LEGAL THINGS

Terms of Service

Effective date: JUNE 23, 2025

‍This Customer Terms of Service (this “Agreement”) is between the customer identified on the Order (“Customer”) and Experiad, LLC dba Motivity (“Motivity”) as of the Effective Date (as defined herein). This Agreement shall govern Customer’s initial purchase as well as any future purchases made by Customer. Motivity provides the products and services listed on an Order on a subscription basis (each, a “Subscription”). The term of each Subscription is designated in the applicable Order (each, a “Subscription Term”).

BY ACCESSING THE SERVICES OR EXECUTING AN ORDER INCORPORATING THESE TERMS, CUSTOMER IS EXPRESSLY ACCEPTING AND AGREEING TO THIS AGREEMENT IF CUSTOMER IS AN INDIVIDUAL AGREEING TO THE TERMS OF THIS AGREEMENT ON BEHALF OF AN ENTITY, SUCH AS CUSTOMER’S EMPLOYER, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE THE SERVICES EITHER YOURSELF OR ON BEHALF OF THE ENTITY. MOTIVITY MAY MODIFY THESE TERMS FROM TIME TO TIME, IN ITS SOLE DISCRETION. WE WILL NOTIFY OUR USERS OF MATERIAL CHANGES TO THIS AGREEMENT, SUCH AS PRICE CHANGES, BY POSTING THE MODIFIED TERMS ON THE MOTIVITY WEBSITE. TOGETHER WITH SUCH MODIFIED TERMS, MOTIVITY WILL IDENTIFY THE EFFECTIVE DATE OF THE MODIFICATIONS BY INDICATING WHEN THE AGREEMENT WAS LAST UPDATED. YOUR CONTINUED USE OF THE WEBSITE CONSTITUTES AGREEMENT TO OUR REVISIONS OF THESE TERMS OF SERVICE.

  1. DEFINITIONS. Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.
    1. “Customer Data” means all information, data, and other content that is submitted or otherwise transmitted by Customer to Motivity via the Services. For avoidance of doubt, Customer Data does not include anonymized data, content or information related to Customer’s use of the Services (“Anonymized Data”). For the avoidance of doubt, no PHI will be used for generating Anonymized Data unless it is “de-identified” as required under HIPAA (as defined in Section 8.2).
    2. “Documentation” means the Services specifications, user guides, and other related documentation relating to the Services made available to Customer by Motivity.
    3. “Privacy Policy” means the privacy policy located at motivity.net/privacy and hereby incorporated into this Agreement by reference.
    4. “Order” means the digital or physical ordering document identifying the Services and related fees as applicable for Customer’s purchases from Motivity.
    5. “Services” means the software-as-a-service and support services provided by Motivity to Customer under this Agreement as further described in the applicable Order. Services excludes any Third-Party Products.
    6. “Third-Party Products” means materials and information, in any form or medium, including any software, open source software, content, products, or components of or relating to the Services that are not proprietary to Motivity.
    7. “User” means an adult individual authorized by Customer to access or use the Services for Customer’s internal business purposes in accordance with the terms of this Agreement and the applicable Order. Users may include but are not limited to employees, consultants, contractors, clinicians, caregivers (who are directly participating in the treatment of Customer’s patients), parents of Customer’s patients, and agents of Customer or its affiliates subject at all times to the restrictions set forth in this Agreement.
  1. USE OF SERVICES
    1. License and Access. During an applicable Subscription Term, Motivity and subject to the terms and conditions contained herein, Motivity grants Customer a non-transferable, non-sublicensable, non-exclusive, limited license for Customer and its Users to access and use the Services, but only in accordance with (a) this Agreement, (b) the Documentation, and (c) the applicable Order.
    2. ‍Support.  During an applicable Subscription Term, Motivity will provide support services in accordance with the Service Level Agreement located at motivity.net/legal/sla, as applicable to the products and support purchased via an Order.
