User Agreement

This Master Service Agreement (“Agreement“) is entered into between Motivacraft Inc. (“Motivacraft“) and the individual who registers on the website located at www.motivacraft.com (“Site“) and purchases the service provided by Motivacraft (“Customer“). This Agreement shall come into effect upon the physical or electronic acceptance of the Agreement by the Customer.

Hereafter, Motivacraft and the Customer shall be referred to individually as a “Party” and collectively as the “Parties”.

1. DEFINITIONS

1.1. “License” means the authorization for the Customer or the Customer’s full-time or part-time employee to access the Services. Licenses include Standard License, Additional Mini LMS License, Additional Mini Games License, Additional Socialization Module License, Additional Motiva TV License.

1.2. “Affiliate” means any organization controlled by, controlling, or under common control with a Party.

1.3. “Customer Content” means any content or data uploaded by the Customer to the Services.

1.4. “Documentation” means the user guides and other documentation related to the Services that Motivacraft provides to the Customer at support.motivacraft.com, which may be updated from time to time.

1.5. “Feedback” means any suggestions, ideas, or feedback provided by the Customer to Motivacraft regarding the Services.

1.6. ” Proposal” means the written offer document signed by Motivacraft and Customer detailing the term of the subscription purchased by Customer, each licence type and renewal options.

1.7. “Purchase Order Form” means the written order document specifying the duration of the purchased subscription, each license type, and renewal options in detail, which the Customer selects when purchasing the Services through Motivacraft’s active Site.

1.8. “Services” means the proprietary technology designed by Motivacraft to motivate, train, engage, and guide the Customer’s sales and other operational teams.

1.9. “Supporting License” means the Additional Mini LMS License, Additional Mini Games License, Additional Socialization Module License, and Additional Motiva TV License provided to the Customer under this Agreement.

1.10. “Standard License” means the license provided to the Customer under this Agreement, excluding Supporting Licenses.

1.11. “Third-Party Software” means third-party technology that the Customer can integrate with the Services.

1.12. “User” means the full-time or part-time employee or contractor to whom the Customer grants a License.

2. SUBJECT OF THE AGREEMENT

The subject of this Agreement is to regulate the terms and conditions related to the software developed for managing, recording, reporting, and gamifying the motivation of sales staff, as well as the services to be provided to the Customer in connection with it, and to set forth the rights and obligations of the parties.

3. INTELLECTUAL PROPERTY

3.1. Motivacraft owns all rights, ownership, and interests in the Services and Documentation. During the term of the Agreement, Motivacraft grants the Customer a limited, non-exclusive, worldwide, and revocable license to access and use the Services for its internal business purposes, subject to compliance with this Agreement.

3.2. None of the provisions of this Agreement grant the Customer any rights or interests in Motivacraft’s or its affiliates’ trademarks, patents, designs, symbols, slogans, or other intellectual property rights. The Customer acknowledges and undertakes that it unconditionally accepts the intellectual property rights owned by Motivacraft and its affiliates regarding products and services.

3.3. The Customer shall not directly or indirectly use any trademarks, trade names, trade dress, labeling, logos, designs, symbols, slogans, or visual elements of Motivacraft, its affiliates, or the Motivacraft Group, which may bear deceptive resemblance or cause confusion, on or in connection with the services purchased or used by the Customer or its full-time or part-time employees.

3.4. The Customer may make a reasonable number of copies of the Documentation for the purpose of accessing and using the Services, provided that (a) the Customer shall not remove any registered or proprietary marks from the Documentation, and (b) upon termination or expiration of this Agreement, the Customer shall promptly destroy all such copies.

3.5. The Customer owns all rights, ownership, and interests in the Customer Data. During the term of the Agreement, the Customer grants Motivacraft a limited, non-exclusive, worldwide right and license to access, use, view, store, copy, and otherwise use the Customer Content solely as necessary to provide the Services to the Customer. In addition to the aforementioned, the Customer also grants Motivacraft an irrevocable, non-reversible, worldwide right to use the Customer Content for the following purposes: (a) to compile and use usage and other statistical information related to the performance of the Services or the Customer’s use of the Services for the purpose of improving the Services, and (b) to use the Customer Content in a bulk and anonymized manner for any legal purpose, provided that such use does not identify or reasonably re-identify the Customer or any individual or legal entity.

