Moovila Service Agreement
This Moovila Service Agreement (the “Moovila Service Agreement” or “General Terms”), the ordering form and/or click-through terms referencing this agreement (each, an “Order Form”), and any other terms, conditions or schedules referenced in or attached to the foregoing (collectively with the Order Form, the “Agreement”) governs 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, Suite 201, Mount Pleasant, SC 29464 (“Moovila”), to the entity set forth on the Order Form(s) (“Customer”). By causing a duly authorized representative of each party to sign or electronically execute an Order Form, each party agrees to be bound by the terms of the Agreement. This Agreement is effective as of the date that the applicable Order Form referencing this Agreement has been last signed or electronically executed by Customer (“Effective Date”). The parties agree to the above and as follows:
1 DEFINITIONS
1.1 “Content” means all information, materials or other content included in the Software or Platform other than User Data (as that term is defined below).
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. The Platform is part of the Services.
1.3 “Services” means any services provided by Moovila pursuant to this Agreement including, without limitation, training services, support and maintenance services, and use of the Software, Content and Platform.
1.4 “Software” means the software described on an Order Form. The Software is a part of the Platform.
1.5 “Users” shall mean those employees, contractors, and invited participants of Customer who Customer authorizes to participate in using the Software, Platform or other Services. The number of Users is set forth in the Order Form.
2 DESIGNATED CONTACTS
In the applicable Order Form, Customer shall designate an account and billing contact (the “Billing Contact”) and a services and support contact (the “Primary Contact”) as the only people who will communicate with Moovila about these respective issues. Moovila will also designate one or more contacts (“Moovila Contacts”) to act as the point person(s) for Customer. These contact persons (collectively, the “Designated Contacts”) may be changed at any time upon notice from the applicable party. Users may not contact Moovila directly. They must direct their inquiries through one of Customer’s Designated Contacts. Customer’s Primary Contact is required to complete any training required by Moovila and shall be sufficiently trained in the use of the Platform and Services to be able to answer basic questions from Customer’s Users without the need to contact Moovila and to be able to assist Moovila with any updates, repairs or other Services that Moovila may provide remotely to Customer.
3 SERVICES
To the extent selected by Customer in the applicable Order Form, Moovila will provide Customer’s licensed Users with the following Services under the terms and conditions of this Agreement:
3.1 Access to and Use of the Platform. Subject to the provisions of this Agreement, Moovila will provide Customer with access to the Platform (via a password protected website and/or mobile application) to allow Users to access and use the Software and any other portions of the Platform selected by Customer in the Order Form. Customer’s use of the Platform is solely for Customer’s internal business purposes. The Platform shall be operated by Moovila and housed on the Amazon® AWS cloud servers or a similar location (the “Data Center”). Nothing in this Agreement gives Customer any ownership of or proprietary right to the Platform, or any part thereof. Customer is not entitled to use the Platform other than as specifically set forth in this Agreement. Customer is prohibited from making any modifications to the Platform. In order for Customer to access and use the Platform, including any Software being hosted on the Platform, Customer is likely to have to obtain its own computer hardware and software for Customer’s location. Customer’s rate of access to and usage of the Platform shall not exceed the rates specified in the Order Form (if any).
3.2 Integrated Software. Moovila may integrate the Software with software from a third-party’s platform to create enhanced features in the Platform and Services. Moovila may provide such enhanced Platform and Services to its Customers who select it in the Order Form.
3.2 Ancillary Services.
3.3.1 Moovila will provide training in the access and use of the Software and Platform via Moovila’s live virtual training sessions and through Moovila’s training documentation and pre-recorded videos. Unless set forth in the Order Form, the duration and scope of the training sessions shall be determined by Moovila.
3.3.2 Moovila may also provide additional professional services, such as consulting or deployment, if selected by Customer in the Order Form.
3.3.3 Moovila will provide these ancillary Services to Customer at the rates set forth in the Order Form (or, if there are no rates listed, then 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 fees for training and other ancillary Services may be invoiced prior to delivery of such Services.
3.4 Updates to Platform. Customer acknowledges that the Platform is not a static service and that Moovila reserves the right (but does not undertake the obligation) to update the Platform periodically for the use of all Customers. If Moovila makes any change to the Platform, or any of Moovila’s Software thereon, that materially and substantially reduces the value of the Platform or Software to Customer, then Customer may seek to terminate this Agreement prior to the end of the Term as set forth in Section 8.4, below.
