TERMS
OF SERVICE
These Terms of Service constitute an agreement
(this “Agreement”) by and between Harley Interactive Inc. d/b/a Motive
Learning, whose principal business address is at 2412 Irwin St, Ste 138 Melbourne, FL 32901
(“Motive Learning”) and the corporation, LLC, partnership, sole proprietorship, or other business entity
executing this Agreement as party of an Order (“Customer”). This
Agreement is effective as of the date Customer places an Order (the “Effective
Date”), and applies to all future Orders. Customer’s use of and Motive
Learning’s provision of the System (as defined below in Section 1.4) are governed by this Agreement, as are Customer’s authorizations to
grant its own Learners use of the System.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. CUSTOMER ACKNOWLEDGES THAT
IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS
TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO.
THE PERSON EXECUTING THIS AGREEMENT ON CUSTOMER’S BEHALF REPRESENTS THAT HE OR
SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS. THESE
TERMS SHOULD BE READ IN CONJUNCTION WITH MOTIVE LEARNING’S PRIVACY POLICY.
1.
DEFINITIONS. The following capitalized terms shall have
the following meanings whenever used
in this Agreement.
1.1.
“Learner(s)”
means any of Customer’s employees, agents or any third parties Customer gives
access to the System.
1.2.
“Customer Data” means data or content input
or collected through the System by or from Customer, including without
limitation by Learners or by other Users.
1.3.
“Order” means an order for access to or
use of the System.
1.4.
“System” means Motive Learning’s learning management
system and solutions, including any applications, scripts, instruction sets and
any related services and documentation.
1.5.
“Term” is defined in Section 11.1 below.
1.6.
“User” means any company or individual who uses the System
on Customer’s behalf or through Customer’s account or passwords, whether
authorized or not, including without limitation Learners.
2.
THE SYSTEM.
2.1.
Use of the System. During the Term, Customer may access and use
the System pursuant to the terms of any outstanding Order, including such
features and functions as the Order requires.
2.2.
System Revisions. Motive Learning may revise System features
and functions at any time, including without limitation by removing such
features and functions. If any such revision to the System materially reduces
features or functionality provided pursuant to an Order, Customer may within 30
days of notice of the revision terminate such Order, without cause, or
terminate this Agreement without cause if such Order is the only one
outstanding.
2.3.
Learners. Subject to the
provisions below of this Section, Customer may authorize Learners to access and
use the System in such numbers and according to such restrictions as are set
forth in the applicable Order, solely for the purposes set forth in the Order.
Customer shall require that each Learner comply with these Terms of Service and
shall be jointly and severally liable to Motive Learning for any Learner’s
non-compliance. Customer shall make no representations or warranties regarding
the System or any other matter, to Learners or Users or any other third party,
from or on behalf of Motive Learning, and Customer shall not create or purport
to create any obligations or liabilities for Motive Learning.
3.
FEES.
Customer shall pay Motive Learning the fees set forth in each Order (the “Fee”)
for each Term. Motive Learning will not be required to refund the Fee under any
circumstances. If, during the Term, Customer exceeds the number of authorized
users set out in the Order, Customer shall pay Motive Learning an additional
fee for the overage. Learner accounts that have been disabled but that Customer
requests continuing access to are included in Customer’s number of authorized
users.
4.1.
Use of Customer Data. Motive Learning will use and retain Customer Data only in
accordance with the terms of its Privacy Policy, available at http://www.motivelearning.com/privacypolicy.html. Unless it receives
Customer’s prior written consent, Motive Learning: (a) shall not access,
process, or otherwise use Customer Data other than as necessary to facilitate
the System; and (b) shall not intentionally grant any third party access to
Customer Data, including without limitation Motive Learning’s other customers,
except subcontractors that are subject to a reasonable nondisclosure agreement.
Notwithstanding the foregoing, Motive Learning may disclose Customer Data as
required by applicable law or by proper legal or governmental authority. Motive
Learning shall give Customer prompt notice of any such legal or governmental
demand and reasonably cooperate with Customer in any effort to seek a
protective order or otherwise to contest such required disclosure, at
Customer’s expense.
