Air Registration

THIS MASTER SUBSCRIPTION AGREEMENT ("AGREEMENT") GOVERNS YOUR USE OF THE SERVICES.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. THE "EFFECTIVE DATE"  FOR THIS AGREEMENT SHALL BE THE DAY YOU CHECK THE "I ACCEPT"  BOX.

You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

TERMS AND CONDITIONS

1. Definitions

For purposes of this Agreement, the following terms shall have the following meanings:

Confidential Information  shall mean non-public information of a party that is marked or otherwise identified as confidential at the time of disclosure, or that a reasonable person would understand to be confidential based on the nature of the information and the circumstances surrounding disclosure. As an example only and not by way of limitation, MOTIO's Source Code, Services, Documentation, and any idea, algorithm, or trade secrets of MOTIO in the Services or Documentation will be deemed to be MOTIO's Confidential Information.

"Documentation" shall mean the user's manuals and/or other documentation provided to CUSTOMER along with the Services, whether in tangible or electronic form.

"Executable Code"  shall mean the fully compiled version of a software program that can be executed by a computer and used by an end-user without further compilation.

"Intellectual Property Rights"  shall mean all copyrights, trademarks, service marks,trade secrets, patents, moral rights, contract rights, and other proprietary rights.

"Service Bureau" includes but is not limited to application service providers, hosting companies and Internet portals that would use the Services for the benefit of third party to third party transactions.

"Source Code" shall mean the human-readable version of a software program that can be compiled into Executable Code.

"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

"Order Form" means the ordering documents for purchases hereunder, including addenda thereto, that are entered into between You and Us from time to time. Order Forms shall be deemed incorporated herein by reference.

"Purchased Services" means Services that You or Your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to any free trial.

"Services" means the online, Web-based software applications and platform provided by MOTIO via http://www.motio.com and/or other designated websites as described in the Documentation, that are ordered by CUSTOMER.

"Users"  means individuals who are authorized by CUSTOMER to use the Services, for whom subscriptions to a Service have been purchased(or by Us at Your request). A User license is required for all Content Authors that the system is monitoring activity. Users may include but are not limited to Your employees, consultants, contractors and agents.

"Content Authors" means anyone creating business intelligence artifacts (e.g. reports, queries, analysis objects, packages, etc.)

"MOTIO"  means Motio, Inc.

"CUSTOMER" means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.

"Customer Data" means all electronic data or information submitted by CUSTOMER to the Purchased Services.

"We", "Us" or "Our"  means Motio, Inc.

"You" or "Your"  means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.

2. License Grant

We grant to You, a non-exclusive, non-transferable, non-sublicensable license to use the Services as defined in the corresponding Order Form.

1. Provision of Purchased Services. Provision of Purchased Services. We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by us regarding future functionality or features.
2. User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the subscription term at the same pricing as that for the pre-existing subscriptions, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.

3. Use of Services

1. Our Responsibilities. We shall: (i) provide to You basic support for the Purchased Services at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 8 hours notice via the Purchased Services and which We shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Central time Friday to 3:00 a.m. Central time Monday), or (b) any unavailability caused by circumstances beyond MOTIO'S reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving MOTIO'S employees), or Internet service provider failures or delays, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.
2. Your Responsibilities. You shall (i) be responsible for Users' compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which You acquired Customer Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the Documentation and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.

4. License Fees and Payment

1. User Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in United States dollars (ii) fees are based on services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.
2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If CUSTOMER provides credit card information to Us, You authorize Us to charge such credit for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 7.B. (Term of Purchased User Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information in the Services.
3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than the original 30 days contained in 2.A. (Provision of Purchased Services)
4. Taxes. You will be responsible for payment of, and shall not withhold from the user fees and other associated fees specified in this agreement; all applicable sales, use, ad valorem, and excise taxes; duties; and assessments based on Your use of the Services. You shall hold Us harmless from all claims and liability arising from Your failure to pay such taxes. You shall not be responsible for any taxes related to Our income.
5. Suspension of Service and Acceleration. If any amount owed by You under this or any other agreement for Services is 30 or more days overdue (or 10 or more days overdue in the case of amounts, You authorize Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full.
6. Payment Disputes. We shall not exercise our rights under Section 4.C. (Overdue Charges) or 4.E. (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.