  1. GENERAL RESTRICTIONS. 
    1. Customer agrees that (a) Customer is responsible for (i) assigning User accounts, (ii) managing User access, (iii) ensuring that Users do not share account access or login credentials with any other individual or agent; (iv) deactivating Users that no longer need or should no longer have access to the Services, and (v) assigning and managing appropriate User access levels, User roles, and User permissions; (b) Customer is responsible for Customer’s and its Users’ conduct while accessing or using the Services and for any consequences thereof; and (c) Customer shall use the Services only for purposes that are legal, proper and in accordance with this Agreement, the Order, and any applicable laws or regulations.
    2. Customer shall not, and shall not encourage or permit any User or third party to: (a) modify, adapt, alter, translate, or create derivative works of the Services; (b) reverse-engineer, decompile, disassemble, or attempt to derive the source code for the Services, or derive or gain improper access to any models, algorithms, or systems of the Services; in whole or in part, except to the extent that such activities are permitted under applicable law; (c) distribute, license, sublicense, lease, rent, loan, or otherwise transfer the Services, access to the Services or a User’s login credentials to any third party; (d) remove, alter, or obscure in any way the proprietary rights notices (including copyright, patent, and trademark notices and symbols) of Motivity or its licensors or suppliers contained on or within any copies of the Services; (e) use the Services for the purpose of creating a product or service competitive with the Services; (f) remove, minimize, block or modify any notices of Motivity or its licensors or suppliers in the Services; (g) use the Services other than as described in the applicable Documentation or for any unlawful purpose; (h) transfer, download or access excessive amounts of data while using the Service; (i) access or search the Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including “robots,” “spiders,” “crawlers,” “AI agents,” “data mining tools” or other similar tools) other than software provided by Motivity for the use expressly for such purposes; (j) use the Services or Documentation in a manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property rights or other rights of any person or entity, or that violates any applicable law; (k) allow children to access or Use the Services; or (l) integrate the Services with any Customer or third-party products or services without prior written authorization from Motivity. Customer is responsible for: (i) ensuring that its usage of the Services does not exceed any limits set forth in the Documentation or applicable Order; (ii) maintaining the security of Customer’s account and passwords. Motivity reserves the right to suspend Customer’s access to the Services if Motivity determines Customer is in violation of these restrictions.
  1. INTELLECTUAL PROPERTY
    1. Ownership of Services. Customer acknowledges and agrees that (a) this Agreement does not transfer to Customer any Motivity or third-party intellectual property rights; (b) as between Motivity and Customer, Motivity owns all right, title, and interest in and to the Services and Documentation; (c) Motivity shall, notwithstanding any other term of this Agreement, remain the owner of the Services and Documentation; (d) Motivity owns the Anonymized Data and hereby assigns any and all rights that Customer may have in such Anonymized Data to Motivity. Nothing herein will be construed as restricting or prohibiting Motivity from utilizing the Anonymized Data in any way, including without limitation to optimize and improve the Services so long as the Anonymized Data remains de-identified, or to enforce this Agreement.
    2. ‍Third-Party Products With respect to Third-Party Products, the applicable third-party provider owns all right, title, and interest in the Third-Party Products, and any part of the Services that contains or utilizes Third-Party Products is distributed and made available under the terms of their applicable license agreements. Unless otherwise expressly provided in this Agreement, Customer shall not acquire any proprietary right, title or interest in or to any intellectual property rights in the Services, Documentation, or Third-Party Products. All rights not expressly granted by Motivity are reserved. ‍
    3. ‍Open Source Software. Certain items of software used in the Services are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 2.1 or 2.2. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software; provided, however, that Motivity represents and warrants that no such Open Source Software license terms are: (i) materially inconsistent with terms herein, or (ii) restricts or prevents the intended use of the Services.
    4. ‍Feedback. Customer may submit to Motivity bug reports, comments, feedback or ideas about the Services, including without limitation about how to improve the Services (“Feedback”). By submitting any such Feedback, Customer hereby assigns to Motivity all right, title, and interest in and to the Feedback, if any.
