This Master Agreement (this “Agreement”) is entered into by and between MotionPoint Corporation, a Florida corporation d/b/a GetGlobby, MarketFully, and Key Content (collectively, “MarketFully”) and the legal entity identified on an Order (“Customer”).

The Agreement is comprised of four documents:

The General Terms;
Each Order;
The Support Terms, provided that the Support Terms shall only apply once a Customer executes an Order that both references this Agreement and is for the End-to-End Adaptive Platform Services.
Appendix A (End-to-End Adaptive Platform Services), Appendix B (KC Content Marketing Services) and Appendix C (Adaptive Creation for Marketing), provided that an appendix shall only apply once a Customer executes an Order that both references this Agreement and is for the Services addressed by that appendix.

In the event of any conflict among the provisions of those documents, the order of precedence for interpretation and enforcement shall be as follows, with the first-listed document controlling to the extent of any conflict: (1) the applicable Order; (2) the Support Terms; (3) the applicable appendix; and (4) the General Terms.

MarketFully and Customer are sometimes referred to jointly as “parties” or each, a “party.” Other terms may be defined in any of the documents comprising this Agreement and such defined term will apply throughout the Agreement.

GENERAL TERMS

By executing an Order that references this Agreement, any individual accepting this Agreement on behalf of Customer claims the authority to bind Customer and its affiliates to the terms of this Agreement.

Unless otherwise stated, a section or subsection cited in these General Terms is a reference to the applicable portion of the General Terms.

Background: Customer desires to obtain (i) translation of its digital content via MarketFully’s managed technology-as-a-service and/or (ii) content marketing, online marketing services, and/or (iii) other services provided by MarketFully, including the creation and editing of texts and articles on specific topics. MarketFully desires to provide the Services to Customer, each as described in one or more Orders and on the terms and conditions set forth in this Agreement. In consideration of the mutual covenants and promises set forth herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. DEFINITIONS

1.1. “Adapative Creation Customer Content” has the meaning specified in Subsection 4.1 of Appendix C.

1.2. “Adapative Creation Platform Subscription Services” has the meaning specified in Subsection 1.1 of Appendix C.

1.3. “Adapative Creation Platform Content” has the meaning specified in Subsection 1.1 of Appendix C.

1.4. “Adaptive Creation Platform Subscription Services” has the meaning specified in Subsection 1.1 of Appendix C.

1.5. “Adaptive Learning” has the meaning specified in Section 5 of Appendix A.

1.6. “Adapative Translation Platform Services” has the meaning specified in Subsection 3.1 of Appendix A.

1.7. “Adapative Translation Platform Subscription Services” has the meaning specified in Subsection 1.1 of Appendix A.

1.8. “Affiliated Entities” has the meaning specified in Section 13.

1.9. “Authorized Users” means Customer’s employees, independent contractors, and/or permitted vendors who can access the Technology via the Platform on behalf of Customer.

1.10. “Beta Services” has the meaning specified in Section 8.

1.11. “Claim” has the meaning specified in Subsection 9.1.

1.12. “Confidential Information” means the confidential or proprietary business, technical, supplier, or financial information relating to a party’s business, whether oral or written.

1.13. “Customer Content” means End-to-End Customer Content and/or Adaptive Creation Customer Content.

1.14. “Customer Indemnified Group” has the meaning specified in Subsection 9.1.

1.15. “Customer Marks” means Customer’s trademarks and/or logo.

1.16. “Customer Origin Properties” means Customer owned or controlled websites or other digital properties that will receive Adaptive Translation Platform Services pursuant to an Order

1.17. “Data Controller” has the meaning specified in the Processing Schedule.

1.18. “Data Protection Laws” has the meaning specified in the Processing Schedule.

1.19. “Deliverables” means the specific KC Content Marketing Services that MarketFully is required to provide under an Order.

1.20. “Deployed Digital Properties” has the meaning specified in Subsection 1.1 of Appendix A.

1.21. “Disclosing Party” has the meaning specified in Subsection 5.1.

1.22. “External Quality Issues” has the meaning specified in Subsection 2.1.

1.23. “End-to-End Adaptive Platform Services” has the meaning specified in the introductory paragraph of Appendix A.

1.24. “End-to-End Customer Content” has the meaning specified in Subsection 4.1 of Appendix A.

1.25. “End-to-End Subscription Services” means the Adaptive Translation Platform Subscription Services and Transcreation Platform Subscription Services.

1.26. “Fees” has the meaning specified in Subsection 3.1

1.27. “KC Content Marketing Services Warranty” has the meaning specified in Subsection 7.1.

1.28. “Initial Configuration” or “IC” has the meaning specified in Subsection 3.1 of Appendix A.

1.29. “MarketFully Indemnified Group” has the meaning specified in Subsection 9.2

1.30. “MarketFully IP” has the meaning specified in Subsection 6.2.

1.31. “Order” means a form that, once executed, sets forth the Services that Customer agrees to obtain from MarketFully.

1.32. “Personal Information” has the meaning given to that term under applicable Data Protection Laws.

1.33. “Platform” means MarketFully’s hosted infrastructure, software, and platforms through which it offers the Technology.

1.34. “Processing Schedule” means the data processing schedule available at https://www.motionpoint.com/company/data-processing-schedule, or such other website that MarketFully designates from time to time.

1.35. “Professional” means the individual(s) and third-party collaborator(s)—who must be employees, contractors, or independent service providers—that MarketFully designates for producing the Deliverables.

1.36. “Professional Services” means the Transcreation Platform Professional Services, Adapative Creation Platform Professional Services, and/or Adaptive Translation Platform Professional Services.

1.37. “Professional Services Warranty” has the meaning specified in Subsection 7.2.

1.38. “Receiving Party” has the meaning specified in Subsection 5.1.

1.39. “Services” means the KC Content Marketing Services, Adaptive Creation Platform Services, and End-to-End Adaptive Platform Services.

