These Movley Terms of Service Audits and Inspections Division (“Terms”) together with any other written information provided by Movley, LLC (“Movley”) in connection with the provision of services (the Terms and other written information, collectively, this “Agreement”) shall govern Movley’s performance of audit and product inspection related services (“Services”) and set out the responsibilities and obligations of you as the Client.
1. Services. This Agreement covers Services performed under Movley’s Audits and Inspections Division, through which Movley offers various levels of service, all of which are conditioned on your agreement to adhere to these Terms without modification of any kind. If there is a conflict between any of these Terms and any other terms or conditions provided on an order form, invoice, on Movley’s website or elsewhere, these Terms shall take precedence. Client may request changes to the Services, but if a requested change will cause Movley to incur additional expenses and/or time, Client shall be responsible to pay Movley for such additional expenses and/or time as and when required by Movley. Movley may provide the Services hereunder through its subsidiaries and affiliates, and for purposes of this Agreement, “Movley” may include its affiliates and subsidiaries.
2. Term. These Terms and this Agreement shall continue until the date the Services have been completed or otherwise terminated. This Agreement may be (a) extended upon agreement by the parties, and (b) terminated by Movley at any time upon written notice to Client. In the event of a termination, Client will compensate Movley for the Services completed prior to the date of termination.
3. Compensation; Expenses. Client agrees to pay Movley as specified on the applicable Invoice for any Services provided under this Agreement. Sales taxes or other taxes levied by outside suppliers on purchases made by Movley for Client will be billed to Client and Client shall be responsible for payment thereof. Client is responsible for payment of, and will be charged for, all pre-approved expenses incurred by Movley on behalf of Client and otherwise not included on Client’s Invoice, including all out-of-pocket expenses incurred by Movley in connection with shipping product reference samples and expenses for additional services requested by Client. Movley reserves the right, in the event Client’s payments are not timely received or Client’s financial condition otherwise becomes a reasonable concern, to change the requirements as to terms of payment under this Agreement as well as the right to cease performance of the Services.
4. Client’s Responsibilities; Representations. Client acknowledges that, although Movley will do its best to ensure the accuracy of information Movley has been provided and otherwise made available in its reports or deliverables to Client, Client will be responsible for verifying the accuracy of all information provided by Client to Movley and all such representations and information and/or claims made or given with respect to Client’s products and services. Client represents, warrants, and covenants that: (a) it has the full right, power and authority to enter into and perform its responsibilities under this Agreement, and that doing so will not conflict with any other agreement to which Client is a party or any other legal obligation by which Client is bound; (b) it owns all right, title, and interest in, or has full and sufficient authority to use and grant the rights hereunder in any information, materials, images, videos, trademarks, logos, or other content provided by or on behalf of Client (collectively, “Client Materials”) and that neither the Client Materials nor Movley’s use thereof will infringe any rights of any third party; (c) the Client Materials and any claims, descriptions, or statements provided to Movley or approved by Client (including, without limitation, those related to Client’s organization, products, services, industry, or competitors) will be accurate, complete, supportable, and compliant with any applicable laws, rules, regulations, or self-regulatory guidelines; and (d) any Client products or services for which Movley provides Services or deliverables are in compliance with all applicable laws, rules, regulations and requirements, and conform to reasonable quality control standards.
5. Movley Representations. Movley represents, warrants and covenants that: (a) it has the full right, power and authority to enter into and perform its responsibilities under this Agreement, and that doing so will not conflict with any other agreement to which Movley is a party or any other legal obligation by which Movley is bound; and (b) it will provide the Services and deliverables in accordance with generally accepted standards.
6. Independent Contractor Relationship. The relationship created by this Agreement is that of an independent contractor relationship and nothing contained in or performed pursuant to this Agreement shall be construed as creating a partnership or joint venture between the parties. Except as may be otherwise expressly provided in this Agreement, neither party shall become bound by any representation, act or omission of the other party.
7. Taxes. Client shall be responsible for the payment of any taxes, duties, or other charges imposed upon any government with respect to Movley’s performance of Services hereunder, except for U.S. income-related taxes and employment related taxes attributable to Movley and its business.