3.6. The Customer shall at all times comply with the Acceptable Use Policy set forth in Article 13 and beyond of this Agreement.

3.7. Motivacraft shall comply with the Service Levels set forth in Article 12 of this Agreement.

3.8. By this Agreement, the Customer grants Motivacraft a perpetual, irrevocable, fully paid-up, worldwide license to use the Feedback for any purpose. The Customer acknowledges that providing Feedback does not obligate the Customer to provide any Feedback, does not obligate Motivacraft to use any Feedback, and does not constitute any representation or commitment made by the Customer through the Feedback.

3.9. The Customer may use the Services with Third-Party Software, but it is not required to do so. The Customer acknowledges and declares that Motivacraft has no control or responsibility over Third-Party Software and that it is solely responsible for complying with the terms and conditions of its Third-Party Software providers, whether referenced online or as part of a separate written agreement with the providers of such Third-Party Software.

3.10. The Customer agrees that, within the scope of the policies, commitments, etc., agreed upon by the Parties regarding the Processing of Personal Data by Motivacraft, the Customer Content may be shared with third parties for the performance of the Services, purchasing transactions, marketing activities, and for the continued functionality of Motivacraft’s other activities.

4. LICENSES; TECHNICAL SUPPORT; MODIFICATIONS

4.1. During the term of the Agreement, the Customer may reassign the purchased Standard Licenses and Supporting Licenses. If the Customer wishes to purchase additional Licenses other than the ones already purchased, the Customer shall pay a proportional fee for each additional License based on the remaining term of the Licenses valid at the time of purchase. If the Customer requests to stop using the purchased Licenses and requests a refund, the Customer shall not be entitled to a refund for the remaining period. However, for the subsequent period, the number of Licenses may be determined taking this into consideration in the Proposal or Purchase Order Form.

4.2. Each User will be provided with unique login credentials by Motivacraft. It is the responsibility of each User to keep the login credentials confidential and not to share them with any other User or third party. If the Customer becomes aware of or reasonably suspects that a User’s login credentials have been compromised, the Customer shall immediately inform Motivacraft.

4.3. Throughout the term of the Agreement, the Customer shall be entitled to Motivacraft’s standard technical support level without any additional charge. Motivacraft may change or terminate this support at any time by providing notice to the Customer.

4.4. Motivacraft undertakes to make reasonable efforts in the matters specified in this section: (a) Motivacraft will respond to support requests submitted by the Customer during normal working hours from Monday to Friday ( “Normal Business Hours“) between 9:00 AM to 5:00 PM within a maximum of 8 (eight) hours, and such requests will be resolved by Motivacraft within 48 (forty-eight) hours. If the support request is too complex to be resolved within the timeframes prescribed in this section, the Customer will be informed, and a planned resolution time will be communicated.

4.5. Upon the Customer’s request, Motivacraft will provide the Customer with the “Priority Support Package” for an additional fee. This includes prioritizing the Customer’s support requests, responding to the Customer within a maximum of 2 (two) hours, and resolving the issue within 36 (thirty-six) hours. If the support request is too complex to be resolved within the timeframes prescribed in this section, the Customer will be informed, and a planned resolution time will be communicated. By purchasing the Priority Support Package as mentioned in this section, the Customer will be entitled to live phone support for up to 300 (three hundred) minutes per month.

4.6. Provided that it does not substantially impair the general functionality of the Services, Motivacraft may modify, enhance, update, upgrade, or otherwise change the Services at any time with or without notice (“Modifications“).

5. DURATION AND TERMINATION OF THE AGREEMENT

5.1 This Agreement shall commence on the effective date and shall continue as long as there is at least one active Purchase Order Form or Proposal in effect, unless previously terminated in accordance with the terms set forth in the Agreement (“Term of the Agreement”). Each Purchase Order Form or Proposal shall be separately evaluated based on its own duration.

