Motime operates under the “Waala” brand name in certain regions. The terms of this agreement apply to Partners of both the Motime and Waala brand. Any references to Motime shall be interpreted to apply to Waala as well. Although we will use terms such as “Partner”, “you” or “your” to refer to the individual or business entity identified in the Application you submit, you are and remain, for all purposes, purely an independent contractor, responsible for your own actions, taxes, the provision of any benefits, insurance and compliance with any and all laws and regulations that apply to you, your business and activities. Neither this API Agreement, nor your participation in our Self-Serve Partner Program contemplates any sharing of profits or losses, a joint venture or any other form of business arrangement, other than your participation in our Self-Serve Partner Program as described in this API Agreement.
a) “Adware” means any Widget that (i) causes advertising to pop-up as a new window (over or under the active window) on an end user’s computer or device either randomly or based on the end user’s online activity (other than advertisements served by persons to visitors while they are visiting that person’s domains) or (ii) is used to distribute Spyware.
b) “Customer” means an end user referred to Motime directly by Partner through Integration that (i) provides all information requested by Motime, which may include carrier, mobile number, email address and content selection information, (ii) agrees to our Terms & Conditions (as defined below), (iii) authenticates their agreement with us (through SMS, confirmation web page or otherwise as we specify or by downloading Mobile Content and (iv) is billed by or on behalf of Motime for a monthly subscription.
c) “Customer Data” means data collected by Motime with respect to Customers, including contact information (such as name, email, cell phone number and address), billing information (such as credit card number and expiration date), demographic information (such as zip code, age level) and information relating to Mobile Content purchases and usage patterns.
d) “Motime Service” means the services provided by us with respect to Mobile Content to Customers on a subscription basis, as well as any associated applications, including, without limitation, those applications that allow Customers to purchase and receive Mobile Content.
e) “Motime Tools” means any application programming interface (“API”) or technology and related documentation and any uniquely coded hyperlinks made available by Motime that allow you to develop the Integration with Motime and offer access to the Motime Service, including any xml feed of the Motime catalog of Mobile Content.
f) “Drive-by-Download” means implementing or allowing any Widget installation process or procedure to be initiated without the end user giving informed consent immediately prior to the commencement of the installation or download process or procedure.
g) “Integration” means the inclusion of portions of the Motime Services and Motime Marks on the Partner Sites in accordance with the Specifications and as mutually agreed upon by the Parties, as well as any other instances of direct marketing and promotion of Motime Services by Partner, to the extent permitted by this API Agreement.
h) “Malware” means any malicious code, viruses, Trojan horses, logic bombs, denial of service attacks or other disruptive programs, software, code or activities that is designed or intended (or reasonably likely to have been designed or intended) to disrupt, damage, interrupt, interfere with or perform unauthorized actions without notice and express prior consent of the end user, including, without limitation, Adware and Spyware.
i) “Marks” means the trademarks, service marks, trade names, brands, logos and other distinctive branding or identification of a party.
j) “Mobile Content” means any Mobile Device content offered to Customers by Motime, including ringtones, wallpaper images, video, text alerts and games.
k) “Mobile Device” means a portable, wireless communications device through which a Customer may connect with a Mobile Network to transmit and receive communications, including, without limitation, wireless, mobile or cellular communication devices, Internet communications devices or other communications or transmission technology now known or hereafter implemented.
l) “Mobile Network” means a wireless communications network pursuant to which a Motime Customer may send and/or receive mobile communications services.
m) “Partner Application” means Partner’s proprietary Widget.
o) “Partner Sites” means the web sites, web pages, domains or online services owned, operated and/or managed by Partner that are approved by Motime for purposes of this API Agreement.
p) “Specifications” means the formatting parameters, technical specifications, privacy and regulatory guidelines (including applicable Mobile Marketing Association guidelines), design and functionality requirements, Mobile Content parameters and all other criteria, requirements and implementation processes set forth on Motime’s “Specifications Page” located at http://access.motime.com/partner_policy/, as may be updated by Motime from time to time.
s) “Widget” means any application program or element of graphical user interface that displays information or provides a specific way for an end user to interact with an operating system, computer programs or code, including, without limitation, that or any other application networks, systems, servers or other programs.
2) PURPOSE OF API AGREEMENT; LICENSE GRANT
a) Motime and Partner desire to work together to make the Motime Service available to end users of Partner Sites and/or Partner Applications through the display of the Integration on Partner Sites and/or Partner Applications.
b) Subject to the terms and conditions of this API Agreement, Motime grants to Partner a limited, non-exclusive, non-transferable, non-sublicenseable revocable license to (i) use the Motime Tools for the sole purpose of working with Motime to develop and offer to prospective Customers the Integration on Partner Sites and/or Partner Applications in accordance with the specifications and (ii) offer and promote the Motime Services in conjunction with the Integration. All rights not expressly granted under this API Agreement are hereby expressly reserved by Motime.
c) Partner may not disclose or use the Motime Tools other than as contemplated in this API Agreement, nor distribute, modify, adapt, translate, perform, transmit, copy or prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Motime Tools, unless specifically authorized by Motime in writing, in advance.