8. Indemnification. To the fullest extent permitted by law, Client shall defend, indemnify and hold harmless Movley and its directors, shareholders, officers, employees and agents from and against any and all claims, demands, suits, settlements, causes of action, judgments, liabilities, losses, expenses, and reasonable attorneys’ fees and costs, arising out of or in connection with: (a) any breach by Client of its representations and warranties made hereunder, (b) any bodily injury to persons, including death, or damage or loss of property which result or are claimed to result in whole or in part from any wrongful act or omission of Client; (c) any allegation that any Client Materials, concepts, or other materials (including, without limitation, all slogans, jingles and music) prepared, furnished or supplied by Client (or used by Movley at Client’s request) violate any rights of any third party, including without limitation proprietary and intellectual property rights and rights of privacy and publicity; (d) any allegation that Client’s products or services are defective, including product liability claims; (e) any information, data or description of Client’s organization or its products or services, or its competitors or their products or services, provided by or on behalf of Client which is allegedly false, deceptive, misleading or otherwise inaccurate or improper; and/or (f) Client’s use of the Services or deliverables provided under this Agreement.
Movley agrees to notify Client promptly in the event of any claim described above and shall cooperate with and provide reasonable assistance to Client (at Client’s expense) in the defense or settlement of such claim, provided that Movley may, at its own expense, retain separate representation. Client shall have the right to control the defense or settlement of any action for which indemnification is sought hereunder; provided, however, that the Client shall not enter into any compromise or settlement of any such claim which does not include a complete release of all claims against Movley or which requires any payment or admission of liability by Movley without the prior written consent Movley (which shall not be unreasonably withheld).
In addition, Client shall reimburse Movley for all costs and expenses (including reasonable attorneys’ fees) incurred by Movley resulting from any third-party or governmental investigation of the acts or practices of Client including, without limitation, any costs or expenses related to compliance with any third-party subpoena or other discovery request, all except to the extent that such investigations were caused by the misconduct of Movley.
IN NO EVENT SHALL MOVLEY BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE, INCIDENTAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), WHETHER UNDER CONTRACT, TORT, OR ANY OTHER CAUSE OF ACTION, EVEN IF SUCH PARTY HASBEENADVISEDOFTHEPOSSIBILITYTHEREOF. INNOEVENTSHALLMOVLEY’SLIABILITY ARISING HEREUNDER EXCEED THE AGGREGATE OF FEES PAID BY CLIENT IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. EXCEPT AS EXPRESSLY PROVIDED HEREIN, MOVLEY MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS OR SERVICES TO BE PROVIDED HEREUNDER, AND THE WARRANTIES OF TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED.
9. Innovations. All of Movley’s work product for Client, including but not limited to any and all notes, records, reports, drawings, designs, formats, layouts, artwork, enhancements, developments, discoveries, inventions, software, computer programs, copyrightable materials and trade secrets, that are conceived, designed, developed, discovered, produced or made by Movley, solely or in collaboration with others, in the course of providing the Services to Client, including any derivative work of any of the foregoing (collectively, the “Work Product”) will be the sole and exclusive property of Movley. As used herein the term “derivative work” means any translation (including translation into any other computer languages), conversion, partition, correction, addition, extension, enhancement, upgrade, improvement, modification, compilation, abridgement or other form in which the Work Product (or any portion thereof) may be recast, transformed or adapted.
10. Confidentiality. Each party shall take every reasonable precaution to ensure that Confidential Information supplied by the other party is not disclosed to any third party. “Confidential Information” includes, without limitation, the terms of this Agreement and Movley’s billing rates/costs levied hereunder, and each party’s proprietary business tools, processes, financial information, client or customer lists, supplier list or identities, business and marketing plans, and any other information that the receiving party should reasonably understand to be confidential based on the circumstances of the disclosure. Neither party shall disclose Confidential Information from the other party to any person or entity except on a direct need-to-know basis in order to perform the activities and obligations under this Agreement. Confidential Information does not include information known to the receiving party prior to disclosure by a disclosing party; information that is publicly known; or, information available from or disclosed by a third party not bound in a confidential relationship with a disclosing party. The receiving party shall inform the disclosing party of all requests for, or inquiry into, the disclosing party’s Confidential Information by third parties and shall only provide same when legally compelled to do so after notice to the disclosing party.