5.2 Unless otherwise specified in the Purchase Order Form or Proposal, each Purchase Order Form or Proposal shall automatically renew for successive periods equal to the length of the initial term (each a “Renewal Period” and together with the initial term, the “Term of the Agreement”), unless either party gives the other party written notice of termination at least thirty (30) days prior to the expiration of the current term.

5.3 Either party may terminate this Agreement or any Purchase Order Form or Proposal if the other party materially breaches this Agreement or the relevant Purchase Order Form or Proposal and such material breach remains uncured for a period of at least thirty (30) days after the non-breaching party provides written notice of the breach to the breaching party. Unless otherwise explicitly stated herein, termination shall be a non-exclusive remedy for the non-breaching party. Upon termination: (a) all rights, including the license granted hereunder, shall automatically terminate; (b) each party shall promptly return to the other party all Confidential Information (as defined below) then in its possession and shall destroy all physical or electronic copies thereof in its possession; and (c) all fees due until the date of termination shall be immediately paid by the Customer without any further notice.

5.4 Within thirty (30) days after the expiration of the Term, the Customer may request a copy of the Customer Content from Motivacraft. Motivacraft may retain the Customer Content for the period required by law.

5.5 The provisions related to confidentiality and data protection, which by their nature should survive the termination of this Agreement or the expiration of the Term of the Agreement, shall continue to be valid and binding.

6. FEES

6.1. Unless otherwise specified in the current Purchase Order Form or Proposal, Motivacraft shall invoice the Customer for all current Purchase Order Forms and Proposals before the start of the service period monthly or annually, as agreed between the Parties. Unless otherwise specified in the current Purchase Order Form or Proposal, all invoices must be paid by the Customer within fourteen (14) days from the date of receipt of the invoice. If the Customer has a good-faith dispute regarding an invoice, the Customer must inform Motivacraft by sending an email to [[email protected]] within 7 (seven) days after receiving the relevant invoice. Any amounts in dispute in good faith shall be paid by the Customer promptly upon resolution of the dispute. If any amount not subject to a good-faith dispute remains unpaid for more than 15 (fifteen) days, Motivacraft may, with five (5) business days’ written notice to the Customer: (a) apply interest at the maximum amount permitted by applicable law on the unpaid amounts, and/or; (b) suspend the Customer’s access to the Services and require the full payment of all fees for the current period to restore access to the Services.

6.2. The Customer shall be responsible for paying all sales, use, and other taxes related to the Services, whether or not such amounts are invoiced by Motivacraft. If the Customer is exempt from paying such taxes, the Customer must promptly provide Motivacraft with a valid exemption certificate. If the Customer is subject to any withholding tax, the Customer shall gross up the payment to Motivacraft in such a way that Motivacraft shall receive the full amount specified in the relevant invoice.

6.3. Motivacraft may increase the fees for the subsequent period as determined in the Purchase Order Form or Proposal and apply such changes to the Customer by providing at least sixty (60) days’ notice of the fee change before the end of the current term of the Purchase Order Form or Proposal.

7. REPRESENTATIONS AND WARRANTIES

7.1. Each Party represents and warrants to the other Party that: (a) it is duly established and validly existing under the laws of its relevant jurisdiction; (b) it has the authority and capacity to enter into this Agreement and fulfill its obligations under this Agreement, including obtaining all necessary permissions, licenses, and authorizations to enter into this Agreement; (c) it is not a party to any separate agreement that conflicts with its ability to fulfill its obligations under this Agreement; (d) this Agreement constitutes a legal, valid, and binding obligation enforceable against it; (e) it will comply with all applicable laws concerning its obligations under this Agreement; and (f) it will implement, maintain, and regularly review and update all necessary procedures to protect its systems against viruses, malware, and other harmful or malicious codes.

