This Moovila Service Agreement, the ordering form(s) and/or click-through terms referencing this agreement (each, an “Order Form”), and any other referenced terms and conditions within the foregoing (collectively, the “Agreement”) govern the provision of the Services and Platform (as defined below) by Moovila, Inc., a South Carolina corporation, with an address at 300 West. Coleman Blvd (“Moovila”), to the entity set forth on the Order Form(s) (“Customer”).  By causing a duly authorized representative of each party to electronically execute this Agreement, each party agrees to be bound by the terms of the Agreement. This Agreement is effective as of the date of the last signature below (“Effective Date”).  The parties agree to the above and as follows:

 
1.    DEFINITIONS 

1.1.    “Affiliate” means any entity that is a subsidiary or parent of Customer or is more than 50% owned by Customer’s parent entity.  

1.2.    “Platform” means an online service and mobile application that permits Users to access and use the Software pursuant to the terms of this Agreement and perform any other Services set forth on an Order Form.

1.3.    “Services” means any services provided by Moovila pursuant to this Agreement including, without limitation, consulting services and training services.

1.4.    “Software” means the software described on an Order Form.

1.5.    “Users” shall mean those employees, contractors, and invited participants of Customer who Customer authorizes to access and use the Platform.  Users do not include direct competitors of Moovila. 
 

2.    SERVICES

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2.1.    Access and Scope of Use.  

(a)    Use Purpose. Subject to the terms and conditions of this Agreement, Moovila grants Customer the right to access the Platform (via a password protected website and/or mobile application) to allow Users to access and use the Platform solely for Customer’s (including its Affiliates’) internal business purposes. Customer acknowledges that the use of the Platform permitted hereunder is strictly limited to Customer’s and its Affiliates’ business purposes and that Customer agrees that it shall not provide access to the Platform (whether through sharing its user name and password or otherwise) to any third party nor will it use the Platform for the benefit of any third party (whether on a service bureau or other outsourced basis).  

(b)    Evaluation. If Customer has elected to access an evaluation version of the Platform, then Customer shall only allow Users to access and use the Platform solely for Customer’s demonstration and evaluation purposes only during the evaluation Term (“Evaluation”).  Customer acknowledges that the use of the Platform permitted during an Evaluation is strictly limited to Customer and its affiliates to evaluate whether full access to the Platform will be purchased from Moovila.   

2.2.    Changes; Maintenance; Version Upgrades.  Customer acknowledges that the Platform is not a static service and that Moovila reserves the right (but does not undertake the obligation) to make changes to the Platform.  For version upgrades to the Platform (i.e., those that provide additional functionality and features), Moovila reserves the right to charge Customer for enhancements to the features and functionality of the Platform as mutually agreed by the parties under an amendment or additional agreement.  Nothing in this Agreement shall obligate Moovila to continue to provide access to the Platform after the termination or expiration of this Agreement and nothing herein shall require Moovila to perform product support or maintenance services for the Platform.  

2.3.    Hosting Services.  Moovila will host on its servers the Software, which hosting Services will include periodic back-up and website recovery procedures.  Subject to Section 2.9 below, Moovila shall use commercially reasonable efforts to make the Platform available 24 hours a day, seven days a week except for scheduled maintenance or in the event of emergency.  If the Platform is not available, then Customer shall notify the account manager (designated pursuant to Section 2.7) in writing (which may be by email) and Moovila use commercially reasonable efforts to promptly restore service to the Platform.

2.4.    Business Recovery.  Moovila’s business recovery plan is designed to minimize, but not eliminate, risks associated with a disaster affecting the Moovila data center supporting the Platform.  Moovila does not warrant that service will be uninterrupted or error free. Customer is responsible for adopting a business recovery plan relating to disasters affecting Customer’s facilities and for securing business interruption insurance or other insurance necessary for Customer’s protection.  Moovila shall maintain commercially reasonable backup procedures including storage of duplicate record files.  In the event of a service disruption due to reasons beyond Moovila’s control, Moovila shall use diligent efforts to mitigate the effects of such disruption and restore Services.

