The following General Terms and Conditions (the “Terms”) are incorporated by reference into the White Label Platform License Agreement (the “Agreement”) and are binding upon Licensees that are a party to the Agreement. All capitalized terms used herein have meanings as defined in the Agreement.
1.1 Agent Data on Custom Sites. The White Label Application will be configured to send notifications to each Agent’s customers notifying such customers of the availability of the Online Moving Concierge. Such communication will be formatted with the Agent’s individual contact information and will redirect to a custom site branded with the Licensee’s branding and the Agent’s information. Licensee shall provide information about its Agents to permit a buildout of the White Label Application, including the respective Agent’s name, email address, [mailing address], and official headshot. Licensee represents and warrants to Move EZ that Licensee has the legal right to provide such information and include it on the White Label Application.
1.2 Future Functionality. Following the delivery of the White Label Application to Licensee, Move EZ shall incorporate into the White Label Application such additional features and functionality as Move EZ makes available to its licensees generally without charge. Move EZ shall give Licensee reasonable advance notice of such additional features and functionality if they are material to the operation of the White Label Application. Move EZ may not materially change the “look and feel” of the White Label Application without the consent of the Licensee, which shall not be unreasonably withheld.
Move EZ has provided Licensee with the technical specifications of the White Label Application and Move EZ’s own technology infrastructure (to the extent relevant to the operation of the White Label Application), including but not limited to security specifications. Should Move EZ wish to make any material modification of such technical specifications it shall use reasonable efforts to notify Licensee no less than ninety (90) days in advance.
3.1 Included Information. For purposes of this Agreement, the term “Confidential Information” means all confidential and proprietary information of a party, including but not limited to (a) financial information, (b) business and marketing plans, (c) the names of employees, (d) the names and other personally-identifiable information of end-users of the Licensee Portal, (e) security codes and/or access credentials, (f) the terms of this Agreement, and (g) all documentation provided by Move EZ.
3.2 Excluded Information. For purposes of this Agreement, the term “confidential and proprietary information” shall not include (a) information already known or independently developed by the recipient without the use of any confidential and proprietary information, or (b) information known to the public through no wrongful act of the recipient.
3.3 Confidentiality Obligations. During the Term and at all times thereafter, neither party shall disclose Confidential Information of the other party or use such Confidential Information for any purpose other than in furtherance of this Agreement. Without limiting the preceding sentence, each party shall use at least the same degree of care in safeguarding the other party’s Confidential Information as it uses to safeguard its own Confidential Information. Notwithstanding the foregoing a party may disclose Confidential Information (a) if required to do by legal process (e., by a subpoena), provided that such party shall notify the other party prior to such disclosure so that such other party may attempt to prevent such disclosure or seek a protective order; or (b) to any applicable governmental authority as required in the operation of such party’s business.
3.4 Injunctive Relief. The parties acknowledge that a breach of this Section 3 will cause the damaged party great and irreparable injury and damage, which cannot be reasonably or adequately compensated by money damages. Accordingly, each party acknowledges that the remedies of injunction and specific performance shall be available in the event of such a breach, in addition to money damages or other legal or equitable remedies.
The parties agree that Licensee, and not Move EZ, is solely responsible for the operation of the Licensee’s website and the Licensee’s business in general. The role of Move EZ is only to provide access to the Online Moving Concierge through the provision of the White Label Application. Move EZ does not act as a fiduciary, business or legal advisor, or co-venturer to Licensee. Licensee is solely responsible for ensuring that the Licensee Portal is operated in accordance with applicable laws, for monitoring the content displayed on the Licensee Portal, and for establishing the terms of its relationships with End-users of the Licensee Portal. Move EZ is not responsible for any information or content displayed on or transmitted through the Licensee Portal.
5.1 Limited Performance Warranty. Move EZ warrants that all Services will be performed in a good and workmanlike manner. In the event Licensee believes that Move EZ is in violation of this limited performance warranty, Licensee shall notify Move EZ and Move EZ shall use reasonable commercial efforts to correct any error or defect.
