Last Modified: July 14th, 2016
This is a contract between you (the Customer) and us (Motzie). It describes the services we will provide to you, how we will work together, and other aspects of our business relationship. It is a legal document so some of the language is necessarily “legalese” but we have tried to make it as readable as possible. These terms are so important though that we cannot provide these services unless you agree to them. By using the Motzie Platform or receiving the Motzie Services, you are agreeing to these terms. We periodically update these terms and we will let you know when we do.
“Agreement” means these Customer Terms of Service and all materials referred or linked to in here.
“Billing Period” means the period for which you agree to prepay fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if you subscribe to the Motzie Service for a one (1) year Initial Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
“Confidential Information” means all information provided by you or us (“Discloser”) to the other (“Receiver”), whether orally or in writing that is designated as confidential. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser or (ii) was known to the Receiver before receipt from the Discloser.
“Lead” means a single candidate, prospect, lead, or other individual (other than a User) whose Lead Information is stored by you in the Motzie Platform.
“Lead Information” means the name, email address, phone number, online user name(s), telephone number, and similar information submitted by candidates or visitors to your landing pages on the Motzie Service or uploaded by you to the Motzie Service.
“Consulting Services” means the professional services provided to you by us, which may include training services, installation, integration, custom engineering or other consulting services.
“Data” means all information that is provided by a lead or job seeker.
“Customer Materials” means all materials, creative and/or copy that you provide or post, upload, input or submit for public display through the Motzie Service.
“Order Form” or “Order” means the Motzie-approved form or online subscription process by which you agree to subscribe to the Motzie Service and purchase Consulting Services. The purchase form may be referred to as a “Statement of Work” if you are purchasing only Consulting Services.
“Motzie Service” means our web-based solutions, applications, tools and platform that you have subscribed to by an Order Form or that we otherwise make available to you, and developed, operated, and maintained by us, accessible via http://www.Motzie.com or another designated URL, and any ancillary products and services, including hosting, that we provide to you.
“Subscription Fee” means the amount you pay for the Motzie Service.
“Subscription Term” means the Initial Subscription Term and all Renewal Subscription Terms.
“Seats” means your employees, representatives, consultants, contractors or agents who are authorized to use the Motzie Service for your benefit and have unique user identifications and passwords for the Motzie Service.
“Motzie”, “we”, “us” or “our” means Motzie, Inc.
“You”, “your” or “Customer” means the person or entity using the Motzie Service or receiving the Consulting Services and identified in the applicable billing statement, online subscription process, Order Form or Statement of Work as the customer.
2. The Motzie Service
a. Access. During the Subscription Term, we will provide you access to use the Motzie Service as described in this Agreement.
b. Limits. Limits may apply to the number of Leads, Users, Site Visits or mobile keywords per month. Any limits will be specified in your Order Form and this Agreement.
c. Modifications. We modify the Motzie Service from time to time, including by adding or deleting features and functions, in an effort to improve your experience. But we will not make changes to the Motzie Service that materially reduce the functionality of the Motzie Service provided to you during the Subscription Term.
3. Customer Support
a. Support. Support is made available as specified in your Order Form. Tickets may be opened 24 Hours per Day x 7 Days per Week at Motzie Helpdesk or by emailing email@example.com We attempt to respond to webform support questions within 2 business days; in practice, our responses are generally even faster. We do not promise or guarantee any specific response time.
b. Availability. We make the Motzie Service available 24 hours a day, 7 days a week, except for planned down-time for maintenance.
You may purchase additional Services such as custom campaign creation, SMS keywords through an Order Form or Statement of Work. Unless otherwise described in a Statement of Work or Order Form, the Services are delivered in English. Fees for these Services are in addition to your Subscription Fee. If you purchase Services that recur, they will be considered part of your subscription and will renew in accordance with the ‘Renewal Subscription Term’ section below. Unless otherwise agreed, all Services are performed remotely.
For Consulting Services performed on-site, you will reimburse us our reasonable cost for all expenses incurred in connection with the Consulting Services. Any invoices or other requests for reimbursements will be due and payable within thirty (30) days of the date of the invoice.
If there are a specific number of hours included in the Services purchased, those hours will expire as indicated in the applicable description, which expiration period will commence upon purchase (the “Expiration Period”). If there are deliverables included in the Services purchased, it is estimated that those deliverables will be completed within the time period indicated as the delivery period in the applicable description, which delivery period will commence upon purchase (the “Delivery Period”). If the Services provided are not complete at the end of the Delivery Period due to your failure to make the necessary resources available to us or to perform your obligations, such Consulting Services will be deemed to be complete at the end of the Delivery Period. If the Services provided are not complete at the end of the Delivery Period due to our failure to make the necessary resources available to you or to perform our obligations, the Delivery Period will be extended to allow us to complete such Services.
Services are non-cancellable and all fees for Services are non-refundable.
