THIS MASTER SERVICES AGREEMENT is made as of the date of the first dually executed sales order (“Sales Order”) between Motivosity, Inc., ("Motivosity") a Delaware corporation with a principal place of business at 1633 West Innovation Way, Suite 150, Lehi, UT 84043, and “Subscriber” as outlined in the Ship To company name and address on the Sales Order.
Motivosity has developed and is the sole and exclusive owner of a web-based system for the delivery of an employee recognition and engagement program (the “Service”). Subscriber desires to engage Motivosity for purposes of obtaining access to the Service for individuals invited to participate in the Service by the Subscriber (collectively, the “Users”) on a non-exclusive basis.
Subject to the following terms and conditions and in mutual consideration of the promises made between the parties as contained in this Agreement (the "Agreement"), the parties agree as follows:
1.1
The initial User count and related per User pricing for the initial annual term shall be set forth in a dually executed Sales Order.
1.2
The initial term of this Agreement shall commence as of the Effective Date outlined the initial Sales Order and will expire on the 1st anniversary date of this Agreement. Subscriber will be invoiced as of the Effective Date due upon receipt.
1.3
All fees payable by the Subscriber to Motivosity in relation to the purchase of the Motivosity product for use by Subscriber are due and payable per section 1.1.
1.4
Subscriber may terminate this agreement due to material breach of the service standards outlined in section 5 by providing Motivosity written notice and 60 days to remedy the problem. If no remedy is provided, Motivosity will refund the pro-rated unused portion of license fees paid by Subscriber.
1.5
Upon termination of this agreement for any reason other than failure by Motivosity to adhere to the service standards outlined in section 5, Subscriber will be obligated to pay the balance of undisputed amounts computed in accordance with section 1 and shall not be entitled to receive any pro-rata refund. Undisputed outstanding amounts are subject to interest charges of 1% per month, or the maximum permitted by law, whichever is less, plus all expenses of collection.
1.6
Upon termination of this Agreement Subscriber agrees and acknowledges that Motivosity has no obligation to retain Subscriber data and that such Subscriber data will be irretrievably deleted.
1.7
Upon termination of this Agreement, Motivosity will return any unused portion of the Subscriber’s e-gift card funds.
2.1
Subscriber will be invoiced thirty (30) days prior to the anniversary date of this Agreement and the Service will renew for an additional annual period upon the earliest of the following: automatically upon the anniversary this Agreement unless notice of cancellation is received at least 30 days before the anniversary date, upon payment of the Renewal Fee as defined in section 2 below, or an additional sales order is executed by Motivosity and Subscriber. Motivosity may suspend or terminate the Service and this Agreement upon failure to pay within thirty (30) days after the anniversary date of this Agreement.
2.2
Each renewal invoice will have fees comprised of two components; the annual renewal fee and the true-up fee which will be calculated as follows:
2.2.1 Renewal Fee – will be calculated by multiplying current number of active users in Motivosity by the then standard approved Motivosity pricing unless otherwise agreed to in writing.
2.2.2 True-up Fee – The true-up fee is the sum of pro-rated individual user fees that are over the last pre-paid number of Users. This is calculated by first obtaining the User count change (X) and then finding the X most recently added Users for the company. The true-up fee is then calculated by summing the pro-rated annual fee for each of those Users.
2.3
As an example of how the true-up fee works, Company A started its Subscription with 100 Users at $72/User on Jan 1. On April 1, Company A adds 40 Users (for a total of 140). On July 1, Company A adds another 20 Users (for a total of 160). On December 1, Company A deletes 30 Users (for a total of 130). At renewal time, Company A will have 130 Users. To calculate the true-up, Motivosity will find the 30 most-recently created Users. 10 of those Users were created on April 1 and 20 of those Users were created on July 1. 10 Users have a true up fee of $54.05 per user, which is equal to $72/365*274 (the number of days in use). 20 Users have a true-up of $36.10 per user, which is equal to $72/365*183 (the number of days in use). The total true-up fee in this example is $1,262.46.
2.4
Taxes. Subscriber is solely responsible for all taxes, fees, duties, and governmental assessments (except for taxes based on Motivosity’s net income) that are imposed or become due in connection with this Agreement.
