Custom Development Service & License Agreement
Purpose. This Master Service and License Agreement (this “Agreement”) sets forth the terms and conditions under which Movatic will provide Services and/or Deliverables to Customer, as specified in a Statement of Work ("SOW"), and license the Software to Customer (as detailed below). This Agreement is effective as of the signing of the initial SOW (the “Effective Date”). The parties agree as follows:
Definitions.
“Background Materials” means the Platform Improvements, Development Improvements and any of Movatic’s proprietary methodologies, intellectual property, trade secrets or internal strategies, hardware, software, tools, data, reports, drawings, systems, know-how, technology, and designs whether existing as of the Effective Date or developed by Movatic during the term of this Agreement as an improvement to, or derivative work of, the Software or any of the foregoing.
“Confidential Information” means information may include, but is not limited to, Background Materials, technology, procedures, protocols, specifications, customer information, product information, proposed business arrangements, methods of operation and compilations of data.
“Deliverables” mean all software, hardware, strategies, systems, documents, summaries, reports, analyses, studies, information, designs, templates, layouts, files, text, graphics and/or other products or materials to be delivered and/or licensed by Movatic to Customer in accordance with an SOW other than Background Materials.
“Development Improvement” means any new discovery, invention, development, method, report, modification, improvement and/or other similar or related information (whether or not patentable or reduced to practice) and any copyrightable work, trade mark, trade secret or other intellectual property rights created by Movatic conceived or developed during the term of the Agreement that are developed from Movatic’s Background Materials pursuant to a “Statement of Work”.
“Platform Improvement” means any Services provided to modify, improve and/or alter Movatic’s Background Materials or the Software to meet Customer’s commercial or business requirements (and the Deliverables resulting from such Services) other than Agreed Exception IP.
“Services” means the services which Customer contracts Movatic to perform in accordance with an SOW, which services may include, without limitation, consulting, coding, content creation, training, support, or other services.
“Software” means the mobile and administrative application with the specifications defined at https://documentation.movatic.co which may be updated by Movatic from time to time as the software is improved.
Services and Deliverables - In General.
Movatic shall perform Services and provide Deliverables as designated in an SOW. Each SOW shall contain such additional terms and conditions that Movatic and Customer may agree upon for the specific Services and Deliverables being provided under the SOW. For any SOW to hereafter be a part of this Agreement is must first be signed by both parties.
Movatic is responsible for the projects based upon Customer’s priorities with Customer’s approval. Customer and Movatic will each dedicate a project manager to interface with the other party under each SOW. Each project manager will have appropriate decision-making power related to all aspects of that party’s performance under the applicable SOW. Each party should direct all SOW-related communications to the other party through the appropriate project manager. Customer’s project manager shall be responsible for ensuring appropriate resources are provided to Movatic personnel to facilitate delivery of the Deliverables and/or Services.
Movatic may use subcontractors in providing Services and/or the delivery of Deliverables to Customer.
During the term of any SOW, Customer reserves the right to revise the Services and/or Deliverables, or the time frames associated with them. If Customer elects to make such revisions, the parties will reach agreement on an equitable adjustment to the fees, time frames, or Services or Deliverables that will then be memorialized in a new SOW. If no agreement is reached, they shall continue under the terms of the applicable SOW without any change to the initially agreed Services and/or Deliverables.
Movatic is free to provide software, services, content and/or products to other entities so long as those activities do not violate a term of this Agreement and any SOW
License to Software
Subject to Customer’s compliance with the terms of this Agreement, Movatic hereby grants to Customer a non-exclusive, nontransferable, revocable, limited, sublicensable, worldwide license to use the Software. The use of the Software by End Users to whom Customer grants access is governed by Movatic’s Standard Terms and Conditions and Privacy Policy in the form provided to Customer, as such may be updated by Movatic from time to time. The term “End Users” as defined herein means individuals or entities that are approved by Customer to use the Software as intended. The use of the Software by Customer is governed by Movatic’s Admin Terms of Service, substantially in the form attached hereto at https://admin.movatic.co/#/platformtos, which may be updated by Movatic from time to time upon written notice to Customer. All rights owned by or validly licensed to Movatic that are not expressly granted to Customer in this Agreement are reserved by Movatic, and Customer may not use the Software in any manner not expressly authorized by this Agreement. Customer shall not: (a) remove or destroy any proprietary rights marks or legends on or in the Software; (b) modify, enhance, adapt, translate, or create derivative works of the Software; (c) transfer, distribute, assign, sublicense (other than to individual end users), rent, lease, export or sell the Software; (d) decompile, disassemble, or reverse engineer the Software; or (e) make copies of the Software other than for archival and backup purposes.
