Terms and Conditions
These Terms and Conditions constitute a bindingagreement between Motiv8Ai Ltd. (“Company”, “we”, “us”or “our”) and the entity accepting these Terms and Conditions (“Customer”).
By accepting an Order Form, clicking “I Agree”(or a similar button), accessing or using the Software or Services, Customeragrees to be bound by these Terms and Conditions.
“Order Form” means an ordering document, proposal,quotation or other ordering instrument issued by Company and accepted byCustomer that references these Terms and Conditions.
WHEREAS, Company (or its affiliates) has developedproprietary software more fully described in Exhibit "A" hereto (the "Software"); and
WHEREAS Customer is interested in evaluating theSoftware commencing on the Effective Date (being the date on which Customeraccepts these Terms and Conditions, as defined below) and ending no later than 6months thereafter (the “EvaluationPeriod”), and Company has agreed to provide a license to Customer in orderto facilitate such evaluation, subject to the terms contained herein; and
WHEREAS Customer may, subject to successful evaluationof the Software, purchase from Company a License (as defined below) inaccordance with and subject to the following terms and conditions;
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS AND EXHIBITS
In these Terms and Conditions , unless thecontext otherwise requires, terms defined in the preamble and the recitalsshall have the same meaning when used elsewhere in these Terms and Conditions andthe following terms shall have the meanings ascribed thereto below:
1.1. "Approved Application" - means Customer's application as identifiedduring the onboarding process or otherwise approved by Company in writing orthrough the platform.
1.2. "Documentation" - means any documents provided by Company toCustomer with respect to the specifications, installation and maintenance ofthe Software
1.3. “Effective Date” means the date on whichCustomer accepts these Terms and Conditions, including by accepting an OrderForm, clicking “I Agree” (or a similar button), or accessing or using theSoftware or Services.
1.4. “FeeProposal” – means the proposal with respect to the Feesdelivered to Customer by the Company prior to acceptance by Customer of theseterms and conditions, which is incorporated by reference hereto and forms anintegral part of these terms and conditions.
1.5. "Fees" – means the License Fees and Service Feesafter the Evaluation Period.
1.6. “IntellectualProperty Rights” means any proprietary information, including any ideas,whether or not patentable, inventions, discoveries, processes, works ofauthorship, marks, names, know-how, industrial designs and any and all rightsin such materials on a worldwide basis, including any rights in patents,inventor’s certificates, utility models, copyrights, moral rights, tradesecrets, mask works, trade names and marks and other analogous rights and anyupdated, modification, improvements, combinations, enhancements and alterationsthereto.
1.7. "License" – means a non-sublicensable, non-transferable,non-exclusive, revocable right to use the Software pursuant to these Terms andConditions.
1.8. "License Fees" – means the fees payable by Customer toCompany for the License after the Evaluation Period, as set forth in the FeeProposal.
1.9. “Performance Report” – means a summary report to be furnished byCompany to Customer upon expiration of the Evaluation Period analyzing theperformance of the Software by Customer, on or priorto the expiration of the Evaluation Period.
1.10. "Service Fees" – means the fees payable by Customer for theSupport Services, as set forth in the Fee Proposal and SLA.
1.11. "SLA" – means Service LevelAgreement which is attached to the Fee Proposal.
1.12. "Support Services" – means the services to be provided by Companyin relation to the use of the Software by Customer which are described in theSLA.
1.13. "Warranty Period" – means a period of twelve (12) monthscommencing upon expiration of the Evaluation Period.
2. GRACE PERIOD
2.1 Subject to these Terms and Conditions, Companyshall grant Customer a free usage of the License, limited to the EvaluationPeriod. Company reserves all rights to the Software and any materials providedtherewith.
2.2 Upon completion of the EvaluationPeriod and submission by Company of the Performance Report, Customer shall beentitled to terminate these Terms and Conditions by providing the Company awritten notice of termination no later than 14 days after receiving thePerformance Report ("Customer Notice").
2.3 Upon receipt of such Customer Notice, if any,(i) the License shall expire, (ii) Customer shall discontinue any further useof or access to the Software, and (iii) Customer shall immediately delete anddispose of all copies of the Documentation or any other information relating tothe Software. If no Customer Notice isprovided to Company prior to the expiration of said 14-day period, these Termsand Conditions shall continue in accordance with their terms.
3. PROVISION OF LICENSE AND SERVICES
3.1 Unless these Terms and Conditions are terminated in accordance with theprovisions of Sections 2.2-2.3 above, following the expiration of theEvaluation Period, and subject to these Terms and Conditions and the payment ofthe applicable Fees by Customer in full, Company shall grant to Customer theLicense and provide Customer with the Support Services.
