A. Motiv is engaged in the business of providing certain specialized research, information, and other services to its clients on a subscription or fixed fee basis.
B. Client desires to engage Motiv to provide certain Services.
C. This Agreement contains general terms and conditions under which Client would engage Motiv to provide Services as specified in a Schedule of Services (“SOS”) referencing this Agreement.
NOW THEREFORE, for good and valuable consideration, and intending to be legally bound, the parties agree as follows:
1. Definitions. As used herein, the following words shall have the following meanings:
(a) “Affiliate” means, as to any entity, any other entity that, directly or indirectly, controls, is controlled by or is under common control with such entity, where “control” means ownership of greater than fifty percent of the equity of such entity.
(b) “Fees” means Subscription Fee and the cost of the Research Credits.
(c) “Members” are Client employees, officers and/or directors with access to the Motiv Member Site and other services based on the entitlements associated with the purchased Subscription Services.
(d) “Motiv Member Site” is the web portal through which the Member may access the Subscription Services.
(e) “Research Credit” means the amount of time purchased by a Client for the purpose of requesting research reports from Motiv, as detailed on an SOS.
(f) “Research Report” is a deliverable prepared by Motiv during the term of this Agreement upon Client’s submission of a Research Request that Motiv accepts.
(g) “Research Request” means a written request that a Client submits to Motiv requesting a specific Research Report generated with information from the Motiv database.
(h) “Services” means Subscription Services or Research Report, as applicable.
(i) “SOS” means the Schedule of Services entered into between Client and Motiv to set forth the Subscription Services that Motiv shall provide to Client on a flat fee basis and any Research Credits purchased by Client.
(j) “Subscription Services” means research and advisory services provided by Motiv to Client on a subscription basis, as detailed in an SOS.
(a) Upon the execution of one or more SOSs, Client retains Motiv to provide the Services, subject to the terms and conditions set forth in this Agreement. Motiv will perform the Services in accordance with this Agreement, the applicable SOS, and all applicable laws and regulations. Neither Client nor Motiv is obligated to execute any SOS. Each SOS will incorporate and be subject to all the terms and conditions of this Agreement. In the event of any conflict or inconsistency between the terms contained in an SOS and this Agreement, the terms of this Agreement shall control, unless the terms of an SOS specifically and expressly state an intent to supersede specific terms of this Agreement. Once duly executed, each SOS becomes part of this Agreement.
(b) Client and Motiv shall mutually agree upon the terms of each SOS. Each SOS will, at a minimum, identify (i) the Services to be provided, (ii) the number of Research Credits purchased by Client, (iii) the Fees to be paid by Client to Motiv, and (v) such other terms and conditions applicable to the Services that are not already included in this Agreement.
(c) A party may request a modification to an SOS by submitting a written change order request (each, a “Change Order”) to the other party that includes: (i) a description of the changes in the scope of Services or number of Research Credits, (ii) any change in the Fees attributable to the Change Order, and (iii) any impact to the timing of the Services associated with the Change Order. Each Change Order will be subject to the reasonable review and approval of both parties.
3. Subscription Services.
(a) For Subscription Services, Motiv will provide that number of identification numbers for Members (“Member IDs”) as purchased by Client per the terms of each applicable SOS. Each Member ID is unique to the authorized Member and may not be used by more than one person. Motiv has the right to audit the use of Member IDs to ensure compliance with this Agreement. Each Member must be an employee, officer or director of Client or its Affiliate. Members may use and print copies of Subscription Services solely for Client’s legitimate business purposes, provided that each Member must attribute the information contained in the Subscription Services to Motiv. In no event shall Client or any Member further disclose, disseminate, distribute, reproduce or retransmit its Member ID, any Subscription Services, or information received from such Subscription Services to any person, firm, or entity without Motiv’s prior written authorization, which Motiv may withhold in its sole discretion.
(b) Client may change its Members from time to time, provided that (i) all Members must be employees, officers or directors of Client; and (ii) as determined by Client, (A) the current Member’s job description has changed; and/or (B) the current Member no longer has use for the Services.
(c) Client may add additional Member IDs by executing an SOS. Any additional Member IDs will be coterminous with the existing Term (either initial term or renewal term). Client may not reduce the number of Member IDs during the Term.