2.5.    Training.  If training is requested by Customer, Moovila will provide training Services to Customer at Moovila’s then-current hourly rates, plus reasonable Out-of-Pocket Expenses (as defined below), on mutually agreeable dates and times. Customer shall bear the cost of all expenses associated with its Users’ attendance at Moovila’s training sessions.  The duration and scope of training sessions shall be predetermined by Moovila.  All training fees are invoiced prior to delivery of such training.  

2.6.    Consulting Services.  Moovila has a staff of professionals who can assist Customer in the configuration of Software and interpretation of the outcome of such Software at the rates set forth in the Order Form.  

2.7.    Account Manager and Customer Contact.  Moovila will assign to Customer an account manager to whom Customer may address all questions and Service concerns during the term of this Agreement.  

 
2.8.    Network Connectivity and Hardware.  Customer will provide at its own expense all equipment, computer software, network equipment, communication lines, and interface devices at Customer’s locations required to access the Platform.  

2.9.    Exclusions.  Moovila shall not be responsible for (i) telecommunications or Internet failures, (ii) service interruptions due to disasters, acts of God, or any other act, omission or event beyond Moovila’s control, (iii) delay or failure of any third party courier or delivery service, (iv) any problem caused by improper use of the Platform by Customer or any of the Users, or (v) any security breach of Moovila or Customer’s systems by a hacker, virus, worm, or other intentional in person or electronic interference provided that Moovila has made reasonable commercial efforts to protect its data and systems.

2.10.    Terms of Use.  In connection with its use of the Platform, Customer’s use shall be subject to, and Customer will, and will cause its Users to, comply with, Moovila’s written terms of use and acceptable use policies, as such terms and policies may be amended by Moovila from time to time, posted on its websites, installed and/or mobile applications.  Customer acknowledges that it would be a material breach of this Agreement (which breach is incapable of being cured) if Customer created User Data that does not comply with the terms of use, acceptable use policy and/or contains offensive, distasteful, controversial or other inappropriate material or otherwise violates the terms of use or acceptable use policy.  In addition to any other remedies available to Moovila under such terms or policies, Moovila shall be entitled to make such judgments in its sole discretion and may remove or block access to the Platform or User Data or declare this Agreement in material breach.  

2.11.    Privacy and Collection of Information.  In connection with its use of the Platform, Customer shall comply with all applicable laws, rules and regulations, including, but not limited to all applicable laws relating to privacy, the collection of personal information and allowing Users to make choices regarding the sharing of personal information.  Customer shall be responsible and liable for all uses and disclosures of User Data and uses of the Services and the Platform resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement.  In the event that the parties enter into a Data Processing Addendum, then such addendum is hereby incorporated herein by reference.  

2.12.    User Data.  Each User will have a unique User ID for its, his or her access to the Platform.  Customer will provide to Moovila the name, contact information and other information reasonably requested by Moovila to register each User to use the Platform or allow each User to provide such data directly to Moovila (collectively, the “User Information”).  Customer represents and warrants that it has all necessary permissions, including by way of example, consents, to provide the User Information to Moovila and that Moovila may use the User Information as contemplated herein.  “User Data” shall mean the User Information and all content, information and data that Users transmit to Moovila using the Platform.  Customer acknowledges and agrees that the Platform is not intended to process or store personal information, other than User Information, and Customer shall, and shall ensure that its Users shall, only upload, submit, post, or otherwise transmit User Data in connection with Customer’s use of the Platform, strictly in accordance with this Agreement and all applicable laws, rules and regulations.  Customer hereby grants Moovila the right and license to copy, modify, distribute, display, perform, create derivative works from, and otherwise use the User Data for back-up, restoration, reconfiguration, and all other maintenance purposes and to the User Data for purposes of analysis and monitoring User’s use of the Platform, provided that Moovila will aggregate the User Data for this purpose such that the User Data does not specifically identify individual Users.  Customer represents and warrants that Customer and those providing information to Customer have the right to transmit to Moovila and receive from Moovila any User Data required to enable Moovila to perform its obligations under this Agreement.  Customer assumes total responsibility for Customer and each User’s access and utilization of the Platform  Customer does not rely upon Moovila or the Services or the Platform for any advice or guidance regarding compliance with international, federal or state laws.