3.5 Maintenance and Support. Moovila shall provide Customer with maintenance and support Services relating to the Platform as described in Section 6 below, or in any maintenance and support schedule that was included as part of the Order Form. Only Customer’s Designated Contacts may communicate with Moovila concerning maintenance and support issues.
4 LIMITATIONS ON SERVICES
4.1 Accessibility. Subject to the terms of this Agreement, Moovila will use commercially reasonable efforts to provide Customer with access to the Platform, including User Data and the Software on the Platform, at least ninety-nine percent (99%) of the time during each calendar month, except for scheduled maintenance and required repairs, and except for interruption of access due to causes beyond Moovila’s control, including, but not limited to, interruption, overload or failure of telecommunications or digital transmission links and Internet slow-downs, usage overloads or failures, failure by the Data Center or force majeure. In the event that Moovila fails to reach this level of accessibility in a given calendar month for reasons that are within Moovila’s control, Customer’s sole and exclusive remedy and Moovila’s sole and exclusive liability for such failure shall be as follows: Customer shall receive a credit against future access payments under this Agreement equal to a pro-rata portion of the access time lost compared to the total access time provided for the calendar month under the Agreement. To qualify for this credit, Customer’s Primary Contact shall promptly notify Moovila in writing (email is sufficient) of the interruption in access to the Service and fully cooperate with Moovila’s efforts to restore the Service.
4.2 Business Recovery. Moovila’s business recovery plan is designed to help minimize risks associated with a disaster affecting the Platform. Among other things, Moovila has selected a well-known Data Center to host and support the Platform. Moovila shall maintain commercially reasonable backup procedures for the Platform, including periodic storage of duplicate record files. Moovila will assist with any disaster recovery as part of its support obligations in Section 6. Moovila does not warrant that the Services 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.
4.3 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.
4.4 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 commercially reasonable efforts to protect its data and systems.
4.5 Terms of Use. Customer, on behalf of itself and its Users, will comply with Moovila’s written Terms of Use as such terms are in effect from time to time and posted on Moovila’s websites or mobile applications.
4.6 Privacy and Collection of Information. In the use of the Services, Customer warrants that it and its Users will comply with all applicable laws, including laws relating to privacy and the collection and use of personal information. Customer, on behalf of itself and its Users, also acknowledges that its use of the Services is subject to Moovila’s Privacy Policy.
4.7 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”). “User Data” shall mean the User Information and all content, trademarks, information and data that Users transmit to Moovila while using the Platform. Customer hereby authorizes Moovila to (i) use the User Data in order to perform Moovila’s Services under this Agreement, (ii) copy the User Data for back-up, restoration, reconfiguration, and all other maintenance purposes, and (iii) use the User Data for purposes of analysis and aggregation of information so long as the aggregated information 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.
4.8 No Responsibility for Third Parties. Moovila shall not be responsible for Customer’s or Customer’s Users’ acts or omissions. Nor is Moovila responsible for the Data Center’s acts or omissions, or the acts or omissions of any third party that is providing an app store or otherwise providing access to its customers to become Customers of Moovila (“Alliance Partner”), or the acts or omissions of any third party that is permitting integration between its software and Moovila’s Software to create enhanced Services for Customers (“Integration Partner”). Under no circumstances will Moovila be liable for errors, acts or failures to act of third parties.
4.9. Customer Information. 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.
4.10 License Control. Only the number of licensed Users of Customer listed in the Order Form are permitted to use the Services. Moovila may periodically audit Customer’s use of the Services to ensure that only Customer’s licensed Users are using the Services. Customer must provide such information to Moovila within 24 hours after an audit request. In the event that Customer is exceeding the number of licensed Users, Customer shall promptly pay Moovila for the additional Users for the duration of the Term.
5 INTEGRATION WITH NON-MOOVILA SOFTWARE
5.1. Integration Partners. The Services may contain features designed to interoperate with non-Moovila software from one of Moovila’s Integration Partners. To use such features, Customer may be required to obtain access to such non-Moovila software from the Integration Partner. Failure of Customer to enter into an agreement with an Integration Partner is not grounds for termination of the present Agreement or grounds for a refund of any payments made by Customer under the present Agreement.
5.2. Integration of User Data. If Customer installs or enables non-Moovila applications for use with the Services, Customer acknowledges that Moovila may allow those applications or their providers to access User Data as require for the interoperation of such applications with the Services. Moovila shall not be responsible for any disclosure, modification or deletion of the User Data resulting from any such access by non-Moovila application partners.