3) MOTIME OBLIGATIONS
a) Motime shall, at its own cost and expense, provide Motime Services and Mobile Content for the Motime Service. Motime shall be responsible for and will solely control the Motime Service, including, without limitation, all features, content, pricing and functionality, and has the unrestricted right to modify, suspend or amend same at all times, in its sole discretion.
b) Motime shall administer first response Customer support to all inquiries or complaints received from Customers via the Motime Service.
c) In no event shall Motime be liable for any breach by any Customer of the Terms & Conditions or any other agreement by which any Customer may be bound.
4) PARTNER OBLIGATIONS
a) Partner shall work with Motime to produce the Integration in accordance with the Specifications. Partner agrees to offer the Integration on the Partner Sites and Partner Applications to end users (i.e., prospective Customers) in accordance with the Specifications, this API Agreement, subject to the Terms & Conditions and other Motime terms applicable thereto.
b) Partner shall at all times comply with the terms of Motime’s Marketing Regulations, as may be updated from time to time in Motime’s sole discretion, and which can be found at http://access.motime.com/partner_policy/ and is incorporated herein by reference. Partner shall not display the Integration on any Partner Site, Partner Application or other location directly or indirectly owned or controlled by Partner with or adjacent to any illegal, offensive, pornographic, obscene, violent, hate-related, controversial or otherwise objectionable material. Without limiting Motime’s other rights or remedies at law or equity, Motime may immediately terminate the API Agreement, withhold payment from you, and disable any Integration hereunder in the event Motime reasonably believes you have failed to comply with the Marketing Regulations.
d) Partner shall be solely responsible, at no cost to Motime, for (i) procuring and maintaining all necessary rights, consents, licenses, permissions, and clearances with respect to any Partner Sites, Partner Applications, or Partner’s Marks. Partner shall be solely responsible for any and all royalties and other fees and payments required by any rights holders and licensors of content publicly performed on or made available on or through the Partner Sites and/or Partner Applications (including, without limitation, residuals or other payments to guilds or unions, for music clearances, Internet or wireless streaming, performance, synchronization and mechanical rights) and all other fees, royalties, charges, payments or obligations arising out of the activities contemplated by this API Agreement) and Motime shall have no responsibility or liability for same whatsoever.
f) Partner shall implement the Integration in accordance with the Specifications. Partner shall use reasonable efforts to promptly report to Motime any malfunctions, defects or non-conformities in or affecting the Integration or the Motime Services and take all actions reasonably required to restore the Integration and/or the Motime Services to proper functioning and operation. Motime reserves the right, at its option and without liability, to require Partner to remove or modify Integration, at any time, in any and/or all locations and instances.
g) Partner shall designate a senior manager reasonably acceptable to Motime who shall be the principal point of contact with Motime and who shall collaborate on ongoing initiatives and further collaborative opportunities.
5) OBLIGATIONS OF BOTH PARTIES
a) Except as expressly set forth in this API Agreement, as between Partner and Motime, each party retains all its right, title, and interest in and to its own proprietary information, material and other items and property, tangible or intangible and including all intellectual property rights therein.
b) Motime shall exclusively own all right, title and interest in and to Customer Data collected with respect to Customers, including, without limitation, Customers who access the Integration, as and if applicable. Partner shall not, directly or indirectly, disclose, process or use or authorize, enable, encourage or permit any third party to disclosure, collect, retain or use any Customer Data.
c) Except as otherwise expressly provided herein, each party is responsible for all costs and expenses incurred by it in connection with the performance of its obligations under this API Agreement.
6) PAYMENT; TAXES
a) Payments. Motime will pay the commission agreed upon at the time of the Affiliate's registration on Motime Open Access. Motime reserves the right to change its level of commission from time to time at Motime's sole discretion.
Should you have questions regarding the commission level, please contact us at http://access.motime.com/help/contactus.
b) Within sixty (60) days after the end of each calendar month, Motime shall pay Partner all undisputed Payments due Partner for that calendar month, unless the payment is less than $250 in which case Payment will be aggregated with the following months until at least $250 is reached. No other payments or fees shall be due or payable by Motime to Partner or any other party under or as a result of this API Agreement. Payments by Motime will be accompanied by a report, in reasonable detail, providing the basis for the Payment.
c) All Payments made by Motime under this API Agreement are free and clear of, without reduction for, and exclusive of any taxes; provided, however, that if required by applicable law or regulatory authorities, Motime may reduce such Payments by the amount of any tax, duties or government required payments or fees (“taxes”) for which Partner is responsible, and pay same to the appropriate authorities and shall provide Partner notice of same. Partner agrees to complete all paperwork reasonably required by Motime to make Payments, before Motime will be obligated to make any Payments to Partner hereunder. Other than federal and state taxes imposed on the net income of Motime, Partner will bear responsibility for all taxes resulting from this API Agreement.
