Terms & Conditions
CONTRACT FOR THE LICENSING OF SOFTWARE, PROFESSIONAL SERVICES, SUPPORT AND MAINTENANCE OF LICENSED SOFTWARE, ENTERED INTO BY ONE PART OF MOTTI MOBILE USA, INC. (“MOTTI”) AND ON THE OTHER THE "CLIENT", UNDER THE FOLLOWING BACKGROUND, DECLARATIONS AND CLAUSES (THE "TERMS AND CONDITIONS"):
1. The Client by its own will wants to implement a mobile marketing solution that allows it to operate its marketing, rewards and loyalty campaigns efficiently and reliably.
2. Motti has the appropriate knowledge, human and technological resources, based on the software solutions it provides, and is willing to provide its services to the client, which consist of: (i) providing the software platform that covers the Client's business requirements; (ii) provide software development and implementation consulting services in order to fulfill the purpose of the solution to the Client, under the terms of this Agreement; and, (iii) provide training, support and maintenance services for their own software products.
FIRST. Provision of services.
The Parties agree that Motti undertakes, under the terms and conditions of this Agreement, to:
(i) Implement a mobile marketing platform based on the software products that are described within this Agreement (the "Licensed Software");
(ii) Provide professional development and consulting services under the following terms and conditions;
(iii) Provide maintenance services to the Licensed Software;
(iv) If required, provide rewards, prizes, incentives, promotions, codes and digital pins based on the prior agreement between the parties.
The Licensed Software and the Services agreed to in this Agreement will have the term specifically paid for in advance by the Client.
The Client may terminate this Agreement in advance for any reason, without the need for a judicial declaration or any liability on its part, by means of a notice to Motti 60 (sixty) calendar days prior to the desired termination date, in the provided that the Client has paid or will pay, within the aforementioned period, the charges accrued in full until the date chosen for the termination of the Contract.
In the event of any breach by Motti, with respect to any of its obligations under this Agreement and its annexes, the Customer may notify it in writing of said breach, requesting that it be immediately remedied and corrected. If the breach is not remedied or corrected within a maximum period of 60 (sixty) calendar days following receipt of the notification, the Client may, by means of written notification, at any time after said period and while the breach persists, terminate this Contract, without the need for subsequent notifications or judicial resolutions, leaving all the obligations and rights granted under this Contract immediately without effect, with the exception of the obligations established in this Agreement.
In the event of any breach by the Customer, with respect to any of its obligations under this Agreement and its annexes, including 30 (thirty) calendar days of delay in the payment of any amount due under this Agreement, Motti shall notify you in writing of said breach, requesting that it be immediately remedied and corrected. If the breach is not remedied or corrected within a maximum period of 30 (thirty) calendar days following receipt of the notification by the Client, Motti may, by means of written notification, at any time after said period and while the breach persists, terminate this Agreement without the need for subsequent notifications or resolutions.
THIRD. Elements not included in the Contract.
The Services listed below, including but not limited to, will not form part of the object of this Agreement:
a) Purchase of hardware or software licenses from third parties;
b) Planning, design, documentation or implementation of third party technology, with the exception of the integration model provided by Motti under the terms and conditions of this Agreement;
c) Availability of software, hardware or telecommunications services, or any other not explicitly mentioned that is the responsibility of the Client and/or its users;
d) Any other type of service, product or expense not specifically detailed in this Contract such as consulting, rewards, prizes and other services.
Notwithstanding the foregoing, any provision of services not included within the provision of the Services of this Contract, may be requested by the Client by means of a written notice within 15 (fifteen) business days prior to the date on which said services will be required. and will be invoiced through the corresponding quotation that Motti must provide to the Client for its approval in writing within said term.
Charges for Services. The Client undertakes to pay Motti, for the Licensed Software and the provision of the Services, the amounts established, in the terms and conditions agreed.
The Price that the Client undertakes to pay Motti for the Licensed Software and its Services does not include any type or class of taxes. The Value Added Tax will be borne by the Client. Likewise, the Parties agree that each of them will be responsible for the payment of the taxes that correspond to them in accordance with the provisions of the applicable tax laws.
Form of Payment. The payment of the Price will be made by the Client to Motti through the following means:
a) Bank wire transfer, which must be made within 30 (thirty) calendar days following the delivery of the corresponding invoice
b) Recurring credit card charge
FIFTH. Access to Client.
Motti acknowledges and agrees that the only selected persons will have access to the Customer, it's facilities and/or branches for the provision of the Services of this Agreement, will be those designated by Motti and approved by the Customer (the "Personnel ”).
SIXTH. Intellectual Property Rights.
Customer acknowledges that (i) the Licensed Software and all enhancements thereto are the property of Motti, (ii) all ownership rights are reserved and shall remain the sole and exclusive possession of Motti; (iii) no property right is being acquired, granted or transferred by virtue of the execution of the Contract; and, (iv) all intellectual property rights arising from the Contract, will be the sole and exclusive property of Motti, who will have all the respective rights with which it may market, reproduce, sell and in any other way use, in accordance with the applicable legislation.