3.    TERM AND TERMINATION

3.1.    Term, Renewal and Non-Renewal.  

(a)    Evaluation. The term of this Agreement for Evaluation use of the Platform shall be for one (1) month from the Effective Date, and shall automatically renew for one (1) month terms thereafter until either party terminates this Agreement upon ten (10) days’ prior written notice to the other party. 

(b)    Production. Unless stated otherwise in an Order Form, the initial term of this Agreement is three (3) years from the Effective Date.  This Agreement will automatically renew for successive renewal terms equal to the length of the initial term unless either party notifies the other in writing at least sixty (60) calendar days prior to the end of the current term that this Agreement shall not renew. The initial term and all renewal terms are collectively known as the “Term”.  

3.2.    Termination.  If a party is in material breach of the terms of this Agreement, then the other party may deliver a notice of termination to the breaching party that will set forth a detailed description of the breach.  The breaching party will then have thirty (30) calendar days to cure the breach or the Agreement will terminate at the end of such 30-day period; provided, however, that if the breaching party has undertaken in good faith to cure the breach within such 30-day period, then the breaching party shall have an additional thirty (30) calendar days to cure the breach prior to termination of this Agreement.   

3.3.    Suspension of Service.  Moovila shall have the right to suspend the performance of the Services (including access to the Platform) if Customer fails to pay any amounts which are due hereunder or otherwise breaches the Agreement.   

3.4.    Effect of Termination.  Any termination of this Agreement shall not affect any rights or obligations of the parties that arose prior to such termination, including without limitation the obligation to make payments then due.      

4.    LICENSE AND INTELLECTUAL PROPERTY

4.1.    License.  Subject to the scope of use described in Section 2.1 above, Moovila grants to Customer a limited, non-exclusive, non-transferable license during the term of this Agreement within the applicable territory mutually agreed to: 

(a)    Access the Platform via a browser interface in order to design and implement mobile device optimized websites; 

(b)    use the documentation in support of Customer’s use of the Platform; and

(c)    make a reasonable number of additional copies of the documentation or portions thereof as required to support Customer’s use of the Platform.

4.2.    Title to Intellectual Property.  The Platform, Content (as defined below) and related documentation are (i) proprietary, copyrighted works protected by copyright laws, treaties, and conventions of the United States and (ii) contain trade secrets and Confidential Information (as defined below) of Moovila protected under applicable law.  Moovila retains all ownership, right, title, and interest in and to the Platform, Content and related documentation, and all copyright, trade secret, patent and other intellectual property rights contained therein, subject only to the limited license granted to Customer above.  Moovila shall also exclusively own all changes, modifications, and additions to the Platform, Content and related documentation, whether made by or on behalf of Moovila, Customer or their employees, agents or otherwise.  To the extent that changes or modifications, including all associated intellectual property rights, are not owned in their entirety by Moovila immediately upon their creation, Customer agrees to assign (and hereby automatically assigns) all right, title and interest therein to Moovila, without any requirement of consideration or further documentation.  Customer agrees to take such further action and execute such further documentation as Moovila may reasonably request to give effect to this Section 4.2.  Customer shall not challenge the validity of any proprietary rights of Moovila in the Platform or any other intellectual property right of Moovila.  “Content” means all data residing on Moovila’s Platform or in the Software, as applicable, that relates to the Moovila and Customer’s contractual relationship with Moovila.

4.3.    Protection of Proprietary Rights. Customer shall not disclose the Platform (and related documentation) or any portion thereof to any person other than Customer’s authorized personnel or the Users as necessary to utilize the Platform as permitted by this Agreement.    