2.5
Digital Gift Card Payments. Deposits made by Subscriber for e-gift cards are used to fund gift card purchases made by Users. The deposits may be made in one of the following ways:
2.5.1 Direct invoice. In this case, Subscriber requests that Motivosity submit an invoice from which to fund expected upcoming e-gift card purchases. These requests shall be made to billing@motivosity.com
2.5.2 ACH Push Transfer. In this case, the Subscriber transmits funds for digital rewards via ACH or wire directly to Motivosity. Banking information will be provided on request.
2.5.3 ACH Pull Transfer. In this case, the authorized Admin enters the appropriate bank routing and account numbers into the Service interface and defines the rules (if any) that control how ACH Transfers will happen. Motivosity does not store banking information, but rather a bank authorization token provided by Stripe, Motivosity’s ACH service provider.
2.5.4 Credit Card Deposit. In this case, the authorized Admin registers a credit card for funding the digital rewards. This card registration interface is part of the Service. A convenience fee of 3.5% will be added to deposits made by credit card. Motivosity does not store credit card information, but rather a card authorization token provided by Stripe, Motivosity’s card processing provider.
3.1
Proprietary Rights. Motivosity retains all right, title and interest in its data, information and intellectual property rights, and nothing in this Agreement is intended to transfer or diminish such rights. The parties further acknowledge and agree that as between the parties, Motivosity owns all right, title, and interest in the Service, all related supporting software, and all registered and/or unregistered copyright, trademark, trade name, patent and design rights relating thereto. The use by Subscriber of any of these rights is authorized only for the Service and upon expiration or termination of this Agreement for any reason such authorization will cease.
3.2
Accurate Data. Subscriber agrees to provide accurate, current and complete information ("Registration Data") about Subscriber in gaining access to the Service. Subscriber acknowledges and agrees that if Subscriber provides information that is intentionally inaccurate, not current or incomplete in a material way, or Motivosity has reasonable grounds to believe that such information is untrue, inaccurate, not current or incomplete in a material way, Motivosity has the right to suspend or terminate Subscriber's account either (i) without notice, if Motivosity believes the Subscriber poses a threat of fraud or a data security threat or (ii) as provided in this Agreement but only after first providing Subscriber with written notice of such alleged information failure and provides Subscriber with no less than ten (10) days to cure such information
3.3
Subscriber Content. Some areas of the Service allow Users to post data to the service. Subscriber retains ownership of and sole responsibility for Subscriber Content. Subscriber affirms, represents and warrants that the Subscriber Content and Motivosity's use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any intellectual property rights and privacy rights. Motivosity takes no responsibility and assumes no liability for any Subscriber Content that Subscriber or Users sends to the Service.
3.4
Service Rules. Subscriber and its Users agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated "scraping"; (ii) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (iii) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (iv) attempting to intentionally upload invalid data; (v) collecting or harvesting any personally identifiable information without authorization; (vi) using the Service for any commercial solicitation purposes; (vii) impersonating another person or otherwise misrepresenting Subscriber’s affiliation with a person or entity, conducting fraud, hiding or attempting to hide Subscriber’s identity; (viii) modify, copy or create derivative works based on the Service; (ix) reverse engineer the Service; (x) access the Service for purposes of building a competitive product or service or copying its features or user interface; or (xi) bypassing the measures Motivosity uses to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein. Subscriber is responsible for all activities conducted by its Users and for its User’s compliance with this Agreement.
3.5
Violations. If, in Motivosity's sole and reasonable determination, Subscriber violates any material provision of this Agreement, Motivosity may permanently or temporarily terminate or suspend Subscriber access to the Service upon notice without liability. Motivosity will attempt to notify Subscriber of any such violation and to allow time for a remedy unless the violation poses a threat either to Motivosity or the data integrity of its Subscribers. Upon termination for any reason, Subscriber continues to be bound by this Agreement.
3.6
ThanksMattersTM Commercial Card Program Terms
3.6.1 Subscriber may be eligible to participate in Motivosity’s ThanksMatters Visa commercial Card Program. Eligible Subscribers will be required to have a United States (“US”) business presence or affiliation. US presence or affiliation requires close association with a US legal entity that has a US Employer Identification Number and a representative of the US legal entity with a US Taxpayer Identification Number or Social Security Number. Both the US legal entity and its representative must have a physical address located within the United States to be eligible.