4.2.
Risk of Exposure. Customer recognizes and agrees that hosting
data online involves risks of unauthorized disclosure or exposure and that, in
accessing and using the System, Customer assumes such risks. Motive Learning
offers no representation, warranty, or guarantee that Customer Data will not be
exposed or disclosed through errors or the actions of third parties.
4.3.
Data Accuracy. Except as otherwise agreed, Motive Learning
shall have no responsibility or liability for the accuracy of data uploaded to
the System by Customer, including without limitation Customer Data and any
other data uploaded by Users.Data Deletion. Motive Learning may
permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or
more.
5.
CUSTOMER’S
RESPONSIBILITIES & RESTRICTIONS.
5.1.
Acceptable Use. Customer shall not: (a) allow any third parties to use the system, except for Learners specifically authorized by this Agreement;; (b) use the System for time-sharing or in any other way allow
third parties to exploit the System, except Learners as specifically authorized
by this Agreement (c) provide System passwords or other log-in information to any third
party, except Learners as specifically authorized by this Agreement; (d) share non-public System features or content with any third
party; or (e) access the System in order to
build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the
System, or to copy any ideas, features,
functions or graphics of the System. In the event that it suspects any breach of
the requirements of this Section 5.1, including without
limitation by Users, Motive Learning may suspend Customer’s access to the
System without advanced notice, in addition to such other remedies as Motive
Learning may have. This Agreement does not
require that Motive Learning take any
action against Customer, any User or any third party
for violating this Section 5.1 or this Agreement, but Motive Learning is free to take any such action it sees fit.
5.2.
Unauthorized Access. Customer shall take reasonable steps to
prevent unauthorized access to the System, including without limitation by
protecting its passwords and other log-in information. Customer shall notify Motive
Learning immediately of any known or suspected unauthorized use of the System or breach of its security and shall use best
efforts to stop said breach.
5.3.
Compliance with Laws. In its use of the System, Customer shall comply with all applicable laws
and regulations, including without limitation those governing the protection of
personally identifiable information and other laws applicable to the protection
of Customer Data. The System is controlled and offered from Motive Learning’s
facilities in the U.S., but can be accessed from countries around the world.
Motive Learning make no representations that the System is appropriate for use
in locations outside the U.S. Those who access or use the System from other
jurisdictions do so at their own volition and are responsible for compliance
with local law.
5.4.
Learners & Other Users;
System Access. Customer is responsible and liable for: (a) Learners’
and other Users’ use of the System, including without limitation unauthorized
User conduct and any User conduct that would violate the requirements of this
Agreement applicable to Customer; and (b) any use of the System through
Customer’s account, whether authorized or unauthorized.
6.1.
IP Rights to the System. Motive Learning retains all right,
title, and interest in and to the System. This Agreement does not grant
Customer any intellectual property license or rights in or to the System or any
of its components, and Motive Learning reserves all rights not granted under
this Agreement. Customer recognizes that the System and its components are
protected by copyright and other laws.
6.2.
IP Rights in Customer Data. Customer retains all
right, title, and interest in and to Customer Data.
6.3.
Feedback. Customer acknowledges and agrees that any
questions, comments, suggestions, ideas, wiki, feedback or other information
about the System or any Motive Learning products or services provided by
Customer, Learners or other Users (“Feedback”), including through online forums
or similar pages, to Motive Learning are non-confidential and shall become the
sole property of Motive Learning. Motive Learning shall own exclusive rights,
including all intellectual property rights, and shall be entitled to the
unrestricted use and dissemination of such Feedback for any purpose, commercial
or otherwise, without acknowledgment or compensation to Customer, Learners or
other Users.
7.