4.4.    Use of Customer Marks and Other Intellectual Property.  To the extent that Customer incorporates its trademarks, logos, documents, content or other intellectual property (“Customer Content”) into the Platform, Customer hereby grants to Moovila a limited and non-exclusive license during the term of this Agreement to display or otherwise use such Customer Content solely in connection with the Platform or as otherwise required to perform the Services hereunder.  

5.    FEES AND EXPENSES 

5.1.    Fees.  Except for an Evaluation, Customer agrees to pay to Moovila all the fees set forth in the Order Form attached hereto.  Customer agrees to pay a late payment fee of 1.5% (or the highest rate permitted by applicable law) of the invoice amount or portion thereof.  Additionally, and except for an Evaluation, Customer agrees to pay Moovila’s costs of collection, including reasonable attorneys’ fees, for all invoice balances that are not paid on or before the applicable payment date.  Moovila shall have the right to apply all payments received from Customer to any amounts due and payable by Customer to Moovila under the terms of this Agreement.  Except for an Evaluation, Moovila may prospectively increase its fees under this Agreement once per year after the first anniversary of Effective Date by giving written notice of the increase to Customer at least sixty (60) days in advance of the effective date of the increase.

5.2.    Out-of-Pocket Expenses.  In addition to the fees for Services hereunder, Customer agrees to reimburse Moovila for the out-of-pocket expenses incurred by Moovila or its employees in the performance of this Agreement (“Out-of-Pocket Expenses”). Travel time, if required and pre-approved by Customer, will be charged at Moovila’s standard hourly rate, but shall not exceed eight hours per day per Moovila representative.  Moovila shall submit invoices to Customer on a monthly basis for Out-of-Pocket Expenses incurred during the preceding month.  All invoices are immediately due and payable by Customer to Moovila upon their submission to Customer. 

5.3.    Taxes.  Customer shall pay all sales, use taxes and other taxes due and payable with respect to the fees payable to Moovila under this Agreement, except for taxes based upon the net income of Moovila.  

6.    CONFIDENTIALITY

6.1.    Generally.  Each party agrees that, absent the express prior written consent of the other party to the contrary, (a) it will use Confidential Information (as defined below) belonging to the other party solely for the purposes permitted under this Agreement and its Schedules, and (b) it will not disclose Confidential Information belonging to the other to any third party other than its employees, regulators, trading partners and/or agents reasonably requiring such Confidential Information for purposes of this Agreement and who are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein.  Each party will promptly inform the other party if it becomes aware of a unauthorized use or disclosure of the Confidential Information of the other party.  If a party becomes subject to a legal requirement to disclose the Confidential Information of the other party, then the party receiving the disclosure request shall, prior to making disclosure thereunder, give prompt notice to the other party so that the other party may seek a protective order at its expense.  

6.2.    Definition.  For purposes hereof, “Confidential Information” shall mean (i) the terms and conditions of this Agreement, and (ii) any and all information belonging to a party, whether stored in written, electronic, representational or physical form, which is not at the relevant time (x) known generally to the public through no act or omission in violation of this Agreement or in violation of another duty of confidentiality to such party, (y) furnished to the disclosing party by a third party having the lawful right to do so, or (z) known to the disclosing party prior to disclosure hereunder (as established by written documentation thereof).  Confidential Information further expressly includes, but is not limited to, trade secrets, software and procedures manuals and documentation, computer programs, data file content and organization, financial data, marketing plans, customer lists and customer account information and similar information to the extent it is within the scope of the preceding sentence.  Each party shall promptly return to the other upon request any Confidential Information of the other party than in its possession or under its control.    

  
6.3.    Return of Materials.  Upon expiration or termination of this Agreement, Customer shall cease using the solutions provided hereunder and will remove any software from its servers and return all documentation and any media containing software to Moovila.  Each party shall either return or destroy all Confidential Information pertaining to the other party within 30 days of expiration or termination of this Agreement.  Each party shall, upon request of the other, sign a Moovila-supplied certification attesting to the foregoing.