Subject to Movatic’s compliance with the terms of this Agreement, Customer hereby grants to Movatic a limited, non-exclusive, paid up, royalty-free, worldwide license to use Customer’s source code only in connection with Movatic’s performance of the Services during the Term of this Agreement.
All costs, expenses and fees (but not including Transaction Fees) (collectively, “Fees”) will be invoiced by Movatic to Customer on a monthly basis. Movatic may debit the amount of such invoice from Customer’s Stripe account. Payment of Transaction Fees (as set forth in the Platform Terms of Service), which will not be invoiced, will be due and payable to Movatic as incurred and will be made via a periodic direct debit from Customer’s Stripe account. Movatic may debit Customer’s Stripe account (or another Stripe account agreed by the parties in writing) and such debit transactions are hereby authorized and approved by Customer by execution of this Agreement. Movatic shall provide support for the Software in accordance with the standard support levels provided to other Software licensees and end users.
Customer Obligations and Responsibilities.
During the term of this Agreement, Customer shall: (a) provide Movatic with all necessary access to Customer’s facilities, personnel, and materials; and (b) obtain any consent required from a third party to permit Movatic to access and/or use that third party’s IT systems and proprietary material in Customer’s possession and control in order for Movatic to perform its obligations under this Agreement and an SOW.
Customer agrees that the delivery of Deliverables and the performance of Services under each SOW are time-sensitive. In order for Movatic to perform as requested, Customer hereby agrees to promptly respond to all communications initiated by Movatic in a timely manner. Customer’s failure to be responsive to Movatic’s personnel will negatively impact Movatic’s ability to deliver the Deliverables and perform the Services.
Should Customer fail to perform all of its obligations and responsibilities under this Agreement, Movatic shall receive an appropriate extension of time to provide the Services and/or Deliverables under this Agreement or shall be relieved from performance of the Services and/or delivery of the Deliverables, in Movatic’s sole discretion, if such Services and/or Deliverables were time-sensitive. Further, in the event of Customer’s failure to comply with any warranty under this Agreement, Movatic shall not be held responsible or liable for any resulting delay in providing Deliverables under this Agreement, and Customer shall promptly reimburse Movatic for all additional costs and expenses incurred by Movatic as a direct result of such failure by Customer.
Movatic’s Warranties.
Movatic warrants that all Deliverables provided to Customer shall be original work of Movatic and/or that Movatic has or will have acquired all rights necessary to fulfill its obligations, and to transfer or grant Customer the rights, set forth in this Agreement.
Movatic warrants that all Services shall be carried out in a diligent, prompt, and professional manner by individuals with the necessary knowledge, skill and training to provide such Services.
Movatic warrants that all Deliverables shall be provided in the timeframes set forth in the applicable SOW, provided Customer has timely, accurately and completely complied with its obligations under such SOW.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND/OR AN SOW, MOVATIC DISCLAIMS AND CUSTOMER HEREBY WAIVES ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR USE.
Acceptance. Unless otherwise provided in an SOW, the Services and/or Deliverables are deemed accepted fourteen (14) calendar days after delivery or performance unless, within that time (the “Acceptance Period”), Customer provides written notice to Movatic that the Services rendered or Deliverables delivered were not in substantial conformance with agreed to specifications. If Customer provides such written notice to Movatic, Movatic will use commercially reasonable efforts to, at its sole option, repair, correct, re-perform or replace the Deliverable and/or Services within a reasonable time of its receipt of the notice.
