Modives Enterprise LLC Auto Subscription Agreement

Updated January 2, 2024

This Subscription Agreement (“Agreement”) is a binding agreement between‎ Modives Enterprise LLC, a North Carolina domestic limited liability company (“Modives,” “we,” “us,” “our”), and subscriber (either individually or your business for which you are authorized to accept on its behalf) (“Subscriber” or “you”). For purposes of this Agreement, Subscriber and Modives each may be referred to individually as a “Party” and together as the “Parties.” This Agreement governs Subscriber’s use of Modives’ proprietary software platform, any Third-Party Applications (as described herein), and any products and services as described herein and as set forth in any Documentation (collectively, the “Services”).

By clicking the “agree” button, you (a) acknowledge that you have read, understand and have the authority to enter into this Agreement; (b) represent that you are of legal age in your jurisdiction to enter into this Agreement; and (c) accept this Agreement and agree that you and your business, if applicable, are legally bound by its terms. If you do not agree with this Agreement, please exit now and do not use the Services.

1. Definitions

“Affiliate” means any entity controlling, controlled by or under common ‎control with a Party, at the time of execution of the Agreement and any time ‎thereafter, where “control” is defined as (i) the ownership of greater than fifty ‎percent (50%) of the equity or beneficial interest of such entity, or (ii) any other ‎entity with respect to which such Party has significant management or operational ‎responsibility (even though such Party may own less than fifty percent (50%) of the ‎equity of such equity)‎.

“Applicable Law” means all laws, statutory and other rules, regulations, ‎instruments, and legal ‎provisions in force from time to time applicable to the ‎Parties and/or Services. ‎

“Authorized Users” means Subscriber and Subscriber’s authorized employees and independent consultants, ‎contractors or agents working for Subscriber in the ordinary course of Subscriber’s business who: (i) are bound by the terms of this Agreement; and (ii) are specifically authorized by Subscriber to ‎access the Services through the use of a user identification and password.

“Consumer” means an individual who (i) is a purchaser or renter or potential purchaser or renter of Subscriber; (ii) is granted access to the Services by Subscriber or an Authorized User as part of Subscriber’s use of the Services; and/or (iii) provides Consumer Information through the Services.

“Consumer Information” means data and information provided by (i) Consumers or (ii) Subscriber about Consumers through the Services.

“Documentation” means any user guides, marketing materials, documentation, and help and training materials, (each as may be updated periodically) that Modives may make available to Subscribers, Authorized Users or Consumers as part of the Services.

“Fees” means the applicable subscription fees charged and payable for the Services pursuant to Section 9 herein.

“Term” has the meaning set forth in Section 14 herein.‎

“Third-Party Application” means any third-party products or services incorporated into the Services by Modives, including but not limited, to third-party applications, implementation services, customization services, reporting services, and other consulting services.

“User Data” means any data and information collected by Modives or submitted by Subscriber, its Authorized Users and Consumer or third parties through the Services, as may be more fully described in the Documentation.

2. License Grant.

Subject to the terms of this Agreement, during the Term, Modives hereby grants Subscriber a limited, non-exclusive and nontransferable right and license to access and use the Services strictly in accordance with this Agreement (the “License”).

3. Restrictions. Subscriber shall not and shall not permit any of the Authorized Users:

  • (a) copy any of the Services;
  • (b) permit any third party that is not an Authorized User or Consumer to access or use the Services.
  • (c) modify, translate, adapt or otherwise create derivative works or improvements of the Services;
  • (d) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Services or any part thereof;
  • (e) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Services, including any copy thereof;
  • (f) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Services or any features or functionality of the Services, to any third party (except as permitted in this Agreement);
  • (g) ‎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;
  • (h) use the Services to store or transmit any virus, worm, time bomb, Trojan horse or other harmful or malicious code, files scripts, agents or programs;
  • (i) interfere ‎with or disrupt the integrity or performance of the Services or third-party data contained therein, ‎or
  • (j) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Services.
  • (k) access or use the Services in order to build a competitive product or service or copy any features, functions or graphics of the Services.