7.    REPRESENTATIONS AND WARRANTIES  

7.1.    Mutual Representations.  Customer and Moovila each represent and warrant to the other, as of the Effective Date, that:  (a) it is validly existing and in good standing under the laws of the jurisdiction of its organization; (b) it has all requisite power and authority to execute and deliver, and to perform its obligations under this Agreement; (c) this Agreement has been duly authorized and executed by it and constitutes its legal, valid and binding obligation; and (d) any consent or authorization of any governmental authority or third party required to be obtained by it in connection with this Agreement has been obtained. 

7.2.    Customer Representations.  Customer acknowledges that it is responsible for all Customer Content incorporated into the Platform.  Customer represents and warrants to Moovila that that it has the right to use any Customer Content incorporated by Customer, its personnel or the Users into the Platform and that the use of such Customer Content will not infringe the intellectual property rights of any third party or misappropriate the trade secret rights of any third party.  Customer further represents and warrants to Moovila that none of the Customer Content incorporated into the Moovila will violate any applicable laws or regulations, including, without limitation, state and obscenity, decency or privacy standards, regulations, rules or statutes.

8.    INDEMNITY 

8.1.    By Customer.  Customer shall indemnify, defend and hold harmless Moovila, its parent, affiliates, subsidiary companies, and their respective officers, directors, shareholders and employees (collectively, the “Moovila Indemnitees”) from and against any and all third party claims, demands, actions, suits, causes of action, damages and expenses (including, without limitation, expenses of investigation, settlement, litigation and attorney’s fees in connection therewith) (collectively all such matters related to third party claims, “Losses”), incurred or sustained by any of the Moovila Indemnitees and arising from (i) any breach of any representation, warranty, covenant or agreement made by Customer in this Agreement;  (ii) any claim against Moovila made by any party related to the Software, the Platform, or the Services; and (iii) the User Data, or any use of the User Data in accordance with this Agreement, infringes or misappropriates any third party’s patent, trademark, copyright, publicity, privacy, confidentiality, trade secret or any other right, except for claims arising out of Moovila’s gross negligence or willful misconduct.  

8.2.    By Moovila.  Moovila shall indemnify, defend and hold harmless Customer, its parent, affiliates, subsidiary companies, and their respective officers, directors, shareholders and employees (collectively, the “Customer Indemnitees”) from and against any and all Losses incurred or sustained by any of the Customer Indemnitees and arising from any breach of any representation, warranty, covenant or agreement made by Moovila in this Agreement.  In the performance of the Services required by this Agreement, Moovila shall be entitled to rely solely on the information, representations, and warranties provided by Customer pursuant to this Agreement, and shall not be responsible for the accuracy or completeness thereof.  Moovila shall not be responsible for Customer’s acts or omissions.  Under no circumstances will Moovila be liable for errors, acts or failures to act of third parties. Moovila’s obligations set forth in this Section 8 do not apply to an Evaluation.        

8.3.    Indemnification Procedures and Remedies.    

 
(a)    For the purposes of this Section, the term “Indemnitee” shall refer to the party indemnified, or entitled, or claiming to be entitled to be indemnified, pursuant to the provisions of Sections 8.1 and 8.2, as the case may be.  The term “Indemnitor” shall refer to the party having the obligation to indemnify pursuant to such provisions.   

(b)    Indemnitee shall give written notice (a “Notice of Claim”) to the Indemnitor within ten (10) business days after the Indemnitee has knowledge of any claim which an Indemnitee has determined has given or could give rise to a right of indemnification under this Agreement.  No failure to give such Notice of Claim within ten (10) business days as aforesaid shall affect the indemnification obligations of the Indemnitor hereunder, except to the extent Indemnitor can demonstrate such failure materially prejudiced such Indemnitor’s ability to successfully defend the matter giving rise to the claim.  The Indemnitor shall have the right to direct the defense of any such claim at its expense through counsel chosen by it and Indemnitor shall have the right to settle such claim on terms and conditions as it deems appropriate, provided that any settlement does not require Indemnitee to admit liability, provide for injunctive relief against Indemnitee or compromise any of Indemnitee’s intellectual property rights.  

