Welcome to Motivation! We're excited to have you here.
Last updated on 31 Aug 2024. The terms have been updated to help ensure greater clarity and transparency, and to better align with the way we do business.
This Agreement applies to both subscribers who sign up on our website for free and customers who pay for our services. It governs your use of our website
motivation.digital (the "Site"), our mobile application MOTIVATION (the "App"), and any brand strategy, web design, development, and software services we provide (collectively, the "Services").
PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING OUR SERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH HEREIN.
TABLE OF CONTENTS
- Definitions and Interpretation
- Acceptance and Updates
- Customer Obligations
- Services
- Pricing
- Intellectual Property
- Confidential Information
- Data Protection and Privacy
- Liability, Indemnification, and Warranties
- Prohibited Activities
- Termination
- Disputes
- Support Services
- Service Level Agreement (SLA)
- Change Management
- Acceptance Testing
- Use of Subcontractors
- Force Majeure
- Additional Provisions
1.0 DEFINITIONS AND INTERPRETATION
For the purposes of this Agreement, the following terms shall have the meanings set forth below:
1.1 "Agreement" means this Terms of Service Agreement, including all associated Schedules, Scopes of Work, and any amendments hereto.
1.2 "Effective Date" means the earlier of (a) the date when Customer purchases an offer from Company, or (b) the date when Customer begins using Company's Services.
1.3 "Subscriber" means an individual who has opted in to receive email communications or who is a logged-in member without a paid Service.
1.4 "Customer" means any individual or entity using the Services, whether as a free subscriber or a paying customer.
1.5 "Active Customer" means a Customer with a current, paid subscription and an active Scope of Work with Company.
1.6 "Inactive Customer" means a former Active Customer without an active paid subscription or paid Scope of Work with Company.
1.7 "Services" means any and all services provided by Company to Customer, including but not limited to access to the Site, use of the App, and any brand strategy, web design, development, or software services.
1.8 'Scope' means the online project management system used by MOTIVATION, and accessible via customer login to the website;
Which includes:
a) Documents detailing specific services, deliverables, timelines, and pricing agreed upon by Company and Customer for particular projects or engagements;
b) Communication tools, updates, and documentation related to Customer projects;
c) Associated materials such as Playbooks, videos, and journey maps.
2.0 ACCEPTANCE AND UPDATES
This section outlines how the agreement is accepted and how updates to the terms are handled.
2.1 Acceptance: Customer's acceptance of this Agreement shall be deemed to occur upon the earliest of the following events:
a) Customer's access to or use of any of the Services;
b) Customer's purchase of an offer from Company;
c) Customer's provision of an electronic signature, if made available;
d) Customer's completion of a website signup process; or
e) Any other form of acceptance explicitly communicated to Company.
2.2 Updates: Company reserves the right to modify or update the terms of this Agreement from time to time. Any such modifications or updates will be communicated to Customer via SCOPE or email and will become effective immediately after such notification ("Update Effective Date"), unless Customer objects in writing to such changes prior to the Update Effective Date
2.3 Objections to Updates: If Customer objects to any modification or update, Customer must notify Company in writing prior to the Update Effective Date. Upon receipt of such objection, Company may, at its sole discretion:
a) Continue to provide Services under the existing terms of the Agreement;
b) Propose alternative modifications for Customer's consideration; or
c) Terminate the Agreement and cease providing Services to Customer, subject to the termination provisions herein.
2.4 Continued Use: Customer's continued use of the Services after the Update Effective Date, without prior written objection, shall constitute acceptance of the modified or updated Agreement.
3.0 CUSTOMER OBLIGATIONS
This section describes the responsibilities of the Customer, including providing necessary information and access.
3.1 Acknowledgment and Agreement - The Customer hereby acknowledges and agrees to be bound by all terms and conditions set forth in this Agreement and the SCOPE system.
3.2 Customer Representatives - The Customer shall designate and maintain:
a) A primary contact authorized to make decisions regarding services, changes, additions, or terminations under this Agreement.
b) Secondary contacts, including their respective email addresses, for issues, support requests, or other communications.
3.3 Provision of Information and Access
The Customer shall, in a timely manner:
a) Provide all cooperation, support, advice, information, and documentation as reasonably requested by Motivation.
b) Obtain and maintain all necessary governmental, legal, and regulatory licenses and consents for the provision of Services.
c) Grant access to Customer's cloud-based services and third-party platforms as specified in SCOPE, including but not limited to Kajabi.
d) Provide necessary information for initial setup and ongoing maintenance of Services.