5. Fees and Payments
a. Subscription Fees. The Subscription Fee will remain fixed during the Subscription Term unless you (i) exceed your Maximum Leads (ii) change products or base packages, or (iii) subscribe to additional features or products, including additional Leads. Where a price change applies to you, we will charge or invoice you under the new price structure, starting with the next Billing Period in the Subscription Term, except as provided below under ‘Fee Adjustments During a Billing Period’. In order to avoid additional charges, you should purchase the appropriate tier of Motzie Service for your anticipated needs. We will monitor or audit remotely the number of Leads in the Motzie Service and the number of emails that you send on the Motzie Service. This information is also available to you on your Billing Page in your Motzie portal.
b. Fee Adjustments in Next Billing Period. If you exceed your Maximum Leads in a Billing Period, then either a) We will charge a per-lead Overage as described in your order form, or, B) Your Subscription Fee will be adjusted at the beginning of the next Billing Period up to the current base package and tier price which corresponds with the maximum number of Leads from the prior Billing Period. This process will continue for each Billing Period during the Subscription Term. We determine the number of Leads in the Motzie. At your request, we will provide you with the detail we used to reach our conclusion. Once increased, your Subscription Fee will not decrease during a Subscription Period, even if there is a subsequent reduction in the number of Leads.
c. Payment by credit card. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable during the Subscription Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
d. Payment against invoice. If you are paying by invoice, we will invoice you at the beginning of the Initial Subscription Term and at the beginning of each subsequent Billing Period, and other time during the Subscription Term when fees are payable. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Order Form.
e. Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Motzie Service and performance of Consulting Services. You shall have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you are subject to GST, all fees are exclusive of GST. If you are required to deduct or withhold any tax, you must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding.
7. Subscription Term and Renewal
a. Initial Subscription Term. The initial subscription term shall begin on the effective date of your subscription and expire at the end of the period selected during the subscription process (“Initial Subscription Term”).
b. Renewal Subscription Term. Unless one of us gives the other written notice that it does not intend to renew the subscription, this Agreement will automatically renew for the shorter of the Initial Subscription Term or one year (“Renewal Subscription Term”). Written notice of non-renewal must be sent no more than ninety (90) days but no less than forty-five (45) days in advance of the end of the Subscription Term. The Renewal Subscription Term will be on the current terms and conditions of this Agreement, and subject to the renewal pricing provided for in your Order Form.
c. End of Subscription Term. The Subscription Term will end on the expiration date and cannot be canceled before its expiration.
8. Motzie’s Proprietary Rights
This is an Agreement for access to and use of the Motzie Service, and you are not granted a license to any software by this Agreement. The Motzie Service and Consulting Services are protected by intellectual property laws. The Motzie Service and Consulting Services belong to and are the property of Motzie Inc. We retain all ownership rights in the Motzie Service and Consulting Services. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Motzie Content, the Motzie Service, or the Consulting Services in whole or in part, by any means, except as expressly authorized in writing by us. Motzie, the Motzie logos, and other marks that we use from time to time are our trademarks.
9. Customer’s Proprietary Rights
As between the parties, you own and retain all rights to the Customer Materials and Customer Data. This Agreement does not grant us any ownership rights to Customer Materials or Customer Data. You grant permission to us and our licensors to use the Customer Materials and Customer Data only as necessary to provide the Motzie Service and Consulting Services to you and as permitted by this Agreement. If you choose to use shortened URLs through the Motzie Service, you acknowledge that the data related to the number of clicks on a shortened URL may be publicly available and used by other parties. If you are using the Motzie Service or receiving Consulting Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
The Receiver will: (i) protect the confidentiality of the Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care, (ii) not use any Confidential Information for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information to any third party (except our third party service providers), and (iv) limit access to Confidential Information to its employees, contractors, advisors and agents. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
With permission, you grant us the right to add your name and company logo to our customer list and website.
12. Customer Data
a. Lead Data. We collect lead data for remarketing purposes which may include email or digital marketing. End users may consider themselves registered with Motzie, who is responsible for the privacy, protection and safeguarding of this data. If you indicate a Lead has been “Hired” through Motzie, we will endeavor not to market other jobs to that individual for a period of at least a year from when you marked the lead as hired.
b. Aggregate Data. We may monitor use of the Motzie Service by all of our customers and use the data gathered in an aggregate and anonymous manner. You agree that we may use and publish such information, provided that such information does not incorporate any Customer Data and/or identify you.
c. Safeguards. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. You consent to the processing of Customer Data in the United States. Motzie, Inc. will comply with the U.S.-EU Safe Harbor Framework and the U.S.-Swiss Safe Harbor Framework as set forth by the U.S. Department of Commerce regarding the collection, use, and retention of personal information from European Union member countries. In addition, for the purposes of Article 26(2) of Directive 95/46/EC, European Union member state customers may enter into a Data Processing Agreement that includes the Standard Contractual Clauses adopted by the European Commission in order to further provide adequate safeguards with respect to the data processed under this Agreement. You acknowledge that in all cases that Motzie acts as the processor of Customer Data and you remain controller of Customer Data for applicable European Union data protection regulations. If you are located in the European Union, you understand that if you give an integration provider access to your Motzie portal, you serve as the controller of such information and the integration provider serves as the processor for the purposes of those data laws and regulations that apply to you. In no case are such integration providers our subprocessors.