CONFIDENTIAL
INFORMATION. “Confidential
Information” refers to the following items Motive Learning discloses to
Customer: (a) any document Motive Learning marks “Confidential”; (b) any
information Motive Learning orally designates as “Confidential” at the time of
disclosure; (c) any other nonpublic, sensitive information Recipient should
reasonably consider a trade secret or otherwise confidential. Notwithstanding
the foregoing, Confidential Information does not include information that: (i)
is in Customer’s possession at the time of disclosure; (ii) is independently
developed by Customer without use of or reference to Confidential Information;
(iii) becomes known publicly, before or after disclosure, other than as a
result of Customer’s improper action or inaction; or (iv) is approved for
release in writing by Motive Learning.
7.1.
Nondisclosure. Customer shall not use
Confidential Information for any purpose other than in furtherance of this
Agreement (the “Purpose”). Customer: (a) shall not disclose Confidential
Information to any employee or contractor of Customer unless such person needs
access in order to facilitate the Purpose and executes a nondisclosure
agreement with Customer with terms no less restrictive than those of this
Article 7; and (b) shall not disclose Confidential Information to
any other third party without Motive Learning’s prior written consent. Without
limiting the generality of the foregoing, Customer shall protect Confidential
Information with the same degree of care it uses to protect its own
confidential information of similar nature and importance, but with no less
than reasonable care. Customer shall promptly notify Motive Learning of any
misuse or misappropriation of Confidential Information that comes to Customer’s
attention. Notwithstanding the foregoing, Customer may disclose Confidential
Information as required by applicable law or by proper legal or governmental
authority. Customer shall give Motive Learning prompt notice of any such legal
or governmental demand and reasonably cooperate with Motive Learning in any
effort to seek a protective order or otherwise to contest such required
disclosure, at Motive Learning’s expense.
7.2.
Injunction. Customer agrees that breach of this Article 7 would cause Motive
Learning irreparable injury, for which monetary damages would not provide
adequate compensation, and that in addition to any other remedy, Motive
Learning will be entitled to injunctive relief against such breach or
threatened breach, without proving actual damage or posting a bond or other
security.
7.3.
Termination & Return. With respect to each item of
Confidential Information, the obligations of Section 7.1 above (Nondisclosure) will terminate 5 years after
the date of disclosure; provided that such obligations related to Confidential
Information constituting Motive Learning’s trade secrets shall continue so long
as such information remains subject to trade secret protection pursuant to
applicable law. Upon termination of this Agreement, Customer shall return all
copies of Confidential Information to Motive Learning or certify, in writing,
the destruction thereof.
7.4.
Retention of Rights. This Agreement does not transfer ownership of
Confidential Information or grant a license thereto. Motive Learning will
retain all right, title, and interest in and to all Confidential Information.
8.
REPRESENTATIONS & WARRANTIES.
8.1.
From Customer. Customer represents and warrants that:
(i) it has the full right and authority to enter into, execute, and perform its
obligations under this Agreement and that no pending or threatened claim or litigation
known to it would have a material adverse impact on its ability to perform as
required by this Agreement; (ii) it has accurately identified itself
and it has not provided any inaccurate information about itself to or through
the System; and (iii) it is a corporation, the sole proprietorship of an
individual 18 years or older, or another entity
authorized to do business pursuant to applicable law.
8.2.
Warranty Disclaimers. CUSTOMER ACCEPTS THE SYSTEM “AS IS” AND AS AVAILABLE,
WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF
DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING: (a) MOTIVE LEARNING HAS NO OBLIGATION TO INDEMNIFY
OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF
INTELLECTUAL PROPERTY; (b) MOTIVE LEARNING DOES NOT REPRESENT OR WARRANT THAT
THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) MOTIVE LEARNING
DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM
IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA
WILL REMAIN PRIVATE OR SECURE.
9.
INDEMNIFICATION. Customer shall defend, indemnify, and hold harmless Motive
Learning and the Motive Learning Associates (as defined below) against any “Indemnified
Claim,” meaning any third party claim, suit, or proceeding arising out of
or related to Customer's alleged or actual use of, misuse of, or failure to use
the System, including without limitation: (a) claims by Learners or other Users
or their employees; (b) claims related to unauthorized disclosure or exposure
of personally identifiable information or other private information, including
Customer Data; (c) claims related to infringement or violation of a copyright,
trademark, trade secret, or privacy or confidentiality right by written
material, images, logos or other content uploaded to the System through Customer’s
account, including without limitation by Customer Data; and (d) claims that use
of the System through Customer’s account, including by Customer’s Clients or
other Users, harasses, defames, or defrauds a third party or violates the
CAN-Spam Act of 2003 or any other law or restriction on electronic advertising.
