This End User Agreement (this “Agreement”) is entered into by and between you (“Customer”) and MotionPoint Corporation, a Florida corporation d/b/a GetGlobby, MarketFully, and Key Content (collectively, “MarketFully”). If you do not agree to all the terms of this agreement, do not create a MarketFully account or use the Services.
This Agreement specifies the terms and conditions regarding Customer’s use of the Application and Professional Services (collectively, the “Services”). MarketFully provides the Services using its managed applications, programs, software, technology, and tools, including proprietary translation word segment parsing technologies and other technologies (“Technology”) that are offered on MarketFully’s hosted infrastructure, software, and platforms (“Platform”).
Part 1 – General Terms
1. CUSTOMER RESPONSIBILITIES
1.1. Cooperation.
Customer shall provide all cooperation and assistance as MarketFully may reasonably request to enable MarketFully to perform its obligations under, and in connection with, this Agreement.
1.2. Legal Compliance.
Customer shall comply with all applicable laws and regulations.
1.3. Reputational Harm.
Customer will not do or say anything that is inconsistent with any MarketFully policy made available to Customer (including policies that are published online) or may reflect adversely on, or be harmful to, the business or reputation of MarketFully.
1.4. Restrictions on Access and Use.
Customer will not and will not permit any person to: (i) use the Services in a manner that is inconsistent with the terms of this Agreement; (ii) modify, adapt, translate, copy, decompile, disassemble, or reverse engineer any portion of the Platform or underlying Technology to the Application ; (iii) use, sell, lease, or permit use of any portion of the Application for the benefit of any third party; (iv) demonstrate or share the Technology to any third party not authorized by MarketFully, including, without limitation, any language service provider; (v) interfere with or disrupt the operation of the Application provided to Customer or made available by MarketFully to third parties; (vi) transmit or make available in connection with the Application any denial of service attack, virus, worm, Trojan horse, or other harmful code or activity; (vii) attempt to probe, scan, or test the vulnerability of a system or network or to breach security or authentication measures relating to the Application without the express written consent of MarketFully; (viii) take any action that repeatedly imposes, or may repeatedly impose, in MarketFully’s reasonable opinion, an unreasonable or disproportionately large load on MarketFully’s Platform; (ix) violate the rights of any other person or infringe upon any intellectual property rights of a person; (x) permit access or use by any user in a U.S.-embargoed country or in violation of any U.S. export law or regulation; or (xi) use the Application to violate any applicable law, regulation, or order. Customer shall promptly notify MarketFully of any violation of the terms of any of the foregoing upon becoming aware of such violation and shall be liable for any breach of the foregoing agreements by any of its Authorized Users. Customer is responsible for (a) all uses of Customer’s account, regardless of whether or not Customer has authorized the particular use or user, and regardless of Customer’s knowledge of such use; and (b) securing its MarketFully account, passwords (including but not limited to administrative and user passwords), and files. MarketFully is not responsible for any losses, damages, costs, expenses or claims that result from stolen or lost passwords. Although MarketFully has no obligation to monitor Customer’s use of the Platform, MarketFully may do so and may prohibit and/or suspend any use it believes may be in violation of the foregoing.
2. TERM AND TERMINATION
2.1. Term.
This Agreement begins when Customer creates a MarketFully account and continues until terminated pursuant to Subsection 2.2 (the “Term”).
2.2. Termination.
MarketFully may terminate this Agreement at any time for any reason by providing written notice to Customer or disabling their account, and this Agreement automatically terminates if Customer executes a separate contract with MarketFully for the same or similar offerings using Customer’s account.
2.3. Effect of Termination.
Upon termination of this Agreement, Customer’ loses all rights to use or access the Services.
2.4. Survival.
The following provisions shall survive any termination or expiration of this Agreement: Subsection 2.3 (Effect of Termination), Subsection 2.4 (Survival), Section 3 (Confidentiality), Section 4 (Intellectual Property), Section 6 (Indemnification), Section 7 (Damages Disclaimer; Limitation of Liability),Section 8 (Governing Law and Dispute Resolution), Subsection 11.3 (Invalidation), and Subsection 11.7 (Headings). All other rights and obligations shall be of no further force or effect after termination or expiration of this Agreement, except that a provision not listed above will be given effect to the extent it is necessary for an indemnification obligation under Section 6 (Indemnification).
