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 125 E. Merritt Island Cswy., Suite 107-263, Merritt Island, FL 32952 (“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.
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.
4.2. 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) 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; (b) provide System passwords or other log-in information to any third party, except Learners as specifically authorized by this Agreement; (c) share non-public System features or content with any third party; or (d) 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.
12.1. 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 email@example.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.