3.6.2 Sub-processors: Motivosity utilizes Stripe, Inc. (“Stripe”), and Celtic Bank Corp for issuing commercial cards and processing related transactions. Should Subscriber elect, and is also found eligible, to participate in the ThanksMatters Commercial Card Program, Subscriber will complete an employer verification process within Motivosity and Stripe and agrees to the additional terms located at the following locations:
https://stripe.com/legal/celtic-spend-card
https://stripe.com/legal/issuing/celtic/spend-card-apple-pay-terms-and-conditions
https://stripe.com/legal/ssa#services-terms
3.6.3 Acceptable Use: Use of the ThanksMatters card associated with perks, benefits, or lifestyle purchases tied to employment is considered a bona fide business purpose. This includes purchases related to retention incentives, loyalty perks, employee recognition, customer recognition, awards, other employee incentives, etc. Motivosity will restrict merchant category codes that include gambling or other categories deemed not allowable under relevant financial regulations or that may be susceptible to fraud.
3.6.4 Card Program Fees: Subscriber may elect to allow its employees or cardholders to request a physical ThanksMatters card in the administrative settings inside Motivosity as determined by subscriber’s primary admin (Admin Settings). Subscriber will be charged five dollars ($5) for each physical card requested which will be deducted from Subscriber’s Motivosity funding to the extent funds are available. If such fees exceed Subscriber’s Motivosity funded balance, Motivosity will invoice Subscriber for any amounts outstanding payable upon receipt. If applicable, Subscriber agrees to any additional card-related issuing fees as outlined in a related dually executed sales order. Any such fees would also be visible in the Admin Settings within Motivosity. Motivosity does not extend credit to fund card transactions. Subscriber is solely responsible for, and will be required to, pre-fund all purchases through its Motivosity funding page found in the Admin Settings page. Also see section 2.5 above.
Cardholder transactions will be authorized up to the lower of a) the cardholder Motivosity spending balance, or b) the Subscriber’s Motivosity funding balance. Cardholder transactions may settle with a final amount different than the amount initially authorized (i.e., restaurant tips, gas pump holds, etc.). Subscriber is solely responsible for any final amounts that result in a negative cardholder spend, or company funding balance within Motivosity and will indemnify and hold harmless Motivosity, its employees, officers, and directors in any such circumstances.
3.6.5 Disputes: Cardholder transactions disputed by a cardholder or Subscriber will require appropriate documentation and evidence that the cardholder attempted to resolve the dispute directly with the merchant before disputing the transaction with Motivosity. Motivosity will submit a dispute to the appropriate sub-processor only if documentation and evidence of such attempts are received. Unsuccessful disputes are the sole financial responsibility of Subscriber and may be charged a fee, not to exceed $25, per lost dispute.
4.1
Subscriber grants Motivosity the right to include the Subscriber as a customer in Motivosity's promotional material. Subscriber can opt to have their name excluded from such use by Motivosity except as agreed to in writing on a case-by-case basis by providing a sufficiently detailed email request regarding the same to marketing@motivosity.com. The subject line in such email should be entitled "Non-use of Subscriber Name."
4.2
Subscriber grants Motivosity and its review website affiliates (G2, Capterra, etc.) the right to occasionally offer Subscriber and/or Users nominal incentives (not to exceed $25) in exchange for honest (positive or negative) reviews of Motivosity’s applications according to the FTC’s Guidelines on Endorsements. Motivosity and/or its review website affiliates will not solicit incentivized reviews from any government or public sector employees.
5.1
Uptime. Motivosity warrants that it shall maintain application uptime of no less than 99.9% of the time during each calendar quarter, excluding Motivosity website downtime for regularly scheduled maintenance (see Product Updates) and internet unavailability. Should Motivosity fail to achieve 99.9% uptime in each of two consecutive calendar quarters (“Service Level Failure”), Subscriber may elect to terminate this Agreement per Section 1 of this Agreement. The Subscriber acknowledges that the Motivosity website may become temporarily unavailable from time to time in order to update and/or conduct routine maintenance relating to the same in accordance with section 3. Motivosity will provide as much written notice as possible to the Subscriber should Motivosity become aware that the Service will become temporarily unavailable
5.2
Updates. Motivosity is a platform that is being actively developed. Updates, enhancements, and upgrades are usually deployed during a maintenance window that is either Friday night between 10pm and 12:00am (midnight) MST or Saturday night between 10pm and 12:00am (midnight). Motivosity has no obligation to notify Subscriber of upgrades, fixes, or enhancements as they happen. Motivosity will broadcast information about feature changes, additions, and enhancements to its customer base periodically. Motivosity may change the Service or features of the Service, to Subscribers or to Users generally, or to create or change usage limits for the Service. However, Motivosity will not remove material functionality of the services without thirty (30) days advanced written notice to Subscriber.