(c)    The indemnity remedies provided in Sections 8.1 and 8.2 shall be a party’s exclusive remedy for the recovery of Losses resulting from, relating to or arising out of claims by third parties relating to this Agreement.      

9.    LIMITATIONS ON LIABILITY; WARRANTIES

9.1.    DISCLAIMER OF DAMAGES.  IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST OR IMPUTED PROFITS, BUSINESS INTERRUPTION, LOST DATA, OR COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING FROM OR RELATED TO THE SERVICES OR THIS AGREEMENT, UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHER LEGAL THEORY, REGARDLESS OF THE CAUSE OF ACTION AND EVEN IF Moovila HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.

9.2.    LIMITATION OF LIABILITY.  EXCEPT FOR WILLFUL MISCONDUCT OR FRAUD, MOOVILA’S LIABILITY FOR DAMAGES TO CUSTOMER FOR ANY CAUSE WHATSOEVER, REGARDLESS OF FORM OF ACTION, SHALL BE LIMITED TO THE FEES IT RECEIVED (IF ANY) FROM CUSTOMER DURING THE TWELVE (12) MONTHS OF THE TERM IMMEDIATELY PRECEDING THE FACTS THAT GAVE RISE TO THE INDEMNIFICATION CLAIM.  No action arising under this Agreement, regardless of form, may be brought by either party more than one year after the cause of action has arisen.

9.3.    Limited Warranty.  If there is a material failure of the Platform to substantially comply with Moovila’s most current and applicable documentation during the first ninety (90) calendar days following delivery to Customer, Moovila shall, at its election and as its sole obligation under this Agreement (and as Customer’s sole remedy), either:  (i) repair or replace the Platform, as applicable; or (ii) terminate this Agreement and refund any applicable fees paid by Customer.  The consulting and training Services will be performed in a workmanlike manner, consistent with generally accepted industry standards.  Customer’s sole remedy for a breach of the foregoing warranty shall be the provision of such Services in a conforming manner.  Moovila does not warrant any third party software or services sold under this Agreement. The above limited warranties  do not apply to an Evaluation, which is provide AS-IS, with no warranty. Moovila MAKES NO WARRANTIES EXCEPT THOSE SET FORTH IN THIS SECTION AND THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE.

9.4.    Further Limitations.  Moovila does not warrant any solution against defects where the defect in the solution is caused by: (i) Customer’s (or Customer’s employees’ or agents’) negligence, (ii) any use of the Moovila service or product in a manner inconsistent with the solution’s intended use or in any manner inconsistent Moovila’s documentation, (iii) the combination of the service or product with third party services, hardware or software not provided by Moovila or approved by Moovila in writing, or (iv) any alteration, revision, modification, removal or reinstallation of the solution by Customer or any third party.  

10.    GENERAL

10.1.    Notices.  All notices required or permitted to be given hereunder shall be in writing and shall be deemed given (i) when delivered in person, at the time of such delivery; (ii) when delivered by facsimile transmission, at the time of transmission (provided, however, that notice delivered by facsimile transmission shall only be effective if such notice is also delivered by hand or deposited in the United States mail, postage prepaid, registered, certified or express mail or by courier service within two business days after its delivery by facsimile transmission); (iii) when delivered by a courier service or by express mail, at the time of receipt; or (iv) five (5) business days after being deposited in the United States mail, postage prepaid, registered or certified mail, addressed (in any such case).  The notice address for the parties shall be their respective addressees (and facsimile numbers) set forth on the first page to this Agreement, with Moovila’s notice addressed “Attn: President”  Either party may designate a new notice address and other notice information by giving notice to the other party in accordance with the provisions hereof.     