6 MAINTENANCE AND SUPPORT SERVICES
6.1 Support. Subject to satisfaction of any payment terms associated with support in the Order Form, Moovila will provide technical support Services relating to Customer’s and User’s use of the Platform and other Services as follows:
6.1.1 Customer’s Primary Contact may phone or email Moovila’s help desk with support questions during the Support Times (defined below) applicable to Customer. The Primary Contact will provide the following information to Moovila: (i) a description of the problem; (ii) any error messages associated with the problem, (iii) any known procedures used to re-create the problem, and (iv) information necessary to classify the severity of the problem. Customer’s Users are not permitted to contact Moovila directly.
6.1.2 Unless otherwise noted in the Order Form, “Support Times” are Monday through Friday from 8:00 AM – 8:00 PM EST, and an “Emergency” is the inability of Customer to access the Platform or its User Data, or the inability of a critical function of Customer to operate as a result of a problem with the Platform.
6.1.3 Moovila will use its best reasonable efforts to respond to an Emergency within four (4) hours after notice of the Emergency during Support Times, and will work diligently during Support Times to attempt to resolve the Emergency. For non-Emergencies, Moovila will use commercially reasonable efforts to respond to the non-Emergency within twenty-four hours after notice during Support Times.
6.1.4 Moovila is not responsible for problems caused by its Integration Partners, Alliance Partners, Data Center or any other third party, but Moovila may at its discretion attempt to assist Customer with such problems to the extent that they impact Customer’s use of Moovila’s Platform or Services.
6.1.5 At its discretion, Moovila may provide support Services to Customer during times outside of the Support Times and/or beyond the maximum number of monthly support hours purchased by Customer (if applicable) at Moovila’s standard hourly rates.
6.2 Maintenance. Moovila may periodically provide bug fixes, updates or other maintenance to the Platform. The Platform may not be fully accessible or functional during such times. If such Services are likely to impact the accessibility or functionality of the Platform, Moovila will endeavor to perform such Services outside of the Support Times, and will endeavor to provide reasonable prior notice to its Customers.
7 CUSTOMER’S RESPONSIBILITIES
Customer shall (i) be responsible for Users’ compliance with this Agreement; (ii) be responsible for all uses of the Services (including, without limitation, use of the Software or Platform) by the Users and by anyone who uses any password or login information that had been provided to any of the Users or to any of Customer’s former Users; (iii) be responsible for the accuracy, quality and legality of the User Data and of the means by which Customer acquired the User Data; (iv) not permit anyone who is not a User to use the Services password or login information of any of the Users; (v) prevent unauthorized access to or use of the Services, and notify Moovila promptly of any such unauthorized access or use; and (vi) use the Services only in accordance with the terms of this Agreement (including without limitation the Terms of Use and Privacy Policy) and with any applicable laws and government regulations. Customer shall not (a) make the Services available to anyone other than Users; (b) sell, resell, rent or lease the Services; (c) use the Services to store or transmit material in a manner that is abusive, threatening, unlawful, libelous, invasive of privacy or in violation of the intellectual property rights, rights of publicity, moral rights (droit moral) or any other legal rights of any third-party; (d) use the Services to store or transmit harmful or malicious computer viruses, worms, time bombs, cancelbots, Trojan horses or other harmful code, files, scripts, agents or programs; (e) use the Services to transmit any spam or similar unrequested communications or bulk email; (f) interfere with or disrupt the integrity or performance of the Services, or any User’s use of the Services, or any data or property of Moovila or any third-party contained therein; (g) attempt to gain unauthorized access to the Platform or other Services or their related systems or network; (h) copy any software, features, functions, graphics or other elements of the Platform or other Services; (i) create derivate works based upon on any portion of the Platform or other Services; (j) reverse engineer or build a competitive product or service based upon the Services or any portion thereof; or (k) use the Services for anything besides Customers’ internal business purposes. Customer is prohibited from allowing known competitors of Moovila use the Platform or other Services. Customer is prohibited from using the Platform or other Services to provide project management services to its customers or other third parties.
8 TERM, TERMINATION AND SUSPENSION
8.1. Term and Renewal. The initial term “Initial Term”) of this Agreement shall commence on the Effective Date, and, unless otherwise stated in the Order Form, shall continue for three (3) years after the Effective Date unless terminated pursuant to an Event of Default (as defined below), upon written agreement of the parties, or as set forth elsewhere in this Agreement. At the end of the Initial Term, the Agreement shall renew automatically in consecutive one (1) year renewal terms (each a “Renewal Term”) unless either party to this Agreement gives forty-five (45) days written notice of termination/non-renewal prior to the end of the applicable Initial Term or Renewal Term. The Initial Term and any Renewal Terms shall be considered the “Term” of this Agreement.