4. Research Request.
(a) Client may submit a Research Request to Motiv at any time during the term of this Agreement. Motiv shall review each Research Request and shall respond to Client with (i) an agreement to provide the Research Report, (ii) a request for additional information, or (iii) its denial of the Research Request.
(b) If Motiv agrees to generate a Research Report, Motiv and Client shall enter into an SOS that sets forth the number of Research Credits that will be required to generate such Research Report, the anticipated time when the Research Report will be delivered to Client, and any other terms as agreed by Client and Motiv.
(c) Motiv has no obligation to accept a Research Request, provided that Motiv shall work in good faith with Client to modify a Research Request for Motiv to accept such Research Request.
5. Fees and Payment.
(a) Subscription Fee. Each SOS shall specify the fixed price subscription basis (the “Subscription Fee”) for the Subscription Services. Client shall pay the Subscription Fee set forth in the SOS. Any changes requested by Client in the Subscription Services to which Motiv agrees may result in an increase to the Subscription Fee. The Client may not reduce the number of seats during the Term or otherwise cancel the Subscription Services during the Term.
(b) Research Credits. Each SOS shall specify the number of Research Credits purchased by Client for Research Reports. Client and Motiv may increase the number of Research Credits purchased by Client at any time during this Agreement by entering into an SOS. All Research Credits expire at the end of the contractual term specified in the SOS.
(c) Client agrees and acknowledges that Motiv may suspend provision of the Services if Client’s account is thirty (30) days or more delinquent. Delinquent invoices are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Motiv reserves the right to impose a reconnection fee equal to 2.5% of Client’s annual subscription fee if the Subscription Services are suspended, and Client thereafter requests access to the Subscription Services.
(d) Client is responsible for payment of any sales, use, value added or other taxes assessed on the Services and under each SOS if any. If Client is a tax-exempt entity, a tax exemption certificate is due upon execution of the SOS.
6. Expenses. Client will reimburse Motiv for expenses specified in an SOS, or otherwise pre-approved in writing by Client. Expenses which are (a) not anticipated in the SOS, (b) deemed necessary by Motiv, and (c) incurred by Motiv in the preparation of a Research Report, shall be submitted in writing to and approved by Client prior to Motiv incurring said expenses from any third party or by Motiv itself.
7. Payment Disputes. If Client in good faith disputes any invoice or portion thereof, Client shall notify Motiv of such dispute within fifteen (15) days of receipt of the invoice, and any undisputed portion of the invoice shall be paid as provided herein. The parties will work together in good faith to resolve any dispute with respect to an invoice. If any undisputed amount is not paid when due hereunder, without prejudice to any other rights or remedies Motiv may have, Motiv will be entitled to (a) suspend the provision of Services until it has received payment in full for all outstanding amounts and (b) recover from Client the costs and expenses incurred in connection with collecting the same (including without limitation costs of investigation and reasonable attorneys’ fees). Notwithstanding anything to the contrary herein, all rights granted to Client under this Agreement are conditioned on Client’s payment in full of all amounts due under the SOS.
8. Term and Termination.
(a) This Agreement will commence on the Effective Date and, subject to the termination provisions contained in this Section 8, will continue in effect for a period of one (1) year (the “Term”) provided that each Term will automatically renew with the same number of seats, as applicable, for additional successive Terms of one (1) year unless cancelled within thirty (30) days prior to the end of the then-current term. Notwithstanding the foregoing, if any SOS entered into during the Term continues beyond the expiration of this Agreement, the Term shall continue in full force until 30 days after the termination or expiration of each such SOS.
(b) Notwithstanding Section 8(a), this Agreement or any SOS may be terminated as follows:
(i) By either party, with written notice, in the event of a material breach hereof by the other party, which breach remains uncured thirty (30) days after written notice if the breach is given to the breaching party;
(ii) By either party, with written notice, in the event the other party ceases to actively conduct its business; or
(iii) By either party, with written notice, if the other party admits in writing its inability to pay its debts generally as they become due; makes a general assignment for the benefit of creditors; institutes proceedings to be adjudicated a voluntary bankrupt, or consents to the filing of a petition of bankruptcy against it; is adjudicated by a court of competent jurisdiction as being bankrupt or insolvent; seeks reorganization under any bankruptcy act, or consents to the filing of a petition seeking such reorganization; or, has a decree entered against it by a court of competent jurisdiction appointing a receiver, liquidator, trustee, or assignee in bankruptcy or in insolvency covering all or substantially all of such party’s property or providing for the liquidation of such party’s property or business affairs.