7.2. The Customer further represents and warrants that it will not: (a) reverse engineer, convert the Services to source code, disassemble, or attempt to derive the source code of the Services; (b) use the Services in a manner that violates the Acceptable Use Policy; (c) use the Services for the benefit of any third party; or (d) use the Services to create or display a product or service competing with the Services ((a)-(d) collectively, the “Restrictions“), and the Customer will not permit or assist others in engaging in the aforementioned Restrictions.

7.3. Unless expressly stated in this Agreement, the Services are provided “as is,” and Motivacraft makes no representations or warranties, whether oral or written, express or implied, including but not limited to merchantability or fitness for a particular purpose, and does not provide any representations or commitments regarding the timeliness, uninterruptedness, or error-free nature of the Services.

8. CONFIDENTIALITY

8.1. During the activities under this Agreement, each Party (“Recipient”) may come into contact with certain commercial and/or financial information (“Confidential Information“) of the other Party (“Discloser”) that is marked as “confidential” and/or “proprietary” or that a reasonable person would consider confidential and/or proprietary based on the nature of the information and the conditions of disclosure, and which is not publicly available. The Recipient agrees to: (a) maintain the confidential nature of the Discloser’s Confidential Information by exercising the same degree of care as it would with its own similar information, but in no event less than reasonable care; (b) use the Confidential Information only to the extent necessary to fulfill its obligations under this Agreement; (c) disclose the Confidential Information only to its employees, contractors, agents, consultants, and representatives (collectively, “Representatives”) who need to know such information and (d) not disclose the Confidential Information to any third party without the prior written consent of the Discloser. The Recipient shall ensure that its Representatives are bound by confidentiality obligations at least as stringent as those contained herein, and the Recipient shall remain fully liable for any actions or omissions of its Representatives concerning the Confidential Information.

8.2. Confidential Information shall not include information that becomes publicly available without fault of the Recipient, is independently developed by the Recipient, or is provided to the Recipient by a third party who is not bound by confidentiality obligations with respect to the Discloser’s Confidential Information. Additionally, if the Recipient is legally compelled to disclose the Discloser’s Confidential Information (unless prohibited by applicable law), the Recipient shall first provide notice to the Discloser and afford the Discloser a reasonable opportunity to oppose the compelled disclosure. In any event, the Recipient shall only disclose the Confidential Information to the extent required to comply with the legal order.

8.3. The Recipient acknowledges that a breach of this provision may cause the Discloser significant harm for which monetary damages would be inadequate. Therefore, the Recipient agrees that the Discloser may seek all available remedies under the law, including injunctive relief, without the need for posting a bond, and that such remedies are not limited to those specified in this provision.

9. LIMITATION OF LIABILITY

9.1. Neither Party shall be liable for any indirect, incidental, special, consequential, or punitive damages arising out of or in connection with this Agreement.

9.2. Each Party’s total liability under this Agreement to the other Party, whether in contract, tort, or otherwise, shall not exceed the total amount of fees paid or payable by the Customer to Motivacraft under this Agreement during the twelve (12) months preceding the date the claim arose.

9.3. The limitations set forth in Sections 9.1 and 9.2 shall not apply to: (a) one Party’s gross negligence, willful misconduct, or fraud or misrepresentation; (b) one Party’s indemnification obligations under Section 10; or (c) breach of the Restrictions by the Customer.

10. INDEMNIFICATION

10.1. Motivacraft shall indemnify, defend, and hold harmless the Customer from any and all losses, damages, liabilities, costs, and expenses (including reasonable attorney fees) arising out of or related to any third-party claim, demand, action, dispute, or suit (“Claim”) alleging that the Services infringe, misappropriate, or violate any third-party intellectual property right or arising from or related to such Claim. However, Motivacraft’s indemnification obligation shall not apply to Claims arising from or related to: (a) Customer Content; (b) Customer’s use of the Services in a manner not fully compliant with this Agreement; (c) modifications to the Services made by Motivacraft or with Motivacraft’s instruction or approval; or (d) Customer’s continued use of the Services after being notified that the Services may be subject to a Claim.