1.40. “Subscription Services” means the Adapative Translation Platform Subscription Services, Transcreation Platform Subscription Services, and/or Adapative Creation Platform Subscription Services.

1.41. “Support Terms” are the terms set forth at www.motionpoint.com/company/support-terms, or such other website that MarketFully designates from time to time.

1.42. “Technology” means the MarketFully-managed applications, programs, software, technology, and tools, including proprietary translation word segment parsing technologies and other technologies, including, without limitation, Adaptive Translation™ technologies.

1.43. “Term” has the meaning specified in Subsection 4.1.

1.44. “Transcreation Platform Content” has the meaning specified in Section 1.1 of Appendix A.

1.45. “Transcreation Platform Professional Services” has the meaning specified in Section 3.2 of Appendix A.

1.46. “Transcreation Platform Services” has the meaning specified in Section 3.2 of Appendix A.

1.47. “Transcreation Platform Subscription Services” has the meaning specified in Section 1.1 of Appendix A.

1.48. “Updates” mean standard updates, enhancements, security and infrastructure patches and improvements generally made available by MarketFully on a commercial basis to the Technology and Platform. Updates do not include 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. In addition, Updates do not include Professional Services fees that may be required for implementation.

2. CUSTOMER RESPONSIBILITIES

2.1. Cooperation.

Customer shall provide all cooperation and assistance as MotionPoint may reasonably request to enable MarketFully to perform its obligations under, and in connection with, this Agreement. For a Customer who executed an Order for End-to-End Adaptive Platform Services, such cooperations includes providing MarketFully with such access to Customer Origin Properties as is necessary for MarketFully to perform the End-to-End Adaptive Platform Services in accordance with this Agreement. Customer shall designate an individual to work with MarketFully’s relationship manager(s) to manage the parties’ relationship pursuant to this Agreement. Without limiting the foregoing, Customer acknowledges and agrees that, after executing an Order for End-to-End Adaptive Platform Services, collaboration between MarketFully and Customer may be required to identify and address certain technical issues, including, without limitation, issues arising from misalignment and functionality problems resulting from Customer Origin Properties, the type of Customer Content (e.g. JavaScript, etc.), third-party content and/or functionality used by Customer, or other causes external to MarketFully’s operations or control (collectively, “External Quality Issues”).

2.2. Legal Compliance.

Customer shall comply with all applicable governing laws and regulations.

2.3. 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.

2.4. Publicity.

Customer agrees that MarketFully may use Customer’s name and logo as part of its client portfolio on its website, as well as in sales presentations, business events, and meetings. MarketFully will adhere to the logo’s style guide, provided that Customer has provided such a guide. At MarketFully’s sole expense, Customer agrees to participate in a press release and/or customer case study in a format mutually agreeable by Customer and MarketFully.

2.5. Non-Solicitation.

During the Term and for two years after the Term, Customer shall not induce or attempt to induce (directly or indirectly) any Professional, MarketFully employee, or MarketFully contractor to leave the employ of MarketFully, other than through general solicitations. An inducement or attempted inducement is a material breach of the Agreement entitling MarketFully to immediately terminate this Agreement.

2.6. Restrictions on Access to and Use of Subscription Services.

Customer will not and will not permit any person to: (i) use the Subscription 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 any Subscription Services; (iii) use, sell, lease, or permit use of any portion of the Subscription Services 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 any Subscription Services provided to Customer or made available by MarketFully to third parties; (vi) transmit or make available in connection with any Subscription Services 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 any Subscription Services 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 any Subscription Services 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 will be responsible for (a) all uses of any account that Customer has access to, 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. MarketFully may suspend Customer’s account and access to each Platform and performance of the Services at any time and without notice if MarketFully believes that Customer is in violation of this Agreement. 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 (or alleged to be) in violation of the foregoing.

3. FEES & PAYMENT

3.1. Fees.

Customer will pay MarketFully the then-applicable fees described in an Order (“Fees”) in accordance with the terms set forth in this Agreement. In no event will termination of this Agreement, termination of any Order, or takedown of Customer Origin Properties relieve Customer’s obligation to pay any Fees owed to MarketFully.

3.2. Travel Expenses.

Though travel is not typically necessary for MarketFully to perform its Services, if travel is requested and approved by Customer, then in addition to the Fees, if applicable, Customer shall reimburse MarketFully for reasonable, documented, out-of-pocket expenses incurred by MarketFully in connection with such travel.

3.3. Payment Terms.

Full payment of undisputed amounts shall be due and payable, without reduction for any offset, withholding or other claim, within thirty (30) days after the date on the invoice (unless otherwise specified on the applicable Order). All Fees are listed in the currency specified in the Order and are payable accordingly. If Customer requires that MarketFully use a specific payment portal to receive payments, then notwithstanding any term or condition contained in an agreement relating to such payment portal, Customer shall pay for MarketFully’s costs incurred, if any, to gain access to and use such a payment portal. Fees paid or payable are non-refundable, and MarketFully will not refund any prepaid Fees to Customer in connection with any termination or expiration of this Agreement, except for termination of the Agreement for MarketFully’s breach pursuant to Section 4 (Term and Termination).

3.4. Invoice Disputes.

If Customer believes that MarketFully has billed Customer incorrectly, Customer must dispute only those portions of the applicable invoice by contacting ar-invoicing@motionpoint.com no later than thirty (30) days after the closing date on the first billing statement in which the believed error or problem appeared; otherwise, the invoice shall be deemed undisputed.

3.5. Late Payments; Remedies.

Unpaid amounts may be subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. In addition to any other remedies available, including termination as provided in Section 4.2(i) (Termination), in the event Customer does not cure non-payment of an undisputed invoice within thirty (30) days after payment becomes past due, MarketFully may suspend Services until such time as payment is made.