(c) In the event of termination of this Agreement or any SOS, Client will pay Motiv for all work performed and, if applicable, pre-approved expenses incurred, to the effective date of termination and all non-cancellable expenses specified in the applicable SOS, or otherwise approved in writing by Client. Motiv shall not be obligated to refund any Fees paid prior to termination.
(d) Sections 5-7 and 9-24 will survive the expiration or termination of this Agreement.
9. Proprietary Rights.
(a) Client acknowledges that all materials it receives from Motiv under this Agreement or accesses through the Services are proprietary and confidential to Motiv. Client shall keep the Motiv Member Site and all materials obtained therefrom as confidential information and not share such site or materials with third parties. The copyrights and any other intellectual property rights to the Services and any material provided thereunder are exclusively held by Motiv. All rights in the Services not expressly granted to Client are reserved to Motiv. Notwithstanding the foregoing, Client is permitted to disclose limited portions of the materials provided under the Services or in Research Reports to Client’s directors and employees who have a need to access the Services in connection with the performance of their position with Client, provided that: (i) such limited portions consist solely of verbatim quotes, tables, or figures, which together constitute no more than 5% of the total content of such material; (ii) such disclosures are labeled “confidential” and “not for further distribution”; and (iii) the quoted portions are clearly and prominently attributed to Motiv with the following copyright notice: “Reprinted with permission. © 20XX MotivIndex Inc.”
(b) Unless otherwise expressly agreed to in writing, upon Client’s payment in of the Research Credit(s) owed to Motiv under this Agreement for each Research Report, Client owns such Research Report. Notwithstanding the foregoing, Client agrees that it may only use a Research Report for Client’s internal business purposes only. Client may not share the Research Report, printed or electronic, with any third-party parties. Additionally, Client agrees that Motiv retains all proprietary rights to any working papers compiled in connection with the Research Report, but not the Client and Affiliate-provided information reflected in them. All rights not specifically granted to Client are retained by Motiv.
(c) Party Marks. All right, title and interest in and to the names, logos, trade names, service marks and trademarks (“Marks”) of a party will remain the exclusive property of that party, as applicable. Client grants Motiv a fully revocable, non-exclusive, non-assignable, and non-transferrable license to use the Marks in Motiv’s content during the term of this Agreement.
(a) Warranty. Motiv warrants that the Services provided hereunder will be performed with that level of skill and care ordinarily exercised in the research industry. Client’s sole and exclusive remedy for breach of the foregoing warranty will be, at Motiv’s option, re-performance of the Services or termination of the applicable SOS and return of the portion of the Fees paid to Motiv by Client for the non-conforming Services. Client must notify Motiv within (15) fifteen days of performance of the Services of any alleged breach of the foregoing warranty to be entitled to the foregoing remedy. Notwithstanding the foregoing, Motiv makes no representations or warranties with respect to third party products, including software or services, in connection with the Services.
(b) No Other Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A SPECIFIC OR GENERAL PURPOSE AND THOSE ARISING BY STATUTE OR BY LAW, OR FROM A CAUSE OF DEALING OR USAGE OF TRADE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
(a) Client will indemnify, hold harmless and defend Motiv and Motiv’s managers, officers, agents and employees (collectively, “Motiv Indemnitees”) from and against any losses, costs (including reasonable attorneys’ fees) damages, injury and liability (collectively, “Losses”), arising from any claims, demands, or causes of action brought by third parties (collectively, “Claims”), in each case arising out of or resulting from or in connection with the Services or this Agreement, except for claims resulting directly from (a) any Motiv Indemnitee’s gross negligence or willful misconduct, (b) Motiv’s breach of this Agreement, or (c) the infringement by the Deliverables.
(b) Motiv will indemnify, hold harmless and defend Client and Client’s directors, officers, agents and employees (collectively, “Client Indemnitees”) from and against any Losses arising from any Claims, in each case arising out of or resulting from or in connection with (a) any Motiv Indemnitee’s gross negligence or willful misconduct, (b) Motiv’s breach of this Agreement, or (c) the infringement by any Deliverables provided by Motiv to Client in connection with the Services, of any third party’s intellectual property rights.