Work Product Ownership.
Upon Customer’s payment in full for Services rendered and Deliverables delivered, all work product other than Background Materials created only for Customer and directly resulting from the performance of the services pursuant to an executed SOW, including the Deliverables (collectively, the “Work Product”), shall be the property of Customer and Movatic hereby assigns all right, title and interest in and to the Work Product to Customer. Nothing in Notwithstanding the foregoing, if the parties mutually agree in writing in advance of the development of any Deliverable, the intellectual property specified in such writing will be property of Customer (the “Agreed Exception IP”) and such Agreed Exception IP is hereby licensed to Movatic on a perpetual, irrevocable, worldwide, royalty-free, transferrable, sublicensable, paid up basis so long as the Agreed Exception IP is used to deliver Services to Customer and no other customer of Movatic.
If any Background Materials are integrated into any Deliverables, Movatic shall grant to Customer a revocable, non-transferrable, non-sublicensable license to use the Background Materials or Development Improvements solely for the purpose of commercializing the Deliverables as delivered to Customer by Movatic.
Work Product shall not include any Background Materials or Development Improvements, or other intellectual property before the date of this Agreement or any SOW or outside of the scope of an SOW. Nothing in this Agreement assigns to Customer any of Movatic’s Background Materials. To the extent that, by operation of law, Customer owns any intellectual property rights in such Background Materials, Customer hereby assigns to Movatic all rights, title, and interest in such Background Materials. this Agreement shall affect the ownership by either party of any intellectual property owned by or in the possession of that party at the date of this Agreement. Movatic retains all ownership and rights in and to the Background Materials, Platform Improvements, and Development Improvements.
Movatic Compensation. Movatic will be compensated for Services and/or Deliverables pursuant to the terms of this Agreement. Customer shall be responsible for paying all taxes relating to its purchase and use of Services and/or Deliverables, except for those taxes based on Movatic’s income, or which is Movatic’s responsibility. Customer shall be responsible for all agreed to expenses and costs incurred by Movatic while performing under the Services.
Confidentiality.
During this Agreement, each party may have access to information that is considered confidential by the other. Confidential Information must be marked or identified as “confidential” by the disclosing party, unless the information should reasonably be understood by the receiving party to be confidential or proprietary under the circumstances.
Customer agrees that none of its personnel will reproduce or otherwise imitate the proprietary materials of Movatic. All of Movatic’s Services are delivered using proprietary methods and unauthorized use of Movatic’s proprietary materials constitutes a material breach of this Agreement that entitles Movatic to seek injunctive relief.
Each party shall use the other’s Confidential Information only for the purposes of this Agreement and/or an SOW. Each party shall maintain the confidentiality of the other party’s Confidential Information in the same manner in which it protects its own Confidential Information of like kind, but in no event shall either party take less than reasonable precautions to prevent the unauthorized disclosure or use of the other party’s Confidential Information.
Each party is permitted to disclose the other party’s Confidential Information to its employees, contractors and other third parties (“Recipients”) on a need to know basis only, provided that such Recipients have contractual or legal confidentiality obligations to that party no less stringent than those contained in this Agreement. Each party shall be and remain fully liable and responsible for its Recipients’ unauthorized disclosure or use of the other party’s Confidential Information.
Each party is permitted to disclose the other party’s Confidential Information as legally required in response to a court order, subpoena, administrative proceeding and/or similar legal process; provided that it gives the other party reasonable notice of the request, and an opportunity to defend and/or attempt to limit or prevent the disclosure of its Confidential Information.
The confidentiality provisions of this Agreement do not apply to information that is or becomes generally available or known to the public through no act or omission of the receiving party; was received lawfully from a third party through no breach of any obligation of confidentiality owed to the disclosing party; or created by a party independently of its access to or use of the other party’s Confidential Information.
Upon termination of this Agreement, each party shall return or destroy the other party’s Confidential Information and shall not use the other party’s Confidential Information for its own, or any third party’s, benefit. The provisions of this Section shall survive termination of this Agreement for so long as the Confidential Information remains confidential.
