These terms and conditions are incorporated into and made a part of the File Translation Agreement entered into by and between MotionPoint Corporation (“MotionPoint”) and Customer (these terms and conditions, together with that Document Translation Agreement, this “Agreement”).  Unless otherwise specifically agreed to in writing between Customer and MotionPoint, this Agreement applies to any text and/or translatable images within Word, Excel, PDF, Wav or other mutually agreed upon documents and files (collectively, “Files”) submitted by Customer to MotionPoint for translation from one language to another, whether delivered by email, via MotionPoint’s “MotionPortal” technology and interface, in person or otherwise.  For good and valuable consideration, MotionPoint and Customer agree to the following:

1. Delivery of Translated Files.  MotionPoint will deliver translated Files to Customer: (1) in the language(s) mutually agreed upon, in writing, between Customer and MotionPoint; (2) within a timeframe that has been agreed upon, in writing, between Customer and MotionPoint, or, if no such timeframe has been agreed upon, a timeframe determined by MotionPoint; and (3) via a method of delivery mutually agreed upon, in writing, between Customer and MotionPoint, or if no such method of delivery has been agreed upon, via MotionPortal or another method determined by MotionPoint.  MotionPoint may reject and refuse to translate any Files Customer submits at any time, for any reason.

2. Additional Payment Terms. In exchange for receipt of translated Files, Customer will pay to MotionPoint per word, per image and/or per file fees mutually agreed upon, in writing, between Customer and MotionPoint, or if no such fees have been agreed to, Customer will pay MotionPoint pursuant to MotionPoint’s then-standard per word, per image and per file rates.  If file translations are designated as using a “Professional” level of translation, then such translations shall go through one level of review instead of multiple. In certain cases, MotionPoint may require prepayment of a percentage of expected fees.  All fees are exclusive of any sales, use or other applicable taxes, all of which shall be Customer’s responsibility. Unless otherwise agreed upon, in writing, by Customer and MotionPoint, Customer will pay all invoices for translated Files within thirty (30) days of receipt of an invoice.

3. Rights and Licenses. Customer will own translated Files upon payment in full to MotionPoint.  MotionPoint reserves any and all right, title and interest in and to MotionPortal and its services, as well as in and to any inventions, innovations or ideas developed in connection with or related to MotionPortal and its services.  Customer grants to MotionPoint a worldwide, royalty-free, limited license to use any and all Files solely for the purpose of fulfilling MotionPoint’s obligations pursuant to this Agreement. 

4. Customer Responsibilities.  Customer acknowledges that language differs from dialect to dialect and regionalism to regionalism, and MotionPoint only provides translations and not legal or other professional advice. Customer is solely responsible for determining and verifying: (1) the legality, validity and enforceability of any and all language translated by MotionPoint that is legal in nature; (2) that names, numbers, calculations, and units of measurement within translated Files are accurate; and (3) the accuracy, safety and reliability of any language relating to consumers’ health, safety or well-being. Customer acknowledges that MotionPoint does not translate or process cardholder data, and it is Customer’s responsibility to ensure that such data is not be sent to MotionPoint for processing for the purpose of translation.

5. Confidentiality.  Customer will: (1) maintain MotionPoint’s Confidential Information in strict confidence, (2) take all steps necessary or appropriate to protect the confidentiality of Confidential Information, (3) ensure compliance with this Agreement by Customer’s officers, directors, employees, contractors, agents and representatives (collectively, the “Customer Group”), and (4) not modify, reverse engineer, decompile, create other works from, or disassemble any Confidential Information.  For purposes of this Agreement, the term “Confidential Information” means any and all confidential or proprietary information of MotionPoint or its affiliates and subsidiaries, whether oral or written.  Upon MotionPoint’s request, Customer will either return to MotionPoint or certify destruction of, any and all copies of the Confidential Information in Customer’s possession.