5. Proprietary Rights

1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.

2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.

3. Ownership of Customer Data. As between Us and You, You shall exclusively own all rights, title and interest in and to all of Customer Data.

4. Suggestions. We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.

6. Warranties And Disclaimers

1. Our Warranty. We warrants that (i) the Services shall perform materially in accordance with the Documentation, the functionality of the Services will not be materially decreased during a subscription term. For any breach of either such warranty, Your exclusive remedy shall be as provided in Section Termination for Cause and Section Refund or Payment upon Termination below.

2. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).

3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. LICENSEE SHALL HAVE THE SOLE RESPONSIBILITY FOR THE ACCURACY AND ADEQUACY OF THE DATA PROCESSED BY THE SERVICES AND FOR ANY USE MADE BY CUSTOMER OF THE DATA OUTPUT BY THE SERVICES.

7. Term and Termination

1. Term of Agreement. This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated.

2. Term of Purchased User Subscriptions. User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 9% over the pricing for the relevant Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time.

3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

4. Refund or Payment upon Termination. Upon any termination for cause by CUSTOMER, MOTIO shall refund CUSTOMER any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by MOTIO, CUSTOMER shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve CUSTOMER of the obligation to pay any fees payable to MOTIO for the period prior to the effective date of termination.

5. Return of Customer Data. Upon request by CUSTOMER made within 30 days after the effective date of termination of a Purchased Services subscription, We will make available to CUSTOMER for download a file of Customer Data. After such 30-day period, MOTIO shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data in MOTIO'S systems or otherwise in MOTIO'S possession or under MOTIO'S control.

8. Survival

Section 1 (Definitions),Section 5 (Proprietary Rights), Section 4 (License Fees and Payment),Section 6 (Warranties & Disclaimers), Section 7 (Term and Termination),Section 8 (Survival), Section 9 (Confidentiality), Section 10(Limitation of Liability), and Section 11 (General) will survive expiration or termination of this Agreement for any reason.

9. Confidentiality

1. Definition of Confidential Information. As used herein, " Confidential Information" means all confidential information disclosed by a party (" Disclosing Party") to the other party (" Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. CUTOMER'S Confidential Information shall include CUSTOMER'S Data; MOTIO'S Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. Except as expressly allowed under this Agreement, neither party will not use or disclose any Confidential Information of the other except to the extent that such party can document that any such item: (i) is generally available for use and disclosure by the public without any license or charge; (ii)is otherwise disclosed by the disclosing party or a third party without breach of a confidentiality obligation; (iii) is independently developed by the receiving party without reference to the received Confidential Information; or (iv) is required to be disclosed by the receiving party by law or any governmental authority, provided that the receiving party shall notify the disclosing party as soon as reasonably possible of any such compelled disclosure and give the disclosing party the opportunity to defend against such disclosure or obtain a protective order in connection therewith.
2. Protection of Confidential Information. Each party shall use commercially reasonable efforts, which shall be no less stringent than those efforts that such party uses to protect its own software or other similar proprietary property, to prevent the Confidential Information from being used by any employee, agent, consultant or other person in any manner that would violate this Agreement.

Each party further agrees to use commercially reasonable efforts to assist the other in identifying and preventing any use or disclosure of the Confidential Information, including the Executable Code or Source Code of the Services or Documentation or any of the ideas, algorithms, source code, or trade secrets contained therein.