5.2 Warranty of Non-Infringement.
5.2.1 In General. Move EZ represents and warrants that, to Move EZ’s knowledge as of the Effective Date, the White Label Application provided by Move EZ under this Agreement will not infringe, misappropriate or otherwise violate any intellectual property rights of any third party. Move EZ further represents and warrants that there is no settled, pending or, to Move EZ’s knowledge as of the Effective Date, threatened, and it has not received any notice of any action (a) alleging that any access to or use of the Platform does or would infringe, misappropriate or otherwise violate any intellectual property rights of any third party; (b) challenging Move EZ’s ownership of, or right to use or license, any software or other materials used or required to be used in connection with the performance, accessing, or use of, the Platform or Online Moving Concierge, or alleging any adverse right, title, or interest with respect thereto; or (c) that, if decided unfavorably to Move EZ, would reasonably be expected to have an adverse effect on its ability to provide the Service or perform its other obligations under this Agreement. If a claim is made that the Platform infringes on the rights of a third party then Move EZ will, at its sole expense and as Licensee’s sole remedy, defend against such claim and pay any final judgment against Licensee, provided that Licensee promptly notifies Move EZ of any such claim in writing and Move EZ is given sole control over the defense and settlement of such claim. Move EZ may, without the knowledge or consent of the Licensee, agree to any resolution of the dispute that does not require on the part of the Licensee a payment or an admission of wrongdoing. Without limiting the preceding sentence, Move EZ may (a) seek to obtain through negotiation the right of Licensee to continue using the White Label Application; (b) rework the White Label Application so as to make it non-infringing; or (c) replace the White Label Application, as long as the reworked or replacement White Label Application does not result in a material adverse change in the “look and feel” or operational characteristics of the White Label Application. If none of these alternatives is reasonably available at Move EZ’s sole discretion, Move EZ may terminate this Agreement and refund or credit to Licensee an amount equal to any unused fees paid.
5.2.2 Exceptions. The foregoing warranty shall not apply to infringement caused by (a) Licensee’s modification or use of the Platform other than as contemplated by the Agreement; (b) Licensee’s failure to use corrections or enhancements made available by Move EZ to the extent that such corrections or enhancements would make the White Label Application non-infringing; or (c) information, specification or materials provided by Licensee or third-party acting for Licensee.
6.1 Indemnification by Licensee. Licensee will indemnify and hold harmless Move EZ, its licensors, service providers, and their respective affiliates, managers, agents, and employees, from and against all losses, costs, and expenses, including reasonable attorneys’ fee, from third party claims arising from (a) Licensee’s operation of the Licensee Portal, Licensee’s or Licensee’s End-users use of the White Label Application, or breach of any term of this Agreement, except for claims arising from the wrongful acts or omissions of Move EZ, and (b) Licensee’s performance of moving or Online Moving Concierge for any End-user or any other third party.
6.2 Indemnification by Move EZ. Move EZ will indemnify and hold harmless Licensee, its affiliates, managers, agents, and employees, from and against all losses, costs, and expenses, including reasonable attorneys’ fee, from (a) third party claims arising from Move EZ’s operation of the Platform in breach of any term of this Agreement, except for claims arising from the wrongful acts or omissions of Licensee, and (b) White Label Application End-user claims arising from any third-party service provider’s services provided to such End-user for any services contracted for or obtained through the White Label Application.
6.3 Notice and Defense of Claims. A party seeking indemnification under this Section 5 (the “Indemnified Party”) will promptly notify the other party (the “Indemnifying Party”) of any claim for which it believes it is entitled to indemnification. The Indemnifying Party shall assume control of the defense and settlement of such claim provided that (a) such defense and settlement shall be at the sole cost and expense of the Indemnifying Party (b) the Indemnifying Party will not settle any third-party claim against the Indemnified Party unless such settlement completely and forever releases the Indemnified Party from all liability with respect to such claim or unless the Indemnified Party consents to such settlement, and (c) that the Indemnified Party will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.
7.1 Limitation of Claims. Move EZ shall not be liable to Licensee under any circumstances (even if this Agreement is terminated) for any consequential, special, incidental, punitive, or indirect damages (including without limitation loss of profit, revenue, business opportunity, or business advantage), whether based upon a claim or action of tort contract, warranty, negligence, strict liability, breach of statutory duty, contribution, indemnity or any other legal theory or cause of action, even if advised of the possibility of such damages.