7) CONFIDENTIAL INFORMATION
a) “Confidential Information” means any and all trade secret, proprietary, confidential and sensitive information of Motime, whether marked as “Confidential” or identified with a similar designation, is known to be confidential, is identified or orally disclosed as being proprietary and/or confidential, or is obtained under circumstances in which it is or should be reasonably clear such information is proprietary and/or confidential. Partner shall not use or disclose, directly or indirectly, for its own benefit or the benefit of any other party any Confidential Information, except as necessary for performance of its obligation under this API Agreement and for no other purpose whatsoever. Even when disclosure and/or use is permitted, Partner shall limit disclosure and use exclusively to its employees and agents with a need to know such Confidential Information to perform under this API Agreement; provided that each such employee or agent agrees to be bound by and comply with at least the same level of protections and restrictions as Partner hereunder.
b) Neither party shall issue a news release or public announcement regarding this API Agreement or refer to or use the Marks of the other in publicity or marketing communications, without the prior written consent of the other party.
8) TERM; TERMINATION
a) The term of this API Agreement will begin on the Effective Date, which is the date Motime notifies Partner of acceptance of its Application and will continue until terminated by either party as permitted (“Term”). Either party may terminate this API Agreement upon twenty-four (24) hours’ prior written notice to the other.
b) Upon termination of this API Agreement, any provision which must survive to give effect to its plain meaning, shall survive termination of this API Agreement. Upon termination of this API Agreement, Partner will immediately cease using Motime Tools, Motime Services and Motime Marks and will return or destroy all Confidential Information in its possession or under its control to Motime unless Motime requests the return of same within 48 hours of termination of this API Agreement.
c) Notwithstanding any of the foregoing, Motime may, for any reason or no reason and at any time and without any penalty block or otherwise prevent access to the Motime Service through or by the Integration, any Partner Application, Partner Site, Widget, and/or API.
9) REPRESENTATIONS AND WARRANTIES
a) Partner represents and warrants to Motime that: (i) it has the full power and authority to enter into this API Agreement; (ii) neither the execution of this API Agreement nor the performance of its obligations, provision of its services or furnishing or development of any goods, services, materials, information or other items, tangible or intangible, including, without limitation, Partner Sites, Partner Applications, Partner Marks, any portions of the Integration developed or provided by Partner, (individually and collectively, “Partner Materials”), do not and will not violate any other agreement by which it may be bound, nor infringe upon or misappropriate the rights or interests of any other party; (iii) upon acceptance of Partner’s Application by Motime, this API Agreement constitutes a legal, valid, and binding obligation of Partner, enforceable in accordance with its terms; (iv) Partner shall perform its obligations in compliance with all laws, rules and regulations and industry guidelines and best practices applicable to its business and activities; (v) it has all necessary rights, title, and interest in and to the Partner Materials, to perform its obligations free and clear of all claims, demands, encumbrances, liens and security interests; (vi) to Partner’s knowledge, using reasonable industry standard and commercial measures, the Partner Materials are free of Malware; (vii) the Integration developed, provided and/or controlled by Partner will be in accordance with the Specifications; (viii) no Partner Material or activities or conduct will slander, defame, libel or invade the right of privacy, publicity or other rights of any person or generate spam, phish or violate any law, (viii) the Partner Applications are not and will not be Malware, Adware, Spyware or be distributed as Drive-by-Downloads and will comply with the terms and policies of any sites on which they are placed and (ix) it will not export the Integration or Motime Tools in any manner contrary to the export regulations of the United States. Partner will not remove or alter any rights or other notices, symbols, or labels of Motime.
b) Partner shall: (i) conduct its business in a manner that reflects favorably at all times on Motime Services and the good name, goodwill and reputation of Motime; (ii) avoid deceptive, misleading or unethical practices that are or might be detrimental to Motime or the public, including but not limited to disparagement of Motime or its services or products; (iii) not publish or employ or cooperate in the publication or employment of any misleading or deceptive advertising material; and (iv) make no representations, warranties or guarantees to third parties with respect to the Motime, Motime Services, Motime Tools or otherwise with respect to Motime.
c) UNLESS EXPRESSLY SET FORTH IN THIS API AGREEMENT, NEITHER PARTY MAKES ANY OTHER OR DIFFERENT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO EACH OTHER TO ANY CUSTOMER OR ANY OTHER PARTY UNDER THIS API AGREEMENT. BOTH PARTIES EXPRESSLY DISCLAIM ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. MOTIME MAKES NO REPRESENTATION OR WARRANTY THAT THE MOTIME SERVICE WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR.