4. Reservation of Rights.

Subscriber acknowledges and agrees that the Services are provided by Modives under the License, and not sold by Modives, to Subscriber. Subscriber does not acquire any ownership interest in the Services under this Agreement, or any other rights thereto or interests therein other than to use the Services in accordance with the License granted, and subject to all terms, conditions and restrictions under this Agreement. Modives reserves and shall exclusively retain its entire right, title and interest in and to the Services, including all copyrights, trademarks and other intellectual property rights therein or relating thereto, except as expressly granted to Subscriber in this Agreement.

5. Provision of Services

  • 5.1. Provision of Services
    Modives shall make the Services available to Subscriber pursuant to this Agreement during the Term (defined below). Subscriber agrees that its subscription for the Services is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Modives regarding future functionality or features of the Services.
  • 5.2. Authorized Users
    Unless otherwise specified herein, Services may be accessed by Subscriber only by Subscriber’s Authorized Users. Additional Authorized Users may be added during the Term. User credentials cannot be shared or used by more than one Authorized User.

6. Responsibilities of the Parties

  • 6.1. Modives Responsibilities
    During the Term, Modives will: (i) provide basic support for the Services at no additional charge as set forth in the Documentation, as may be amended from time to time by Modives; (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (Modives will use commercially reasonable efforts to provide at least 8 hours prior notice via the Services prior to any scheduled downtime. Scheduled downtime is scheduled (to the extent practicable) during the [weekend hours from 9:00 p.m. eastern time Friday to 3:00 a.m. eastern time Monday)]; (b) emergency maintenance; or (c) any unavailability caused by a Force Majeure Event (defined below), or Internet service provider failures or delays, and (iii) provide the Services only in accordance with Applicable Laws.
  • 6.2. Subscriber’s Responsibilities
    Subscriber will: (i) be responsible for Subscriber’s and all Authorized Users’ compliance with this Agreement and any exhibits attached hereto, as well as any Documentation and all Applicable Laws, (ii) be solely responsible for the accuracy, quality, integrity and legality of any User Data and of the means by which Subscriber acquired such User Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Modives promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with this Agreement, the Documentation and Applicable Laws. Subscriber will not: (a) make the Services available to anyone other than Authorized Users and its Consumers, (b) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (c) attempt to gain unauthorized access to the Services or their related systems or networks.

7. Third-Party Products and Services

  • 7.1. Use of Third-Party Products and Services
    Subscriber acknowledges that Modives may choose, in its sole discretion, to incorporate Third-Party Applications into the Services. Use by Subscriber of Third-Party Applications may require Subscriber to agree to certain Third-Party Applications terms provided at the time of use of such Third-Party Applications Unless otherwise stated herein, any exchange of data between a Subscriber (or its Authorized Users or Consumers) and such Third-Party Application provider may be shared, stored and/or processed by Modives for use in connection with the Services and as otherwise set forth in Modives privacy policy located at Modives does not warrant third-party products or services and does not provide support for third-party products or services.
  • 7.2. Auto Screening Services.
    As part of the Services, Subscriber may need to access and use certain auto screening services through a third party.  Subscriber acknowledges and agrees that in addition to the terms and conditions of this Agreement, by using the Services, Subscriber (and its Authorized Users) will agree to additional terms and conditions directly with the third part [Modives will not store or process any Subscriber data or Consumer Information collected by the third party directly from Subscriber (and its Authorized Users), which will be delivered by the third directly to Subscriber.]
  • 7.3 Third-Party Applications and Fees.
    Except as otherwise provided under the terms of this Agreement (or any Exhibit or Addendum attached hereto), Subscriber acknowledges that any fees required to be paid for access and use by Subscriber, Consumers, or Authorized Users of Third-Party Applications used in connection with the Services are the responsibility of Subscriber, regardless of whether Subscriber ultimately requires its Consumers to pay for such Third-Party Applications services. Such Third-Party Applications fees may be incorporated into the Fee charged by Modives to Subscriber or may be charged directly to Subscriber (as determined by Subscriber).
  • 7.4. Third-Party Applications and Subscriber Data
    Subscriber acknowledges and agrees that Modives may allow providers of those Third-Party Applications to access User Data and Consumer Information as required for the interoperation of such Third-Party Applications with the Services. Modives will not be responsible for any use, disclosure, modification or deletion of any User Data or Consumer Information resulting from any access by Third-Party Application providers.