8.2 Event of Default. Upon an Event of Default, this Agreement is terminated immediately upon notice to the defaulting party. For the purposes of this Agreement, an “Event of Default” shall mean the following: (i) failure by Customer to make any payment within thirty (30) business days after it is due where Customer has received at least ten (10) days’ notice of late payment from Moovila; (ii) insolvency or inability of a party to pay its debts as they become due, appointment of a receiver for all or substantially all of the party's assets, making of any voluntary arrangement to the party's creditors, or liquidation or bankruptcy; (iii) material breach of any provision of this Agreement that is not cured, or cannot be cured, within thirty (30) days after the breaching party’s notice of the breach from the non-breaching party.
8.3. Termination by Moovila Relating to Confidentiality. Notwithstanding Section 8.1, Moovila may immediately terminate Customer’s access to the Platform and/or immediately terminate this Agreement in the event that, in Moovila’s good faith opinion, Customer has violated Section 11 of this Agreement (Confidentiality).
8.4 Termination by Customer Due to Harmful Update. Notwithstanding Section 8.1, and as set forth in Section 3.4, if Moovila makes any change to the Platform, or any of Moovila’s Software thereon, that materially and substantially reduces the value of the Platform or other Services to Customer, then Customer may seek to terminate this Agreement prior to the end of the Term. In order to obtain such early termination, Customer must provide Moovila with a detailed description of the nature of the update and the harmful effect that it had on Customer. Moovila will evaluate such description in good faith; and, if Moovila determines in its sole discretion that its update materially and significantly harmed Customer, then Moovila will allow Customer to terminate the Agreement prior to the end of the Term and will give Customer a prorated refund, if applicable.
8.5 Effect of Termination. Regardless of the means or cause of termination, Customer is obligated to pay Moovila for any Services provided by Moovila under this Agreement. Customer shall also discontinue any use of the Platform and other Services at or before the time of termination of the Agreement. Within ten (10) days after termination, Customer will return to Moovila or destroy all Confidential Information, Software or documentation of Moovila in the care, custody or control of Customer. If requested, Customer shall sign a Moovila-supplied certification attesting to the foregoing. Customer is responsible for collecting its own User Data prior to termination. Moovila has no obligation to make the User Data available to Customer or the Users after termination.
8.6 Survival. The provisions of Sections 8.5, 8.6, 9.3, 10.1, 10.3, 10.4, 11, 13, 14, 16.10, 16.11, and 16.13 shall survive termination of this Agreement, as will any payment obligations of Customer.
8.7 Suspension of Service. Moovila shall have the right to suspend the performance of the Services (including access to the Platform) if Customer fails to timely pay any amounts which are due hereunder or if Moovila believes in good faith that Customer has breached this Agreement.
9 License and PROPRIETARY RIGHTS
9.1. License to Customer. Subject to the terms and limitations set forth in this Agreement, Moovila grants to Customer a limited, non-exclusive, non-transferable license during the Term of this Agreement within the applicable territory (if any) set forth in the Order Form to allow its number of licensed Users listed in the Order Form to:
a) Access the Platform to use the Software and other Services listed in the Order Form via a browser interface;
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.
9.2. License to Moovila. Subject to the terms and limitations set forth in this Agreement, Moovila has the right to use any User Data submitted by Customer, its personnel or the Users to the Platform for the purpose of providing the Services to Customer and for any other purposes permitted under this Agreement.
9.3. Proprietary Rights. As between Customer and Moovila, Moovila shall be considered the sole owner of all rights, title and interest in and to the Platform (including the Software), Services, Content and related documentation (the “Moovila Property”), and Customer shall be considered the owner of all rights, title and interest in and to the User Data. As between Customer and Moovila, Moovila shall be considered the sole owner of all copyrights, trademarks, patents, trade secrets or other intellectual property rights (collectively, “Intellectual Property Rights”) in the Moovila Property; and Customer shall be considered the sole owner of all Intellectual Property Rights in the User Data. Nothing in this Agreement changes or transfers such ownership. Moovila shall also exclusively own all rights, title and interest in and to all modifications to the Moovila Property that take place during the Term, whether made by or on behalf of Moovila, Customer or otherwise. To the extent that such 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 shall not challenge the validity of any proprietary rights of Moovila in the Moovila Property.
