This Motility Pay Addendum (the “Motility Pay Terms”) between Motility Software Solutions Inc., a Delaware corporation (“Motility”) and the Client identified in the corresponding Order Form and/or Motility Software Solutions Terms and Conditions or other master agreement between the parties (collectively, the “Agreement”) is incorporated into the Agreement. All terms used but not defined in these Motility Pay Terms shall have the meaning ascribed elsewhere in the Agreement. In the event of a conflict between these Motility Pay Terms and the other terms of the Agreement, these Motility Pay Terms shall control with respect to the Payment Services.
- Payment Services; Appointment. Motility agrees to use commercially reasonable efforts to provide the Client, and Client agrees to accept from Motility and certain third-parties (“TPP(s)”), certain payment execution services and other payments-related services set forth in the applicable Order Form (both Motility and third-party services collectively referred to as the “Payment Services”) to Client solely for Client’s own internal purposes. As further set forth in the applicable Order Form, and subject to change from time to time, the Payment Services may enable Client to print checks, perform ACH payments, make payments using a virtual card, and perform other similar or related activities through or in connection with the Products or Services. Client hereby appoints Motility, and, to the extent necessary or appropriate, the TPPs, as its agents with regard to the Payment Services to the extent necessary for Motility or the TPPs to provide the Payment Services on behalf of Client.
- Motility Services; Third-Party Services. Certain of the Payment Services may be provided by Motility (“Motility Pay Services”), while other parts of the Payment Services may be provided by TPPs (“Third Party Services”). Third Party Services may be provided either through a separate relationship and agreement between Client and such third party (“TPP Contracted Services”) or through and under the Agreement (“Non-Contracted Services”). For clarity, the Motility Pay Services constitute Services under the Agreement, and all Motility software applications used or provided in connection with the Motility Pay Services shall constitute Software. Third Party Services are not Products or Services as contemplated by the Agreement, nor does any corresponding third-party software constitute Software. With respect to all TPP Contracted Services, the agreement between Client and the applicable TPP shall govern such TPP Contracted Services. All Non-Contracted Services are provided or otherwise made available “AS IS” without warranty, express or implied, of any kind. Third Party Services may be subject to additional terms and conditions, either with Motility or the TPP, and Motility shall be excuse from performance with respect to such Third Party Services and any other dependent Payment Services if Client does not agree to such additional terms.
- Payment Services Authorization; PSPs. Client hereby authorizes Motility and TPPs to initiate payment transactions on Client’s behalf through and in connection with the Payment Services as directed or authorized by Client or its Authorized Users or their use of the Services. Client acknowledges and agrees that the payment transactions may be initiated, processed, or otherwise facilitated by one or more third party payment service providers of Motility’s choosing, which Motility may (a) share Client Data and other information with as necessary or appropriate to provide or enable the Payment Services, and (b) change in its sole discretion from time to time (the “PSP(s)”). For clarity, with respect to this Agreement, PSPs are also TPPs.
- Demand Deposit Account/ACH Permission. Upon Motility’s request, Client will establish and maintain one or more demand deposit accounts (“DDA”) to facilitate the provision of the Payment Services and the funding of transactions. Client will at all times maintain sufficient funds in the DDA to accommodate all transactions and other amounts due. Client must obtain Motility’s prior written consent before changing the DDA, and if Client changes the DDA, the authorization given below will apply to the new account, and Client will provide Motility such information regarding the new DDA as Motility deems necessary to effect payments to and from such new DDA. In accordance with the NACHA Operating Rules and the NACHA Operating Guidelines, Client hereby irrevocably authorizes Motility to initiate credit and debit entries to the DDA and to credit and debit the same. The foregoing authorization will remain in effect after termination of the Agreement until all of Client’s obligations to Motility, and Motility’s obligations to the PSP and TSPs with respect to Client’s payment transactions, have been paid in full. Client will indemnify and hold harmless Motility, PSPs, TPPs and their respective financial institutions for any action they take against the DDA pursuant or related to this Agreement, and Client will also indemnify and hold harmless the depository institution at which it maintains the DDA for acting in accordance with any instruction from Motility, PSP, TPP or their respective financial institutions regarding the DDA.
- Fees; Charges. Fees for the Payment Services shall be set forth in the applicable Order Form and governed by the Fees and Payments section of the Agreement. Notwithstanding the foregoing, upon notice to Client, Motility may pass-through any costs, charges or other expenses that (a) were not contemplated as of the date of the applicable Order Form for the corresponding Payment Services, and (b) are incurred by Motility in connection with making available the Third Party Services to Client (e.g. increased ACH transaction pricing billed to or through Motility), including, without limitation, any charges or other amounts arising due to Client’s misuse of the Payment Services.
- Client’s Use. Client represent and warrants that it (a) is using the Payment Services for business purposes only and to facilitate payments arising from lawful business transactions, and (b) shall only access and use the Payment Services in accordance with applicable law.
- PSPs and Other TPPs. Client hereby authorizes Client to share Client Data and other information and data with PSPs and other TPPs as necessary or appropriate to provide or enable the Payment Services. Additionally, the PSPs and other TPPs are hereby designated as third party beneficiaries to this Agreement. Motility may change the PSPs or TPPs at any time without notice to Client, provided the foregoing shall not affect any TPP Contracted Services, which are subject to a separate agreement to which Motility is not a party.
- Termination; Suspension. Motility shall have the right to suspend or terminate all or a portion of the Payment Services immediately and without notice to Client, suspend or terminate online system access and/or refuse to enable or otherwise facilitate payment transactions, at any time, for any reason, or without reason.
- Changes. Motility may amend, alter, modify, or otherwise change all or a portion of the Payment Services or these Motility Pay Terms: (a) immediately upon notice, to the extent required or necessary to comply with (1) applicable laws, (2) the rules, regulations, or requirements of any payment network or association (e.g. card networks, NACHA, PCIDSS, etc.), or (3) the direction or instructions of a PSP or other TPP, and (b) upon at least fifteen (15) days’ advance written notice with respect to any other change not covered by (a).
- Indemnity. Client shall indemnify, defend, and hold harmless Motility and its affiliates, and each of Motility’s and its affiliates’ respective officers, directors, employees, agents, successors, and assigns against all Losses arising out of or resulting from any claim, suit, action, or other proceeding related to or arising out of or resulting from (a) Client’s breach of any representation, warranty, covenant, or obligation under these Motility Pay Terms, (b) Client’s relationship with any PSP or other TPP, Client’s use of any Third Party Services, or any acts or omissions of Client in connection with the foregoing, or (c) acts or omissions of Client causing Motility to violate its obligations to TPPs. “Losses” means all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
- DISCLAIMERS. IN ADDITION TO THE DISCLAIMERS SET FORTH IN THE AGREEMENT, MOTILITY MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING THE PAYMENT SERVICES. MOTILITY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FURTHER, CLIENT ACKNOWLEDGES THAT MOTILITY IS MAKING THE THIRD PARTY SERVICES AVAILABLE TO CLIENT FOR CLIENT’S BENEFIT AND CONVENIENCE, AND MOTILITY SHALL HAVE NO LIABILITY OR RESPONSIBILITY, AND CLIENT HEREBY HOLDS MOTILITY HARMLESS, WITH RESPECT TO TPPs AND THIRD PARTY SERVICES. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL MOTILITY BE RESPONSIBLE OR LIABLE FOR A TPP’S USE OR MISUSE OF CLIENT DATA MADE AVAILABLE TO SUCH TPP IN CONNECTION WITH THE PAYMENT SERVICES.