d. No Sensitive Information. YOU AGREE NOT TO USE THE MOTZIE SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION INCLUDING SOCIAL SECURITY, AGE, GENDER, ETHNICITY OR OTHER SIMILAR INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE MOTZIE SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
14. Unauthorized Use
15. Acceptable Use of Communications Services
You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Motzie Service by you; (b) your noncompliance with or breach of this Agreement, (c) your use of Third-Party Products, or (d) the unauthorized use of the Motzie Service by any other person using your User information. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
17. Disclaimers; Limitations of Liability
a. Disclaimer of Warranties. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE MOTZIE SERVICE, DATA MADE AVAILABLE FROM THE MOTZIE SERVICE, MOTZIE CONTENT, OR THE CONSULTING SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE MOTZIE SERVICE, MOTZIE CONTENT AND CONSULTING SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE MOTZIE SERVICE, AND THE CONSULTING SERVICES INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
b. No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.
c. Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR INDEMNITY OBLIGATIONS, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE LESSER OF FIVE THOUSAND DOLLARS OR THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE MOTZIE SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
d. Third Party Products. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE MOTZIE SERVICE TO YOU.
18. Termination, Suspension and Expiration
a. Termination for Cause. Either party may terminate this Agreement for cause: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
b. Suspension for Prohibited Acts. We may suspend any User’s access to the Motzie Service for: (i) use of the Motzie Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement, or (ii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity.
c. Suspension for Non-Payment. We may suspend your access to all or any part of the Motzie Service upon ten (10) days’ notice to you of non-payment of any amount past due. We will not suspend the Motzie Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If the Motzie Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Motzie Service.
d. Suspension for Present Harm. If your website on, or use of, the Motzie Service: (i) is being subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Motzie Service or others, (iv) is consuming excessive bandwidth, or (v) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Motzie Service. We will try to limit the suspension to the affected portion of the Motzie Service and promptly resolve the issues causing the suspension of the Motzie Service.
e. Effect of Termination or Expiration. Upon termination or expiration of this Agreement, you will stop all use of the Motzie Service and Motzie Content, and if we request, you will provide us written confirmation that you have discontinued all use of Enrichment Data (unless, of course, you have a source other than the Motzie Service for such Enrichment Data.) If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Motzie Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.
f. Retrieval of Customer Data. As long as you have paid all fees owed to us, if you make a written request within thirty (30) days after termination or expiration of your Subscription, we will provide you with temporary access to the Motzie Service to retrieve, or we will provide you with copies of, all Customer Data then in our possession or control. We may withhold access to Customer Data until you pay any fees owed to us. Thirty (30) days after termination or expiration of your Subscription, we will have no obligation to maintain or provide you the Customer Data and may, unless legally prohibited, delete all Customer Data in our systems or otherwise in our control.
a. Amendment; No Waiver. We may update and change any part or all of these Customer Terms of Service, including the fees and charges associated with the use of the Motzie Service (but, your fees and charges won’t change during the Subscription Term except as we explain in the ‘Fees and Payments’ section above.)
b. Contracting Entity and Applicable Law. Your physical address determines which Motzie entity you are contracting with for the Subscription and Consulting Services.
c. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
d. Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
e. Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
f. Compliance with Laws. We will comply with all U.S. state and federal laws in our provision of the Motzie Service, the Consulting Services and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws in your use of the Motzie Service and Consulting Services, including any applicable export laws. You must comply with all laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Motzie Service or Consulting Services to prohibited countries or individuals or permit use of the Motzie Service or Consulting Services by prohibited countries or individuals.
g. Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
h. Notices. Notice will be sent to the address set forth herein, and will be deemed delivered as of the date of actual receipt.
To Motzie, Inc : 11040 Bollinger Canyon Road, Suite E-119, San Ramon, CA 94582.
To you: your address as provided in our Motzie Subscription account information for you. We may give electronic notices by general notice via the Motzie Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center of the Motzie Service. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.
j. Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, without our prior written consent, which will not be unreasonably withheld. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
k. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
l. Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
m. Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
n. Survival. The following sections in the ‘General Terms’ shall survive the expiration or termination of this Agreement: ‘Definitions’, ‘Fees and Payments’, ‘Motzie’s Proprietary Rights’, ‘Customer’s Proprietary Rights’, ‘Confidentiality’, ‘Publicity’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, ‘Termination, Suspension and Expiration’, and ‘General’.
o. Precedence. In the event of a conflict between the terms of this Agreement and an Order Form or Statement of Work, the terms of the Order Form or Statement of Work shall control, but only as to that Order Form or Statement of Work.