10 Fees and expenses
10.1. Fees. Customer agrees to pay to Moovila all the fees set forth in the Order Form. Customer agrees to pay a late payment fee of the greater of 1.5% of the invoice amount, or the highest rate permitted by applicable law, compounded monthly. Additionally, 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.
10.2 Annual Increase. Moovila may prospectively increase its fees under this Agreement by not more than five percent (5%) once per year after the first anniversary of the 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.
10.3. Out-of-Pocket Expenses. In addition to the fees for Services hereunder, Customer agrees to reimburse Moovila for any pre-approved 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 (8) 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 upon their submission to Customer.
10.4. Taxes. Customer shall pay all sales, use 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.
11 Confidentiality
11.1. Generally. Each party to this Agreement agrees that, absent the express prior written consent of the other party to the contrary or a court order or similar legal requirement of disclosure, (a) the party will use Confidential Information (as defined below) belonging to the other party solely for the purposes permitted under this Agreement (including any applicable Order Form and Schedules), and (b) it will not disclose Confidential Information belonging to the other to any third party other than its employees 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 an 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, and shall reasonably cooperate with such party in its attempt to precure a protective order.
11.2 Definition. For purposes hereof, “Confidential Information” shall mean (i) the Software; (ii) the terms and conditions of this Agreement, and (iii) 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.
11.3 Return of Confidential Information. Each party shall promptly return to the other upon request any Confidential Information of the other party then in its possession or under its control.
12 Representations and Warranties
12.1. 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; (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; and (e) entering into this Agreement does not violate the terms of any other agreement.
12.2. Customer Representations. Customer acknowledges that it is responsible for the Users’ use of the Platform and Services and for all User Data submitted to the Platform. Customer represents and warrants that the User Data does not infringe upon the copyrights, trademarks, patents, or other intellectual property rights or other legal rights of any third parties;
12.3. Moovila’s Limited Warranties. Moovila represents and warrants that (i) it will perform the Services in a workmanlike and commercially reasonable manner; and (ii) the Platform, as provided to Customer, does not infringe upon the copyrights, trademarks, patents, or other intellectual property rights or other legal rights of any third parties.
12.4. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 12, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MOOVILA ALSO DISCLAIMS ANY WARRANTY OR RESPONSIBILITY RELATING TO THE SECURITY OF ANY THIRD-PARTY PLATFORM OR SERVICES, SUCH AS THE PLATFORMS OR SERVICES OF AMAZON’S AWS OR CLOUD SERVICES.
12.5. Further Limitations. Moovila does not warrant that the Services will be free from any defects where the defect in the Services is caused by (i) Customer’s (or Customer’s Users’, employees’ or agents’) negligence or misuse, (ii) any use of the Services in a manner inconsistent with the Services’ intended use or in any manner inconsistent Moovila’s Terms of Use or Privacy Policy, (iii) the combination of the Services 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 Platform or Services by Customer or any third party.
13 Limitations of Liability
3.1 Limitation 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, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHER LEGAL THEORY, REGARDLESS OF THE CAUSE OF ACTION AND EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.
13.2. Limitation of Liability. ASIDE FROM OBLIGATIONS UNDER SECTION 11 (CONFIDENTIALITY), AND EXCEPT FOR WILLFUL MISCONDUCT OR FRAUD, EACH PARTY’S LIABILITY FOR DAMAGES TO THE OTHER PARTY FOR ANY CAUSE WHATSOEVER, REGARDLESS OF FORM OF ACTION, SHALL BE LIMITED TO THE FEES MOOVILA RECEIVED (IF ANY) FROM CUSTOMER DURING THE TWELVE (12) MONTHS OF THE TERM IMMEDIATELY PRECEDING THE INCIDENT THAT GAVE RISE TO THE CLAIM, AND THE AGGREGATE LIABILITY OF THE PARTIES TO EACH OTHER UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID TO MOOVILA UNDER THIS AGREEMENT.
13.3. Deadline for Legal Action. No action arising under this Agreement, regardless of form, may be brought by either party more than one (1) year after the cause of action has arisen.
13.4. Jurisdictional Limits. The limitations on damages and liability set forthSDVG in this Agreement apply to the maximum extent permitted by law.