3.6. Taxes.

Customer shall pay, and shall be liable for, all taxes relating to MarketFully’s provision of the Services hereunder; provided however, that MarketFully shall pay, and shall be liable for, taxes based on its net income or capital. Customer shall indemnify and hold MarketFully harmless in the event any taxing authority seeks to collect any tax, required to be paid by Customer pursuant to this Subsection 3.6 (Taxes), from MarketFully.

4. TERM AND TERMINATION

4.1. Term.

This Agreement begins on the Effective Date and continues through the expiration of the last active Order, unless terminated earlier as set forth below (the “Term”).

4.2. Termination.

Either party may terminate this Agreement upon written notice: (i) if the other party fails to pay any amount within thirty (30) days after it has become past due; (ii) if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days or as agreed upon by both parties after receipt of written notice of such breach from the non-breaching party; (iii) upon (w) the filing of a voluntary or involuntary petition for bankruptcy by a party or by a creditor of a party, (x) the appointment of a receiver with respect to a party’s assets, or (y) an assignment by a party for the benefit of its creditors, or (z) the occurrence of anything analogous to the events described in the foregoing subsections (w) through (y) of this Subsection 4.2 (Termination); or (iv) upon mutual written agreement. For the avoidance of doubt, Customer’s removal of Customer Origin Properties, or the non-usage and/or pausing of the Services (in whole or part) by Customer during the Term, does not constitute a termination of this Agreement or any active Order.

4.3. Effect of Termination; Delivery of Customer Content Upon Termination.

Upon termination of this Agreement, all outstanding Orders shall terminate. Upon Customer’s written request, and provided that Customer is not in breach of this Agreement or any Order, after termination of an Order for Adaptive Translation Platform Services, MarketFully will deliver to Customer a .tmx file containing Customer’s owned output of processed Customer Content by the Adaptive Translation Platform Services. In the event of termination under Section 2.5 (Non-Solicitation), Customer shall pay MarketFully all outstanding Fees for Services provided up to the termination date, including any Fees for KC Content Marketing Services regardless of whether Customer accepted the Deliverables by the termination date.

4.4. Survival.

The following provisions shall survive any termination or expiration of this Agreement: General Terms Section 3 (Fees & Payment), Subsection 4.3 (Effect of Termination; Delivery of Customer Content Upon Termination), Subsection 4.4 (Survival), Section 5 (Confidentiality), Section 6 (Intellectual Property); Section 9 (Indemnification), Section 10 (Disclaimer of Damages), Section 11 (Limitation of Liability), Section 12 (Governing Law and Dispute Resolution); Subsection 16.3 (Invalidation), Subsection 16.8 (Headings), and any provisions in an Order that control over the terms in the aforementioned clauses. Additionally, the first two sentences of Subsection 2.4 (Publicity) shall survive any termination or expiration of this Agreement while Subsection 2.5 (Non-Solicitation) shall survive for two years after expiration or termination of this Agreement. 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 9 (Indemnification).

5. CONFIDENTIALITY

5.1. Confidential Information.

Each party receiving information (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has and may hereafter directly or indirectly expose the Receiving Party to Confidential Information. Confidential Information of MarketFully includes, without limitation, non-public information regarding features, functionality, design, architecture, and performance of each Platform and the Technology, all MarketFully IP, information concerning its suppliers, and the terms and conditions (including pricing) of this Agreement. Confidential Information of Customer includes, without limitation, Customer Content, and non-public Personal Information provided by Customer (or an end-user of Customer, as applicable) to MarketFully to enable MarketFully to provide Services to Customer.

5.2. Exceptions.

Notwithstanding anything to the contrary contained herein, Confidential Information shall not include any information that the Receiving Party can document (i) is or becomes generally available to the public, (ii) was in its possession or known by it prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party.

5.3. Non-use and Non-disclosure.

With respect to Confidential Information of the Disclosing Party, the Receiving Party agrees to: (i) hold Disclosing Party’s Confidential Information in strict confidence, using the same degree of care to protect the confidentiality, and prevent the unauthorized use or disclosure of such Confidential Information it uses to protect its own proprietary and confidential 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 its 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.

5.4. Compelled Disclosure.

Notwithstanding Subsection 5.3 (Non-use and Non-disclosure), the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent necessary to comply with a court order or applicable law; provided, however that the Receiving Party delivers reasonable advance notice of such disclosure to the Disclosing Party and uses reasonable efforts to secure confidential treatment of such Confidential Information, in whole or in part.

5.5. Remedies for Breach of Obligation of Confidentiality.

The Receiving Party acknowledges that breach of its obligation of confidentiality may cause irreparable harm to the Disclosing Party for which the Disclosing Party may not be fully or adequately compensated by recovery of monetary damages. Accordingly, in the event of any violation, or threatened violation, by the Receiving Party of its obligations under Section 5 (Confidentiality), the Disclosing Party 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.

5.6. Return or Destruction of Confidential Information.

Upon termination of the Term, upon Disclosing Party’s written request, the Receiving Party will, at its option, either return to the Disclosing Party or certify destruction of, any and all copies of the Disclosing Party’s Confidential Information in the possession of the Receiving Party, its employees or agents.

6. INTELLECTUAL PROPERTY

6.1. 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 6.2 (MarketFully Ownership); (iii) Personal Information of Customer and its end users arising from the Services; and (iv) Customer’s trademarks, service marks, trade names, and logos.

6.2. 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 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 KC Content Marketing Services, 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) its trademarks, service marks, trade names, and logos.

7. WARRANTIES

7.1. KC Content Marketing Services Warranty and Remedies.

MarketFully warrants that the KC Content Marketing Services will be performed or furnished in a good and workmanlike manner and in accordance with standards of care, skill and diligence consistent with recognized applicable industry practices and procedures. Additionally, MarketFully warrants that it will use commercially reasonable practices to ensure that the KC Content Marketing Services will be free from plagiarism. The warranties in this Subsection 7.1 (KC Content Marketing Services Warranty and Remedies) will be referred to as the “KC Content Marketing Services Warranty.” MarketFully’s entire liability and Customer’s sole remedy for breach of the KC Content Marketing Services Warranty, as reported in writing by Customer and verified by MarketFully, will be, at MarketFully’s option: (i) the re-performance of the KC Content Marketing Services that did not meet the KC Content Marketing Services Warranty, free of charge; or (ii) a refund to Customer of a sum equal to the Fees paid for the KC Content Marketing Services that did not meet the KC Content Marketing Services Warranty.

