The terms and conditions set forth herein constitute the full and complete agreement between you (Licensee) and Connectiv Solutions LLC (DBA Motiply). (Motiply) with respect to your participation in the Motiply Licensing Program. The terms contained herein supersede and replace any other agreement or negotiation between you and Motiply whether oral, written or otherwise including any statements made by any representative of Motiply at any time. This agreement is effective and binding upon your acceptance of this agreement as indicated by your clicking the "I agree to the Motiply Agreement". You further agree that your continued use of this service constitutes your immediate acceptance of any changes, alterations, updates and amendments to this agreement.
1. "CUSTOMER INFORMATION"
The name, mailing address, telephone number and valid email address of each customer.
2. "MOTIPLY MASTER ADMIN"
The web page from which you manage your customers and marketing website.
3. "LICENSEE CUSTOMER COMMUNICATION"
A communication issued by Motiply to be distributed to your customers.
4. "LICENSEE" AND "YOU"
You and your company, employees, agents and representatives.
B. Terms and Condition
1. Licensee Eligibility
By submitting your application for becoming a Motiply Licensee you hereby certify that you are eligible to hold such account. Specifically eligibility requires the following:
1.1 You must be either a person or a corporation, partnership, limited liability company or other formal legal entity existing under the laws of your local jurisdiction and enter into this agreement in that capacity. If you are an individual, you must be over the age of 18 by the date that you agree to the terms stated herein.
2. Licensee Rights and Obligations
2.1 Upon acceptance as a Motiply Licensee and subject to the terms set forth herein, you are hereby granted a limited, nonexclusive, revocable license to resell Motiply web apps and mobile websites according to the terms set forth herein.
2.2 The Motiply web apps and mobile websites available for resale are subject to change at any time. This shall include but shall not be limited to the type, nature, size, bandwidth, specifications, services included.
2.3 You will at all times maintain the confidentiality of your username and password and agree not to disclose this information to any third party. You assume all responsibility for any actions taken by any person via the use of your username and password combination.
2.4 As to your licensee customer accounts you will be solely responsible for all account services including but not limited to account maintenance, account management, customer support, billing, administration and upkeep.
2.5 You agree at all times to comply with all International, Federal, State and local laws including those related to content, copyright, and trademark.
2.6 All customer issues will be your responsibility and your customers will be referred to you for assistance if they should contact Motiply.
2.7 It is your obligation to keep up to date as to the products and services including the product specifications as to Motiply web apps and mobile websites available for resale.
2.8 You shall at all times during the course of this agreement use your best efforts to market, promote and sell the Motiply web apps and mobile websites provided for herein. You shall take no action which would cast in a bad light or otherwise harm the Motiply name, brand, servers, equipment or reputation.
2.9 You shall maintain at all times accurate customer information including name, mailing address, telephone number and email address in a format that can be provided to Motiply for audit or any other purpose immediately upon request by Motiply.
3. Motiply Rights and Obligations
3.1 Upon acceptance as a Motiply Licensee and subject to the terms set forth herein Motiply will provide you with a licensee admin.
3.2 Motiply will provide the server space and server administration over your web apps and mobile websites. Motiply will not provide any other services to your customers including but not limited to any of the following: customer service, account management, customer support, billing, administration or upkeep.
3.3 Except as otherwise provided herein Motiply will have no relationship with your customers directly. All customer issues will be your responsibility and your customers will be referred to you for assistance if they should contact Motiply.
3.4 Motiply shall have the right to request and you shall immediately provide any and all customer information pertaining to any of your customer accounts. You shall maintain your customer information in a manner that is consistent with industry standards and which allows you to comply immediately with any such request for information.
4.1 Upon acceptance of this agreement, you authorize Motiply to charge your credit card provided a one-hundred forty-nine (149) US dollar per month hosting fee for the initial bundle of fifty (50) mobile websites/web apps for resale. Licensees are able to add new bundles at any time. At the time a bundle of mobile websites/web apps is purchased, the fees for those mobile websites/web apps are fixed and cannot be increased. The costs for the text message credits and mobile keyword fees are fixed at the time of signing of this agreement; Text Message Credits: .03 per message
4.2 All paid fees are non-refundable whether Motiply service has been used or not. This includes, but is not limited to, the setup fee, mobile websites/ web apps, text message and mobile keywords.
Motiply reserves the right change SMS gateways or providers at anytime. If such change is made, Motiply reserves the right to change SMS monthly fees, text message fees and keyword fees with 30 day written notice to you.