7.2 Limitation of Damages. Move EZ’s total liability under or relating to this Agreement, regardless of the cause or form of action, and whether before or after its termination, shall not exceed the total of all amounts paid to Move EZ by the Licensee.
7.3 Exceptions. The limitations set forth in Sections 6.1 and 6.2 shall not apply to any claims arising (a) under Section 5.2 of the Agreement (concerning Move EZ’s warranty of non-infringement), (b) under Section 3 of these Terms (concerning confidentiality), or (c) from the willful misconduct of Move EZ.
In General. The following procedure shall be followed in the event of a dispute arising from this Agreement:
a. The principals (e.g. chief executive officers) of Move EZ and Licensee shall speak directly concerning the dispute.
b. If the parties are unable to resolve the dispute, then within five (5) business days they shall exchange written summaries of their respective positions, containing such information and/or proposals as they may determine in their sole discretion, and thereafter meet or speak by telephone to attempt to resolve the dispute. Such summaries shall be deemed in the nature of settlement discussions and shall not be admissible in any further proceeding.
c. If the parties are still unable to resolve the dispute, they may, but shall not be required to, participate in non-binding mediation conducted by a single neutral mediator chosen the parties.
d. If the parties elect not to participate in mediation or are unable to resolve the dispute in mediation, a party may file a lawsuit subject to Section 6.3 of the Terms.
8.2 Waiver of Jury Trial. Each party waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement.
8.3 Assignment. Licensee may not assign its rights or obligations under this Agreement without the prior written consent of Move EZ. Any attempted assignment made in violation of this section shall be null and void. Notwithstanding the foregoing, Licensee may assign its interest in this Agreement to a person acquiring (by sale, merger, reorganization, or otherwise) substantially all of Licensee’s assets or business, provided that (i) the transferee agrees to assume and perform all obligations of the transferor for periods following the transfer, (ii) the transferor remains liable for all obligations prior to the transfer, and (iii) the transferee shall not be engaged in the business of developing, marketing, or supporting an electronic platform in competition with the White Label Application. Move EZ may charge a reasonable fee for the review and processing of the information regarding the transfer.
8.4 Payment of Fees. In the event of a dispute arising under this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs, provided that if a party prevails only in part the court shall award fees and costs in accordance with the relative success of each party.
8.5 Language Construction. The language of this Agreement shall be construed in accordance with its fair meaning and not for or against any party. The parties acknowledge that each party and its counsel have reviewed and had the opportunity to participate in the drafting of this Agreement and, accordingly, that the rule of construction that would resolve ambiguities in favor of non-drafting parties shall not apply to the interpretation of this Agreement.
8.6 Force Majeure. Neither party shall be entitled to recover damages or terminate this Agreement by virtue of any delay or default in performance by the other party (other than a delay or default in the payment of money) if such delay or default is caused by Acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected; provided that the party experiencing the difficulty shall give the other prompt written notice following the occurrence of the cause relied upon, explaining the cause and its effect in reasonable detail. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
8.7 Signature in Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed to be a fully-executed original.
8.8 Signature by Facsimile or Email. An original signature transmitted by facsimile or email shall be deemed to be original for purposes of this Agreement.
8.9 No Third-Party Beneficiaries. This Agreement is made for the sole benefit of the parties. No other persons shall have any rights or remedies by reason of this Agreement against any of the parties or shall be considered to be third-party beneficiaries of this Agreement in any way.
8.10 Binding Effect. This Agreement shall inure to the benefit of the respective heirs, legal representatives, and permitted assigns of each party, and shall be binding upon the heirs, legal representatives, successors and assigns of each party.
8.11 Titles and Captions. All article, section and paragraph titles, and captions contained in this Agreement are for convenience only and are not deemed a part of the context hereof.
8.12 Pronouns and Plurals. All pronouns and any variations thereof are deemed to refer to the masculine, feminine, neuter, singular, or plural as the identity of the person or persons may require.
8.13 Days. Any period of days mandated under this Agreement shall be determined by reference to calendar days, not business days, except that any payments, notices, or other performance falling due on a Saturday, Sunday, or federal government holiday shall be considered timely if paid, given, or performed on the next succeeding business day.
If you have any questions regarding this Agreement or your use of the Site please contact us here:
Move EZ, Inc.
1275 Kinnear Rd
Columbus, OH 43212
Last Updated: December 2013