7.2. Professional Services Warranty and Remedies.

MarketFully warrants that: (i) Professional Services will be performed or furnished in a good and workmanlike manner and in accordance with standards of care, skill and diligence consistent with recognized applicable industry practices and procedures; and (ii) if applicable, language translations resulting from Professional Services, if any, will be consistent in all material respects with the mutually agreed upon glossary setting forth Customer’s word-choice preferences for applicable Professional Services (the “Glossary”). For the avoidance of doubt, MarketFully is not warrantying that the translated content’s substance is true. The warranties in this Subsection 7.2 (Professional Services Warranty and Remedies) will be referred to as the “Professional Services Warranty.” MarketFully’s entire liability and Customer’s sole remedy for breach of the Professional Services Warranty, as reported in writing by Customer and verified by MarketFully, will be, at MarketFully’s option: (a) the re-performance of the Professional Services that did not meet the Professional Services Warranty, free of charge; or (b) a refund to Customer of a sum equal to the fees paid for the Professional Services that did not meet the Professional Services Warranty.

7.3. Subscription Services Warranty and Remedies.

MarketFully warrants that during the Term, the Subscription Services will substantially perform in accordance with and as specified in this Subsection 7.3 (Subscription Services Warranty and Remedies), the applicable Order, and the applicable portions of the Support Terms (if any) when used as intended. The warranty described in this subsection shall be referred to as the “Subscription Services Warranty.” MarketFully’s entire liability and Customer’s sole remedy for a breach of the Subscription Services Warranty, as reported in writing by Customer and shown by reproducible, substantive error(s) or unavailability in the Subscription Services, shall be, as applicable, that: (i) MarketFully uses commercially reasonable, good faith efforts to correct any such error(s), or (ii) MarketFully provides Customer with credits for such portion of time as the Subscription Services were unavailable, as described in the Support Terms. MarketFully does not represent that the Subscription Services will meet Customer’s unique business requirements or that the Subscription Services will operate uninterrupted or error free. MarketFully makes no representations or warranties regarding any third-party applications, software or services, or the legality of Customer’s Origin Properties or Deployed Digital Properties.

7.4. Warranty Disclaimer and Limitations.

MarketFully’s warranty obligations under Section 7 (Warranties) are contingent on Customer’s payment of all Fees due and owing to MarketFully under this Agreement. THE EXPRESS WARRANTIES SET FORTH IN SECTION 7 (WARRANTIES) ARE THE ONLY WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE KC CONTENT MARKETING SERVICES, PROFESSIONAL SERVICES, OR SUBSCRIPTION SERVICES. SPECIFICALLY THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FOR THE AVOIDANCE OF DOUBT, MARKETFULLY DOES NOT WARRANT OR GUARANTEE THAT: (I) THE ADAPTIVE TRANSLATION PLATFORM SERVICES WILL DETECT OR MITIGATE ALL POSSIBLE ATTACKS, BOT REQUESTS, OR OTHER THREATS; OR (II) THE ADAPTIVE TRANSLATION PLATFORM SERVICES WILL CORRECTLY CATEGORIZE AS BOTS ALL DETECTED REQUESTS. MARKETFULLY RECOMMENDS ALL CUSTOMERS MAINTAIN APPROPRIATE SECURITY CONTROLS AT THEIR ORIGIN SERVERS AND DATA CENTER. Notwithstanding anything stated in this Agreement, in the event the limited remedy set forth in Section 7 (Warranties) is deemed by a court of competent jurisdiction to fail of its essential purpose, the limitation of liability provision in Section 11 (Limitation of Liability) and the disclaimer of damages provision set forth in Section 10 (Disclaimer of Damages), together with any other provisions of similar import included in this Agreement, will survive and will not be affected thereby.

8. 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.

9. INDEMNIFICATION

9.1. Indemnification By MarketFully.

MarketFully, at its own expense, will defend Customer and its officers, directors, employees, agents, representatives, shareholders, attorneys and affiliates (collectively, the “Customer Indemnified Group”) against any third-party claim, suit, action, demand, or proceeding brought against member(s) of the Customer Indemnified Group that alleges that the Technology, Platform, or KC Content Marketing Services infringe any third party’s United States patent, trademark, or copyright (a “Claim”) and will indemnify Customer against all damages finally and actually paid as part of a final judgment or settlement thereof. Should MarketFully’s Technology, Platform, or KC Content Marketing Services become, or in MarketFully’s opinion be likely to become, the subject of a Claim, MarketFully may, at MarketFully’s sole election: (i) obtain for Customer the right to continue accessing and using the Services pursuant to the terms and conditions of this Agreement and the applicable Order; (ii) replace or modify the Technology, Platform, and KC Content Marketing Services so that they become non-infringing but functionally equivalent; or (iii) terminate the Agreement or the affected Orders (as determined by MarketFully in its sole discretion) and return to Customer an amount equal to the amount paid by Customer to MarketFully in the previous three (3) months for, as applicable based on the nature of the actual or likely Claim, the KC Content Marketing Services or Subscription Service based on the Technology or aspects of the Platform subject to the actual or likely Claim. The indemnification obligation of this Subsection 9.1 (Indemnification by MarketFully) will not apply to any Claim arising out of the use of Subscription Services in a manner not intended by this Agreement and the applicable Order. MarketFully’s obligations set forth in this Subsection 9.1 (Indemnification by MarketFully) are subject to the following conditions: (a) Customer must promptly notify MarketFully in writing of any Claim; (b) Customer must provide MarketFully with sole control over the defense and settlement of such Claim (although Customer may participate in such suit or proceeding at its own cost and expense), and (c) Customer must provide MarketFully reasonable information and assistance in the defense and/or settlement of such Claim. This Subsection 9.1 (Indemnification by MarketFully) sets forth the parties’ entire agreement regarding MarketFully’s infringement of third-party intellectual property rights and provides Customer’s sole and exclusive remedy in the event a third party asserts any Claim. Notwithstanding the foregoing, Motion’s does not have any indemnification obligation for the (y) KC Content Marketing Services unless Customer executed an Order for KC Content Marketing Services or (z) the Technology or Platform unless Customer executed an Order for End-to-End Adaptive Platform Services.