8. Fees and Payment for Services

  • 8.1. Fees
    Subscriber agrees to pay all fees specified or chosen when Subscriber purchases a subscription for the Services (“Fees”). Any Fees will be billed in accordance with the Documentation. Certain Fees for use of Third Party Applications may change during the Term and Subscriber agrees to pay the applicable Fee at such time based on any such change in such Third Party Application fees.
    Except as otherwise set forth herein, (i) Fees are payable by Subscriber in United States dollars (ii) Fees are based on the Services or Third-Party Applications purchased and not actual usage, and (iii) payment obligations of Subscriber are non-cancelable and Fees paid are non-refundable. Fees for the Services are based on periods as determined by the Parties that begin on the subscription start date and each anniversary thereafter.
    At the end of the Term, your subscription for the Services will automatically renew unless either Party terminates this Agreement on or before the end of the then Term in accordance with this Agreement.
  • 8.2. Invoicing and Payment of Fees
    All payments paid by Subscriber for the Services will be paid either at the time Subscriber chooses its subscription package on Modives Web site, or by invoice from Modives. All payments by Subscriber for Fees due for the Services will be paid via: (i) credit card or debit card, each of which is processed by Modives’ third-party payment ‎processor in accordance with Modives’ Privacy Policy [(] (the “Modives’ Privacy Policy”), or (ii) another payment method (e.g. check, wire transfer, ACH) as mutually agreed upon by the Parties. Subscriber authorizes Modives to, as applicable, charge (and for our payment processor to process) or invoice Subscriber via Subscriber’s selected payment method for (i) any costs incurred in connection with Third-Party Applications not covered by the Fee for the Services or not paid by a Customer of Subscriber, including any credit card processing fees; and (ii) all Services for the Initial Term and any Renewal Term(s). As between the Parties, Subscriber, and not Modives, is responsible for paying any ‎unauthorized amounts billed to Subscriber by a third party. Subscriber agrees to pay all Fees ‎and charges incurred in connection with Subscriber any Authorized Users, or any Consumer accessing the Services (including any applicable taxes), based on the subscription package chosen on the Modives Web site by Subscriber and at the ‎rates in effect when the charges are incurred. If Modives does not receive payment from Subscriber (or Subscriber’s or its Customer’s ‎credit or debit card issuer or its agent, if applicable) when due, Subscriber agrees to pay all amounts upon demand by Modives or its ‎agents. If paying by credit or debit card, Subscriber will provide Modives with valid and updated credit card or debit card information, as applicable. Subscriber is responsible for maintaining complete and accurate billing and contact information in the Services. Modives reserves the right to charge and collect interest on any unpaid, past-due Fees equal to the lesser of one and one-half percent (1½ %) per month or the maximum amount permitted by law. Subscriber will reimburse Modives for all reasonable collection expenses, including reasonable attorneys’ fees and court costs, for delinquent amounts.
  • 8.3. Suspension of Service and Acceleration
    If any Fees owed for the Services or the use of any Third-Party Applications are ten (10) or more calendar days overdue based on Subscriber’s selected subscription and payment method or options, Modives may, without limiting any of its other rights and remedies: (i) accelerate Subscriber’s unpaid Fees obligations under this Agreement so that all payment obligations become immediately due and payable; and/or (ii) suspend Subscriber’s and any Authorized Users’ access to the Services and any Third-Party Applications until such amounts are paid in full.
  • 8.4. Taxes
    Unless otherwise stated, Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction.