3.2 Physical copies of the Software are not beingsold to Customer, but are the property of Company, and are provided under theseTerms and Conditions in order to be used by Customer during the term of theseTerms and Conditions and in accordance with its terms.
3.3 The provision of the Software, the License, theSupport Services by Company in accordance with the terms of these Terms andConditions and the performance by Company of all its obligations under theseTerms and Conditions is conditioned upon (i) the fulfillment by Customer of allof Customer Responsibilities (as defined below) when due, and (ii) the actualreceipt by Company of each payment of the Consideration and other Fees whendue, in full.
3.4 If any sum payable pursuant to these Terms andConditions (or the SLA) is not timely paid to Company, then, without prejudiceto any other right or remedy available to Company in accordance with theseTerms and Conditions or by law, Customer shall pay interest thereon at a dailyrate of 0.1% accumulated on a daily basis, in respect of the period starting onthe due date of the delayed payment and ending on the date of the actualpayment. In addition, Company reserves the right to suspend contractualperformance or the use of the Software or the Services if payment is notreceived within 30 days of the due date. Suspension will continue untilCustomer has made payment of the overdue amount together with interest that hasaccrued thereupon, in full.
4. CONSIDERATION; PAYMENT TERMS
4.1 In consideration for the provision of theLicense, Customer shall pay Company the Fees in accordance with the terms andconditions set forth in the Fee Proposal.
4.2 All Fees and other amounts to be paid toCompany pursuant to these Terms and Conditions, are exclusive of anywithholding or deduction for any tax, levy, duty or any other charge. In the event that any Fees due to Companyhereunder are subject to any such withholding or deduction, the amounts due toCompany hereunder shall be increased by the amount necessary such that the netamount actually paid to Company, exclusive of any amount so withheld ordeducted, is equal to the amount set forth herein
4.3 Any and all amounts paid to Company under theseTerms and Conditions are non-refundable, and may not be claimed or reclaimed byCustomer unless the Company acknowledges an error in processing a fee. Forthat, the Customer shall have the option to dispute any amount within a periodof 30 days from the invoice receipt.
5. CUSTOMER'S RESPONSIBILITIES
Customer undertakes to perform all of thefollowing obligations in a timely manner (the "Customer Responsibilities"):
5.1 Fulfillment of all of the technical,installation and maintenance requirements of the Software in accordance withthe Documentation;
5.2 Obtainment and maintenance of all permits andapprovals required to be obtained from any regulatory and governmentalauthority relating to Customer, under any and all applicable legal requirementsfor the performance of these Terms and Conditions;
5.3 Utilizing the Software strictly in accordancewith the security guidelines of Company;
5.4 Not to operate the Software on any application,other than the Approved Application, except with the prior written consent ofCompany.
6. TECHNICAL SUPPORT AND MAINTENANCE SERVICES
6.1 During the Warranty Period, Company shallprovide Customer with the Support Services, without any additionalconsideration above the License Fees.
6.2 Following the expiration of the WarrantyPeriod, Customer shall be entitled to purchase the Support Services, under thefollowing terms:
6.2.1 Customer and Company shall enter into the SLA.
6.2.2 Customer may purchase Support Services forperiods of twelve (12) months each (each such period – a "Support Period").
6.2.3 The Support Services for the Software shall beprovided in accordance with the SLA, as may be amended from time to time bywritten consent of both parties.
6.2.4 In consideration for the Support Services foreach Support Period, Customer shall pay Company the Service Fees in accordancewith the terms and conditions set forth in the Fee Proposal .
6.3 The purchase of Support Services must be madeon a consecutive basis, such that the Software be supported and maintained byCompany at all times as of the expiration of the Warranty Period.
7. TERM AND TERMINATION
7.1 These Terms and Conditions shall commence onthe Effective Date and shall remain in full force and effect until theexpiration of the Evaluation Period and thereafter, unless the Company receivedthe Customer Notice by the end of the 14-day period set forth in Section 2.3above, shall continue for additional period/s of twelve (12) months each,unless terminated as follows: (i) by either party giving the other a priorwritten notice of termination at least thirty (30) days prior to the expirationof the initial 12-month period or any subsequent 12-month period (in whichevent termination shall be effective upon the expiration of the relevant12-month period), or (ii) terminated earlier in accordance with the provisionsof Section 7.2 below.