    5. ‍Customer Marks. Customer hereby grants to Motivity a non-exclusive, worldwide, royalty-free, sublicensable and non-transferable (except in accordance with Section 12 of this Agreement) license to copy, display, distribute, modify and otherwise use Customer’s trademarks, service marks, tradenames and logos (collectively, “Customer Marks”) solely as required to provide the Services in accordance with the terms of this Agreement and in accordance with Customer’s use guidelines as provided to Motivity from time to time. As between the parties, Customer owns all right, title and interest in the Customer Marks.
  1. FEES
    1. Customer shall pay Motivity the fees set forth in the Order (the “Fees”). Motivity shall invoice Customer for such Fees on the schedule set forth on the Order and the amounts set forth in such invoices shall be due from Customer within thirty (30) days of receipt. Customer shall pay interest on any overdue balance at the rate of 1 ½% per month or the maximum permitted by law, whichever is less. All taxes and other governmental charges (except for income taxes), if any, imposed on Customer payments hereunder shall be deemed to be in addition to the Fees charged, and borne solely by Customer. If Motivity has the legal obligation to pay or collect taxes for which Customer is responsible, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Motivity with a valid tax exemption certificate authorized by the appropriate taxing authority. Payments will be made without right of set-off or chargeback. Non-payment or late payment of undisputed fees is a material breach of this Agreement. In addition to any of Motivity’s other rights or remedies, Motivity reserves the right to disable or suspend Customer’s and its User’s access to the Motivity Services for any failure by Customer to pay due invoices in accordance herein. Except as otherwise expressly set forth in this Agreement, all payments by Customer hereunder are non-refundable.
  2. REPRESENTATIONS AND WARRANTIES
    1. Each party represents and warrants that: (a) it has the full power and authority necessary to enter into this Agreement and to perform its obligations under this Agreement; (b) this Agreement is a valid and binding obligation; (c) it will perform its obligations under this Agreement in compliance with all applicable laws, rules and regulations, including but not limited to HIPAA; (d) its performance of its obligations under this Agreement will not violate any provision of any agreement to which it is a party or by which it is bound; (e) it has all rights, licenses and permits necessary to perform its obligations under this Agreement.
    2. Customer represents and warrants that (a) the Customer Data shall not (i) to Customer’s knowledge, infringe any copyright, trademark, or patent right, (ii) shall not be deceptive, libelous, obscene, pornographic or unlawful, (iii) contain any viruses, worms or other malicious computer programming codes intended to damage Motivity’s system or data; (iv) be untrue, defamatory, harmful to any person, or violate HIPAA or any state or federal laws regarding protected health information, patient privacy, or other applicable privacy laws or otherwise violate any privacy or other right of any third party; (b) Motivity may use Customer Data to provide Services to Customer and such use will not violate any rights of any person; (c) Customer has obtained all rights necessary for Motivity’s use of such Customer Data pursuant to this Agreement; (d) in the event that any Customer Data is inaccurate, Motivity shall not be responsible for such inaccuracy or otherwise in connection with the inaccuracy of the Services due to such inaccurate Customer Data; and (e) in the event that Customer uses any SMS texting capabilities in connection with its use of the Services, it will do so in compliance with applicable laws and it shall be Customer’s responsibility to obtain any necessary consents to do so. 
  3. DISCLAIMER AND LIMITATION OF LIABILITY.
    1. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS,” AND MOTIVITY MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. MOTIVITY DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER. MOTIVITY DOES NOT WARRANT ANY THIRD-PARTY PRODUCTS OR SERVICES.