3. Violation. Without limiting the foregoing obligation, You shall advise MOTIO immediately in the event that You learn or has reason to believe that any person who has had access to the Services or any portion thereof, as a result of this Agreement, has violated or intends to violate the terms of this Agreement.
4. Remedy. You acknowledges and agrees that there is no adequate remedy at law for a breach of this section, that such a breach would irreparably harm Us, and that We shall, in the event of such a breach, be entitled to equitable relief, including, without limitation, injunctions, without the posting of any bond, in addition to any other remedies.
5. Protection of CUSTOMER'S Data. Without limiting the above, We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. MOTIO shall not (a) modify Customer Data, (b) disclose Customer Data except as compelled by law or as expressly permitted in writing by You, or (c) access Customer Data except to provide the Services or prevent or address service or technical problems, or at Your request in connection with customer support matters.
6. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

10. Limitation of Liability

1. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $500,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION FEES AND PAYMENT FOR PURCHASED SERVICES.
2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

11. General

1. Assignments. You may not assign or transfer, by operation of law or otherwise, any of Your rights under this Agreement to any third party without Our prior written consent, such consent not to be unreasonably withheld. Any attempted assignment or transfer in violation of the foregoing will be void.
2. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
4. Export. You agree not to export the Services outside the United States without Our prior written consent, which consent will not be unreasonably withheld. You further agree to comply in all respects with the applicable export laws and regulations of the United States and not distribute or transfer the Services in contravention of those laws and regulations. You will defend, indemnify and hold harmless Us from and against any violation of such laws or regulations by You or any of Your agents, officers, directors, or employees.
5. Notices. All notices, consents and approvals under this Agreement must be delivered in writing by courier, by fax, or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth beneath such party's signature, and will be effective upon the earlier of receipt or when delivery is refused. Either party may change its address by giving notice of the new address to the other party.
6. Governing Law and Venue. This Agreement will be governed by the laws of the State of Texas as such laws apply to contracts between Texas residents performed entirely within Texas. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought exclusively in a state court in Dallas County, Texas or a federal court in Dallas County, Texas, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
7. Remedies. You acknowledge that the Services contains valuable trade secrets and proprietary information of MOTIO, that any actual or threatened breach of Section Proprietary Rights or Section Confidentiality will constitute immediate, irreparable harm to Us for which monetary damages would be an inadequate remedy, that We shall, in the event of such a breach, be entitled to equitable relief, including injunctive relief, without the posting of any bond, in addition to any other remedies. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys' fees, court costs and other collection expenses, in addition to any other relief it may receive.
8. Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section Invoicing and Payment
9. Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
10. Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Without limiting the generality of the foregoing, You agree that Section 11 (Limitation of Liability) will remain in effect notwithstanding the unenforceability of any provision in Section 6 (Warranties & Disclaimers).
11. Confidentiality of Agreement; Announcements. Neither party shall disclose any terms of this Agreement to anyone other than its attorneys, accountants and other professional advisors except as required by law. We shall be allowed to use Your name on its customer lists, so long as such lists are not available to the general public, and disclose the same to its present and potential customers after execution of this Agreement. "Potential customer" in this section represents a specific customer that is contemplating MOTIO's products and services. For any other use of Your name, We shall obtain written permission from You.
12. Construction. The headings of Sections of the Agreement are for convenience and are not to be used in interpreting the Agreement. As used in the Agreement the word "including" means "including but not limited to."
13. Counterparts. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.
14. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral; provided that any non-disclosure agreement or confidentiality agreement between MOTIO and CUSTOMER shall survive the execution of this Agreement. This Agreement may be amended only by a written document signed by duly authorized representatives of both parties. This Agreement shall not be binding on MOTIO unless and until accepted by a duly authorized MOTIO representative at its principal office. A duly authorized representative of MOTIO consists solely of either the chief executive officer, president, or chief financial officer. If CUSTOMER issues or responds to a purchase order, or similar document, in connection with this Agreement, any preprinted terms and conditions appearing thereon shall not apply to or become part of this Agreement regardless of any statement to the contrary contained therein.