1. In the event that the Services are or, in Motivacraft’s reasonable judgment, are likely to be enjoined, Motivacraft shall, at its option and expense, either: (x) procure the right for the Customer to continue using the Services; (y) modify or replace the Services so that they become non-infringing but functionally equivalent; or (z) terminate the Services and provide the Customer with a pro-rata refund of any prepaid fees as of the termination date.
2. The Customer shall indemnify, defend, and hold Motivacraft harmless from any and all damages arising out of or related to any Claim alleging that Customer Content infringes, misappropriates, or violates any third-party intellectual property right or arising from or related to such Claim.
3. In order for the indemnification obligations under this section to apply, the Party seeking indemnification (“Indemnified Party”) must: (a) promptly notify the other Party (“Indemnifying Party”) in writing of the Claim; (b) give the Indemnifying Party sole control of the defense and resolution of the Claim (including selection of counsel) and not settle or compromise the Claim without the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned, or delayed; and (c) provide the Indemnifying Party with all reasonable assistance, at the Indemnifying Party’s expense. The Indemnified Party may participate in the defense of the Claim at its own expense through counsel of its own choosing.

11. SECURITY; DATA PROTECTION

1. Each Party shall implement and maintain reasonably designed appropriate administrative, physical, and technical measures to protect the other Party’s Confidential Information and to safeguard its own systems against unauthorized access. In the event of an actual or suspected breach or compromise of such measures, the Party shall reasonably cooperate with the other Party.
2. Regarding the processing of personal data by Motivacraft, the Parties shall comply with the terms of the Personal Data Processing Policy, which can be requested by written request to [email protected].

12. SERVICE LEVEL

Service Availability. Motivacraft shall make the Services available to the Customer for at least 99.5% of the time in each calendar month when measured in minutes (“Availability Commitment”). “Availability” means the accessibility of the essential components and modules of the Services to the Users, and “Downtime” means any time when the Services are not available.

1. Exceptions. For the purpose of calculating the Availability Commitment, the following Downtime shall not be included: (a) Scheduled maintenance (not exceeding four (4) hours per calendar month); (b) Downtime resulting from Force Majeure; (c) Malicious attacks on the Services or the networks used by or containing the essential components or modules; (d) Issues related to the Customer’s electronic devices, local area networks, or internet service provider connections; (e) Suspension of the Customer’s access to the Services as permitted in the Agreement; or (f) Customer’s breach of the Agreement. Motivacraft shall make reasonable efforts to notify the Customer at least seventy-two (72) hours before scheduled maintenance and to conduct scheduled maintenance outside of Normal Business Hours.
2. Motivacraft shall respond to any support request submitted by the Customer within 8 (eight) hours during Normal Business Hours, from 9:00 am to 5:00 pm, and resolve such requests within 48 (forty-eight) hours. If the support request is excessively complex and cannot be resolved within the time frames stipulated in this section, the Customer shall be informed of the planned resolution time.
3. Upon Customer’s request, Motivacraft shall provide the Customer with the Priority Support Package for an additional fee. This package will ensure priority to the Customer’s support requests, with a response within 2 (two) hours and resolution within 36 (thirty-six) hours. If the support request is excessively complex and cannot be resolved within the time frames stipulated in this section, the Customer shall be informed of the planned resolution time. Upon purchasing the Priority Support Package as described in this section, the Customer shall have the right to receive telephone support for up to 300 (three hundred) minutes per month.
4. Status. The Customer may monitor the Services’ Downtime at https://stats.motivacraft.com/.

13. ACCEPTABLE USE POLICY

1. The Customer shall not use the Services for any Prohibited Purpose. “Prohibited Purposes” include but are not limited to:

(a) Violating any applicable laws;

(b) (i) Using Customer Content that is obscene, pornographic, explicit, hateful, political, lascivious, incites violence against any government, organization, group, individual, or property, or (ii) using Customer Content that infringes any copyright, publicity right, patent, trademark, service mark, trade name, trade secret, or other intellectual property or personal rights of any third party, or (iii) using Customer Content that breaches any valid agreement with a third party without the third party’s permission;

(c) Deleting or modifying references, copyright notices, or trademark notices without express written permission from the intellectual property owner;

(d) Unauthorized access to any system, network, service, or account;

(e) Interference with any service rendered to any user, site, account, system, or network by any means, including programs, scripts, or commands;

(f) Introducing or activating any virus, worm, harmful code, or Trojan horse;

(g) Evading spam filters or sending or posting a message or email with misleading, incomplete, or false headers or sender identity information;

(h) Disparaging or ridiculing Motivacraft or its affiliates publicly;

(i) Reselling any part or module of the Services in whole or in part; or

(j) Misrepresenting the relationship with Motivacraft.