4.3 You are responsible directly to Motiply for the monthly licensing fee. You are responsible to make the licensing payment whether or not your customer pays you for the web app and mobile website. It is suggested that you arrange for terms with your customers that will ensure your timely payment to Motiply to avoid any interruption in service.
4.4 Motiply reserves the right to change additional product prices with 30 day notice or offer subsequent promotional rates or add or remove products or product features or impose additional fees which may or may not be more favorable than the terms under which you entered this agreement.
5. Payment of Fees
Motiply accepts payment by Credit Card (Visa, MasterCard, Discover)
5.1 Payment by Credit Card
5.2 Refunds. This is a commercial account and all sales are final. There are no refunds of any kind for website hosting fees or Web App and Mobile Website hosting fees. The account, however, may be transferred by you to a new purchaser upon notice to Motiply and change of the provided customer information. Notwithstanding the forgoing, Motiply reserves the right to make a refund of any fee paid at any time without waiving its right not to issue such refund at any time. Such right shall be exercised by Motiply and within its sole discretion.
5.3 Free Trials. Licensee may set-up an unlimited number of Free Trials.
5.4 Motiply will access a $25 late fee for licensing fees that are received 15 days past the licensing renewal date.
6. Web App and Mobile Website Pricing
6.1 As a Motiply licensee you are free to set your own prices for your web apps and mobile websites.
7. Licensee Branding
7.1 You may brand your licensee website as you wish except that you agree not to infringe upon the rights of any third party in doing so. You further agree that you will indemnify and hold Motiply harmless of and from any claim, action or other demand for damages including but not limited to attorneys fees and costs of any kind including expert witnesses fees which are in any way related to your marketing, branding, advertising, publicizing or sale of your customer hosting accounts.
8. Required Terms of Sale
8.1 Acceptable Use Policy
8.1.1. You agree that as a specific condition of the sale of any web app and mobile website hereunder you will include in your terms and conditions or otherwise legally bind your customers to terms which are fully consistent with the Motiply Terms of Service and the Motiply Acceptable Use Policy located in the Motiply LEGAL portion of the website. This is intended to stand as a minimum Acceptable Use Policy and does not prevent licensee from adopting a policy that is stricter except that any policy adopted by licensee shall comply with the laws of the United States, the State of Wisconsin and the jurisdiction where the licensee is located.
8.1.2. You agree to keep informed as to changes in the Motiply Terms of Service including the Acceptable Use Policy and adopt them into your Terms of Service as necessary immediately upon their adoption by Motiply.
8.2 Compliance with Laws. You agree that as a specific condition of the sale of any licensee customer account hereunder you will include in your terms and conditions or otherwise legally bind your customers to terms that require your customers to comply with all International, Federal, State and local laws including those related to content, copyright, and trademark including but not limited to the DMCA.
8.3 Disclosure of Customer Information. You agree that as a specific condition of the sale of any licensee customer account hereunder you will include in your terms and conditions or otherwise legally bind your customers to terms that allow for the disclosure of your customers personal account information upon receipt of a court order or otherwise as is reasonable.
9.1 As the licensee you are responsible for all sales taxes or other taxes that may be applicable to your sale.
10. Term of Agreement
This agreement is effective for a period of one year from the date of execution based on the option chose and agreed upon on www.motiply.com/joinnow. This agreement is automatically renewed an indefinite number of one-year terms unless cancelled at the option of either party.
11. Suspension and Termination
11.1 Suspension. At the sole option of Motiply in the event that you breach any term of this agreement including but not limited to Section 1 (Eligibility), Section 3 (Payment of Fees), or the Motiply Acceptable Use Policy, incorporated herewith as though fully set forth at length herein, Motiply may suspend your account by deactivating any access by you to your licensee admin and access by web users to any information contained on the Motiply servers related to your licensee admin including your customer websites while maintaining the information and data related to your account and your customer's accounts upon the Motiply servers for a reasonable period of time. Suspension shall specifically include the disabling of your licensee admin, licensee sales website, any web app and mobile websites, your customer accounts and any access to information or data related thereto. In the event of any such suspension you will be notified and given an opportunity to correct any such breach. In the event that such breach is not corrected within ten (10) days the account may be terminated under paragraph 11.2. Service charges will continue to accrue on suspended accounts as if they were not suspended. You will remain responsible for the payment of any such charges during any such period of suspension.
11.2 Termination. This agreement and all of its terms shall remain in full force and effect until it is terminated. Termination shall include the removal of any and all of your information from the Motiply servers. Such information or data may or may not be made available to you by Motiply after any such termination. This agreement may be terminated (a) at Motiply sole discretion after a period of suspension as set forth in paragraph 11.1 or (b) by either party upon 15 days notice at the time of this agreement renewal.