    2.  No Medical or Other Advice Provided. CUSTOMER EXPRESSLY AGREES THAT THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY CUSTOMER SUPPORT, DOES NOT AND SHALL NOT CONSTITUTE PROVIDING BUSINESS ADVICE, BILLING ADVICE, MEDICAL ADVICE, MEDICAL OR DIAGNOSTIC SERVICES, OR PRESCRIBING MEDICATION. USE OF THE SERVICES IS NOT A SUBSTITUTE FOR THE BUSINESS JUDGMENT, AND PROFESSIONAL JUDGMENT OF HEALTH CARE PROVIDERS IN DIAGNOSING AND TREATING PATIENTS AND OPERATING A MOTIVITY. CUSTOMER AGREES THAT IT IS SOLELY RESPONSIBLE FOR VERIFYING THE ACCURACY OF PATIENT INFORMATION (INCLUDING, WITHOUT LIMITATION, OBTAINING EACH PATIENT’S MEDICAL AND MEDICATION HISTORY AND ALLERGIES, AND RETAINING MEDICAL RECORDS), OBTAINING EACH PATIENT’S CONSENT TO USE THE SERVICES WHERE REQUIRED (INCLUDING WITHOUT LIMITATION THE PATIENT PORTAL PORTION OF THE SERVICES), AND FOR ALL ITS DECISIONS OR ACTIONS WITH RESPECT TO THE MEDICAL BILLING, MEDICAL CARE, TREATMENT, AND WELL-BEING OF ITS PATIENTS, INCLUDING WITHOUT LIMITATION, ALL OF CUSTOMER’S ACTS OR OMISSIONS. ANY USE OR RELIANCE BY CUSTOMER UPON THE SERVICES WILL NOT DIMINISH THAT RESPONSIBILITY. CUSTOMER ASSUMES ALL RISKS ASSOCIATED WITH CUSTOMER’S USE OF THE SERVICES FOR THE TREATMENT OF PATIENTS AND SUBMISSION OF MEDICAL CLAIMS. NEITHER MOTIVITY NOR ITS LICENSORS ASSUME ANY LIABILITY OR RESPONSIBILITY FOR DAMAGE OR INJURY (INCLUDING DEATH) TO CUSTOMER, A PATIENT, OTHER PERSON, OR TANGIBLE PROPERTY ARISING FROM ANY USE OF THE SERVICES.
    3. Exclusion of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (A) EXCEPT FOR DAMAGES ARISING FROM A PARTY’S INDEMNITY OBLIGATIONS IN SECTION 9, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, GOODWILL, LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, OR INTERRUPTION OF BUSINESS) ARISING FROM THIS AGREEMENT.
    4. Liability Cap. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR MOTIVITY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, IN NO EVENT SHALL MOTIVITY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID AND PAYABLE BY CUSTOMER TO MOTIVITY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE INITIAL CAUSE OF ACTION.‍
  4. PRIVACY; DATA SECURITY ‍
    1. Data Security. Motivity agrees it that shall implement and maintain commercially reasonable administrative, technical and physical security measures designed to protect PHI from unauthorized access, disclosure and use. Motivity will conduct periodic risk assessments and remediate identified material security vulnerabilities in a commercially reasonable manner. Motivity will promptly notify Customer once it becomes aware of a data breach known to involve Customer PHI. Motivity shall provide such other information, including a written report, as reasonably requested by Customer. Motivity will cooperate with Customer to comply with any applicable data breach notification laws.
    2. ‍HIPAA Compliance. Certain Services that Motivity provides to Customer or its Users involve access to, and the processing of, PHI (defined below) that is provided by Customer and Users through its use of the Services in accordance with the Privacy Policy. With respect to its operation of the Services, and to the extent required by (A) the Health Insurance Portability and Accountability Act of 1996, as amended, and its implementing regulations (“HIPAA”), (B) the Health Information Technology for Economic and Clinical Health Act (“HITECH”) and any regulations promulgated thereunder, and (C) any applicable laws governing the collection, use, storage, and disclosure of information that can reasonably used to identify an individual (collectively, the “Health Privacy Laws”), Motivity will comply with the Health Privacy Laws applicable to business associates and maintain the confidentiality of any Protected Health Information which is individually identifiable health information that is protected by HIPAA (“PHI”) transmitted or made available through the functionality of the Services or the Affiliated Services in accordance with the Business Associate Agreement located at motivity.net/legal/hipaa, which, to the extent applicable, is hereby incorporate by reference.‍
    3. Privacy Compliance. Where applicable, the parties agree that Motivity is a “Service Provider” pursuant to the California Privacy Rights Act (the “CPRA”) and a “Processor” pursuant to state consumer privacy laws such as the Virginia Consumer Data Protection Act and the Colorado Privacy Act (collectively and together with the CPRA, “Data Privacy Laws”) to the extent applicable. Customer warrants that its use and Motivity’s processing of personally identifiable information in accordance with this Agreement shall comply with the applicable Data Privacy Laws. Motivity will not use any “Personal Information” (as that term is defined by Data Privacy Laws) other than as necessary to provide the Services. Other than promptly forwarding to Customer any rights requests related to such Personal Information Motivity received from Customer and deleting any such Personal Information as requested by Customer, Motivity shall bear no responsibility for responding to any rights request pursuant to Data Privacy Laws. Customer agrees that it will only disclose Personal Information to Motivity where there is a “Business Purpose” (as defined in the CPRA) to do so. Motivity will not sell Personal Information, share Personal Information for “cross-context behavioral advertising” (as defined in the CPRA), or retain, use, or combine Personal Information except as permitted by this Section.