(c) The obligations under this Section 11 are expressly conditioned on the indemnitees: (a) promptly notifying the indemnifying party in writing of any Claim of which the indemnitee has actual knowledge, (b) permitting the indemnifying party to have full conduct and control to defend against such Claim, and (c) reasonably cooperating with the indemnifying party to facilitate the settlement or defense of the Claim. So long as the indemnifying party is defending a Claim, the indemnitee shall not settle such Claim without the prior written consent of the indemnifying party.
12. Insurance. Throughout the Term, each party shall maintain the following minimum amounts of insurance: (a) workers’ compensation with limits that meet or exceed the minimums required by law, (b) Commercial General Liability Insurance with a liability limit of $1,000,000 per occurrence and $2,000,000 aggregate, (c) Professional Liability Insurance/Errors and Omissions for itself and its Professionals, with a liability limit of $1,000,000 per occurrence and $1,000,000 aggregate, (d) Cyber Liability Insurance with minimum limits per occurrence of $5,000,000 and a minimum aggregate limit of $5,000,000, and (e) automobile liability for all owned, hired, and non-owned auto with $1,000,000 combined single limit. The insurance policies described in this Section will be primary and all coverage will be non-contributing with respect to any other insurance or self-insurance that may be maintained by such party. Each party will cause its insurers to name the other party as an additional insured on its Commercial General Liability, Professional Liability/Errors and Omissions, Cyber Liability and automobile liability policies. Inadequate insurance or inadequate proof of insurance is a material breach of this Agreement cause for termination. Each party will provide the other party with documentation that establishes the required insurance is in effect. Each party shall give the other party at least thirty (30) days’ advance notice of any changes in such coverage.
(a) For the purposes of this Agreement, a party’s “Confidential Information” means information of the party of a confidential nature (including, without limitation, information entrusted to the party by a third party in confidence), and all data, information and materials that a recipient should reasonably understand to be confidential, given the manner or circumstances of its disclosure, irrespective of whether or not the specific designation “confidential” or any similar designation is used.
(b) The receiving party (i) will not disclose the disclosing party’s Confidential Information except as expressly set forth in Sections 13(c) or 13(d), (ii) will not use the disclosing party’s Confidential Information except for the purposes contemplated by this Agreement, (iii) will use at least the same degree of care to safeguard the disclosing party’s Confidential Information that it uses to protect its own confidential and proprietary information, and in any event not less than a reasonable degree of care under the circumstances, and (iv) will make copies of the disclosing party’s Confidential Information only as needed for the purposes contemplated by this Agreement, all of which will include any existing markings indicating that they are the disclosing party’s Confidential Information, or will have markings supplied by the disclosing party.
(c) The receiving party may disclose the disclosing party’s Confidential Information to the extent necessary to comply with applicable laws or regulations, or with a valid order of a court or other governmental body having jurisdiction over the party, but only to the extent and for the purposes of such required disclosure and provided that (i) the receiving party promptly notifies the disclosing party in order to provide the disclosing party the opportunity to seek a protective order, and (i) the receiving party reasonably assists the disclosing party’s efforts to obtain confidential treatment for such information and, if possible, to minimize the extent of such disclosure.
(d) The receiving party may disclose the disclosing party’s Confidential Information to those employees and consultants who, under receiving party’s direct control, require such information for the purposes of fulfilling receiving party’s obligations or enjoying receiving party’s rights under this Agreement and are bound by written obligations of confidentiality and non-use no less restrictive than this Section 13.
(e) Upon request of the disclosing party following termination of this Agreement, and at any other time as may be requested by the disclosing party, each party will return to the other party any and all copies of the material containing the other party’s Confidential Information, or any portion thereof.
(f) The obligations of this Section 13 will not apply to any information which (i) is or becomes publicly available through no fault of the receiving party; (ii) is already in the receiving party’s possession without restriction on disclosure when disclosed by the disclosing party; (iii) is independently developed by the receiving party without use of the Confidential Information of the disclosing party; or (iv) is rightfully obtained without any restrictions on disclosure or use by the receiving party from a third party (not acting on behalf of the disclosing party) without violating the rights of the disclosing party.