9. Proprietary Rights

  • 9.1. Ownership.
    As between the Parties, all rights, title, and interest in and to the Services and any Third-Party Applications are the exclusive property of or Modives or its licensors and are protected by U.S. and international copyright, trademark, patent, or other intellectual property rights and laws to the fullest extent possible. As between the Parties, Modives owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Services. ‎
  • 9.2. Trademarks.
    All registered and common law trademarks, product names and company names or logos referenced in connection with the Services or any Third-Party Applications are the property of their respective owners and licensed for use by Modives. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by Modives but for identification purposes only.
  • 9.3. Ownership of User Data
    As between the Parties, Subscriber owns all right, title and interest in and to all User Data, provided that Subscriber grants Modives and its Affiliates a non-exclusive, royalty-free, perpetual, worldwide right to (a) access, use and disclose the User Data in connection with (i) the provision of the Services or the use of any Third-Party Applications in connection with this Agreement and (ii) any business purpose of Modives or any of its Affiliates and (b) access, use and disclose the User Data to any third party, including without limitation, contacting third parties on behalf of Subscriber or an Authorized User in connection with the provision of the Services. Authorized Users also may be required to provide certain information about themselves as a condition to accessing or using the Services or certain of its features or functionality, and the Services may provide Subscriber and its Authorized Users with opportunities to share information with us. Notwithstanding any provision to the contrary contained within this Agreement, all personal information collected through or in connection with the Services or any Third-Party Applications is subject to Modives’ Privacy Policy ([]). By accessing and using the Services, Subscriber consents to all actions taken by Modives with respect to Subscriber, Authorized User, User Data or Consumer information in compliance with this Agreement, the Modives’ Privacy Policy and Applicable Laws. Subscriber and any Authorized Users acknowledge that Modives shall have the right to de-identify and aggregate User Data it receives through the Services (“Aggregated Data”). Modives may share such Aggregated Data with affiliates and may use such Aggregated Data for product and service research and development, for product marketing purposes, for customer benchmarking, and for other lawful business purposes of Modives and its affiliates, provided that neither Subscriber nor any Authorized User is identified as the source of such Aggregated Data.
  • 9.4. Authorized User Suggestions
    Subscriber and any Authorized Users hereby grant to Modives a non-exclusive, 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 Subscriber or any Authorized Users, relating to the operation of the Services.
  • 9.5. U.S. Government Restricted Rights
    This section applies to all applicable subscriptions, if any, to use the Services by or for the federal government. By accepting delivery of the Services, the government hereby agrees that the License for the Services qualifies as a customary commercial license provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under this Agreement, the agency must negotiate with Modives to determine whether there are acceptable terms for transferring such rights, and agree upon a mutually acceptable written addendum specifically conveying such rights must be included in any applicable agreement. If the License granted under this Agreement fails to meet the government’s minimum needs or is inconsistent in any respect with federal procurement law, the government agrees to cease using the Services.

10. Security

During the Term, Modives will maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Services, the User Data, and Consumer Information while in Modives’ possession. Except as permitted herein or in Modives’ Privacy Policy, Modives will not: (a) modify any User Data or Consumer Information, (b) disclose User Data or Consumer Information, except in accordance with the Services and Applicable Law, or (c) access User Data or Consumer Information, except to provide the Services or to prevent or address Service or technical problems in connection with Authorized User or Consumer support matters.