Indemnified Claims include, without limitation, claims arising out of or
related to Motive Learning’s negligence. Customer’s obligations set forth in
this Article 9 include retention and payment of attorneys and payment of
court costs, as well as settlement at Customer’s expense and payment of
judgments. Motive Learning will have the right, not to be exercised
unreasonably, to reject any settlement or compromise that requires that it
admit wrongdoing or liability or subjects it to any ongoing affirmative
obligations. (The “Motive Learning Associates” are Motive Learning’s
officers, directors, shareholders, parents, subsidiaries, agents, successors,
and assigns.)
10.1. Dollar Cap. UNDER NO CIRCUMSTANCES WILL MOTIVE LEARNING’S
LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID
BY CUSTOMER DURING THE THREE (3) MONTHS PRECEDING THE EVENT GIVING RISE TO THE
LIABILITY.
10.2. Exclusion of
Consequential Damages.
IN NO EVENT WILL MOTIVE LEARNING BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL,
INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO
THIS AGREEMENT.
10.3. Clarifications &
Disclaimers.
THE LIABILITIES LIMITED BY THIS ARTICLE 10 APPLY: (a) TO
LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN
CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF MOTIVE
LEARNING IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION
AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES
FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of
the provisions of this Article 10, Motive Learning’s
liability will be limited to the maximum extent permissible. For the avoidance
of doubt, Motive Learning’s liability limits and other rights set forth in this
Article 10 apply likewise to Motive
Learning’s affiliates, licensors, suppliers, advertisers, agents,
sponsors, directors, officers,
employees, consultants, and other representatives.
11.1.
Term.
The term of this Agreement (the “Term”) shall commence on the Effective
Date and continue for the period set forth in the Order or, if none, for so
long as Customer has access to the System.
11.2. Termination for Cause. Either
party may terminate this Agreement for the other’s material breach by written
notice specifying in detail the nature of the breach, effective in 30 days
unless the other party first cures such breach, or effective immediately if the
breach is not subject to cure. Without limiting Motive Learning’s other rights
and remedies, Motive Learning may suspend or terminate a Learner’s or other
User’s access to the System at any time, without advanced notice, if Motive
Learning reasonably concludes such Learner or other User has conducted itself
in a way that is not consistent with the requirements of this Agreement or in a
way that subjects Motive Learning to potential liability.
11.3. Effects of Termination. Upon termination of
this Agreement, Customer shall cease all use of the System and delete, destroy,
or return all copies of the Confidential Information in its possession or
control. The following provisions will survive termination or expiration of
this Agreement: (a) any obligation of Customer to pay Fees incurred before
termination; (b) Articles and Sections 6 (IP & Feedback), 7 (Confidential Information), 8 (Representations
& Warranties), 9 (Indemnification), and 10 (Limitation of Liability); and (c) any other provision of this
Agreement that must survive to fulfill its essential purpose.
12. MISCELLANEOUS.
12.1. Independent Contractors. The parties are
independent contractors and will so represent themselves in all regards.
Neither party is the agent of the other, and neither may make commitments on
the other’s behalf. The parties agree that no Motive Learning employee or
contractor will be an employee of Customer.
12.2. Notices. Motive
Learning may send notices pursuant to
this Agreement to Customer’s email contact points provided by Customer, and
such notices will be deemed received 24 hours after they are sent. Customer may
send notices pursuant to this Agreement to info@motivelearning.com, and such
notices will be deemed received 72
hours after they are sent.