5.3
Defects. Motivosity will use all commercially reasonable efforts to correct all application defects as a matter of top priority and to roll those out to customers at least as frequently as the weekly maintenance window described in section 5.2
5.4
Security. Motivosity will use all commercially reasonable efforts to protect customer data from loss or interception. Subscriber understands that the technical processing and transmission of Subscriber's electronic communications is fundamentally necessary to Subscriber's use of the Service. Subscriber agrees that Motivosity is not responsible for any misuse of Subscriber data by a User who is properly authenticated into the Service.
6.1
Except as expressly and unambiguously permitted hereunder, each party shall hold in confidence and not use or disclose any materials or information disclosed by the other party that are marked as confidential or proprietary, or if disclosed verbally, reduced to writing and marked confidential within thirty (30) days after the date of disclosure ("Confidential Information"). Confidential Information will also include the Service and documentation and any new product or service information. Subscriber Confidential information includes Subscriber’s Users and respective Usernames and passwords. Each party shall treat the other party's Confidential Information with at least the same degree of care it uses to prevent unauthorized disclosure or use of its own Confidential Information, but in no event less than reasonable care. Confidential Information will not include any materials or information that the recipient can prove is now, or later becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public; (ii) is known by the receiving party at the time of disclosure as evidenced by its records; (iii) is furnished to the receiving party by a third party, as a matter of right and without restriction on disclosure; (iv) is independently developed by the receiving party without any breach of this Agreement; (v) is the subject of a written permission to disclose provided by the disclosing party; (vi) is disclosed in response to a valid order of a court or other governmental body or any political subdivision thereof in the jurisdiction in which the confidential information is required to be disclosed; provided, however, that the receiving party shall first have given notice to the disclosing party and shall, at disclosing party’s cost and expense, cooperate with disclosing party’s efforts, if any, to obtain a protective order requiring that the Confidential Information be limited or if so disclosed be used only for which the order was issued; or (vii) is otherwise necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary. Access to the Confidential Information is limited to employees and agents of the receiving party who have a legitimate "need to know" the information for their performance of this Agreement, who have been advised of the confidential nature thereof and who have agreed in writing, as a condition of employment, engagement or otherwise, to protect the Confidential Information with terms no less than are imposed by this Agreement. Notwithstanding the above, Motivosity may use aggregate, non-specific or identifiable Subscriber and/or User information to measure general Service usage patterns and characteristics of its user base and may include such aggregate information about its audience in promotional materials or reports to third parties. This aggregate information will not reference names, phone numbers, email addresses, or other personally identifiable information, and it is not traceable to a specific recipient or user email address.
6.2
Motivosity’s privacy policy is set forth as indicated on the website at http://www.motivosity.com/legal/privacy. Motivosity reserves the right to change the policy and terms from time to time and post such changes at the above site locations. Subscriber will not upload, store, or share any personal information with the Service unless Subscriber is specifically authorized to do so. Any personal information that Subscriber provides in connection with this Agreement will be used and protected according to Motivosity’s privacy policy. Subscriber hereby consents to Motivosity’s transfer of limited data which describes award issuance to a third-party service provider solely for the purposes of fulfilling its obligations to provide Services hereunder.
EXCEPT FOR INDEMNIFICATION OBLIGATIONS OR FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER UNDER ANY CLAIMS ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID BY SUBSCRIBER TO MOTIVOSITY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE INITIAL EVENT RESULTING IN SUCH CLAIMS. NEITHER PARTY WILL BE LIABLE FOR LOST PROFITS OR FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION, EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE CUMULATIVE FOR ALL CLAIMS HOWSOEVER ARISING UNDER ALL AGREEMENTS AND SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF THE REMEDIES PROVIDED IN THIS AGREEMENT SHALL FAIL OF THEIR ESSENTIAL PURPOSE.