11.2.1. Upon any termination of this agreement, any web app and mobile websites initially established by you under your Motiply licensee admin under this agreement shall at the time of such termination become the sole and exclusive property of Motiply. Motiply shall have the right but shall not have any obligation to provide and or continue to provide web app and mobile websites to such customers. Nothing contained in this paragraph shall reduce or otherwise affect the Rights of Motiply under this agreement including but not limited to the right to recover any and all licensee fees under this agreement.
12. Ownership of Intellectual Property; Confidentiality
12.1 It is understood and agreed upon that during the term of this agreement and thereafter you may come into possession of information which is the confidential and proprietary information of Motiply including but not limited to the Motiply licensee admin, web app and mobile website builder and maintenance tools. You acknowledge that all right and title to any such Motiply intellectual property shall remain the sole property of Motiply and that you have no right, title or interest therein. You further agree not to provide access to the Motiply licensee services to any third party. You agree that you will not yourself and you agree that you will not to assist any third party in any way to translate, decompile, reverse engineer, disassemble, modify, reproduce, rent, lease, lend, license, distribute, market or otherwise dispose of any portion of the Motiply Licensee Service or any other aspect of the Motiply web app and mobile websites or other services. Any and all right or title to any engineering, coding, programming or customer service work around or other modification of the Motiply service shall also remain the sole property or Motiply.
12.2 During the term of this agreement you may have access to certain information and materials relating to the Motiply business, customers, software technology and marketing which Motiply treats as confidential (hereinafter "Confidential Information"). You agree to at all times during the term of this agreement and otherwise as set forth herein: (i) hold in confidence, and not disclose or reveal to any person or entity, any "Confidential Information" without the express prior written consent of Motiply; and (ii) not use or disclose any of the "Confidential Information" for any purpose at any time, other than pursuant to your rights under this agreement for the purpose intended. These obligations shall continue indefinitely for so long as the Confidential Information is a trade secret under applicable law and shall continue for three (3) years following termination of this Agreement with respect to Confidential Information, which does not rise to the level of a trade secret.
13. Information Usage
13.1 You hereby consent and agree that as to any information which Motiply may collect from you and maintain with respect to you, including but not limited to your account information, dates of service, billing address, billing records, usage statistics, site statistics, services purchased, domain name purchases, correspondence to or from Motiply concerning you or your account, or other information which in Motiply sole judgment is reasonable, Motiply may disclose such information to public or private third parties as applicable law may require or permit. The decision as to whether to disclose such information as may be required, permitted or otherwise reasonable shall be within the sole discretion of Motiply and may include but shall not be limited to (1) compliance with court order or subpoena of any State or Federal government, (2) compliance with the Electronic Communications Decency Act, (3) compliance with the Digital Millennium Copyright Act (3) compliance with the Motipy Terms of Service or other policies.
14.1 Any notice under this agreement shall be given by Motiply to you via email at the address provided by you to Motiply at the commencement of this agreement or as Motiply is subsequently advised. Notice to you at this address is deemed sufficient regardless of your receipt of such email. If you wish to update your email address you should do so by emailing email@example.com.
14.2 Any notice by you under this agreement is effective only upon receipt by Motiply and shall be made only in writing containing proper security information either via email to firstname.lastname@example.org or via United States Mail. Notice sent via United States Mail shall be sent to the following address:
137 Apple Valley Way
Townsend, TN 37882
15.1 Sections 1, 4, 5, 8 through 23 inclusive, of this agreement shall survive the termination of this agreement and shall remain in full force and effect after any such termination.
16. Warranties and Limitations
16.1 Motiply makes every reasonable effort to maintain operation of the Motiply Licensee service and will provide a minimum of 99% uptime; however, because many events and circumstances are beyond the control of Motiply, Motiply does not in any way warrant or otherwise guarantee the availability of the Motiply Licensee system or servers and is not responsible for any delay or loss of data, lack of connection, slow connection, or any other such issues whether due to the active or passive negligence of Motiply.
16.2 THE MOTIPLY SERVICE IS PROVIDED TO YOU ON AN "AS IS" BASIS, AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
16.3 In general, Motiply has no control over information contained on the Internet. Information obtained by you from the Internet may be inaccurate, offensive or in some cases even illegal. Motiply accepts no responsibility for any information which you receive from the Internet. You accept full responsibility to verify the truth and accuracy, legality and ownership of the information that you obtain from the Internet as well as the reputation of the individuals with whom you may deal. Motiply provides no warranty for any goods or services which you obtain over the Internet nor the compatibility of any such services with the Motiply system.