3.4 SCOPE Monitoring and Usage
The Customer agrees to:
a) Regularly monitor SCOPE for updates, communications, and other relevant information pertaining to the Services.
b) Use the provided tools and documents as directed by Motivation.
c) Not manually update the content within provided Services unless explicitly permitted by Motivation.
3.5 Additional Customer Responsibilities
The Customer shall:
a) Provide and maintain accurate, up-to-date information at all times.
b) Ensure compliance with all applicable laws and regulations.
c) Maintain the security and confidentiality of its account credentials.
d) Cooperate fully with Motivation in the implementation and provision of Services.
e) Implement all security measures recommended by Motivation.
f) Promptly notify Motivation of any suspected or actual security breaches.
g) Obtain all necessary consents from end-users or third parties as required by applicable laws.
h) Use the Services in accordance with the terms of this Agreement and all applicable laws and regulations.
i) Notify Motivation of any changes to their business that may affect legal compliance or service delivery.
j) Implement recommended changes to maintain compliance and optimal service performance.
3.6 Consequences of Non-Compliance
The Customer acknowledges and agrees that any failure to fulfill the obligations set forth in this section may result in service disruptions, security vulnerabilities, or other issues. Motivation shall not be held liable for any damages, losses, or consequences arising from Customer's failure to comply with these obligations.
4.0 SERVICES
This section details the services provided by Motivation, including standards of care and progress updates.
4.1 Definitions - For the purposes of this section:
a) "Services" refers to all software, solutions, and creative and technical services provided by Motivation.
b) "SCOPE" refers to the detailed service description and specifications for each offering.
c) "SLA" means Service Level Agreement.
4.2 Service Description - Motivation offers a range of software as a service (SaaS) solutions, including but not limited to:
a) LAUNCHPAD, a software solution to enhance Kajabi's design, development & build capabilities
b) CONSENT, a legal and privacy policy and data compliance service.
c) ROCKET, a Kajabi website performance and security improvement service.
Motivation also offers CREATIVE AND TECHNICAL SERVICES, including but not limited to:
a) Digital strategy and consulting,
b) Project design and management,
c) Branding and graphic design,
d) UX/UI & Usability design,
e) Website design & coding,
f) Software and product development,
g) Mobile app development,
h) E-learning course & membership design,
i) Custom Kajabi theme development,
j) API and third-party integrations,
k) SEO marketing and technical management.
Specific service descriptions for each offering will be detailed in the SCOPE.
4.3 Term and Termination - Each Service shall commence on the date of purchase and continue indefinitely, subject to the Termination provisions in Section 11 of this Agreement.
a) The CUSTOMER is granted a non-transferable, non-exclusive, non-sublicensable license to install and use LAUNCHPAD by MOTIVATION on a single registered domain on one Kajabi installation that you own or control, according to Kajabi Usage Rules.
b) This license also applies to any updates of LAUNCHPAD from MOTIVATION that replace or improve the original software unless a new license is issued for those updates.
4.4 Standard of Care - Motivation shall deliver all Services with reasonable skill and care, consistent with industry standards.
4.5 Configuration and installation of Services will be carried out in accordance with the provided SCOPE and delivered in accordance with SCOPE approach.
4.6 Support and Helpdesk - Motivation will provide support for all Services as detailed in Section 13 (SUPPORT SERVICES) of this Agreement.
4.9. Service-Specific Terms Additional terms specific to individual services offered by Motivation will be detailed in SCOPE. These terms shall be considered an integral part of this Agreement.
4.10. Modifications to Services - Motivation reserves the right to modify, update, or discontinue any Service or feature within a Service, with 30 days' written notice to the Customer. Such modifications shall not materially diminish the overall functionality of the Service.
4.11 Data Protection and Security - Motivation implements industry-standard security measures to protect Customer data. These measures include, but are not limited to:
a) Encryption of data in transit and at rest
b) Regular security audits and penetration testing
c) Access controls and authentication mechanisms
d) Compliance with applicable data protection regulations
Specific data protection and security measures for each Service are detailed in the SCOPE.