11. Warranties; Disclaimers; Limitation of Liability

  • 11.1. Modives Warranties
    Modives represents and warrants to Subscriber that the Services shall perform materially in accordance with the Documentation.
  • 11.2. Subscriber Warranties
    Subscriber warrants that it has the right to provide all User Data to Modives in connection with the Services and that the User Data will not infringe upon the personal or proprietary rights of any third-party.
  • 11.3. Mutual Warranties
    Each Party represents and warrants that (i) it has the legal power to enter into this Agreement; and (ii) it will comply with Applicable Laws in connection with the provision, access and use of the Services.
  • 11.4. Warranties Disclaimer
    Except as expressly set forth herein, the Services and any Third-Party Applications are provided to Authorized Users “AS IS” and with all faults and defects without warranty of any kind. Except as expressly set forth herein, to the maximum extent permitted under Applicable Law, Modives, on its own behalf and on behalf of its Affiliates and its and their respective licensors and service providers, expressly disclaims all warranties, whether express, implied, statutory or otherwise, with respect to the Services and any Third-Party Applications, including all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage or trade practice. Without limitation to the foregoing, Modives provides no warranty or undertaking, and makes no representation of any kind that the Services or any Third-Party Applications will meet Subscriber requirements, achieve any intended results, be compatible or work with any device or other software, applications, systems or services, operate without interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected. Furthermore, Modives makes no warranties or representations about the accuracy or completeness of the ‎Services or the content or results generated by any Third-Party Applications and ‎assumes no liability or responsibility for any (i) errors, mistakes, or inaccuracies of ‎content or results, (ii) personal injury or property damage, of any nature whatsoever, resulting from ‎your access to and use of the Services, (iii) any unauthorized ‎access to or use of our secure servers and/or any and all personal, institutional, technical, ‎financial or other information stored therein, (iv) any interruption or cessation of ‎transmission to or from our Services, (v) any bugs, viruses, Trojan horses, or the like which ‎may be transmitted to or through the Services by any third party, and/or (iv) any errors or ‎omissions in any content or for any loss or damage of any kind incurred as a result of the ‎use of any content posted, e-mailed, transmitted, or otherwise made available via the Services. Modives does not warrant, endorse, guarantee, or assume responsibility for any product or ‎service used, advertised or offered by any Third-Party Applications through the Services.‎

    Some jurisdictions do not allow the exclusion of or limitations on implied warranties or the limitations on the applicable statutory rights of a consumer, so some or all of the above exclusions and limitations may not apply to you.
  • 11.5 Limitation of Liability
    In no event shall Modives have any liability to Subscriber or any users for any lost profits or revenues or for any indirect, special, incidental, consequential, or punitive damages however caused, whether in contract, tort or under any other theory of liability, and whether or not Subscriber or any users have been advised of the possibility of such damages. Notwithstanding the foregoing, Modives’ cumulative liability with respect to any single incident arising out of or related to this Agreement (whether in contract or tort or under any other theory of liability) shall not exceed the amount paid by Subscriber hereunder in the 12 months preceding the incident.