1. Motivacraft may suspend the Customer’s or the relevant User’s access to the Services if it discovers or reasonably suspects that the Customer or the relevant User violates the Acceptable Use Policy. While Motivacraft may monitor and supervise the Customer’s use of the Services to ensure compliance with the Acceptable Use Policy, it is not obligated to do so. The Customer is solely responsible for and obligated to ensure compliance with the Acceptable Use Policy regarding the use of the Services by its Users. Any questions about the Acceptable Use Policy and reports of violations of the Acceptable Use Policy should be directed to: [email protected]

14. OTHER PROVISIONS

This Agreement, including all appendices and Order Forms and Proposals, constitutes the entire agreement between the Parties with respect to the subject matter herein and supersedes all prior agreements or arrangements. Motivacraft may modify this Agreement at any time, but such changes will be communicated to the Customer in accordance with the terms of this Agreement. However, the Customer’s acceptance and approval of such changes are not required.

1. Motivacraft may, by giving notice to the Customer, but without the requirement to obtain Customer’s consent, assign this Agreement to (a) an Affiliate; or (b) a third party in connection with the restructuring, merger, or sale of all or a substantial part of its assets. This Agreement shall be binding upon and inure to the benefit of each Party’s successors and assigns.
2. All notifications related to this Agreement, except those concerning termination, shall be deemed duly delivered if sent by email and/or registered mail and/or facsimile to the addresses indicated by the Parties and/or delivered by hand.
3. The Parties agree that in any dispute arising from the performance of this Agreement, the data recorded on the information systems covered by the service, the contents of e-mails, instant messages, and other remote communication technologies between the Parties, together with the Parties’ commercial records and registers and computer records, shall constitute valid, binding, and conclusive evidence as a written evidence contract under the CCP.
4. This Agreement and the annexes referred to in this Agreement constitute an integral part of this Agreement.
5. If any provision of this Agreement is unlawful and/or invalid due to invalidity, the Parties agree to make any possible amendment to make it valid, and if such amendment is not possible, they accept that the other provisions not affected by it shall remain valid.
6. The failure of any Party to exercise any right under this Agreement shall not constitute a waiver of such rights, nor does it imply authorization to waive any rights that may arise in the same matter or in the future.
7. The Parties are independent contractors under this Agreement, and this Agreement does not create or intend to create agency, partnership, or joint venture relationships between the Parties. None of the Parties has the authority to act on behalf of the other Party or bind the other Party to any obligations.
8. Istanbul (Central) Courts and Enforcement Offices shall have jurisdiction to resolve any disputes arising from this Agreement.
9. The stamp duty related to this Agreement shall be paid by the Customer.
10. Neither Party shall be responsible for any failure to perform its obligations under this Agreement resulting from conditions beyond its reasonable control, including, but not limited to, natural disasters, pandemics, fires, floods, wars, terrorism, or civil unrest (“Force Majeure“). The Party affected by Force Majeure shall promptly notify the other Party, and upon the termination of the Force Majeure, shall promptly return to the performance of its obligations under this Agreement.
11. None of the provisions of this Agreement shall create a partnership, joint venture, or other commercial relationship with respect to the Parties. The Parties are independent of each other.
12. The failure of any Party to exercise any right under this Agreement shall not constitute a waiver of such rights, nor does it imply authorization to waive any rights that may arise in the same matter or in the future.

n. This Agreement may be executed in multiple counterparts, each of which shall constitute one single agreement together.