14 INDEMNITY
14.1 By Customer. Customer shall indemnify, defend and hold harmless Moovila, its parent, affiliate, and subsidiary companies, and their respective officers, directors, owners, shareholders, employees, representatives, contractors, insurers, attorneys and agents (collectively, the “Moovila Indemnitees”) from and against any and all 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), incurred or sustained by any of the Moovila Indemnitees that arise from any third party claim stemming 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 Customer’s or its Users’ use of the Software, Platform or Services; or (iii) Customer’s reckless or willful misconduct.
14.2 By Moovila. Moovila shall indemnify, defend and hold harmless Customer, its parent, affiliates, subsidiary companies, and their respective officers, directors, owners, shareholders, employees, representatives, contractors, insurers, attorneys and agents (collectively, the “Customer Indemnitees”) from and against any and all 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), incurred or sustained by any of the Customer Indemnitees that arise from any third party claim stemming from (i) any breach of any representation, warranty, covenant or agreement made by Moovila in this Agreement; or (ii) Moovila’s reckless or willful misconduct.
14.3 Indemnification Procedures and Remedies.
14.3.1 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 14.1 and 14.2, as the case may be. The term “Indemnitor” shall refer to the party having the obligation to indemnify pursuant to such provisions.
14.3.2 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 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. Indemnitor shall have the right to settle such claim on terms and conditions as it deems appropriate, unless the settlement requires Indemnitee to admit liability, allows for injunctive relief against Indemnitee, or compromises any of Indemnitee’s intellectual property rights, in which case Indemnitee may also participate in the defense at its own expense.
15 ENTIRE AGREEMENT / PRIORITY
This Agreement, including the Order Form, General Terms, schedules and any referenced terms and conditions herein (such as the Terms of Use and Privacy Policy), contains the entire agreement between the parties and supersedes all prior agreements (including, without limitation, any conflicting terms of any non-disclosure or confidentiality agreements between Customer and Moovila), representations, warranties and understandings, whether written or verbal. In the event of a conflict between the terms of portions of this Agreement, the Order Form will control, followed by the General Terms, then any schedules to either such document, then the Terms of Use, then the Privacy Policy, and then any other remaining documents.
16 MISCELLANEOUS
16.1 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 electronic mail, at the time of transmission (unless an automatic reply indicates that the email was not received, in which case delivery is at the time that the email is opened); (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 Customer shall be the address (and email addresses) of Customer’s Primary Contact set forth on the first page of the applicable Order Form. Notices to Moovila shall be sent to Moovila, Inc., Attn. President, 300 West Coleman Blvd, Suite 201, Mount Pleasant, SC 29464, and/or by email to support@moovila.com with a copy to attorney Edward Fenno at efenno@fennolaw.com. 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.
16.2 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, shall not unreasonably be 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. Moovila may freely assign this Agreement upon notice to Customer and may also enter into subcontracts, outsourcing agreements or other arrangements for the performance of its obligations hereunder.
16.3 Monitoring. In order to maintain quality service, telephone communications with Customer may be monitored and/or recorded without any further notice.
16.4 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. This Agreement may not be amended, modified or altered except pursuant to a written document signed (electronically or by hand) by both parties.
16.5 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.
16.6 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.
16.7 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.
16.8 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.
16.9 Force Majeure. Except for payment of fees by Customer, if performance of any portion of this Agreement is prevented or delayed due to a natural disaster, labor dispute, act of God, pandemic, decree or action of a judicial or governmental body, or any other cause beyond the reasonable control of either party, then the delayed party shall not be liable for such delay and performance times shall be considered extended for a period of time equivalent to the time lost because of such force majeure.
16.10 Dispute Resolution. In the event that a dispute arises between the parties, the parties agree to endeavor in good faith to resolve the dispute by negotiation prior to commencing litigation.
16.11 Governing Law; Forum. 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 parties agree to submit to the jurisdiction of the appropriate courts sitting in Charleston County, South Carolina, United States of America, and agree that venue shall lie there. Each party waives any objection that such a forum would be inconvenient. 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.
16.12 Export Compliance. The Services may be subject to export laws and regulations of the United States and other jurisdictions. Each Party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Users to access or use Services in a U.S.-embargoed country (likely including Russia, Crimea, Belarus, Cuba, Eritrea, Iran, North Korea, Syria and Venezuela) or in violation of any U.S. export law or regulation.
16.13 Advertising. During the Term and thereafter, Customer acknowledges and agrees that Moovila is authorized to state in advertising or other sales and marketing materials that Customer is/was a customer of Moovila and received the Services from Moovila.
16.14 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.
Updated November 26, 2024 at 9:55AM EST.