3. CONFIDENTIALITY
3.1. Confidential Information.
MarketFully may disclose its confidential or proprietary business, technical, supplier, or financial information (“Confidential Information”) to Customer in connection with the Services. Confidential Information of MarketFully includes, without limitation, non-public information regarding features, functionality, design, architecture, and performance of the Application, Platform, and Technology, all MarketFully IP, information concerning its suppliers, and the terms and conditions (including pricing) of this Agreement. No information that Customer provides or otherwise makes available to MarketFully (including information shared with MarketFully by Customer’s use of the Services) is considered Confidential Information.
3.2. Exceptions.
Notwithstanding anything to the contrary contained herein, Confidential Information shall not include any information that Customer establishes (i) is generally available to the public, (ii) was in Customer’s possession or known by it prior to receipt from MarketFully, (iii) was rightfully disclosed to Customer without restriction by a third party, or (iv) was independently developed without use of any Confidential Information.
3.3. Non-use and Non-disclosure.
Customer agrees to: (i) hold Confidential Information in strict confidence, using at least the same degree of care that Customer uses to protect its own information of like nature, which shall not be less than a reasonable degree of care, (ii) restrict disclosure of such Confidential Information to those of Customer’s officers, directors, employees, professional advisors, legal affiliates, contractors, agents and representatives with a need to know such information for the sole purpose of performing pursuant to this Agreement; and (iii) not modify, reverse engineer, decompile, create other works from, or disassemble any such Confidential Information.
3.4. Compelled Disclosure.
Notwithstanding Subsection 3.3 (Non-use and Non-disclosure), Customer may disclose Confidential Information to the extent necessary to comply with a court order or applicable law; provided, however that Customer delivers reasonable advance notice of such disclosure to MarketFully and uses reasonable efforts to secure confidential treatment of such Confidential Information, in whole or in part.
3.5. Remedies for Breach of Obligation of Confidentiality.
Customer acknowledges that breach of its obligation of confidentiality may cause irreparable harm to MarketFully for which it may not be fully or adequately compensated by recovery of monetary damages. Accordingly, in the event of any violation, or threatened violation, by Customer of its obligations under Section 3 (Confidentiality), MarketFully shall be entitled to seek injunctive relief from a court of competent jurisdiction in addition to any other remedy that may be available at law or in equity, without the necessity of posting bond or proving actual damages.
3.6. Return or Destruction of Confidential Information.
Upon termination of the Term or upon MarketFully’s written request, Customer will, at its option, either return to MarketFully or certify destruction of, any and all copies of Confidential Information in possession of Customer, its employees, or its agents.
4. INTELLECTUAL PROPERTY
4.1. Customer Ownership.
Each party acknowledges and agrees that, as between Customer and MarketFully, Customer is the sole and exclusive owner of (i) Customer Content; (ii) content that is created using the Services, except to the extent such content is addressed in Subsection 4.2 (MarketFully Ownership); (iii) Personal Information of, or provided by, Customer; and (iv) Customer’s trademarks, service marks, trade names, and logos. “Personal Information” has the meaning given to it or any equivalent term under applicable data privacy laws.
4.2. MarketFully Ownership.
Each party acknowledges and agrees that, as between Customer and MarketFully, MarketFully is the sole and exclusive owner of (i) all right, title, and interest in and to its proprietary software; the Application, Technology, and Platform; the code; metadata; alterations; modifications; improvements; translation technology optimizations; additions; Customer feedback; Adaptive Learning and its engine training sets; any derivative works made with respect to the Application, Technology, and Platform; any Beta Services; all pre-existing documents or know-how; and all intellectual property and proprietary rights in and related to any of the foregoing (collectively, “MarketFully IP”); and (ii) MarketFully’s trademarks, service marks, trade names, and logos.
5. BETA SERVICES
From time to time and at no additional charge, MarketFully may make available to Customer functionality or services which are designated as beta, pilot, limited release, preview, non-production, evaluation, or similar description (the “Beta Services”). Beta Services are not required in order to use the Services, are intended for evaluation purposes only, and may be subject to additional terms. MarketFully may discontinue Beta Services at any time, in its sole discretion and may never make them generally available. If Customer elects to opt-into Beta Services, then, notwithstanding anything to the contrary contained in this Agreement, MarketFully will have no liability for any harm or damage arising out of or in connection with Beta Services. All restrictions, MarketFully’s reservation of rights, and Customer’s obligations concerning the Services shall apply to Customer’s use of Beta Services.