4.12 Modifications to Services - Motivation reserves the right to modify, update, or discontinue any Service or feature within a Service, with 30 days' written notice to the Customer. Such modifications shall not materially diminish the overall functionality of the Service. In the event of a material change:
a) Customer will be provided with a detailed explanation of the changes
b) Customer may terminate the affected Service without penalty if the changes substantially reduce the functionality they require
4.15 Third-Party Services - Some Services may incorporate or integrate with third-party services. Motivation will:
a) Clearly identify any third-party services used within each Service
b) Ensure that the use of third-party services complies with applicable laws and regulations
c) Not be liable for the performance or availability of third-party services beyond its control
4.16. General Provisions
a) This SERVICES section is integral to the Agreement between MOTIVATION and the CUSTOMER.
b) Inconsistencies between this section and the SCOPE are resolved in favor of the SCOPE.
c) Amendments to this section require written consent from both parties.
4.17 Services Restrictions
a) The CUSTOMER may not attempt to uncover the source code of LAUNCHPAD or alter it in any way without MOTIVATION's written consent.
b) The CUSTOMER cannot share or distribute LAUNCHPAD to third parties on the single Kajabi domain without MOTIVATION's written consent.
c) Copying or altering LAUNCHPAD, except as explicitly allowed by this license and the Usage Rules, is not permitted.
d) LAUNCHPAD does not comply with specific industry regulations like HIPAA or FISMA. If you're governed by these laws, LAUNCHPAD isn't suitable for your use. Also, using LAUNCHPAD in ways that violate the GLBA is prohibited.
Violating these terms, or attempting to do so, may lead to legal action and damages.
4.18 Service Audit rights - MOTIVATION reserves the right to audit the CUSTOMER's use of LAUNCHPAD to ensure compliance with the terms of this agreement. Such audits will be conducted during normal business hours and with reasonable notice. The CUSTOMER agrees to provide MOTIVATION with access to relevant records and systems necessary to conduct the audit. If any non-compliance is discovered, the CUSTOMER agrees to promptly rectify the issue at their own expense. Failure to comply with audit requests may result in suspension or termination of the service.
4.19 The CUSTOMER can create backup copies of LAUNCHPAD on devices you own or control as long as you comply with this license, the Usage Rules, and other applicable terms. These copies must be kept secure, and if you transfer your Kajabi login to someone else, you must remove LAUNCHPAD from your account beforehand, unless you have MOTIVATION's written consent.
4.20 Motivation is solely responsible for providing any maintenance and support for software services on a regular basis as follows, but not limited to:
a) Bug Fixing: We preemptively identify and rectify bugs to prevent disruptions.
b) Performance: We consistently fine-tune Launchpad code for enhanced speed and smoother functionality.
c) Security: We keep Launchpad secure with the latest code updates & security patches to safeguard against threats.
d) Third-Parties: We update all third-party libraries, ensuring compatibility with Kajabi, browsers, and other third party integrations, such as cloud based environments.
e) New Features: Informed by a strategic roadmap and user feedback, we regularly introduce new features to elevate the Launchpad and customer experience.
f) Documentation and helpdoc training videos and documents in response to changes.
4.21 Software service Launchpad requires a minimum firmware version of 5.15 or higher.
a) Inactive customers with versions below the minimum requirement are required to purchase a new SCOPE & licence to upgrade Launchpad.
b)
4.22 Software service Launchpad requires a minimum firmware version of 5.15 or higher.
5.0 PRICING
This section covers all aspects of pricing, including payment schedules, invoicing, and potential price adjustments.
5.1. Charges: The Customer shall pay charges as outlined within SCOPE.
5.2. Payment Schedule: All offers are to be paid in advance according to the agreed schedule.
5.3. Invoicing: First and one-off tax invoices will be issued once payment is received, cleared, and reconciled within the accounting system.
5.4. Monthly Retainer Invoicing: Monthly retainer tax invoices are issued at the start of each month and are paid automatically by the agreed schedule or via bank / wise transfer within 7 days of issue.
5.5. Non-Payment: Motivation may suspend or terminate Services for non-payment.
5.6. Price Adjustments: Motivation may adjust pricing with 90 days' written notice.
5.7. Scope Changes: Motivation may adjust project scope and pricing for unforeseen complexities or changes, subject to Customer agreement.
5.8. Taxes: The Customer is responsible for paying all external fees and taxes associated with the use of the Services wherever levied, including withholding tax if applicable.