7.2 If either party hereto commits: (i) a materialbreach of These Terms and Conditions (including its exhibits) or defaults inthe performance of any material obligation hereof, and if such default orbreach is not corrected within thirty (30) days after the same has been calledto the attention of the defaulting party by a written notice from the otherparty (provided that with respect to breach of any payment obligations thethirty (30) days period shall be shortened to seven (7) days); or (ii) anon-material breach of These Terms and Conditions (including its exhibits) ordefaults in the performance of any other obligation, and such default or breachis not corrected within sixty (60) days after the same has been called to theattention of the defaulting party by a written notice from the other party -then the non-defaulting party, at its option, may thereupon terminate TheseTerms and Conditions, with an immediate effect, by submitting a written noticeto the other party.
7.3 Either party shall have a right to terminate theseTerms and Conditions, by providing the other party a written notice, upon theoccurrence of any of the following events: (i) a receiver is appointed for aparty or its property; (ii) a party makes an assignment for the benefit of itscreditors; (iii) any proceedings are commenced by, for, or against a partyunder any bankruptcy, insolvency, or debtors relief law for the purpose ofseeking a reorganization of such party’s debts, and such proceeding is notdismissed within sixty (60) days of its commencement; or (iv) the liquidationor dissolution of a party; or (v) at oursole discretion with no termination penalty.
7.4 Upon termination of these Terms and Conditions,Customer shall be obligated to pay to Company any outstanding consideration dueprior to the said termination within fourteen (14) days as of the date oftermination of these Terms and Conditions. The provisions of Sections 8(Warranty Disclaimer), 9 (Limitation of Liability), 10 (Confidentiality), 11 (Intellectual Property) and 13 (General), shall survive the termination of theseTerms and Conditions.
8. WARRANTY DISCLAIMER
EXCEPT AS SPECIFICALLY SET FORTH IN THESE TERMSAND CONDITIONS, CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE AND THE SUPPORTSERVICES ARE PROVIDED "AS IS", AND COMPANY DISCLAIMS ANY AND ALLWARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANYIMPLIED WARRANTIES RELATING TO THE SOFTWARE, OR ANY PART THEREOF, AND/OR ITSQUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ANDANY WARRANTY OF NON-INFRINGEMENT OF THIRD PARTIES' RIGHTS, INCLUDINGINTELLECTUAL PROPERTY RIGHTS. THE ENTIRE RISK ARISING OUT OF THE USE ORPERFORMANCE OF THE SOFTWARE AND ANY ACCOMPANYING WRITTEN MATERIALS REMAINS WITHCUSTOMER.
9. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLELAW, NOR COMPANY , NOR ITS RESPECTIVEOFFICERS, DIRECTORS AND/OR EMPLOYEES, SHALL BE LIABLE FOR INDIRECT, SPECIAL,INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF ANY PERFORMANCE OF THESETERMS AND CONDITIONS OR IN FURTHERANCE OF THE PROVISIONS OR OBJECTIVES OF THESETERMS AND CONDITIONS, INCLUDING FROM THE INSTALLATION AND/OR USE OF THESOFTWARE, INCLUDING BUT NOT LIMITED TO, FOR ANY LOSS OR DAMAGE TO BUSINESSEARNINGS, LOST PROFITS OR GOODWILL, LOST OR DAMAGED DATA OR DOCUMENTATION, ANDCOSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES SUFFERED BY CUSTOMERAND/OR ANY ENTITY AND/OR PERSON ARISING FROM AND/OR RELATED/CONNECTED TO THEINSTALLATION OR ANY USE OF THE SOFTWARE, EVEN IF CUSTOMER IS ADVISED OF THE POSSIBILITY OF SUCHDAMAGES. THE CUSTOMER'S SOLE RECOURSE IN THE EVENT OF ANY DISSATISFACTION WITHTHE SOFTWARE IS TO STOP USING IT AND RETURN IT TO COMPANY. WITHOUT DEROGATINGFROM THE ABOVE, IN NO EVENT WILL COMPANY BE LIABLE FOR ANY DAMAGES IN EXCESS OFTHE FEES PAID PURSUANT TO THESE TERMS AND CONDITIONS.
10. CONFIDENTIALITY
10.1 “ConfidentialInformation” means: (i) the Software and all Intellectual Property Rightstherein (which shall be deemed Confidential Information of Company); (ii) theterms of these Terms and Conditions, and (iii) all information, whether writtenor oral, and in any form (including, without limitation, engineering documents,research and development, manuals, reports, drawings, plans, flowcharts,software (in source or object code), program listings, data file printouts,printed circuit boards, processes, trade secrets, inventions, mask works,ideas, processes, formulas, source and object codes, data, programs, otherworks of authorship, know-how, improvements, discoveries, developments, designsand techniques, information regarding plans for research and development,component part listings and prices, Software information, marketing and sellingplans, business plans, new Software plans, budgets and unpublished financialstatements, licenses, prices and costs, suppliers and customers, andinformation relating to a party's business or technology which is disclosed bya party either directly or indirectly to the other party.