Notwithstanding the foregoing, Movatic’s delivery of Deliverables and performance of Services under this Agreement shall not restrict in any way Movatic’s right to create, develop, distribute, commercialize or deliver competing products or services that may compete with those commercialized by Customer.
Term and Termination.
This Agreement shall be effective from the Effective Date until it is terminated in accordance with the provisions of this Agreement.
Each SOW and/or this Agreement may be terminated by either party for cause if the other party commits a material breach of this Agreement and/or an SOW, the non-breaching party provides the breaching party with notice specifying the breach in reasonable detail (the “Breach Notice”), and the breaching party fails to cure such breach within thirty (30) days of its receipt of the Breach Notice. A three (3) month notice must be given to terminate with cause. Notice cannot be given before three (3) months after the Effective Date of the Agreement.
Each SOW and/or this Agreement may be terminated by either party for convenience if notice is provided one (1) year prior to termination. In the event of termination of this Agreement pursuant to this Section, Customer shall pay Movatic all fees owed for all Services and/or Deliverables provided by Movatic as of the effective date of termination.
Subject to the terms of this Agreement, all provisions of this Agreement relating to ownership, limitations of liability, confidentiality, and indemnification shall survive termination of this Agreement.
Indemnification.
Except to the extent, Customer is obligated to indemnify Movatic hereunder, Movatic shall defend, at its sole expense, any third party claim, demand or suit against Customer (“Claim”) alleging and/or arising out of the following, and shall indemnify and hold Customer harmless from and against any and all losses, liabilities, damages, fines, penalties, costs, expenses and/or fees (including reasonable attorneys’ fees) incurred by, or awarded or assessed against, Customer in connection with the Claim, or reached through a negotiated settlement of the Claim that Movatic, its employees, or subcontractors were grossly negligent or committed an intentional act that caused injury to a person or damage to property, or failed to comply with any applicable law, statute, regulation or ordinance.
Movatic will have no obligation to indemnify Customer to the extent a Claim for infringement would not have arisen but for (i) Customer’s or any third party’s unauthorized use, misuse or modification of the Deliverable; or (ii) Customer’s failure to perform its obligations or the warranties specified in this Agreement and/or any SOW.
Customer shall defend, at its sole expense, any Claim alleging and/or arising out of the following, and shall indemnify and hold Movatic harmless from and against any and all losses, liabilities, damages, fines, penalties, costs, expenses, and/or fees (including reasonable attorneys’ fees) incurred by, or awarded or assessed against, Movatic in connection with the Claim, or reached through a negotiated settlement of the Claim that Customer, its employees, or subcontractors was grossly negligent or committed an intentional act that caused injury to a person or damage to property, or failed to comply with any applicable law, statute, regulation or ordinance.
Limitation of Liability. In no event shall either Party be liable to the other Party in relation to this Agreement or the Services and/or Deliverables, regardless of the form of action or theory of recovery, for any: (a) indirect, incidental, consequential, special, punitive or exemplary damages, regardless of whether Movatic has been made aware of their possibility; (b) lost profits, loss of data or business interruption losses; and/or (c) direct damages in an amount in excess of the fees paid by Customer to Movatic under this Agreement during the six (6) month period immediately prior to the occurrence of the event giving rise to the applicable claim. Any claims relating to this Agreement shall be brought within one (1) year after the party asserting the claim knew, or reasonably should have known, of the existence of the claim.
Independent Contractor Relationship. The relationship between Customer and Movatic is that of independent contractor. Nothing in this Agreement shall be construed as creating a relationship between Customer and Movatic of joint venturers, partners, employer-employee, or agent. Neither party has the authority to create any obligations for the other, or to bind the other to any representation or document.
Non-Solicitation. Each party agrees not to solicit, recruit, hire, or assist another party in soliciting or recruiting any employees or contractors of the other party who were materially involved with the performance of Services or the delivery of Deliverables without the written consent of the other party for a period beginning with the Effective Date of this Agreement and extending for two years after its termination. A general advertisement or a request for employment initiated exclusively by the employee is not considered a solicitation or recruitment.