6. INDEMNIFICATION
Customer will indemnify, defend, and hold harmless MarketFully and its officers, directors, employees, agents, representatives, shareholders, attorneys and affiliates (collectively, the “MarketFully Indemnified Group”) against any third-party claim, suit, action, demand, or proceeding brought against member(s) of the MarketFully Indemnified Group that alleges or is based upon, arises out of, or is related to: (i) Customer Content; (ii) Customer’s breach of this Agreement; or (iii) any other misuse or misappropriation of the Services by Customer.
7. DAMAGES DISCLAIMER; LIMITATION OF LIABILITY
7.1. Damages Disclaimer
IN NO EVENT WILL MARKETFULLY, NOR ITS AFFILIATES, NOR ANY OF THEIR RESPECTIVE SHAREHOLDERS, MEMBERS, MANAGERS, DIRECTORS, OFFICERS, AGENTS, REPRESENTATIVES, OR EMPLOYEES BE LIABLE IN CONTRACT, QUASI-CONTRACT, TORT, STRICT LIABILITY, WARRANTY, INFRINGEMENT ACTIONS OR OTHERWISE, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES SUCH AS, BUT NOT LIMITED TO, DELAY, DISRUPTION, LOSS OF PRODUCT, LOSS OF ANTICIPATED PROFITS OR REVENUE, LOSS OF USE OF EQUIPMENT OR SYSTEM, NON-OPERATION OR INCREASED EXPENSE OF OPERATION OF OTHER EQUIPMENT OR SYSTEMS, COST OF CAPITAL, COST OF PURCHASED OR REPLACEMENT EQUIPMENT, SYSTEMS, OR POWER, EVEN IF MARKETFULLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES EITHER BEFORE OR AFTER THE DATE OF THE PARTIES EXECUTE THIS AGREEMENT OR ANY APPLICABLE ORDER. THE PROVISIONS OF THIS SUBECTION 7.1 (DISCLAIMER OF DAMAGES) ALLOCATE THE RISKS UNDER THIS AGREEMENT AND ANY ORDER BETWEEN CUSTOMER AND MARKETFULLY AND THE PRICING REFLECTS THIS ALLOCATION OF RISK AND THE DISCLAIMER OF INCIDENTAL DAMAGES IN THIS PROVISION. THIS PROVISION WILL SURVIVE THE TERMINATION OF THIS AGREEMENT FOR ANY REASON AND REGARDLESS OF WHICH PARTY TERMINATES THIS AGREEMENT. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL DAMAGES, THE FOREGOING LIMITATIONS MAY NOT APPLY TO CUSTOMER IN THOSE STATES.
7.2. Limitation of Liability.
IN NO EVENT WILL MARKETFULLY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED IN THE AGGREGATE THE SUM OF $1,000. THIS REMEDY IS INTENDED TO BE THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER FOR ANY BREACH OR DEFAULT OF THIS AGREEMENT OR ANY ORDER BY MARKETFULLY. THE PROVISIONS OF SUBSECTIONS 7.2 (LIMITATION OF LIABILITY) ALLOCATE THE RISKS BETWEEN CUSTOMER AND MARKETFULLY AND MARKETFULLY’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY IN THIS PROVISION. .
8. GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement is governed in all respects by the laws of the State of Florida, without giving effect to its rules relating to conflict of laws. Neither any adoption of the Uniform Computer Information Transactions Act nor the U.N. Convention on the International Sale of Goods applies to this Agreement or to the rights or duties of the parties under this Agreement. Any dispute arising out of or relating to this Agreement, or its subject matter (including the extent to which any dispute is subject to arbitration pursuant to this Section 8 (Governing Law and Dispute Resolution)) shall be resolved exclusively by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association. Either party may send a notice to the other party of its intention to file a case with the American Arbitration Association under this Section 8 (Governing Law and Dispute Resolution). The arbitration will be conducted in Broward County, Florida, by a single arbitrator knowledgeable in the commercial aspects of “software as a service” arrangements and intellectual property. With the exception of disclosures to affiliates and legal counsel, all negotiations and arbitration proceedings related to a dispute (including a settlement, award, or the documents and briefs exchanged or produced during arbitration) are confidential and may not be disclosed by the parties except to the extent necessary for interim measures or conservatory relief, the enforcement of an arbitration award, or as required by law (subject to the requirements of Subsection 3.4 (Compelled Disclosure)).
9. NOTICES
All notices, consents, and other communications between the parties regarding this Agreement must be in writing (e-mail acceptable) and be addressed to the e-mail account associated with Customer’s MarketFully account or, if to MarketFully, to legal@motionpoint.com. All communications will be deemed to have been received on the date delivered.