6. Indemnification.  Customer, at Customer’s expense, shall indemnify, defend and hold harmless MotionPoint (and its officers, directors, employees, agents, representatives, shareholders, attorneys and affiliates, collectively, the “Indemnified Group”) against any third party claim, suit, action or proceeding brought against member(s) of the Indemnified Group that alleges or is based upon, arises out of or is related to (1) the Customer Group’s breach of any representation, warranty or obligation pursuant to this Agreement or failure to meet its responsibilities pursuant to this Agreement; (2) the Customer Group’s lack of authority to enter into this Agreement; (3) any act of negligence or intentional misconduct by the Customer Group; or (4) any violation of a third party’s copyright, patent, trademark, trade secret, service mark or any other intellectual property right arising from the Files or translated Files.

7. Equitable Remedies.  Customer acknowledges that MotionPoint will be irreparably damaged (and damages at law would be an inadequate remedy) if the ownership and confidentiality provisions of this Agreement are not specifically enforced.  Therefore, in the event of a breach or threatened breach by Customer of such provisions, then MotionPoint will be entitled, in addition to all other rights or remedies, to seek an injunction restraining such breach, without being required to show any actual damage or to post an injunction bond, and/or to a decree for specific performance of the provisions of this Agreement. 

8. Force Majeure.  Each party shall be excused from performance of its obligations for any period and the time of performance shall be extended as reasonably necessary under the circumstances, to the extent that such party is prevented from performing, in whole or in part, its obligations under this Agreement, as a result of acts of God, any governmental authority, war, civil disturbance, court order, labor dispute or any other cause beyond its reasonable control, including hurricanes, inclement weather, and failures or fluctuations in electrical power, heat, light, telecommunication equipment or lines or any other equipment.  Notwithstanding the foregoing, in no event shall a party be excused from its obligations to protect Confidential Information pursuant to this Agreement.

9. Warranties and limitation on liability.  MotionPoint makes no representations or warranties of any kind regarding MotionPortal, translated Files or its services, and specifically disclaims any express or implied warranties, including, without limitation, warranties of fitness for a particular purpose or merchantability.  In no event will MotionPoint be liable for (a) any loss or damage arising as direct, special, incidental, indirect, consequential and/or contingent losses and/or damages whatsoever, including, without limitation, personal or bodily injury, injuries to property or loss of use of any product or any associated equipment, whether or not such party has been advised of the possibility of such a loss and/or damage; and/or (b) any loss or damage arising from or in connection with any loss of revenues, profits, contracts or business or failure to realize anticipated savings or any loss of goodwill or reputation (regardless of whether such losses and/or damages are characterized as direct, special, incidental, indirect, consequential and/or contingent losses and/or damages).  Notwithstanding anything in this agreement or elsewhere to the contrary, under no circumstances will MotionPoint’s total liability of any kind arising out of or related to a translated File exceed the amounts actually paid by Customer for such translated File, and total liability of any kind otherwise arising out of or related to this Agreement, MotionPortal, or MotionPoint’s services exceed the amounts actually paid by Customer to MotionPoint pursuant to this Agreement in the twelve (12) months prior to the event giving rise to the claim. The limitations on liability set forth in the previous sentence shall apply regardless of the forum.

10. Governing Law, Jurisdiction and Venue. This Agreement and all transactions contemplated by this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Florida.  Any civil action or legal proceeding arising out of or relating to this Agreement shall be brought in the courts of record of the State of Florida in Palm Beach County or the United States District Court, Southern District of Florida.  Each party consents to the jurisdiction of such court in any such civil action or legal proceeding and waives any objection to the laying of venue of any such civil action or legal proceeding in such court. 

11. Miscellaneous.  Each provision of this Agreement that should by its nature survive, shall survive the termination of this Agreement.  The relationship of the parties pursuant to this Agreement is that of independent contractors.  Customer will not assign this Agreement without MotionPoint’s written consent. The provisions of this Agreement may not be amended, supplemented, waived or changed orally, but only by a writing signed by the party as to whom enforcement is sought and making specific reference to this Agreement.  The headings contained in this Agreement are for convenience of reference only, are not to be considered a part of this Agreement and shall not limit or otherwise affect in any way its meaning or interpretation.  The terms and conditions of this Agreement shall supersede the terms and conditions of any other purchase order, invoice, acknowledgement or any other such form or document presented by Customer; such terms and conditions shall be null and void and of no force and effect.  If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement, which shall remain in full force and effect. Any phrase introduced by the terms "including", "includes", "in particular" or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.