In the event parties solicit or hire an employee or contractor of the other party without consent in violation of this Section 15, parties acknowledge and agree that such action will cause damage to the parties that may not be adequately compensated through money damages. As such, parties expressly consent to the entry of an order for equitable remedies, including, but not limited to, temporary, preliminary, and permanent injunctions to remedy any actual or threatened breach of its obligations under this Agreement. These remedies are cumulative and in addition to all other remedies available at law or in equity.
General.
Each Party acknowledges that a material breach of this Agreement will cause immediate and irreparable damage to the other Party, entitling it to seek injunctive relief. Both Parties specifically consents to the issuance of temporary, preliminary, and permanent injunctive relief to enforce the terms of this Agreement. In addition to injunctive relief, the Movatic is entitled to all money damages available under the law. If Customer violates this Agreement, in addition to all other remedies available to Movatic at law, inequity, and under contract, Customer agrees that Customer are obligated to pay all Movatic’s costs of enforcement of this Agreement, including attorneys’ fees and expenses.
This Agreement includes the terms and conditions of this Agreement; all addenda and exhibits, SOWs and change orders entered into by the parties, including the Admin Terms of Service (as may be updated from time to time). The provisions of the various Agreement documents shall, to the extent possible, be interpreted so as supplement each other and avoid any conflict between them. However, in the event of a conflict among the Agreement documents, the Agreement documents will have the following order of precedence, unless and only to the extent expressly provided to the contrary elsewhere: (a) an SOW; (b) the other terms and conditions of this Agreement; and (c) any terms of use or service or purchase orders signed by both parties.
This Agreement may not be modified except by a writing signed by both parties. Except as expressly provided herein, the remedies accorded the parties under this Agreement are cumulative and in addition to those provided by law, in equity or elsewhere in this Agreement.
Any waiver of a party’s right or remedy related to this Agreement must be in writing, signed by that party to be effective. No waiver shall be implied from a failure of either party to exercise a right or remedy. In addition, no waiver of a party’s right or remedy will effect the other provisions of this Agreement.
Neither party shall be responsible or liable for any delay or failure in performing its obligations under this Agreement if such delay or failure is the direct result of causes outside of that party’s reasonable control, including, without limitation, power outages, closure of Customer’s facility or facilities, accidents, strikes, fires, war or acts of God; provided that such party uses best efforts to resume performance of its obligations as soon as practically possible unless this Agreement or an SOW is otherwise terminated pursuant to the terms of this Agreement.
This Agreement shall be governed by the laws of the State of Michigan (exclusive of its choice of law rules), and the federal laws of the U.S. The parties agree that any litigation arising between the parties in relation to this Agreement shall be initiated and maintained in the Circuit Court of the County of Washtenaw, Michigan, or the U.S. District Court for the Eastern District of Michigan, Southern Division, and the parties hereby irrevocably submit to the exclusive jurisdiction and venue of such courts.
If any provision of this Agreement and/or an SOW is held by a court of competent jurisdiction to be invalid or unenforceable, such provision will be enforced to the fullest extent that it is valid and enforceable under applicable law. All other provisions of this Agreement shall remain in full force and effect.
All notices must be in writing and sent to the individual who executed this Agreement on the other party’s behalf, either by hand delivery; messenger; certified mail, return receipt requested; overnight courier; or by facsimile or by e-mail (with a confirming copy by regular mail) and shall be effective when received by such party at the address listed herein or other address provided in writing.
Neither party may assign this Agreement or any SOW, in whole or in part, without the other party’s prior express written consent, which shall not be unreasonably withheld or delayed; provided, however that either Party may assign this Agreement or any SOW to a successor-in-interest or to a purchaser of substantially all of its assets or equity. Any attempted assignment without such consent shall be void. This Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
Movatic may refer to Customer as a Movatic client on its website and in marketing materials. Any other use would be subject to Customer’s prior review and written consent, which may be withheld in Customer’s sole discretion.
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