10. FORCE MAJEURE
MarketFully is not responsible nor liable for any delays or failures in performance from any cause beyond its reasonable control, including, but not limited to, acts of God, changes to law or regulations, embargoes, war, terrorist acts, acts or omissions of third party technology providers, riots, fires, earthquakes, hurricanes, floods, power blackouts, strikes, weather conditions or acts of hackers, internet service providers or any other third party or acts or omissions of Customer.
11. GENERAL PROVISIONS
11.1. Reservation of Rights.
With respect to the Services, all rights, interests, and title not granted in this Agreement to Customer are reserved to MarketFully.
11.2. Assignment.
MarketFully may assign this Agreement to any third party without the prior written consent of Customer. Customer may not assign its rights or obligations under this Agreement to any third party, and any such attempted assignment is void.
11.3. Invalidation.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
11.4. Complete Understanding.
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersede all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement.
11.5. Waiver/Modification.
MarketFully reserves the right to modify this Agreement, at any time, in its sole discretion, by providing written notice to Customer via e-mail.
11.6. Parties’ Relationship.
No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither party has authority of any kind to bind the other party in any respect whatsoever.
11.7. Headings.
The heading references herein are for convenience purposes only and shall not be deemed to limit or affect any of the provisions hereof.
11.8. Electronic Signatures; Counterparts.
This Agreement, including all Orders, may be executed by original or electronic signatures (complying with the U.S. Federal ESIGN Act of 2000, 15 U.S.C. 96) and in any number of counterparts, which will be considered one instrument.
Part 2 – Trial Services
12. APPLICATION
12.1. Description.
MarketFully offers certain Technology through its Platform. The “Application” allows for Customer’s benefit of the Technology and Platform to (1) create or obtain localization, translation, and/or transcreation of files, documents, or other information through an artificial-intelligence-powered tool, the outputs of which are “MarketFully AI Platform Content”; and (2) request the human review of MarketFully AI Platform Content or other Professional Services.
12.2. Application License
Subject to the terms and conditions of this Agreement, MarketFully grants Customer a non‑exclusive, non‑transferable, revocable license to access and use the Application in the manner and with the functionality that MarketFully makes available to Customer. MarketFully may, in its sole discretion, change, limit, or discontinue the Application at any time without notice. This license is provided free of charge and is limited to personal, non‑commercial purposes. MarketFully may suspend or terminate Customer’s access to the Application at any time, with or without notice, for any reason. Upon termination, Customer’s right to use the Service ends immediately.
12.3. Other Users.
Customer may not allow other individuals to use or access the Application using Customer’s MarketFully account.
12.4. Changes; Updates.
MarketFully may, in its sole discretion and at any time, make any changes to the Application, Technology, or Platform. From time to time, MarketFully may make standard updates, enhancements, security and infrastructure patches and improvements generally available on a commercial basis to the Application, Technology, and Platform (“Updates”). Updates do not include (x) computer programs, technology or software products that are not purchased by Customer or that are made generally available on a commercial basis as separate, price-listed options; or (y) fees for Professional Services that may be required for implementation. The Application includes Updates, as may be made available by MarketFully from time to time.
13. PROFESSIONAL SERVICES
MarketFully may provide professional services in the form of activities agreed to by the parties (“Professional Services”) pursuant to the terms of this Agreement and any additional terms that MarketFully may require prior to agreeing to provide Professional Services.
14. CUSTOMER RESPONSIBILITIES
14.1. Customer Content.
Customer hereby grants to MarketFully a non-exclusive, transferable, sublicensable, worldwide, and royalty-free license to use: (i) all Platform Content and all content Customer provides to MarketFully (directly or indirectly, including content entered into the Platform) for the Services (collectively, the “Customer Content”) for any purpose; and (ii) Customer’s name and/or logo Marks, in a manner acceptable to Customer, solely for the purpose of fulfilling MarketFully’s obligations contained within this Agreement and for the limited purpose of identifying Customer as a MarketFully customer. Customer represents and warrants that it has all rights necessary to grant such licenses to MarketFully and that Customer Content, Customer’s name, and Customer’s logo (and the use thereof by MarketFully in accordance with the terms of this Agreement) does not and will not infringe on a third party’s intellectual property or other rights. In addition, Customer acknowledges that MarketFully makes no effort and is in no way obligated to, and Customer is solely responsible for: (a) determining the placement, legality, accessibility, validity and enforceability of any and all Customer Content translated or transcreated by MarketFully, including, without limitation, of any copyright notices, disclaimers, limitations on liability, warnings, privacy policies, and terms of use agreements; and (b) validating the accuracy, accessibility, safety, legality and reliability of any language included in Customer Content, including, without limitation, any such language relating to consumers’ health, safety, or well-being. For the avoidance of doubt, Customer acknowledges that: (y) language differs from dialect to dialect and region to region; and (z) MarketFully does not provide, and the Services do not constitute, legal, compliance, or other professional advice.