12. Mutual Indemnification

  • 12.1. Indemnification by Modives
    Modives will defend and hold Subscriber harmless against any claim, demand, suit, or proceeding made or brought against Subscriber by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a “Claim Against Subscriber”), and shall indemnify Subscriber for any damages, attorney fees and costs finally awarded against Subscriber as a result of, and for amounts paid by Subscriber under a court-approved settlement of, a Claim Against Subscriber; provided that Subscriber (a) promptly gives Modives written notice of the Claim Against Subscriber; (b) gives Modives sole control of the defense and settlement of the Claim Against Subscriber (provided that Modives may not settle any Claim Against Subscriber unless the settlement unconditionally releases Subscriber of all liability); and (c) provides to Modives all reasonable assistance, at Modives’ expense. In the event of a Claim Against Subscriber, or if Modives reasonably believes the Services may infringe or misappropriate on the intellectual property rights of a third party, Modives may (in its discretion and at no cost to Subscriber): (i) modify the Services so that they no longer infringe or misappropriate such intellectual property rights, (ii) obtain a License for Subscriber’s continued use of the Services or any Third-Party Applications in accordance with this Agreement, or (iii) terminate the Services upon written notice and, with the exception of any Fees paid for Third-Party Applications (which are non-refundable), refund to Subscriber any prepaid Fees covering the remainder of the Terms after the effective date of termination.
  • 12.2. Indemnification by Subscriber
    Subscriber will defend Modives, its Affiliates, and their respective officers, directors, employees and agents (“Modives Indemnitees”) against any claim, demand, suit or proceeding made or brought against a Modives Indemnitee by a third party alleging that User Data, or Subscriber use of the Services or any Third-Party Applications in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates Applicable Law (a “Claim Against Modives”), and shall indemnify each Modives Indemnitee for any damages, attorney fees and costs finally awarded against such Modives Indemnitees as a result of, or for any amounts paid by a Modives Indemnitee under a court-approved settlement of, a Claim Against Modives; provided that Modives (a) promptly gives Subscriber written notice of the Claim Against Modives; (b) gives Subscriber sole control of the defense and settlement of the Claim Against Modives (provided that Subscriber may not settle any Claim Against Modives unless the settlement unconditionally releases Modives of all liability); and (c) provide to Subscriber all reasonable assistance, at your expense. Modives may participate in any litigation with its own counsel and at its own cost.
  • 12.3. Exclusive Remedy
    This Section 12 states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any claim described herein.

13. Term and Termination

  • 13.1. Authorized User Subscriptions Term
    Subscriptions purchased commence on the date specified at the time of purchase and continue for the subscription term specified at purchase (the “Initial Term”). Except as otherwise specified at the time of purchase, a subscription shall automatically renew for an additional one-year period (each a “Renewal Term” and collectively with the Initial Term the “Term”), unless either Party gives the other notice of non-renewal at least sixty (60) days before the end of the Initial Term or then current Renewal Term. The per-unit pricing during any such Renewal Term will be the then-current pricing of Modives for the Services. Subscriber understands that the Term will automatically renew and Subscriber authorizes Modives (without further notice to you) to charge or invoice Subscriber the renewal subscription price (plus applicable taxes), if any.
  • 13.2. Termination for Cause
    Subject to Section 13.3 below, either 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.
  • 13.3. Termination by Modives
    Modives may terminate this Agreement at any time without notice if it ceases to provide or support the Services, which Modives may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if Subscriber or any Authorized User violates any of the terms in Section 4 herein.
  • 13.4. Refund or Payment upon Termination
    Upon any termination for cause by Modives, Subscriber shall immediately pay any unpaid Fees covering the remainder of the applicable Term. In no event shall any termination relieve Subscriber of the obligation to pay any Fees payable to Modives for the period prior to the effective date of termination or Fees payable to Modives for Subscriber’s use of any Third-Party Applications in conjunction with the Services.
  • 13.5. Surviving Provisions
    Sections 1, 3, 5, 7, 8, 9, 10, 11, 12, 13.4, 14, this Section 13.5 and any section that by its nature should survive shall survive any termination or expiration of this Agreement.

14. Notices, Governing Law

  • 14.1. Notices
    Except as otherwise specified in this Agreement, all notices, permissions and approvals shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to Subscriber shall be addressed to the system administrator designated by Subscriber for your relevant Authorized User account, and in the case of billing-related notices, to the relevant billing contact designated by Subscriber.
  • 14.2. Governing Law
    This Agreement will be governed by and construed solely in accordance with the laws of the State of North Carolina, without giving effect to its principles of conflicts of law or the application of any law of any other jurisdiction. Subject to the dispute resolution and arbitration provisions set forth below, Subscriber hereby irrevocably consents and submits to the exclusive personal jurisdiction of the state and federal courts located in Charlotte, North Carolina. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
  • 14.3. Dispute Resolution; Arbitration
    The Parties will first attempt to resolve any dispute informally. Subscriber will send a written notice describing the dispute to