11. Non-Solicitation. Client agrees that while Movley is performing Services for Client and for the two- year period immediately thereafter, Client will not, directly or indirectly, individually or as a shareholder, director, member, manager, partner, officer, employee, independent contractor, agent, consultant or advisor of any entity (i) solicit, divert or take away, or attempt to solicit, divert or take away, any customer or Prospective Customer (as defined below) of Movley with respect to the types of Services provided under this Agreement; or (ii) solicit, recruit, hire, divert or take away, or attempt to solicit, recruit, hire, divert or take away, any employee of Movley, or any independent contractor engaged by Movley, or otherwise interfere with the business relationships between Movley and its employees, customers, independent contractors and others with whom Movley conducts its business. The term “Prospective Customer” means any person or entity which any employee, consultant, independent contractor or other party affiliated with Movley has contacted and has engaged in discussions concerning products or services offered by Movley during the immediately preceding two years.
12. Enforcement by Injunction. Client acknowledges that the protections of Movley set forth in Section 9, Section 10 and Section 11 of this Agreement are of vital concern to Movley, that monetary damages for any violation thereof would not adequately compensate Movley, that Movley is engaged in a highly competitive businesses and that the restrictions set forth therein will not prevent Client from earning a livelihood. Client further acknowledges that the covenants set forth in Section 9, Section 10 and Section 11 are a vital part of the negotiations between the parties, and Client understands that Movley would not have entered into this Agreement without Client’s agreement to the covenants set forth in Section 9, Section 10 and Section 11. Accordingly, Client agrees that the restrictions set forth in Section 9, Section 10 and Section 11 are reasonable in terms of duration and scope and that, in addition to any other remedy, such restrictions may be enforced by injunction proceedings (without the necessity of posting bond) to preserve the status quo, restrain a violation thereof and to compel specific performance with respect thereto, whether or not Client’s engagement hereunder has terminated.
13. Two-Year Period. In the event Client violates Section 11 of this Agreement, the two-year period provided for in such section will be extended by a period of time equal to the period beginning when such violation commenced and ending when the activities constituting such violation terminated.
14. Severability. Each provision of this Agreement is intended to be severable. If any court of competent jurisdiction determines that one or more of the provisions of this Agreement, or any part thereof, is or are invalid, illegal or unenforceable, such determination will not affect or impair any other provision of this Agreement, and this Agreement will be given full force and effect while being construed as if such invalid or unenforceable provision is not contained within it. If, at the time of enforcement of this Agreement, a court holds that any duration, scope or geographic area stated herein is contrary to applicable law or unreasonable under circumstances then existing, the maximum duration, scope or area in compliance with law and reasonable under such circumstances will be added or substituted for the stated duration, scope or area, and the court will be allowed to revise the restrictions contained herein to cover such maximum period, scope and area.
15. Notices. Any notice or other communication under this Agreement must be in writing and will be deemed given when it is delivered in person or sent by facsimile (with proof of receipt at the number to which it is required to be sent), or on the third business day on which it is mailed by first class mail from within the United States of America, to the addresses as may be specified after the date of this Agreement by the party to which the notice or communication is sent.
16. Force Majeure. Movley shall not be responsible for any damages or for any loss, additional cost or liability incurred by Client if such occurred by reason of an Act of God, fire, flood, war, act of terrorism, pandemic, public disaster, strike or labor unrest, governmental enactment, rule or regulation, or other cause beyond Movley’s control.
17. Electronic Signatures. This Agreement may be executed by providing an electronic signature and may not be denied legal effect solely because it is in electronic form. Each party agrees that the electronic signatures, whether digital or encrypted, of the parties included in this Agreement are intended to authenticate this Agreement and to have the same force and effect as manual signatures.