amounts that Movley would have been entitled to in accordance with this Agreement as if the taxes did not exist.
5. TERM AND TERMINATION
5.1 Term. This Agreement will commence upon the Effective Date and continue for the initial term specified in the applicable Order unless this Agreement is terminated earlier in accordance with the terms of this Agreement. This Agreement will automatically renew for additional successive one-year terms unless at least 60 days before the end of the then-current term either party provides written notice to the other party that it does not want to renew.
5.2 Termination for Material Breach. Either party may terminate this Agreement if the other party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching party. Termination in accordance with this Section 5.2 will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period. If Customer fails to timely pay any fees, Movley may, without limitation to any of its other rights or remedies, suspend performance of the Services until it receives all amounts due.
5.3 Post-Termination Obligations. If this Agreement is terminated for any reason, (a) Customer will pay to Movley any fees or other amounts that have accrued prior to the effective date of the termination, (b) any and all liabilities accrued prior to the effective date of the termination will survive, and (c) Customer will provide Movley with a written certification signed by an authorized Customer representative certifying that all use of the Services and Documentation by Customer has been discontinued. The following provisions will survive the expiration or termination of this Agreement: Sections 2.3, 3.3 to 3.7, 4, 5.3, and 6 to 11.
6. CONFIDENTIALITY
6.1 Definition. As used herein, “Confidential Information” means all confidential information disclosed by or otherwise obtained from a party (“Disclosing Party”) to or by the other party (“Receiving Party”), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. “Confidential Information” of a Disclosing Party includes such Disclosing Party’s business and marketing plans, technology and technical information, product plans and designs, and business processes. However, “Confidential Information” does not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.
6.2 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party will (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (b) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
6.3 Data License. “Customer Data” means (a) any data, information, or materials that Customer uploads or inputs into the Software Service or otherwise makes available to Movley, including in connection with Customer’s use of the Software Service or receipt of Consulting Services and (b) data that is generated and made available to Customer by the Software Service through use of the data described in part (a) above. Customer hereby grants Movley a non-exclusive, worldwide, royalty-free, fully paid, sublicensable, fully transferable, irrevocable license to use, process, transmit, store, and disclose the Customer Data: (x) for the purpose of exercising Movley’s rights and performing its obligations under this Agreement, and (y) for its business purposes, including to develop and improve Movley’s and its affiliates’ products and services. Customer represents and warrants that Customer has all rights necessary to grant Movley the licenses set forth in this Section 6.3 and to enable Movley to exercise its rights under the same without violation or infringement of the rights of any third party.
7. WARRANTIES AND DISCLAIMER
7.1 Mutual Warranties. Each party represents and warrants to the other that (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
7.2 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 7, MOVLEY MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. MOVLEY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. MOVLEY DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES. MOVLEY DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED. MOVLEY DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES WILL ALWAYS BE AVAILABLE. MOVLEY EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF CUSTOMER’S USE OF THE SERVICES.
8. INTELLECTUAL PROPERTY INFRINGEMENT
8.1 Defense of Infringement Claims. Movley will, at its expense, either defend Customer from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Customer alleging that Customer’s use of the Software Services infringes or misappropriates any patent, copyright, trade secret, trademark, or other intellectual property right during the term of this Agreement if: (a) Customer gives Movley prompt written notice of the Claim; (b) Customer grants Movley full and complete control over the defense and settlement of the Claim; (c) Customer provides assistance in connection with the defense and settlement of the Claim as Movley may reasonably request; and (d) Customer complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing Software Services). Customer will not defend or settle any Claim without Movley’s prior written consent. Customer will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Movley will have sole control over the defense and settlement of the Claim.
8.2 Indemnification of Infringement Claims. Movley will indemnify Customer from and pay (a) all damages, costs, and attorneys’ fees finally awarded against Customer in any Claim under Section 8.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Customer in connection with the defense of a Claim under Section 8.1 (other than attorneys’ fees and costs incurred without Movley’s consent after Movley has accepted defense of the Claim); and (c) all amounts that Movley agrees to pay to any third party to settle any Claim under Section 8.1.
8.3 Exclusions from Obligations. Movley will have no obligation under this Section 8 for any infringement or misappropriation to the extent that it arises out of or is based upon (a) use of the Software Services in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; (b) the Software Services are provided to comply with designs, requirements, or specifications required by or provided by Customer, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of the Software Services by Customer for purposes not intended or outside the scope of the license granted to Customer; (d) Customer’s failure to use the Software Services in accordance with instructions provided by Movley, if the infringement or misappropriation would not have occurred but for such failure; or (e) any modification of the Software Services not made or authorized in writing by Movley where such infringement or misappropriation would not have occurred absent such modification.
8.4 Limited Remedy. This Section 8 states Movley’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third-party intellectual property right by the Software Services.
9. CUSTOMER INDEMNIFICATION
9.1 Defense. Customer will defend Movley from any actual or threatened third party Claim arising out of or based upon Customer’s use of the Services or Customer’s breach of any of the provisions of this Agreement if: (a) Movley gives Customer prompt written notice of the Claim; (b) Movley grants Customer full and complete control over the defense and settlement of the Claim; (c) Movley provides assistance in connection with the defense and settlement of the Claim as Customer may reasonably request; and (d) Movley complies with any settlement or court order made in connection with the Claim. Customer will not defend or settle any Claim without Movley’s prior written consent. Movley will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Customer will have sole control over the defense and settlement of the Claim.
9.2 Indemnification. Customer will indemnify Movley from and pay (a) all damages, costs, and attorneys’ fees finally awarded against Movley in any Claim under Section 9.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Movley in connection with the defense of a Claim under Section 9.1 (other than attorneys’ fees and costs incurred without Customer’s consent after Customer has accepted defense of the Claim); and, (c) all amounts that Customer agrees to pay to any third party to settle any Claim under Section 9.1.
10. LIMITATIONS OF LIABILITY
10.1 Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, MOVLEY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF MOVLEY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
10.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL MOVLEY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER TO MOVLEY DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
10.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY MOVLEY TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 10 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
11. GENERAL
11.1 Publicity. Neither party may publicly announce that the parties have entered into this Agreement except with the other party’s prior consent or as required by laws. However, Movley may include Customer and its trademarks in Movley customer lists and promotional materials but will cease further use at Customer’s written request.
11.2 Relationship. Movley will be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of this Agreement.
11.3 Assignability. Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the assigning party’s obligations under this Agreement.
11.4 Subcontractors. Movley may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Movley remains responsible for all of its obligations under this Agreement.
11.5 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the signature page of this Agreement and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section
11.5. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
11.6 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
11.7 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Delaware, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in Delaware in connection with any action arising out of or in connection with this Agreement.
11.8 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
11.9 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Services under this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the Services will immediately terminate.
11.10 Counterparts. This Agreement may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. This Agreement may also be executed and delivered by facsimile and such execution and delivery will have the same force and effect of an original document with original signatures.
11.11 Entire Agreement. This Agreement, including all exhibits, is the final and complete expression of the agreement between these parties regarding Customer’s use of the Services. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the parties relating to professional services relating to the Services that Movley may provide. No employee, agent, or other representative of Movley has any authority to bind Movley with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. Movley will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Customer in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Movley specifically agrees to such provision in writing and signed by an authorized agent of Movley.