10.2 Each party hereto (the “Receiving Party”) agrees not to use any Confidential Information ofthe other party (the “Disclosing Party”)for any purpose, other than to enforce its rights and perform its obligationshereunder, or disclose any Confidential Information of the other party to anythird party for any purpose. Each partyhereto shall use at least the same degree of care, but no less than reasonablecare, to avoid disclosure or use of the Confidential Information of the otherparty as such party employs with respect to its own Confidential Information oflike importance. Without limitation of the foregoing, each party agrees duringthe term of these Terms and Conditions and thereafter to hold such ConfidentialInformation in strict confidence, not to disclose it to third parties or to useit in any way, commercially or otherwise, except as otherwise expresslyauthorized by these Terms and Conditions or as required by law (includingpursuant to any stock exchange rules), and not to allow any unauthorized personaccess to such Confidential Information, either before or for a period of five(5) years after termination or expiration of these Terms and Conditions,without the prior written consent of the Disclosing Party. Each party willlimit the disclosure of the Confidential Information of the other party toemployees with a need to know who: (i) have been advised of theconfidential nature thereof and (ii) are parties to written agreements noless restrictive than this Section 10 as to the non-disclosure and non-use ofsuch Confidential Information. The Receiving Party shall remain responsible forany breach of these Terms and Conditions by any such employee.
10.3 Notwithstanding anything in these Terms andConditions to the contrary, Confidential Information need not be treated assuch if it is or has become: (i) published or otherwise available to the publicother than by a breach of these Terms and Conditions; (ii) approved in writingfor public release by the Disclosing Party; (iii) known to the Receiving Partyprior to its first receipt of such Confidential Information from the DisclosingParty, as properly documented by the Receiving Party's files; or (iv)independently developed by the Receiving Party without use of or reference tosuch Confidential Information, as properly documented by the Receiving Party'sfiles.
10.4 Upon the termination or the expiration of theseTerms and Conditions, each party shall: (i) return to the other party ordestroy, as requested by the Disclosing Party, the original and all copies ofany Confidential Information of the Disclosing Party and any summaries oranalyses thereof or studies or notes thereon in the Receiving Party'spossession or control; and (ii) at the Disclosing Party's request, haveone of the officers of the Receiving Party certify in writing that: (x) itshall not make any further use of such Confidential Information of theDisclosing Party; (y) it shall comply with the terms of this Section 10regarding prohibited use of Confidential Information of the Disclosing Party;and (z) it has fully complied with the provisions of this Section 10.
10.5 The parties recognize and acknowledge thatConfidential Information may have competitive value and be of a confidentialnature and that irreparable damage might result to the Disclosing Party if suchConfidential Information were improperly disclosed by a Receiving Party to athird party. Each party agrees thatmonetary damages would be inadequate to compensate the other for breach of anyprovision of this Section 10, that any such breach or threatened breach will causeirreparable injury, and that, in addition to any other remedies available atlaw or in equity, the injured party will be entitled to injunctive relief inany competent court at any competent jurisdiction, against the threatenedbreach or the continuation of any such breach, without the necessity of provingactual damages.
10.6 The obligations of confidentiality andlimitations of use, disclosure, and access set forth herein shall survive thetermination of these Terms and Conditions for a period of five (5) years fromthe date of such termination.
10.7 Either party may issue publicity or generalmarketing communications concerning its involvement with the other party,subject to such other party’s prior written approval, which shall not beunreasonably withheld, delayed or conditioned.
11. INTELLECTUAL PROPERTY
11.1 All Intellectual Property Rights in or relatedto the Software and the Documentation, as well as any modification, adaptationor derivation thereof, are and will remain the exclusive property of Companyand its licensors. Customer hereby irrevocably agrees not to assert againstCompany or its direct or indirect customers, assignees or sub-licensees, anyclaim of infringement of Intellectual Property Rights relating to the Softwareand/or the related Documentation. Customer agrees that it will not reverse engineer,analyze or perform any similar type of operation on the Software, in anyfashion or for any purpose whatsoever.
11.2 If Customer provides Company with any ideas,suggestions, or similar feedback about performance of the Software and/or forimproving the Software ("Feedback"),Customer represents that it is free to do so and that it shall not knowinglyprovide Company with Feedback that infringes upon third parties' IntellectualProperty Rights. Customer further acknowledges that notwithstanding anythingherein to the contrary, any and all rights, including Intellectual PropertyRights in such Feedback shall belong exclusively to Company and that suchFeedback shall be considered Company's Confidential Information. It is furtherunderstood that use of Feedback, if any, may be made by Company at its solediscretion, and that Company in no way shall be obliged to make use of any kindof the Feedback or part thereof.