    4. ‍FERPA Compliance. If applicable, the performance of the Services may involve the disclosure of confidential student information to Motivity by Customer or otherwise. Motivity agrees that it will not use or re-disclose confidential student information except in compliance with the Family Education Rights and Privacy Act (“FERPA”) (20 U.S.C. § 1232g; 34 C.F.R. Part 99) and all applicable state and federal laws, and solely for the purposes of performing the Services. Customer acknowledges that Motivity shall be considered a “school official” with a legitimate educational interest in receiving confidential student information under FERPA and Motivity agrees that it, its contractors, and agents, will comply with the requirements of 34 C.F.R. § 99.33 regarding its use and redisclosure of confidential student information should such confidential student information be required to be disclosed by Motivity to its Subcontractors or agents.
    5. Subcontractors. Motivity may utilize third parties, including but not limited to its Affiliates (“Subcontractors”) in the performance of its obligations and Services and will be responsible for such performance pursuant to this Agreement.‍
  5. INDEMNIFICATION
    1. By Motivity. Subject to the limitation of liability set forth in Section 7.4, Motivity shall indemnify, defend and hold harmless Customer against any third-party claims that the use of the Services as permitted hereunder infringes any copyright, U.S. patent or other intellectual property right of a third party, and Motivity shall pay any losses, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) finally awarded by a court to such third party or otherwise agreed to in settlement of such claim by Motivity. If any portion of the Services becomes, or in Motivity’s opinion is likely to become, the subject of a claim of infringement, Motivity may, at Motivity’s option, and as Customer’s sole and exclusive remedy therefor in addition to the above indemnity: (a) procure for Customer the right to continue using the Services; (b) replace the Services with non-infringing software or services which do not materially impair the functionality of the Services; (c) modify the Services so that the Services become non- infringing without loss of functionality; or (d) terminate this Agreement and refund any fees paid by Customer to Motivity for the remainder of the term then in effect and for loss of use, and upon such termination, Customer will immediately cease all access and use of the Documentation and Services. Notwithstanding the foregoing, Motivity shall have no obligation under this Section 9.1 or otherwise with respect to any third-party claim based upon (i) any use of the Services not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the Services in combination with other products, equipment, software, or services where the Motivity Services by itself would not be infringing; (iii) any unauthorized modification of the Services by any person other than Motivity or its authorized agents; or (iv) the continued use of the allegedly infringing Motivity Services after being notified of the infringement claim or after being provided a modified version of the Motivity Services by Motivity to address any alleged infringement. This Section 9.1 states the sole and exclusive remedy of Customer and the entire liability of Motivity, and any of the officers, directors, employees, shareholders, contractors or representatives of Motivity, for claims and actions described in this Section 9.1.‍
    2. By Customer. In the manner and only to the extent permitted by law, without waiver of sovereign immunity (to the extent Customer is a public entity), Customer shall indemnify defend and hold harmless Motivity against any third-party claims arising out of (a) any failure by Customer or any User to comply with applicable laws, rules and regulations in connection with its provision and Motivity’s authorized use or display of Customer Data (including patient information provided by Customer) hereunder solely (in each case) to provide Services to Customer, (b) Customer’s unauthorized access or use of Services hereunder; and/or (c) any breach of the Use Restrictions set forth in Section 3.2 and/or representations, warranties and covenants set forth in Section 6.2, and Customer shall pay any losses, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) finally awarded by a court to such third party or otherwise agreed to in settlement of such claim by Customer.