5.9. Service-Specific Pricing: Detailed pricing structures for each Service will be outlined in the SCOPE. For current pricing information, refer to the
Pricing Page.
5.10. Currency and Rate Fluctuations: Base currency is GBP plus VAT. USD and Euro rates may fluctuate; refer to the Pricing Page for the most up-to-date information.
6.0 INTELLECTUAL PROPERTY
This section defines intellectual property rights and outlines ownership and licensing arrangements for different types of deliverables.
6.1. Ownership and Pre-existing Materials:
a) Each Party shall retain all Intellectual Property Rights in its pre-existing materials.
b) Motivation software services including but not limited to, Launchpad, Consent and Rocket, remain the ownership of Motivation.
b) Unless otherwise agreed in the SCOPE, all Intellectual Property Rights in the deliverables created by Motivation for the Customer shall be owned by the Customer upon full payment of the Services.
c) Any improvements or modifications to Motivation's pre-existing Intellectual Property, even if made during a customer project, shall remain the sole property of Motivation.
6.2. Motivation's Intellectual Property:
a) Motivation is the owner or licensee of all intellectual property rights in our Services, including all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics in the Services (collectively, the 'Content'), as well as the trademarks, service marks, and logos contained therein (the 'Marks').
b) Our Content and Marks are protected by copyright and trademark laws (and various other intellectual property rights and unfair competition laws) and treaties in the United States and around the world.
c) The Content and Marks are provided in or through the Services 'AS IS' for your personal, non-commercial use or internal business purpose only.
6.3. Customer's Use of Motivation's Services and Content:
a) Subject to your compliance with these Legal Terms, including the 'PROHIBITED ACTIVITIES' section, Motivation grants you a non-exclusive, non-transferable, revocable license to: i) access the Services; and ii) download or print a copy of any portion of the Content to which you have properly gained access, solely for your personal, non-commercial use or internal business purpose.
b) Except as set out in this section or elsewhere in our Legal Terms, no part of the Services and no Content or Marks may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written permission.
c) Any use of the Services, Content, or Marks beyond the scope outlined in this section requires our express prior written permission. Please address your request to: [insert contact information].
d) If we grant you permission to post, reproduce, or publicly display any part of our Services or Content, you must identify us as the owners or licensors of the Services, Content, or Marks and ensure that any copyright or proprietary notice appears or is visible on posting, reproducing, or displaying our Content.
e) We reserve all rights not expressly granted to you in and to the Services, Content, and Marks.
f) Any breach of these Intellectual Property Rights will constitute a material breach of our Legal Terms and your right to use our Services will terminate immediately.
6.4. Customer Submissions and Contributions:
a) Submissions: By directly sending us any question, comment, suggestion, idea, feedback, or other information about the Services ('Submissions'), you agree to assign to us all intellectual property rights in such Submission. You agree that we shall own this Submission and be entitled to its unrestricted use and dissemination for any lawful purpose, commercial or otherwise, without acknowledgment or compensation to you.
b) Contributions: The Services may invite you to chat, contribute to, or participate in blogs, message boards, online forums, and other functionality during which you may create, submit, post, display, transmit, publish, distribute, or broadcast content and materials to us or through the Services ('Contributions'). Any Submission that is publicly posted shall also be treated as a Contribution.
c) License Grant: By posting any Contributions, you grant us an unrestricted, unlimited, irrevocable, perpetual, non-exclusive, transferable, royalty-free, fully-paid, worldwide right, and license to use, copy, reproduce, distribute, sell, resell, publish, broadcast, retitle, store, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part), and exploit your Contributions for any purpose, commercial, advertising, or otherwise, to prepare derivative works of, or incorporate into other works, your Contributions, and to sublicense the licenses granted in this section.
d) This license includes our use of your name, company name, and franchise name, as applicable, and any of the trademarks, service marks, trade names, logos, and personal and commercial images you provide.
6.5. Customer Responsibilities for Contributions:
a) You are responsible for what you post or upload.
b) You confirm that you will not post any Contribution that is illegal, harassing, hateful, harmful, defamatory, obscene, bullying, abusive, discriminatory, threatening, sexually explicit, false, inaccurate, deceitful, or misleading.
c) You waive any and all moral rights to any such Submission and/or Contribution.
d) You warrant that any such Submission and/or Contributions are original to you or that you have the necessary rights and licenses to submit them.
e) You warrant and represent that your Submissions and/or Contributions do not constitute confidential information.
f) You are solely responsible for your Submissions and/or Contributions and agree to reimburse us for any losses we may suffer due to your breach of this section, any third party's intellectual property rights, or applicable law.