9.2. Indemnification By Customer.

Customer, at its own expense, 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 Origin Properties, but only if Customer has executed an order for End-to-End Adaptive Platform Services; (iii) Customer’s breach of this Agreement; or (iv) any other misuse or misappropriation of the Services by Customer.

10. DISCLAIMER OF DAMAGES

NOTWITHSTANDING ANYTHING STATED IN THIS AGREEMENT TO THE CONTRARY, 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 SECTION 10 (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.

11. LIMITATION OF LIABILITY

11.1. Amounts.

NOTWITHSTANDING ANYTHING STATED IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT WILL EITHER PARTY’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 THE AMOUNTS ACTUALLY PAID BY CUSTOMER (OR ITS AFFILIATED ENTITY, IF APPLICABLE) TO MARKETFULLY FOR THE SERVICES GIVING RISE TO THE CLAIM PURSUANT TO THE APPLICABLE ORDER DURING THE SIX (6) MONTH PERIOD PRIOR TO THE FIRST EVENT GIVING RISE TO A CLAIM (SUCH AMOUNT BEING INTENDED AS A CUMULATIVE CAP AND NOT PER INCIDENT). 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 SECTION 11 (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. THIS PROVISION WILL SURVIVE THE TERMINATION OF THIS AGREEMENT FOR ANY REASON AND REGARDLESS OF WHICH PARTY TERMINATES THIS AGREEMENT. FOR THE AVOIDANCE OF DOUBT, “CLAIM” IN THIS SUBSECTION 11.1 (AMOUNTS) IS NOT THE DEFINED TERM SPECIFIED IN SUBSECTION 9.1 (INDEMNIFICATION BY MARKETFULLY).

11.2. Exclusion from Limits.

The exclusions and limitations in Section 10 (Disclaimer of Damages) and Section 11 (Limitation of Liability) do not apply to either party’s indemnification obligations, a breach by either party of its confidentiality obligations, or either party’s willful misconduct or criminal acts. Notwithstanding anything to the contrary, except in the case of willful misconduct or criminal acts, in no event will a party’s indemnification obligations or liability arising from a violation of Section 6 (Personal Information) of Appendix A exceed amounts actually covered by that party’s insurance.

12. 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 12 (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 12 (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 5.4 (Compelled Disclosure)).

13. AFFILIATED ENTITIES

Subsidiaries and/or affiliates of Customer (collectively, “Affiliated Entities”) may also enter into Orders pursuant to this Agreement, and, by doing so, will be subject to and bound by all provisions of this Agreement applicable to Customer as if references in this Agreement to Customer were to the relevant Affiliated Entity. Customer will procure that, where an Affiliated Entity enters into an Order, such Affiliated Entity will comply with its terms and conditions. The liability of Customer and each Affiliated Entity in relation to each Order shall be joint and several.

14. NOTICES

All notices, consents, and other communications between the parties under or regarding this Agreement must be in writing (e-mail acceptable) and be addressed according to information set forth in an Order (and if to MarketFully, with a copy sent to legal@motionpoint.com). All communications will be deemed to have been received on the date actually received. Either party may change its address for notices by giving written notice of the new address to the other party in accordance with this Section 14 (Notices).

15. 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, External Quality Issues, 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 or any Authorized User.

16. GENERAL PROVISIONS

16.1. Reservation of Rights.

With respect to the Services, all rights, interests, and title not granted in this Agreement to Customer are reserved to MarketFully.

16.2. Assignment.

Neither party may assign this Agreement to any third party without the prior written consent of the other; provided that no consent is required in connection with an assignment to an affiliate or in connection with any merger, reorganization, consolidation, sale of assets or similar transaction.

16.3. 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.

16.4. 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.

16.5. Waiver/Modification.

All waivers and modifications must be in a writing signed by both parties, except that MarketFully reserves the right to modify this Agreement, at any time, in its sole discretion, by providing written notice to Customer via e-mail or through the MarketFully Platform.

16.6. 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.

Purchase Orders. For the avoidance of doubt, it is expressly understood and agreed that any terms or conditions contained in a purchase order that are contradictory to this Agreement shall be null, void, and of no force and effect (even if signed by both parties).

The heading references herein are for convenience purposes only and shall not be deemed to limit or affect any of the provisions hereof.

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.

Appendix A – End-to-End Adaptive Platform Services

This Appendix A provides additional terms that apply when Customer executes an Order for any means the Transcreation Platform Services and/or Adaptive Translation Platform Services (the “End-to-End Adaptive Platform Services”). The terms in this Appendix A apply only to the End-to-End Adaptive Platform Services that are the subject of an Order. Unless otherwise stated, any section or subsection cited in this Appendix is a reference to the applicable portion of this Appendix A.

1. PLATFORM SUBSCRIPTION SERVICES

1.1. Description.

MarketFully offers certain Technology through its Platform, as further described in each Order. “Adaptive Translation Platform Subscription Services” allow for Customer’s benefit of the Platform so that when changes and additions to Customer Content are made by Customer, such changes and additions are translated, localized, and/or optimized, (as applicable), and, if proxy Technology is enabled, (as specified in an Order) displayed on alternate, language-specific, deployed digital properties (“Deployed Digital Properties”). “Transcreation Platform Subscription Services” allow for Customer’s benefit of the Platform to (1) obtain localization and/or transcreation of files, documents, or other information through an artificial-intelligence-powered tool, the outputs of which are “Transcreation Platform Content”; and (2) request the human review of Transcreation Platform Content.