    All disputes arising out of or in connection with this Agreement shall be finally settled by arbitration between the Parties. Any arbitration hereunder shall be finally settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA Rules”). The Parties shall mutually agree on one (1) arbitrator to settle the dispute within ten (10) days of notice by a Party of its desire to arbitrate. If the Parties fail to select an arbitrator within such 10-day period, the arbitrator shall be chosen by the AAA Rules. A reasoned arbitration decision shall be rendered in writing no later than sixty (60) days after the selection of the arbitrator and any such decision shall be final and binding on the Parties. The situs of any arbitration proceedings shall be Charlotte, North Carolina and all hearings shall be held in Charlotte, North Carolina Each Party shall pay its own costs and expenses (including attorneys’ fees) for such arbitration. Judgment upon the award so rendered may be entered in any court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. ‎ Notwithstanding anything to the contrary in the foregoing, either Party may obtain from a ‎court any interim, provisional or injunctive relief that may be necessary to protect such Party’s rights ‎or property. ‎
  • 14.4. No Arbitration Class Actions
    Subscriber and Modives agree that with ‎respect to arbitration disputes each may bring claims ‎against the other only in their individual ‎capacity, and not as a plaintiff or class member in any ‎purported class or representative proceeding or as an ‎association. All disputes will be heard or arbitrated only on an ‎individual basis and will not be joined or consolidated with any ‎other claims or arbitrations or other proceedings that involve any ‎claim or controversy of any other party. There shall be no right or ‎authority for any dispute to be arbitrated on a class action basis or ‎on any basis involving disputes brought in a purported ‎representative capacity on behalf of the general public, or other ‎persons or entities similarly situated. If, for any reason, any ‎court with competent jurisdiction holds that the restriction set forth ‎in this Section 14.4 is unconscionable or unenforceable, then our ‎agreement to arbitrate will not apply and the dispute must be ‎brought exclusively in the courts located within the State of ‎North Carolina. Notwithstanding any other provision herein, any and all ‎issues relating to the scope, interpretation and enforceability of the ‎class action waiver provisions contained in this section, are to be decided only by a court of competent ‎jurisdiction, and not by the arbitrator. The arbitrator does not have ‎the power to vary these class action waiver provisions.‎

15. General Provisions

    • 15.1. Export Compliance
      Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services and any Third-Party Applications. Without limiting the foregoing, (i) each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Subscriber shall not permit Authorized Users to access or use Services or any Third-Party Applications in violation of any U.S. export embargo, prohibition or restriction.
    • 15.2. Relationship of the Parties
      Nothing in this Agreement is intended, nor should be construed, to create a partnership, agency, joint ‎venture or employment relationship between a Subscriber, Authorized User and/or Modives. It is understood by the Parties that each Party will be treated as an independent contractor with respect to the other Party.
    • 15.3. Waiver and Cumulative Remedies
      No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
    • 15.4. Force Majeure
      Neither Party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control (inability to meet financial obligations is expressly excluded from this clause) (a “Force Majeure Event”). A Force Majeure Event may include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquakes, pandemics, epidemics, labor disputes, fire and explosions. In such circumstances the affected Party shall be entitled to a reasonable extension of the time for performing such obligations.
    • 15.5. Severability
      If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
    • 15.6. Assignment
      Subscriber may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Modives (not to be unreasonably withheld). Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
    • 15.7. Entire Agreement
      This Agreement, including the Documentation and any Exhibit or addendum referenced hereto constitute the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the Party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict or inconsistency between the provisions of this Agreement and the Documentation or addendum, the terms of the Documentation or addendum shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in any purchase order or other order documentation provided by Subscriber shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

      Modives Enterprise LLC
      112 S Tryon St, Suite 1570
      Charlotte, NC 28208
      (888) 872-3040