6.6. Motivation's Right to Remove or Edit Content: Although we have no obligation to monitor any Contributions, we shall have the right to remove or edit any Contributions at any time without notice if, in our reasonable opinion, we consider such Contributions harmful or in breach of these Legal Terms. If we remove or edit any such Contributions, we may also suspend or disable your account and report you to the authorities.
6.7. Copyright Infringement: We respect the intellectual property rights of others. If you believe that any material available on or through the Services infringes upon any copyright you own or control, please immediately refer to the 'COPYRIGHT INFRINGEMENTS' section of this Agreement.
6.8 User-Generated Content: When you create content on our platform ("Contributions"), you retain ownership but grant us a license to use, modify, and distribute it. You are responsible for ensuring your Contributions don't violate any laws or infringe on others' rights.
7.0 CONFIDENTIAL INFORMATION
This section defines confidential information and outlines the obligations of both parties to protect such information.
7.1. "Confidential Information" means any information, including but not limited to technical know-how, commercial information, specifications, inventions, processes, and initiatives disclosed by the other party to the other, designated as confidential or which should reasonably be understood to be confidential. This includes, but is not limited to, business plans, methods, practices, personnel, customers, suppliers, inventions, processes, methods, products, patent applications, specifications, drawings, sketches, models, samples, tools, computer programs, and technical information.
7.2. Each Party agrees to keep confidential and not to disclose or use for its own benefit or for the benefit of any third party any Confidential Information disclosed by the other Party. The receiving Party (“Recipient”) shall protect such Confidential Information from inadvertent disclosure to a third party using the same care and diligence that the Recipient uses to protect its own proprietary and confidential information, but in no case less than reasonable care. The Recipient shall ensure that each of its employees, officers, directors, or agents who has access to Confidential Information is informed of its proprietary and confidential nature and is required to abide by the terms of this Agreement.
7.3. The obligations of confidentiality shall survive the termination of this Agreement in perpetuity for trade secrets and other highly sensitive information, and for a period of five (5) years for all other Confidential Information. The Recipient shall, for the specified period, refrain from disclosing such Confidential Information to any contractor or other third party without prior, written approval from the disclosing Party.
7.4. Exceptions to Confidentiality: The obligations of confidentiality do not apply to information that:
a) Is or becomes publicly known through no fault of the receiving party,
b) Is lawfully received from a third party without breach of any confidentiality obligation,
c) Is independently developed by the receiving party without use of Confidential Information,
d) Is required to be disclosed by law or court order, provided the disclosing party is given prompt notice and the opportunity to seek a protective order.
7.5 Ownership and Return or Destruction of Confidential Information
All Confidential Information disclosed under this Agreement shall remain the property of the disclosing Party. Upon termination of this Agreement or upon request of the disclosing party, the receiving party shall promptly return or destroy all Confidential Information and certify in writing that it has done so. The Recipient shall honor any request from the disclosing Party to promptly return or destroy all copies of Confidential Information disclosed under this Agreement and all notes related to such Confidential Information.
7.6 Remedies for Breach
The Parties agree that the disclosing Party will suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise disclosed in breach of this Agreement. The disclosing Party shall be entitled to obtain injunctive relief against a threatened breach or continuation of any such breach and, in the event of such breach, an award of actual and exemplary damages from any court of competent jurisdiction.
7.7 Miscellaneous
Nothing in this Agreement shall be construed to constitute an agency, partnership, joint venture, or other similar relationship between the Parties. Neither Party will, without prior approval of the other Party, make any public announcement of or otherwise disclose the existence or the terms of this Agreement.
8.0 DATA PROTECTION AND PRIVACY
This section outlines data protection and privacy obligations for both parties.
8.1. Compliance: Both parties shall comply with applicable data protection laws and regulations in accordance with the Privacy Policy below these terms.
8.2. Customer Obligations: The Customer agrees to adhere to international privacy, data protection, and security protocols.
8.3. Non-Compliance: If the Customer is non-compliant, Motivation will recommend its Legal and Privacy service. If declined, Motivation is relieved of related responsibilities, and the Customer indemnifies Motivation against resulting claims.