1.2. Access.

During the term of the applicable Order, Customer may access and use the Platform solely to receive the End-to-End Subscription Services set forth in the applicable Order for Customer’s internal business purposes on the terms and conditions of this Agreement.

1.3. Authorized Users.

Customer may allow Authorized Users to access certain portions of the Technology via the Platform. End-to-End Subscription Services are for designated Authorized Users and cannot be accessed, shared, or used by more than one Authorized User, but may be reassigned to new Authorized Users in replacement of former Authorized Users who no longer are authorized and/or require ongoing use of the applicable Platform.

1.4. Changes to Platform; Updates.

MarketFully may, in its sole discretion, make any changes to the Platform that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of MarketFully’s products or services to its customers, (b) the competitive strength of, or market for, MarketFully’s products or services, (c) such Platform’s cost efficiency or performance, or (ii) to comply with applicable law; provided however, that MarketFully will not make changes that materially diminish the applicable standards described in the Support Terms.. End-to-End Subscription Services include Updates, as may be made available by MarketFully from time to time. MarketFully may modify or terminate any service if the modification or termination is generally applicable to all customers.

1.5. Web Traffic.

This Subsection 1.5 (Web Traffic) only applies to Adaptive Translation Platform Services. MarketFully may use a third-party service to measure the analytics of the Deployed Digital Properties. Customer agrees to assign the traffic for Deployed Digital Properties to MarketFully. Customer’s website traffic may be included under MarketFully, Customer’s website may not receive credit for traffic in the respective reports, and Customer must not assign Customer’s website traffic to any other party.

2. FEES

Unless otherwise mutually agreed upon by the parties in writing, MarketFully may increase the Fees by up to the Consumer Price Index (as calculated by the U.S. Bureau of Labor Statistics) for the prior calendar year plus 2% annually. Notwithstanding the foregoing, any material increases by Customer to the size, complexity, scope, or call capacity of Customer’s Origin Properties before the start of a Renewal Term will result in MarketFully and Customer engaging in good faith discussions to increase Fees for any Adaptive Translation Platform Services (e.g. if Customer adds new urls into scope, and/or Customer’s website content turns over more frequently than Customer anticipated, additional fees may apply).

3. PROFESSIONAL SERVICES

3.1. Adaptive Translation Platform Professional Services.

An Order for Adaptive Translation Platform Services shall specify and further describe the professional services to be provided pursuant to this Agreement, including, without limitation, those professional services that are performed when Adaptive Translation™ technologies are enabled (the “Adaptive Translation Platform Professional Services,” and together with Adaptive Translation Platform Subscription Services, collectively, the “Adaptive Translation Platform Services”) which may include: (a) the initial setup, configuration and deployment of applicable portions of the Technology and/or Platform to establish the Deployed Digital Properties (an “Initial Configuration” or “IC”), and (b) if applicable, all other translation, customization, support, quality assurance, engineering, design, and other services, each as set forth in an Order.

3.2. Transcreation Platform Professional Services.

MarketFully may provide professional services—in the form of human review of Transcreation Platform Content—pursuant to the terms of this Agreement. Such professional services are deemed part of an Order, and MarketFully will perform those services for Customer for the applicable Fees, upon Customer’s request and approval of a quote for those professional services. Such professional services are “Transcreation Platform Professional Services” and, collectively with the Transcreation Platform Subscription Services, the “Transcreation Platform Services.”

4. CUSTOMER RESPONSIBILITIES

4.1. End-to-End Customer Content.

Customer hereby grants to MarketFully a non-exclusive, transferable, sublicensable, worldwide, and royalty-free license to use: (i) all Transcreation Platform Content, all content Customer provides to MarketFully (directly or indirectly, including content entered into the Platform) for Transcreation Platform Services, and all content from Customer’s (or if Customer is an agency, its client’s) Customer Origin Properties identified by Customer in an Order as in-scope (collectively, the “End-to-End Customer Content”) solely for the limited purpose of operating, performing, and optimizing the End-to-End Adaptive Platform Services provided to Customer; and (ii) Customer Marks, in a manner acceptable to Customer, solely for the purpose of fulfilling MarketFully’s obligations contained within this Agreement and each Order (e.g. to display Customer’s branding on its translated Deployed Digital Properties) 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 End-to-End Customer Content and Customer Marks (and the use thereof by MarketFully in accordance with the terms of this Agreement and each Order) 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 End-to-End 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 End-to-End Customer Content, including, without limitation, any such language relating to consumers’ health, safety, or well-being. For the avoidance of doubt, Customer acknowledges that: (x) language differs from dialect to dialect and region to region; (y) MarketFully does not provide, and the End-to-End Adaptive Platform Services do not constitute legal, compliance, or other professional advice; and (z) from time to time, End-to-End Customer Content created within JavaScript or other computer programming language may not be automatically captured by MarketFully, and Adaptive Translation Platform Services relating to such content may be delayed or not provided until such time that Customer manually identifies it for MarketFully.

4.2. 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 Platform, including modems, hardware, servers, software, operating systems, networking, web servers, and the like. In addition, as between MarketFully and Customer, Customer shall be responsible for obtaining and maintaining the functionality, legality and security (including, the application of all security settings) to all Customer Origin Properties.

5. PROPRIETARY RIGHTS

In the course of providing the Adaptive Translation Platform Services to Customer during the Term, MarketFully and its Adaptive Translation Platform Services will develop, create, and accrue algorithmic, memory, and machine learning based on the Adaptive Translation™ technologies and its interactions with End-to-End Customer Content, which will be extracted from the Adaptive Translation Platform Services in an anonymized basis and incorporated into the Adaptive Translation Platform Services (“Adaptive Learning”), provided that only generic Adaptive Learning, which does not identify Customer or any Customer Confidential Information, may be incorporated into the Adaptive Translation Platform Services. Customer acknowledges and agrees that it has no right, license, or authorization with respect to any of the Adaptive Learning (including any intellectual property rights therein) except as expressly set forth in this Agreement. Adaptive Learning is not End-to-End Customer Content.