12. REPRESENTATIONS
12.1 Customer hereby represents and warrants thatthe acceptance of these Terms and Conditions and the fulfillment of its terms:(i) will not constitute a default under or conflict with any agreement or otherinstrument to which it a party or by which they are bound; and (ii) other thanas specifically set forth in these Terms and Conditions, does not require anyfurther consent of any person or entity.
12.2 Customer hereby represents and warrants that itshall comply with all laws, rules and regulations applicable to the performanceof its undertakings and obligations pursuant to these Terms and Conditions inany applicable country, and undertakes that it will obtain and keep current allgovernmental permits, certificates and licenses necessary for the performanceof such undertakings and obligations. Customer shall, upon Company's request,provide evidence reasonably satisfactory to Company of its compliance with thisSection.
12.3 Customer hereby represents that it is fullyaware of all applicable export control laws and regulations, including, withoutlimitation, those that apply to the Software. Furthermore, without limiting theforegoing Customer warrants that (i) it will obtain all licenses and otherconsents required for the export of the Software under any applicable law; (ii)it will perform the contemplated activities hereunder in compliance with theterms of any applicable export license or other consent and permit or authorizationreceived from or issued by any relevant governmental or regulatory authoritythat has jurisdiction over the contemplated activities hereunder; and (iii) itwill not act in any way with respect to the Software that will cause theCompany to be in violation of any applicable export control laws andregulations.
12.4 Customer hereby represents that it and itsrespective employees and agents shall: (i) fully comply with all privacy andnational security related laws and regulations that are applicable to the useof the Software, including by way of obtaining consents and/or decrees to theextent required by law, and (ii) use the Software only for prevention andinvestigation of crimes and will not be used for human rights violations.
12.5 Customer hereby irrevocably waives any and allclaims or demands against Company for (i) any limitations or inability tooperate the Software due to any applicable legal requirements; and (ii) anylosses suffered by it, its respective officers, directors, employees and anyone on their behalf in the event that purchasing of the License or using theSoftware will not comply with any applicable legal requirement.
12.6 Any breach of the representations andwarranties in this Section 12 shallconstitute a material breach for which Company may immediately terminate theseTerms and Conditions.
13. GENERAL
13.1 Relationship of the Parties. These Terms and Conditions do not constitutea partnership agreement, nor does it create a joint venture or agencyrelationship between the parties. Neither party shall be liable to third parties for the representations,acts, or omissions of the other party contrary to these Terms and Conditions.
13.2 Notices. Allnotices, demands, or consents required or permitted under these Terms andConditions must be in writing and must be delivered by facsimile or email witha copy sent by certified or registered mail, postage prepaid, or sent byrecognized overnight air delivery service, to the other party at the addressset forth on the preamble, or to any other address given by either party to theother in writing. In the case ofdelivery by facsimile or email, the effective date of delivery of any notice,demand, or consent shall be deemed to be the date confirmation of receipt oftransmission is received. In the case ofdelivery by recognized overnight air delivery service, the effective date ofdelivery of any notice, demand or consent shall be deemed the day after suchmaterials are first entrusted to such service.
13.3 Succession and Assignment. These Terms and Conditions are binding uponand inures to the benefit of the successors and assigns of the parties. Neitherthese Terms and Conditions nor any right, privilege, license or obligation setforth herein may be assigned, transferred or shared by Customer withoutCompany’s prior written consent, and any such attempted assignment or transferis void. Company may assign these Terms and Conditions to any affiliate thereofor to the purchaser of all or substantially all of the shares or assets ofCompany or any affiliate thereof.
13.4 Governing Law; Jurisdiction. The validity, construction, and performanceof these Terms and Conditions shall be governed by the laws of England andWales, without regard to the choice of law principles thereof. The solejurisdiction and venue for actions related to the subject matter of these Termsand Conditions will be the competent courts of London, England. Both parties consent to the jurisdiction ofsuch courts with respect to any such actions.
13.5 Severability. If any provision of these Terms andConditions is held by a court or arbitration panel of competent jurisdiction tobe contrary to law, the remaining provisions of these Terms and Conditions shallremain in full force and effect.
13.6 Entire Agreement. TheseTerms and Conditions, including all contemporaneous attachments, constitutesthe complete and final agreement between the parties with respect to thesubject matter hereof and supersedes all prior oral and written negotiationsand agreements between the parties concerning such subject matter.