8.4. Privacy Policy and data processing is available in detail below these terms.
8.7. Data Breach Notification: In the event of a personal data breach, Motivation shall notify the Customer without undue delay after becoming aware of the breach.
9.0 LIABILITY, INDEMNIFICATION, AND WARRANTIES
This section covers indemnification, warranty disclaimers, and limitations of liability for both parties.
9.1. Indemnification: Motivation's total aggregate liability under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, shall in no circumstances exceed the amount paid by the Customer to Motivation in the 12 months preceding the event giving rise to the claim.
a) The Customer agrees to indemnify, defend, and hold harmless Motivation against all losses, costs, expenses, demands, or liabilities that Motivation incurs arising out of, or in connection with, a third-party claim against Motivation arising from the Customer's use of the Services or any third-party product, except for losses arising from Motivation's breach of this Agreement or gross negligence, willful misconduct, fraud, or material error.
b) Motivation will take reasonable mitigation measures where possible.
c) The Customer also agrees to indemnify Motivation for any claims arising from the Customer's violation of applicable laws or regulations while using the Services.
9.2. Disclaimer of Warranties:
a) The Services and all third-party products are made available to the Customer on an "as is" basis.
b) Subject to the exclusions in Section 9.3 and the rights the Customer has under the laws in their country of residence, Motivation disclaims all warranties, express or implied, including any implied warranties of non-infringement, merchantability, and fitness for a particular purpose.
9.3. Limitation of Liability:
a) Motivation shall have no liability arising from the Customer's use of the Services for any loss of revenue or profit, loss of goodwill, loss of customers, loss of capital, loss of anticipated savings, legal, tax, or accounting compliance issues, damage to reputation, loss in connection with any other contract, or indirect, consequential, incidental, punitive, exemplary, or special loss, damage, or expense.
b) For loss or corruption of the Customer's data, Motivation's liability will be limited to taking reasonable steps to recover data from available backups if covered in SCOPE.
c) Motivation's total aggregate liability to the Customer in any circumstances is limited to the total amount paid by the Customer for their subscription in the 12 months immediately preceding the date on which the claim giving rise to the liability arose.
d) These limitations do not apply to losses resulting from Motivation's gross negligence, fraud, or willful misconduct.
e) Motivation shall have no liability for any damages resulting from the Customer's failure to implement recommended security measures or keep their access credentials secure.
10.0 Prohibited Activities
This section outlines activities that are not permitted when using our Services.
10.1. General Prohibitions: You agree not to:
a) Use our Services for any illegal or unauthorized purpose,
b) Violate any laws in your jurisdiction,
c) Infringe on our or anyone else's intellectual property rights,
d) Upload or transmit viruses or any other malicious code,
e) Harass, bully, or intimidate any other user,
f) Impersonate any person or entity,
g) Attempt to gain unauthorized access to our systems or other users' accounts.
10.2. Detailed Prohibitions: For a comprehensive list of prohibited activities, please refer to our "Detailed Prohibited Activities" document, which is incorporated by reference into this Agreement.
This document includes, but is not limited to, restrictions on:
a) Data collection and use
b) Content creation and sharing
c) System interference
d) Commercial activities
e) Account creation and management
10.3. Compliance: Violation of these prohibitions may result in termination of your access to the Services and potential legal action.
10.4. Updates: We reserve the right to update the list of prohibited activities at any time. Any updates will be communicated to you and will be effective 30 days after such notification.
11.0 TERMINATION
This section outlines the conditions under which the agreement can be terminated and the consequences of termination.
11.1. Term: This Agreement commences on the Effective Date and continues indefinitely in accordance with the SCOPE and this Termination section.
11.2. Notice Period: Either party may terminate any service with 30 days' written notice, effective at the end of the current billing cycle of each of the Services.
11.3. Material Breach: Either party may terminate immediately for uncured material breach or insolvency.
11.4. Immediate Termination by Motivation: Motivation reserves the right to terminate this Agreement immediately if the Customer engages in activities that could harm Motivation's reputation or violate applicable laws.
11.5. Effects of Termination - Upon termination of this Agreement for any reason:
a) The Customer shall immediately cease use of all Services.
b) all licenses granted under this Agreement shall immediately terminate;
c) each party shall return and make no further use of any services, asssets or data, property, documentation and other items (and all copies of them) belonging to the other party;
d) Motivation may destroy or otherwise dispose of any of the Customer Data in its possession unless Motivation receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data.
e) Motivation shall use reasonable commercial endeavors to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination
f) Motivation shall provide the Customer with a reasonable opportunity to retrieve their data, subject to payment of any outstanding fees.