6. PERSONAL INFORMATION

6.1. Prohibition.

Customer will not enter, provide, or otherwise process Personal Information through the End-to-End Adaptive Platform Services. If Customer enters, provides, or otherwise processes such information through the End-to-End Adaptive Platform 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 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.

6.2. Context.

This Subsection 6.3 (Context) only applies to Adaptive Translation Platform Services. By way of explaining MarketFully’s handling of Personal Information pursuant to its Adaptive Translation Platform Services: MarketFully may receive Personal Information from Customer’s end users only in those instances where MarketFully’s Technology functions as a proxy (i.e. an intermediary between Customer’s end users engaging on the Deployed Digital Properties at the web browser level and Customer’s Origin Properties). The method by which Personal Information is transmitted via MarketFully’s proxy Technology is wholly dependent on the architecture, functionality and security features of Customer’s Origin Properties (e.g. if Customer’s Origin Properties transmit Personal Information securely via HTTPS, then MarketFully’s proxy Technology will also transmit Personal Information securely via HTTPS). Additionally, MarketFully does not store Customer’s end-users’ Personal Information (i.e. Personal Information entered via a Deployed Digital Property passes through MarketFully’s Technology, but that data ultimately resides on Customer’s owned or controlled servers). As the Data Controller, Customer determines the methods used to collect Personal Information from its end users, how and where to store that information, and how to use it to service its end users. In Customer’s discretion (it being acknowledged by Customer that Customer controls the ability to limit MarketFully’s access to Personal Information, MarketFully may transmit data (including Personal Information) on Customer’s behalf to Customer’s end users using industry-recommended communication methods that rely on secure encryption protocols, including use of Transport Layer Security protocols and Advanced Encryption Standard ciphers as supported and implemented by Customer.

6.3. Obligations.

This Subsection 6.4 (Obligations) only applies to Adaptive Translation Platform Services. Where MarketFully or the Customer perform any actions in relation to Personal Information under this Agreement, each of MarketFully and the Customer shall comply with (i) their respective obligations (including, without limitation, in respect of security) under applicable Data Protection Laws; and (ii) the Processing Schedule; provided that: (y) Customer shall be responsible for identifying content transmitted via MarketFully’s proxy Technology that may contain Personal Information and use MarketFully’s controls (e.g. directive tags) to protect such Personal Information, and (z) MarketFully shall be responsible for maintaining the confidentiality and security of Personal Information solely during such time that the Personal Information travels through servers operated by MarketFully or its authorized data center(s), it being understood and acknowledged that Customer controls the security of Personal Information at all other times through its configuration of Customer Origin Properties. In addition, Customer acknowledges that MarketFully does not translate or process cardholder data, and it is Customer’s responsibility to ensure that such data is not sent to MarketFully for processing for the purpose of translation.

7. TRANSCREATION TERMS

7.1. Acknowledgement.

Customer acknowledges that the Transcreation Platform Subscription Services uses a third-party artificial intelligence technology and may use other artificial intelligence or machine learning technology from time to time, and Transcreation Platform Content may not be unique to Customer due to the nature of the Technology.

7.2. Agreement.

For Transcreation Platform Services, Customer agrees that, notwithstanding anything else in this Agreement, MarketFully: (i) bears no liability or responsibility for Transcreation Platform Content; (ii) does not guarantee the accuracy or suitability for any specific use of Transcreation Platform Content; (iii) to the maximum extent permitted by applicable law, assumes no liability or responsibility for any errors, mistakes, or inaccuracies of Transcreation Platform Content; and (iv) has no responsibility or liability for any scheduled or unscheduled downtime or unavailability of the Transcreation Platform Subscription Services.

7.3. Prohibited Content.

Customers agrees that it will not provide to, store in, or process through the Transcreation Platform 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.

7.4. Warranty Disclaimer.

NOTWITHSTANDING ANYTHING TO THE CONTRARY ELSEWHERE IN THE AGREEEMENT, FOR TRANSCREATION PLATFORM CONTENT, MARKETFULLY PROVIDES NO EXPRESS OR IMPLIED WARRANTY.

Appendix B – KC Content Marketing Services

This Appendix B provides additional terms that apply when Customer executes an Order Form for KC Content Marketing Services. The terms in this Appendix B apply only to the KC Content Marketing Services that are the subject of an Order. Unless otherwise stated, any section or subsection cited in this Appendix is a reference to the applicable portion of this Appendix B.

1. PROFESSIONALS

1.1. Performance Monitoring.

MarketFully is responsible for ensuring that the Professionals perform their duties in accordance with the requirements specified in an applicable Order and the other terms of this Agreement. Additionally, the Professionals shall comply with the Customer’s reasonable instructions throughout the Term.

1.2. Removal.

Customer has the right to request the immediate removal of any Professional from the KC Content Marketing Services provided by MarketFully, provided that the Customer submits evidence demonstrating the Professional’s incompetence, lack of technical proficiency, or temperament incompatibility. Additionally, removal may be requested if the Professional’s conduct fails to meet reasonable and generally accepted professional standards.

2. ACCEPTANCE

2.1. Criteria.

Upon a request for a service, both Customer and MarketFully will agree on the acceptance criteria for each project (“Acceptance Criteria”) and the acceptance tests for the Deliverables (“Acceptance Tests”), both of which will be outlined in an Order.

2.2. Quality Assurance.

Within two (2) weeks of the date the last party signed an Order and receipt of the necessary documentation, MarketFully will submit the first portion of the deliverables (the “Partial Deliverables”) to Customer for an Acceptance Test, unless the customer specifies otherwise.