16.4 You specifically hereby waive any claim for damages of any kind whether direct, indirect, special, exemplary, punitive, incidental or consequential, loss of profits or loss of business as the result of any action taken in response to any claim of copyright infringement without regard to whether or not the material claimed to have been infringing is later found to be infringing.
16.5 THE TOTAL SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU AS THE RESULT OF ANY BREACH OF THIS AGREEMENT, NEGLIGENCE, OR ANY ACTION OR FAILURE TO ACT WHETHER INTENTIONAL OR OTHERWISE SHALL BE THE TOTAL AMOUNT OF SERVICE FEES PAID BY YOU TO MOTIPLY IN THE THREE MONTHS IMMEDIATELY PROCEEDING ANY ALLEGATION OF ENTITLEMENT TO SUCH REMEDY. IN NO EVENT SHALL MOTIPLY BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR LOSS OF BUSINESS AS THE RESULT OF ANY SUCH ACTION OR INACTION WITHOUT REGARD TO THE LIKELIHOOD OF ANY SUCH DAMAGES.
17.1 Use of Service. You agree to fully defend and indemnify and hold harmless Motiply of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and arbitration fees and costs incurred (whether paid or not) as the result of or in any way in relation to your marketing to, resale to or support of your customers with respect to the Motiply web app and mobile websites any breach or claim of breach of this agreement or your negligence whether active or passive or any negligence of Motiply in any way related to your use of the Motiply licensee program, Motiply Web Hosting services or any other aspect thereof.
17.2 Copyright. You agree to fully defend and indemnify and hold harmless Motiply of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and arbitration fees and costs incurred (whether paid or not) as the result of any violation or claimed violation of any copyright or other intellectual property right of any third party which is in any way related to your use of the Motiply resale program, Motiply Web Hosting, or any other aspect thereof. Choice of counsel remains exclusively that of Motiply.
17.3 Password. You agree to fully defend and indemnify and hold harmless Motiply of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and arbitration fees and costs incurred (whether paid or not) as the result of or in any way in relation to the disclosure of your confidential User ID and Password information. Choice of counsel remains exclusively that of Motiply
17.4 Customer Support. You agree to fully defend and indemnify and hold harmless Motiply of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and arbitration fees and costs incurred (whether paid or not) as the result of providing or the failure to provide any account maintenance, account management, customer support, billing, administration and upkeep or any other aspect thereof. Choice of counsel remains exclusively that of Motiply.
17.5 Personal/Financial Information. You agree to fully defend and indemnify and hold harmless Motiply of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and arbitration fees and costs incurred (whether paid or not) as the result of or in any way in relation to any failure to comply with paragraph 2.11 herein relating to the protection of personally identifiable information and the protection of customer financial information including but not limited to credit card and bank account data.
17.6 Required Terms of Sale. You agree to fully defend and indemnify and hold harmless Motiply of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and arbitration fees and costs incurred (whether paid or not) as the result of or in any way in relation to any failure on your part or on the part of your customers to comply with the required Terms of Sale set forth in paragraph 8 herein.
18. Force Majeure
18.1 Either party to this agreement shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
19.1 This agreement and the rights hereunder are assignable and transferrable by a licensee to another party subject to the approval of Motiply in its sole discretion. Motiply may assign its rights hereunder to any person or entity who shall become a principal owner, or shareholder of Motiply. Any other attempted transfer or assignment of rights hereunder shall be null and void ab initio.
20.1 If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
21. Choice of Law
21.1 This Agreement shall be interpreted under the laws of the State of Wisconsin without regard to any conflict of laws and provisions. Any action between the parties to this agreement for the breach of this agreement or any action or claim in any way otherwise relating to this agreement shall be enforced in the Superior Court of the State of Wisconsin, County of Dane. The parties to this agreement hereby consent to jurisdiction in that court and agree to accept service of process by mail and hereby waive any defense of any kind related to jurisdiction or venue.
22. Independent Contractor
22.1 The parties to this Agreement are independent contractors and shall have no right or authority to bind or commit the other party in any way without the other party's express written authorization to do so. Nothing contained in this Agreement shall be deemed or construed to create for any purpose an employer/employee, joint venture, partnership, or agency relationship between the parties.
23.1 Motiply may without advance notice amend this Agreement from time to time, and will do so by posting the new Agreement on the MotiplyPartners.com/joinnow web site in place of the old. Each and every such amendment shall be become effective immediately upon posting for all pre-existing and future accounts. It is your obligation to check this page often for updated agreements.