11.6. Survival: Sections relating to Intellectual Property, Confidentiality, Liability, Indemnification, and any other provisions which by their nature should survive, will survive termination of this Agreement.
12.0 DISPUTES
This section describes how disputes between Motivation and the Customer will be resolved.
12.1. No Refunds: Given the nature of the Services provided, Motivation does not offer refunds once Services have commenced or been delivered.
12.2. Quality Disputes: The Customer's sole remedy for quality issues shall be completion or re-performance of the Services, at Motivation's discretion. Quality claims must be made in writing within 14 days of Service delivery.
12.3. Dispute Resolution Process:
a) Informal Negotiations: The Parties agree to first attempt to negotiate any Dispute informally for at least thirty (30) days before initiating arbitration.
b) Mediation: If informal negotiations fail, the Parties agree to attempt to resolve the dispute through mediation before proceeding to arbitration.
c) Binding Arbitration: If mediation is unsuccessful, the Parties agree to submit the Dispute to binding arbitration in accordance with the Arbitration and Internal Rules of the European Court of Arbitration.
12.4. Restrictions on Arbitration: Any arbitration shall be limited to the Dispute between the Parties individually. There is no right for any Dispute to be arbitrated on a class-action basis or in a purported representative capacity.
12.5. Exceptions to Arbitration: Certain Disputes, such as those related to intellectual property rights or claims for injunctive relief, are not subject to arbitration.
12.6. Governing Law: This Agreement is governed by the laws of England and Wales.
12.7. Documentation: All dispute resolution proceedings must be adequately documented, including all communications, proposed resolutions, and final decisions.
13.0 SUPPORT SERVICES
Motivation shall provide support services to Active and Inactive Customers, in accordance with the terms specified in this section.
13.1. Customer Status and Support Prioritization
(a) Active Customers: Customers with current, paid services shall receive priority support.
(b) Inactive Customers: Customers without current, paid services may submit support requests subject to extended response times and lower prioritization.
13.2. Helpdesk Communication
(a) All support requests shall be submitted via email to the designated helpdesk address or submit a web form, community forum or web chat beacon where available.
(b) Each new request shall be sent as a separate email with a unique subject line to receive a Task ID (TDD reference number).
(c) Customers shall use the assigned Task ID in all subsequent communications related to a specific request.
13.3. Response Time Commitments Motivation shall categorize and respond to support requests as follows:
(a) Urgent Issues: Response and resolution efforts to commence within twenty-four (24) business hours. An urgent issue is a critical impact or total outage to an entire software service only.
(b) High Priority Issues: Response within twenty-four (24) business hours; resolution efforts within five (5) business days. A high priority issue is a partial impact or outage to a software service only.
(c) Normal Updates: Response within five (5) business days; completion within fourteen (14) days. Normal updates are responses to those already with a TDD reference.
(d) Low Priority Requests: Response within seven (7) business days; addressed within twenty-one (21) business days. A low priority is a request without a TDD reference.
13.4. Resolution Time Disclaimer Motivation does not guarantee specific resolution times. The aforementioned timeframes represent targets for response and resolution efforts.
13.5. Support for Inactive Customers and Subscribers:
(a) Response Time: Inactive Customers may expect a response within fourteen (14) days from the date of submission of their support request.
(b) Expedited Support Option: Inactive Customers may purchase an hourly support package or retainer to receive a priority response, in according with response time commitments.
13.6. Limitations and Prioritization - Motivation reserves the right to prioritize support requests from Active Customers over those from Inactive Customers and Subscribers.
13.7. Project Management:
(a) Motivation shall maintain a project board within SCOPE reflecting current work and project changes.
(b) Customers are encouraged to review the project board within SCOPE for comprehensive project status updates.
13.8. Modification of Support Terms Motivation may modify the terms of support services with thirty (30) days' written notice to the Customer.
13.9. Term and Termination This Support Services and Helpdesk section shall commence on the effective date of the Master Services Agreement and continue indefinitely, subject to the Termination provisions therein.
14.0 SERVICE LEVEL AGREEMENT (SLA)
This section defines the level of service Motivation commits to provide to Active Customers Only.