10.2.    Assignment; Change of Control.  Customer may not assign this Agreement or any of the rights or duties hereunder to any person without Moovila’s prior written consent, which, in the case of a purchase of all or substantially all of Customer’s business, such consent shall not be unreasonably withheld provided that such an assignment will not increase the scope of Customer’s licenses hereunder or impose additional burdens on Moovila in the provision of the Services provided hereunder.  If Customer experiences a change of control, any license granted or Services agreed to pursuant to this Agreement shall not inure to the benefit of affiliated entities.  Moovila may freely enter into subcontracts, outsourcing agreements or other arrangements for the performance of its obligations hereunder, but no such arrangement shall impair Moovila’s liability for its obligations under this Agreement.     

10.3.    Monitoring.  In order to maintain quality service, telephone communications with Customer may be monitored and/or recorded without any further notice.     

10.4.    Entire Agreement, Modification.  This Agreement and any referenced terms and conditions herein, including, but not limited to, Moovila’s online terms of use and privacy policy and the Data Processing Addendum, if applicable, contain the entire agreement between the parties and supersedes all prior agreements, representations, warranties and understandings, whether written or verbal.  This Agreement may not be amended, modified or altered except pursuant to a written document signed by both parties.  If Moovila determines in its reasonable judgment that the terms of this Agreement more likely than not would be interpreted to violate any laws or regulations applicable to it, then the parties will negotiate in good faith to amend this Agreement.  If Moovila and Customer cannot agree on a modification, then Moovila may terminate the Agreement without penalty and any amounts then due and outstanding shall be paid by Customer.     

10.5.    Waiver.  The waiver by any party of a breach or default hereunder shall not operate or be construed as a waiver by such party of any subsequent or other breach or default hereunder, whether or not the subsequent or other breach or default is of the same or similar nature.     
10.6.    No Third-party Beneficiaries.  This Agreement shall not be for the benefit of, or enforceable by, any person not a party hereto and shall not confer any rights or remedies upon any party other than the parties and their respective successors and permitted assigns.     

10.7.    Severability.  If any provision of this Agreement shall be deemed illegal or otherwise unenforceable, in whole or in part, that provision shall be severed or shall be enforced only to the extent legally permitted, and the remainder of the provision and this Agreement shall remain in full force and effect.        

   
10.8.    Independent Contractors.  The parties hereto are independent contractors and engage in the operation of their respective businesses.  Neither party shall be considered the agent of the other for any purpose whatsoever.  Nothing herein shall be considered to establish a partnership or joint venture relationship.     

10.9.    Further Action.  Each party hereto shall take such further action and shall execute and deliver such further documents as may be reasonably requested by the other party in order to carry out the provisions and purposes of this Agreement.     

10.10.    Expenses.  Each of the parties hereto shall pay its own legal, accounting, expenses incident to the negotiation and preparation of this Agreement.     

10.11.    Arbitration.  Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.  Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.This Agreement shall be construed in accordance with and governed by the internal laws of the State of South Carolina, United States of America, without regard to its conflict of law provisions.  The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this Agreement or the transactions contemplated hereunder.

10.12.    Injunctive Relief.  The parties agree that, in addition to any other rights and remedies, which the other or Moovila may have hereunder, any party alleging breach or threatened breach of this Agreement will be entitled to such equitable and injunctive relief as may be available from any court of competent jurisdiction to restrain the other from breaching or threatening to breach any of the provisions of this Agreement, without posting bond or other surety.     

10.13.    Headings, Counterparts. The paragraph headings contained herein are for the purpose of convenience only and are not intended to define or limit the contents of said paragraphs.  This Agreement may be executed in one or more counterparts, all of which taken together shall be deemed one original.     

10.14.    Advertising.  Upon the successful completion of the Services, Customer acknowledges and agrees that Moovila is authorized to state in advertising or other sales and marketing materials that Customer received the Services by Moovila.

10.15.    Survival.  Notwithstanding termination or expiration of this Agreement, Sections 3.4, 5 (inclusive), 7 (inclusive), 8 (inclusive), 9 (inclusive) and 10 (inclusive) of this Agreement shall survive such termination or expiration.

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Last Updated Date: 08/22/2022