10) LIMITATION OF LIABILITY; INDEMNIFICATION
a) In no event shall Motime be liable to Partner for any indirect, consequential, incidental, punitive, special exemplary or other such damages, regardless of the form of action or the basis of the claim including, but not limited to, lost business, revenue, or anticipated profits, whether based on breach of contract, tort (including negligence), or otherwise, and whether or not Motime has been advised of the possibility of such damages. If, for any reason, Motime shall be found liable to Partner in damages and notwithstanding any claim that such damages are inadequate or that any remedy fails of its essential purpose, in no event shall Motime’s liability hereunder exceed provable direct damages no greater than the amount of Payments paid to Partner by Motime in the six (6) months immediately preceding the first date the claim or cause of action arose; provided, however, that the foregoing limitation shall not apply to undisputed Payments owed by Motime to Partner for the proper performance of its obligations hereunder.
To the extent that any jurisdiction does not allow the exclusion or limitation of direct, incidental or consequential damages, portions of the above limitation or exclusion may not apply. Motime and its affiliates do not seek to exclude or restrict its liability for personal injury arising from its negligence.
In the event Partner has any dispute with one or more third parties as a result of Partner's use of Motime Tools or Services, or is in any way damaged as a result of any third party in connection therewith, Partner hereby releases and covenants not to sue or otherwise make a claim, demand or file any legal action or institute any legal or regulatory proceedings against Motime, its affiliates, officers, directors, employees, agents, representatives and suppliers from, for any claims, actions, demands or damages (whether direct, indirect, special, incidental or consequential), of whatever kind or nature, known or unknown, suspected or unsuspected, whether foreseeable or not, disclosed or undisclosed.
b) Partner agrees to defend Motime against any and all claims, demands, proceedings, actions and causes of action brought by a third party that is based upon, arises out of, or relates to the alleged or actual breach of any of Partner's representations, warranties, obligations or covenants in this API Agreement (“Claims”). Partner further agrees to indemnify and hold Motime harmless from and against any and all losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of any Claims.
a) Assignment. Partner may not assign, transfer, subcontract or delegate any of its rights or obligations under this API Agreement without the prior written consent of Motime and any attempt to do so without such consent shall be void.
b) Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York that apply to contracts made and wholly performed by parties in New York. The federal and state courts in the State, City and County of New York have and the parties hereby submit to the exclusive jurisdiction of such courts.
c) Independent Contractors. The parties are independent contractors and neither has any right to obligate or bind the other. Partner is and remains, for all purposes, responsible for its own actions, taxes, the provision of any benefits, insurance and compliance with any and all applicable laws and regulations. This API Agreement does not constitute and may not be construed as constituting a partnership or joint venture among the Parties hereto, or an employee employer relationship. There are no third party beneficiaries and nothing contained herein shall give, or is intended to give, any rights of any kind to any third parties.
d) Notices. All notices under this API Agreement must be in writing, sent by registered mail, return receipt requested, by facsimile transmission with machine confirmation or delivered personally to the address specified in the Application. All notices will be presumed to be effective when personally delivered, upon receipt of facsimile transmission delivery receipt or three (3) days after mailing as specified.
e) Interpretation. Headings are for reference and do not affect meaning. Words will not be construed against the party that drafted them. Waivers of any rights, remedies, options or otherwise are only effective if made in writing and signed by both parties and only apply to the extent set forth therein.
f) Amendment. Amendments must also be in writing and signed with the physical handwritten signature of both parties to be effective and no conduct, trade usage, practices or custom, nor any exchanges of emails or other communication shall be construed as a writing or serve to amend this API Agreement.
g) Severability. If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of this Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct.
h) Waiver. A waiver of any provision of this Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. The failure by either Party to insist upon the strict performance of this Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect.
i) International Sale of Goods Export and Import Control Laws and Regulations. Parties hereby agree to opt out from and expressly exclude any applicability of the Uniform Information Transactions Act (UCITA). Services, Content, and product derived or obtained from the Website may be subject to the U.S. export laws and the export or import laws of other countries. Partner agrees to comply strictly with all such laws and, in particular, shall: (a) obtain any export, re-export, or import authorizations required by U.S. or your local laws; (b) not use Motime tools to design, develop or produce missile, chemical/biological, or nuclear weaponry; and (c) not provide Services, Content, or direct product from Motime to prohibited countries and entities identified in the U.S. export regulations.
j) Entire Agreement. This API Agreement, together with all documents and materials specifically referred to in this API Agreement and which are incorporated by this reference and form a part of this API Agreement, represents the entire agreement and understanding of the parties with respect to the subject matter and supersedes all prior and contemporaneous agreements, representations, negotiations and/or understandings, written or oral, for all purposes.