2.3. Customer Review.

The Customer shall review the Partial Deliverables and notify MarketFully within seventy-two (72) hours of whether the Partial Deliverables are accepted, rejected, or require changes. The acceptance of the Partial Deliverables will confirm that the Acceptance Criteria have been met and establish the quality standard for the final deliverables. Once the standard and quality of the Partial Deliverables are accepted, MarketFully will proceed to deliver the remaining Deliverables. If the customer does not provide notification within seventy-two (72) hours of submission by MarketFully, the Partial Deliverables and remaining Deliverables will be automatically considered accepted.

2.4. Rejection.

The Customer must provide detailed reasons for the rejection of the Deliverables. MarketFully will review the rejection based on the reasons provided by the Customer and will accept the rejection only if the desired condition is consistent with the project specifications and Acceptance Criteria.

2.5. Unjustified Rejection.

In the case of unfounded or insufficient reasons for rejection, MarketFully reserves the right to reject the rejection and will be entitled to receive payment for the Deliverables rendered up to that point.

Appendix C –Adaptive Creation Platform Services

This Appendix C provides additional terms that apply when Customer executes an Order for any Adaptive Creation Platform Services. The terms in this Appendix C apply only to the Adaptive Creation Platform Services that are the subject of an Order. Unless otherwise stated, any section or subsection cited in this Appendix is a reference to the applicable portion of this Appendix C.

1. PLATFORM SUBSCRIPTION SERVICES

1.1. Description.

MarketFully offers certain Technology through its Platform, as further described in each Order. “Adaptive Creation Platform Subscription Services” allow for Customer’s benefit of the 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 “Adaptive Creation Platform Content”; and (2) request the human review of Adaptive Creation Platform Content, or other Professional Services.

1.2. Access.

During the term of the applicable Order, Customer may access and use the Platform solely to receive the Adaptive Creation Platform Subscription Services set forth in the applicable Order for Customer’s internal business purposes on the terms and conditions of this Agreement.

1.3. Authorized Users.

Customer may allow Authorized Users to access certain portions of the Technology via the Platform. Adaptive Creation Platform Subscription Services are for designated Authorized Users and cannot be accessed, shared, or used by more than one Authorized User, but may be reassigned to new Authorized Users in replacement of former Authorized Users who no longer are authorized and/or require ongoing use of the applicable Platform.

1.4. Changes to Platform; Updates.

MarketFully may, in its sole discretion, make any changes to the Platform that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of MarketFully’s products or services to its customers, (b) the competitive strength of, or market for, MarketFully’s products or services, (c) such Platform’s cost efficiency or performance, or (ii) to comply with applicable law. Adaptive Creation Platform Subscription Services include Updates, as may be made available by MarketFully from time to time. MarketFully may modify or terminate any service if the modification or termination is generally applicable to all customers.

2. FEES

3. PROFESSIONAL SERVICES

3.1. Adaptive Creation Platform Professional Services.

MarketFully may provide professional services—in the form of activities agreed to by the parties—pursuant to the terms of this Agreement. Such professional services are deemed part of an Order, and MarketFully will perform those services for Customer for the applicable Fees, upon Customer’s request and approval of a quote for those professional services. Such professional services are “Adaptive Creation Platform Professional Services” and, collectively with the Adaptive Creation Platform Subscription Services, the “Adaptive Creation Platform Services.”

4. CUSTOMER RESPONSIBILITIES

4.1. Adaptive Creation Customer Content.

Customer hereby grants to MarketFully a non-exclusive, transferable, sublicensable, worldwide, and royalty-free license to use: (i) all Adaptive Creation Platform Content, all content Customer provides to MarketFully (directly or indirectly, including content entered into the Platform) for Adaptive Creation Platform Services (collectively, the “Adaptive Creation Customer Content”) solely for the limited purpose of operating, performing, and optimizing the Adaptive Creation Platform Services provided to Customer; and (ii) Customer Marks, in a manner acceptable to Customer, solely for the purpose of fulfilling MarketFully’s obligations contained within this Agreement and each Order 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 Adaptive Creation Customer Content and Customer Marks (and the use thereof by MarketFully in accordance with the terms of this Agreement and each Order) 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 Adaptive Creation 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 Adaptive Creation 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 Adaptive Creation Platform Services do not constitute legal, compliance, or other professional advice.

4.2. Customer Systems.

5. PERSONAL INFORMATION

5.1. Prohibition.

Customer will not enter, provide, or otherwise process Personal Information through the Adaptive Creation Platform Services. If Customer enters, provides, or otherwise processes such information through the Adaptive Creation Platform 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 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.

6. MISCELLANEOUS

6.1. Artificial Intelligence Acknowledgement.

Customer acknowledges that the Adaptive Creation Platform Subscription Services uses a third-party artificial intelligence technology and may use other artificial intelligence or machine learning technology from time to time, and Adaptive Creation Platform Content may not be unique to Customer due to the nature of the Technology.

6.2. Agreement.

For Adaptive Creation Platform Services, Customer agrees that, notwithstanding anything else in this Agreement, MarketFully: (i) bears no liability or responsibility for Adaptive Creation Platform Content; (ii) does not guarantee the accuracy or suitability for any specific use of Adaptive Creation Platform Content; (iii) to the maximum extent permitted by applicable law, assumes no liability or responsibility for any errors, mistakes, or inaccuracies of Adaptive Creation Platform Content; and (iv) has no responsibility or liability for any scheduled or unscheduled downtime or unavailability of the Adaptive Creation Platform Subscription Services. 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 Adaptive Creation Professional Services.

6.3. Prohibited Content.

Customers agrees that it will not provide to, store in, or process through the Adaptive Creation Platform 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.

6.4. Warranty Disclaimer.

NOTWITHSTANDING ANYTHING TO THE CONTRARY ELSEWHERE IN THE AGREEEMENT, FOR ADAPTIVE CREATION PLATFORM CONTENT, MARKETFULLY PROVIDES NO EXPRESS OR IMPLIED WARRANTY.