Motivosity (the “Indemnifying Party”) will defend, indemnify and hold harmless the Subscriber (the “Indemnified Party”), and the respective directors, officers, employees and agents of the Indemnified Party, from and against any and all third party claims and any costs, losses, damages, judgments and expenses (including reasonable attorneys’ fees) which are awarded by a court of final jurisdiction and which are arising out of the Indemnifying Party’s infringement of a third party’s intellectual property rights. The obligations to defend and provide indemnification under this section are subject to the following conditions: (i) the party claiming indemnification shall promptly notify the Indemnifying Party having the duty of indemnification in writing of any indemnifiable claim or action for which indemnification is sought (provided that any failure to so notify shall not limit the indemnifying Party’s indemnification obligation except if and to the extent such failure materially prejudiced the Indemnifying Party’s ability to defend against any claim, suit or other proceeding), (ii) the Indemnifying Party shall, at its option, have sole control of the defense of any such claim or action and all negotiations for any settlement or compromise, provided that the party seeking indemnification shall have the right to provide for its own, separate defense at its own cost and expense. The Indemnifying Party will not, except with the prior written consent of the Indemnified Party, consent to the entry of any judgement or enter into any settlement which does not include, as an unconditional term thereof, the giving by the claimant or plaintiff to the Indemnified Party of a release from all liability in respect thereof. The parties agree to cooperate in good faith in the defense or settlement of any such demand, claim or suit. If use of the Service is permanently enjoined as the result of an infringement claim, Indemnifying Party will, in its sole discretion and expense, procure for Subscriber the right to continue using such Service, replace such Service with non-infringing product, modify such Service so that it is no longer infringing, or, if each of the foregoing is commercially unreasonable or unduly burdensome, Indemnifying Party shall refund to Indemnified Party the pro-rated remainder of fees paid by Subscriber. THE FOREGOING STATES THE PARTIES SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS OF ANY KIND.
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Motivosity represents and warrants that it will use commercially reasonable efforts to provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and substantially in accordance with the online Motivosity help documentation under normal use and circumstances. Subscriber represents and warrants that Subscriber has not provided any false information to gain access to the Service and that billing information is correct.
11.1
The parties agree that any obligation to pay any fees due and unpaid prior to termination shall survive the termination of this Agreement until fully performed.
11.2
Notwithstanding anything to the contrary, Sections 6, 7, and 8 shall survive termination of this Agreement for any reason.
11.3
The failure of either party to require the performance of any term or condition of this Agreement, or the waiver by either party of any breach of this Agreement, shall not prevent a subsequent enforcement of any such term or any other term nor shall it be deemed a waiver of any subsequent breach.
11.4
This Agreement is governed by the laws of Delaware, USA and the parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of Delaware, USA. This Agreement constitutes the entire agreement between the parties with regard to its subject matter, supersedes all prior or contemporaneous agreements, commitments, representations, writings, and discussions between the parties, whether oral or written, shall apply in lieu of the terms or conditions in any Subscriber purchase order or other order documentation (all such terms or conditions shall be null and void), and there are no other agreements, representations, warranties, or commitments which may be relied upon by either party. Neither party shall be liable hereunder by reason of failure or delay in the performance of its obligations hereunder (except for the non-payment of money) on account of strikes, shortages, riots, insurrection, war, acts of terrorism, fires, flood, storm, explosions, earthquakes, acts of God, governmental action, labor conditions, or any other cause which is beyond the reasonable control of the party. If a court of competent jurisdiction finds any provision hereof invalid or unenforceable, that provision will either be amended to achieve as nearly as possible the intent of the parties, or if amendment is not possible the offending provision shall be deemed struck, and the remainder of this Agreement will remain in full force and effect. The captions and headings in this Agreement are for convenience only and shall not affect the construction and interpretation of any provision of this Agreement. This Agreement may be executed by an original or electronic signature from a duly authorized person of the respective parties and be in two or counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
11.5
No modification to the Agreement shall be effective unless it is in writing and signed by each party.
11.6
Neither party may assign this Agreement without the other party’s prior written consent. Notwithstanding the foregoing, either party may assign this agreement to any entity that (i) owns, is owned by or under common control with the assigning party, or (ii) purchases all or substantially all of the assigning party’s assets.