14.2. Customer Systems.
Customer shall be responsible for obtaining and maintaining the functionality, legality, and security of any equipment and ancillary services needed to connect to, access, or otherwise use the Application, including modems, hardware, servers, software, operating systems, networking, web servers, and the like.
15. PERSONAL INFORMATION
Customer will not enter, provide, or otherwise process Personal Information through the Services. If Customer enters, provides, or otherwise processes such information through the Services, then (i) Customer shall comply with any obligations (including, without limitation, in respect of security) under applicable Data Protection Laws, (ii) MarketFully accepts no responsibility for the processing of such information in accordance with such laws, (iii) the processing schedule (available at https://www.motionpoint.com/company/data-processing-schedule or such other website that MarketFully designates from time to time) does not apply to such information, and (iv) Customer shall be solely liable for any and all liabilities arising from or relating to Personal Information.
16. MISCELLANEOUS
16.1. Artificial Intelligence Acknowledgement.
Customer acknowledges that the Application uses a third-party artificial intelligence technology and may use other artificial intelligence or machine learning technology from time to time, and Platform Content may not be unique to Customer due to the nature of the Technology.
16.2. Platform Content and Availability.
Customer agrees that, notwithstanding anything else in this Agreement, MarketFully: (i) bears no liability or responsibility for Platform Content; (ii) does not guarantee the accuracy or suitability for any specific use of Platform Content; (iii) to the maximum extent permitted by applicable law, assumes no liability or responsibility for any errors, mistakes, or inaccuracies of Platform Content; and (iv) has no responsibility or liability for any scheduled or unscheduled downtime or unavailability of the Application. Customer further agrees that it is solely responsible for confirming the factual accuracy, accessibility, safety, legality, and reliability of any content created by MarketFully for Customer in connection with Professional Services.
16.3. Prohibited Content.
Customers agrees that it will not provide to, store in, or process through the Services, any data, text, images, or similar content that: (i) is unlawful and/or promotes unlawful activities; (ii) defames, harasses, abuses, threatens or incites violence towards any individual or group; (iii) is pornographic, discriminatory and/or otherwise victimizes and/or intimidates an individual and/or group on the basis of religion, gender, sexual orientation, race, ethnicity, age and/or disability; (iv) is spam, is machine- or randomly-generated, constitutes unauthorized or unsolicited advertising, chain letters, any other form of unauthorized solicitation and/or any form of lottery and/or gambling; (v) contains and/or installs any viruses, worms, malware, Trojan horses and/or other content that is designed or intended to disrupt, damage and/or limit the functioning of any software, hardware, and/or telecommunications equipment and/or to damage and/or obtain unauthorized access to any data and/or other information of any third party; (vi) infringes upon any proprietary rights of any party, including patent, trademark, trade secret, copyright, right of publicity and/or other rights; (vii) impersonates any person or entity, including any of our employees or representatives; and/or (viii) violates the privacy of any third party.
16.4. Support Terms
MarketFully provides no guarantee about support, uptime, or availability for the Services. For the avoidance of doubt, the support terms available at www.motionpoint.com/company/support-terms or any other MarketFully website with similar information do not apply to the Services.
16.5. Warranty Disclaimer.
THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS; NO WARRANTY, EITHER EXPRESS OR IMPLIED IS GIVEN. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MARKETFULLY EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO:
- IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON‑INFRINGEMENT;
- WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE PRACTICE; AND
- (III) ANY GUARANTEE THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, BE ERROR‑FREE, OR THAT DEFECTS WILL BE CORRECTED.
CUSTOMER ACKNOWLEDGES THAT IT USES THE SERVICES AT CUSTOMER’S OWN RISK AND ASSUMES FULL RESPONSIBILITY FOR ANY LOSS OF DATA, DAMAGE TO HARDWARE, OR OTHER HARM RESULTING FROM SUCH USE. FOR THE AVOIDANCE OF DOUBT, MARKETFULLY PROVIDES NO EXPRESS OR IMPLIED WARRANTY FOR PLATFORM CONTENT.