    3. Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit, provided, however, that failure to give prompt notice will not relieve the indemnifying party of any liability hereunder (except to the extent the indemnifying party has suffered actual material prejudice by such failure); (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall (at the indemnifying party’s expense) reasonably cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit. The indemnifying party will not settle or compromise any claim or suit involving indemnified party without indemnified party’s written consent, which will not be unreasonably withheld, conditioned or delayed.‍
  6. TERM AND TERMINATION‍
    1. ‍Term. This Motivity Subscription Services Agreement commences on the Effective Date and shall continue until terminated in accordance with Section 10.2 or by written agreement of the parties.
    2. ‍Termination. Either party may terminate this Agreement immediately upon written notice to the other party if the other party materially breaches this Agreement and fails to cure such breach within (30) days after its receipt of written notice of such breach. If there are no outstanding Orders, upon thirty (30) days written notice to the other party, either party may terminate this Motivity Subscription Services Agreement as of the date specified in such notice of termination.
    3. ‍Effect of Termination. Immediately upon termination of this Agreement, (a) the licenses granted to either party shall immediately terminate; (b) Motivity shall cease to make available and Customer shall cease to access and use the Services. Termination shall not relieve Customer’s obligation to pay all charges for the period before the effective date of termination. Sections 3.2, 4.1, 4.2, 4.3, 5, 6.2, 7, 8, 9, 10.3, 11 and 12 will survive the expiration or termination of this Agreement.‍
  7. GOVERNING LAW AND VENUE
    1. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without reference to conflicts of laws principles. Both parties expressly agree that any action relating to this Agreement shall exclusively be brought in the State of Delaware, and both parties irrevocably consent to the jurisdiction of the state courts located in the State of Delaware. Each party expressly waives any objection that it may have based on improper venue or forum non-conveniens to the conduct of any such suit or action in any such court. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Customer shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its use of the Services hereunder.‍
  8. MISCELLANEOUS.‍
    1. The parties are independent contractors and nothing in this Agreement shall be deemed to create the relationship of partners, joint venturers, employer-employee or franchisor-franchisee between the parties. Neither party is, or will hold itself out to be, an agent of the other party. Neither party is authorized to enter into any contractual commitment on behalf of the other party. This Motivity Subscription Services Agreement, together the applicable Order(s), contains the entire agreement of the parties and supersedes any prior or present understanding or communications regarding its subject matter, and may only be amended in a writing signed by both parties. In the event of a conflict between the terms in the Order and this Motivity Subscription Services Agreement, the terms contained in the Order shall control to the extent that they expressly amend this Motivity Subscription Services Agreement. In the event any provision of this Agreement is held by a court of law or other governmental agency to be void or unenforceable, the remaining provisions shall remain in full force and effect. Neither party shall assign this Agreement without the other party’s prior written consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement to its successor pursuant to a corporate reorganization, merger, consolidation, acquisition or the sale of all or substantially all of its assets. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. Neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance (other than payment of Fees due hereunder) caused by reasons beyond its reasonable control, including, but not limited to, acts of God, war, terrorism, strikes, failure of suppliers, fires, floods or earthquakes. The use of the Services is subject to U.S. export control laws and may be subject to similar regulations in other countries. Customer agrees to comply with all such laws. Any notice to Customer will be deemed given upon the first business day after Motivity sends it. Customer will provide notice to Motivity by mail to: accounts@motivity.net with a copy emailed to security@motivity.net. There are no third-party beneficiaries to this Agreement. This Agreement may be executed in counterparts, each of which shall be deemed an original and both of which shall be taken together and deemed one instrument.