12.3. Force Majeure. No delay, failure, or
default, other than a failure to pay fees when due, will constitute a breach of
this Agreement to the extent caused by acts of war, terrorism, hurricanes,
earthquakes, other acts of God or of nature, strikes or other labor disputes,
riots or other acts of civil disorder, embargoes, or other causes beyond the
performing party’s reasonable control.
12.4.
Assignment & Successors. Customer may not assign this Agreement or any of its
rights or obligations hereunder without Motive Learning’s express written
consent. Except to the extent forbidden in this Section 12.4, this Agreement will be binding upon and inure to the
benefit of the parties’ respective successors and assigns.
12.5. Severability. To the extent
permitted by applicable law, the parties hereby waive any provision of law that
would render any clause of this Agreement invalid or otherwise unenforceable in
any respect. In the event that a provision of this Agreement is held to be
invalid or otherwise unenforceable, such provision will be interpreted to
fulfill its intended purpose to the maximum extent permitted by applicable law,
and the remaining provisions of this Agreement will continue in full force and
effect.
12.6. No Waiver. Neither party will be
deemed to have waived any of its rights under this Agreement by lapse of time
or by any statement or representation other than by an authorized representative
in an explicit written waiver. No waiver of a breach of this Agreement will
constitute a waiver of any other breach of this Agreement.
12.7.
Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal
laws of the State of the State of Florida, including applicable U.S. federal
law, without reference to: (a) any conflicts of law principle that would apply
the substantive laws of another jurisdiction to the parties’ rights or duties;
(b) the 1980 United Nations Convention on Contracts for the International Sale
of Goods; or (c) other international laws. The parties consent to the personal
and exclusive jurisdiction of the federal and state courts of Brevard County,
Florida. This Section 12.7 governs all claims arising out of or related to this
Agreement, including without limitation tort claims.
12.8. Conflicts. In the event of any
conflict between this Agreement and any Motive Learning policy or Order, the terms of this Agreement will govern.
12.9. Construction. The parties agree
that the terms of this Agreement result from negotiations between them. This
Agreement will not be construed in favor of or against either party by reason
of authorship. This Agreement was originally drafted in the English language
and shall be construed and interpreted for all purposes in the English
language.
12.10.
Export Controls. The System, including any software or
services Motive Learning may provide in connection with the System, may be
subject to applicable U.S. or international export control laws and economic
sanctions regulations. Customer shall comply strictly with all U.S. and
international export laws and economic sanctions regulations as they apply to
Customer’s use of or access to the System, and to the extent consistent with
this Agreement, shall obtain any necessary license or other authorization to
export, re-export, or transfer access to the System or other aspects of the
System. These laws include restrictions on destinations, end users, and end
use. Without limiting the generality of the foregoing, Customer shall not
permit any person or entity to access or use the System in, or export any
software or services to, a country subject to a United States embargo (as of
the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria), nor shall Customer
permit access or use, or export to any person or entity on a U.S. government
exclusion list (e.g., the Department of Commerce’s List of Denied Persons,
Entity, or Unverified List, and the Treasury Department’s List of Specially
Designated Nationals and Consolidated Sanctions List).
12.11.
Entire Agreement. This
Agreement sets forth the entire agreement of the parties and supersedes all
prior or contemporaneous writings, negotiations, and discussions with respect
to its subject matter. Neither party has relied upon any such prior or
contemporaneous communications.
12.12.
Amendment. Motive Learning may amend or modify this Agreement from
time to time by posting an amended version on its website and sending Customer written
notice thereof, which may include notice by email or notice on an invoice. Such
amendment will be deemed accepted and become effective 30 days after such
notice (the “Proposed Amendment Date”) unless Customer first gives Motive
Learning written notice of rejection of the amendment. In the event of such
rejection, this Agreement will continue under its original provisions, and the
amendment will become effective at the start of Customer’s next Term following
the Proposed Amendment Date (unless Customer first terminates this Agreement
pursuant to Article 11, Term & Termination). Customer’s continued use
of the Service following the effective date of an amendment will confirm
Customer’s consent thereto. This Agreement may not be amended in any other way
except through a written agreement by authorized representatives of each party.