14. Limitation of Liability. Other than liability for breach of confidentiality obligations, and further subject to the indemnification obligations in Section 11, in no event will Motiv, its employees, contractors or agents be liable for (a) any incidental, special, punitive or consequential damages, lost profits, lost revenues, or any indirect damages, whether arising in contract, tort or otherwise or (b) any costs or expenses for the procurement of substitute equipment or services, in each case, even if informed of the possibility thereof. All liability of Motiv, its employees, contractors or agents under each SOS will be limited to the amounts paid by Client to Motiv under the SOS giving rise to such liability. Further, Motiv shallbe entitled to recover for specific business opportunities lost as a result of Client’s knowing or reckless breach of itsobligations under this Agreement.
15. Non-Solicitation of Employees. During the term of this Agreement and for a period of one (1) year thereafter, neither party (the “Hiring Party”) will solicit for hire or engagement, or cause others to solicit for hire or engagement, directly or indirectly, as an employee or independent contractor, any employee or contractor of the other party (the “Employer”) who had direct contact with the Hiring Party pursuant to this Agreement. The term “solicit for hire or engagement” excludes any broad-based effort to attract applicants if not specifically targeted to or specifically designed to attract Employer’s employees or contractors. Notwithstanding the foregoing, in the event that a Hiring Party solicits, hires or otherwise engages an employee or contractor of Employer, or causes others to solicit an employee or contractor of Employer for hire or engagement, directly or indirectly, whether as an employee or independent contractor, Hiring Party shall make an immediate payment to Employer equal to one year of such person’s base compensation, provided that if Hiring Party hires or engages more than one Employer employee or contractor, the amount payable to Employer shall be the one year’s base compensation of all such persons multiplied by 1.25.
16. Independent Contractor. The relationship of the parties established under this Agreement is that of independent contractor and neither party is a partner, employee, agent or joint venture of or with the other. No party shall have the right or authority to assume, create or incur any liability or obligation, express or implied, against, in the name of, or on behalf of the other party except as required by this Agreement.
17. No Assignment. This Agreement may not be assigned by either party without the written consent of the other party. Notwithstanding the foregoing, either party may transfer or assign this Agreement without the other party’s consent, but upon written notice, to an entity that succeeds to all or substantially all of the business or assets of such party.
18. No Waiver. No waiver of any term, condition or provision of this Agreement will be deemed or will constitute a waiver of any other term, condition or provision, whether or not similar, nor will any waiver constitute a continuing waiver. No waiver will be binding unless made in writing and signed by the party making the waiver.
19. Force Majeure. If performance on the part of any party is delayed or suspended as a result of circumstances beyond its reasonable control, without its fault or negligence, then the period of performance and term of this Agreement shall be extended to the extent of any such delay. No party shall incur any liability to the other party as a result of such delay or suspension; provided that the party whose performance has been suspended gives the other party immediate notice of such force majeure and diligently attempts to remove the cause of such force majeure. Circumstances deemed to be beyond the control of the parties shall include acts of God, such as, fires, floods, pandemic, earthquakes, or other natural disasters, and labor strikes. In the event a force majeure suspends or delays a party’s performance for more than ninety (90) days, the party to whom performance is due may terminate the Agreement and receive a refund of payments for Services that were not performed.
20. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts without giving effect to any choice or conflict of law provision or rule (whether of the Commonwealth of Massachusetts or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the Commonwealth of Massachusetts. Any legal suit, action or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the Commonwealth of Massachusetts, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens. Service of process, summons, notice or other document by mail to such Party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
21. Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ITS RIGHT TO A TRIAL BY JURY FOR ANY SUIT, ACTION, OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
22. Authority. Each party warrants and represents that it has have full authority to enter into this Agreement and that the person signing this agreement has the full authority of the party to bind such party to this Agreement.
23. Notices. All notices required under this Agreement shall be (a) made in writing; (b) delivered (i) in person or (ii) to the address set forth in the initial paragraph of this Agreement by overnight delivery; and (c) deemed received (i) if delivered in person, on the date of personal delivery, or (ii) if sent by overnight delivery, on the day after so sent.
24. Entire Agreement. This Agreement constitutes the entire statement of the agreement between the parties with respect to the subject matter hereof and supersedes any prior representations, statements, understandings, or agreements between the parties with respect to the subject matter hereof. This Agreement may not be amended except by a written agreement executed by the parties.