14.1. Service Availability: Motivation commits to maintaining a service uptime of 99.75% measured on a monthly basis, excluding scheduled maintenance, and 99.9% uptime for Enterprise plans.
14.2. Scheduled Maintenance: Motivation will provide at least 14 days notice for any scheduled maintenance that may affect service availability.
14.3. Escalation Procedures: If the Customer is not satisfied with the progress of issue resolution, the dispute policy applies.
14.4. SLA Failures: In the event Motivation fails to meet the SLA targets, the Active Customer may be eligible for service credits to the value of the licence cost per down time day.
15.0 CHANGE MANAGEMENT
This section outlines the process for requesting and implementing changes to the Services.
15.1. Change Request Submission: The Customer may submit change requests via the designated project management system or in writing to their assigned project manager.
15.2. Evaluation Process: Motivation will evaluate change requests within 5 business days and provide an estimate of the impact on timeline, scope, and cost.
15.3. Approval: Any changes must be approved in writing by both parties before implementation.
15.4. Implementation: Once approved, changes will be implemented according to the agreed timeline.
15.5. Additional Costs: Any additional costs associated with changes will be billed separately or added to the next invoice, as agreed by both parties.
16.0 ACCEPTANCE TESTING
This section outlines the process for acceptance testing of deliverables.
16.1. Testing Period: The Customer shall have 30 business days from the delivery of any deliverable to test and accept or reject the deliverable.
16.2. Acceptance Criteria: Acceptance criteria for each deliverable will be specified in the SCOPE.
16.3. Rejection Process: If the Customer rejects a deliverable, they must provide detailed written reasons for the rejection within the testing period within the boundaries of the SCOPE approach.
16.4. Remedy: Motivation shall have 30 business days to remedy any issues and resubmit the deliverable for acceptance.
16.5. Deemed Acceptance: If the Customer does not reject a deliverable within the testing period, it shall be deemed accepted.
17.0 USE OF SUBCONTRACTORS
This section addresses Motivation's right to use subcontractors in the provision of Services.
17.1. Right to Subcontract: Motivation reserves the right to use subcontractors in the provision of Services.
17.2. Notification: Motivation will notify the Customer of any subcontractors used in the provision of Services.
17.3. Responsibility: Motivation remains fully responsible for the actions and omissions of its subcontractors.
17.4. Confidentiality: All subcontractors used by Motivation are bound by confidentiality obligations at least as stringent as those in this Agreement.
18.0 FORCE MAJEURE
This section outlines how unforeseen circumstances affecting service delivery will be handled.
18.1. Definition: Force Majeure events include, but are not limited to, acts of God, natural disasters, war, civil unrest, government actions, and widespread internet or power outages.
18.2. Notification: The affected party shall notify the other party as soon as reasonably possible of the Force Majeure event and its expected duration.
18.3. Suspension of Obligations: Neither party shall be liable for any delay or failure to perform its obligations under this Agreement due to a Force Majeure event.
18.4. Mitigation: Both parties shall use reasonable efforts to mitigate the effects of the Force Majeure event.
19.0 TERMINATION
If a Force Majeure event continues for more than 5 business days, either party may terminate this Agreement with written notice. Additional Provisions Here we set out some additional terms that are important for both parties to understand.
19.1. Non-Solicitation: Neither party shall, during the term of this Agreement and for a period of 24 months following its termination, solicit or attempt to solicit any employee or contractor of the other party who was involved in the provision or receipt of the Services.
19.2. Entire Agreement: This Agreement, including all elements of SCOPE, constitutes the entire agreement between the parties.
19.3. Amendments: No variation of this Agreement shall be effective unless in writing and signed by both parties.
19.4. Assignment: We may assign any or all of our rights and obligations to others at any time. The Customer may not assign their rights or obligations under this Agreement without Motivation's prior written consent.
19.5. Relationship of Parties: There is no joint venture, partnership, employment, or agency relationship created between you and us as a result of these Legal Terms or use of the Services.
19.6. Waiver: The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by that party in writing.
19.7. Severability: If any provision of this Agreement is held to be unenforceable or invalid, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
19.8. Notices: All notices under this Agreement must be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; and upon receipt, if sent by certified or registered mail, return receipt requested.
19.9. Headings: The section headings in this Agreement are for convenience only and have no legal or contractual effect.
20.0. This Agreement is subject to change and may be updated in accordance with the above terms.