Unless Motti agrees in writing, Customer agrees not to provide or make available the use of the Licensed Software to anyone not authorized by Motti. Likewise, the Client will not sell, rent or commercialize in any way the Licensed Software and will use its best efforts to prevent its unauthorized copying, reproduction, publication or use.
All the intellectual property rights derived from this Agreement are the sole and exclusive property of Motti, who will have all the respective rights, for which reason they may be marketed, reproduced, sold and in any other way in accordance with the applicable legislation.
Customer acknowledges that Motti will retain title and proprietary intellectual property rights in all work products that Motti develops under this Agreement, including all software programs, both fonts and executables, data, designs, the specifications, algorithms, reports, manuals and documentation in general, as well as improvements to such work products and/or any other material developed or prepared specifically for the Client by Motti. The foregoing, on the understanding that the moral rights of intellectual property also belong to Motti.
SEVENTH. Confidential information.
By virtue of this Agreement, the Parties may have access to confidential information or industrial secrets of one with respect to the other (the "Confidential Information"). The Confidential Information includes the Licensed Software, the information indicated as confidential by Motti, the execution of this Agreement and all that the Client delivers to Motti, in relation to this Agreement. The execution of this Contract in no case shall be interpreted in the sense that either of the Parties confers to the other any right in terms of industrial or intellectual property.
Motti undertakes to maintain the confidentiality of all information and documentation received or to which it has access by the Client, as a result of the provision of the Services. In the same way, the Client undertakes to maintain the confidentiality of the information and documentation that Motti has access to as a result of the provision of the Services.
Motti undertakes to treat any information provided by the Client as Confidential Information, therefore it may not disclose Confidential Information to any person, except as established in this Agreement. Motti undertakes not to use the Confidential Information for any other purpose other than to provide the Services.
Notwithstanding the foregoing, the following will not be considered Confidential Information for the purposes of this Agreement: (i) information that is or becomes information in the public domain, unless this is the result of the disclosure of Confidential Information by Motti or of the Client in violation of this Clause; (ii) information that has been provided to any of the Parties on a non-confidential basis, directly or through an agent, (iii) information that has been provided or is provided to the Parties by a source (other than the Client or Motti) , that Motti or the Client is not aware of being subject to any information disclosure prohibition; (iv) that information that has been legally obtained by the Parties from a third party that does not imply the violation of a duty of confidentiality of the party that discloses it; (v) that information that is known to the Parties before the execution of this Agreement, provided that it has not implied the violation of a duty of confidentiality; or (vi) such information that the other party approves in writing to be disclosed.
In the event that any of the Parties is required by court order of a competent authority, to disclose all or part of the Confidential Information, the requested party will promptly deliver to the other party a notification in this regard, in such a way that the party may seek to obtain a protective order or other appropriate remedy. In the event that said order is not obtained, the requested party may deliver only that part of the Confidential Information that would have been legally requested and will disclose the Confidential Information in a manner reasonably designed to preserve its confidential nature, prior notice. in writing about this fact to the other party, no later than the business day prior to that on which it is obliged to provide it. The foregoing, on the understanding that the delivery of the information requested by the authority will continue to maintain the confidential nature of any other third party.
Each party hereby agrees to carry out all necessary measures to ensure that the Confidential Information is not disclosed, or that its employees or representatives distribute it in contravention of the provisions of this Agreement.
Failure to comply with the confidentiality obligations established in this Agreement will result in the payment of damages in accordance with the applicable legislation, and, where appropriate, the obligation to release the other party, their respective officers and employees, from any lawsuit or claim arising from said breach.
EIGTH. Limitation of Liability.
Motti Disclaimer. Motti will not be liable under this Agreement (i) if the Licensed Software is not used in accordance with the documentation provided; (ii) if the defect is caused by a modification not made by Motti; or (iii) if the defect is caused by a malfunction resulting from the use of any third party software or database.
Notwithstanding any provision to the contrary that may be contained in this Agreement, except for damages resulting from the unauthorized use and/or disclosure of Confidential Information, under no circumstances will Motti and/or the Client will be liable to the other party or any other person or entity for an amount of damages that exceeds the total amount of the consideration stipulated in this Contract, or will be liable for direct or indirect damages, including loss or frustration of utilities, task interruption, data loss, third-party claims, system or equipment failures or malfunctions, or including penalties or punitive interest that may apply to the Client.
In addition to the aforementioned limitation any damages that might result of your use of the solution the entire liability of Motti and any of its entities, partners, employees and/or directors shall be limited to the actual amount paid by you through the solution.
NINTH. Independent employment relationship.
Both parties acknowledge that there is no employment relationship between them, neither between the Client and Motti, nor between the Motti personnel that will provide the Services with the Client. Consequently, Motti undertakes to disclaim all responsibility and to release the Client in peace and safety with respect to any claim or lawsuit whether it is labor, fiscal, criminal, commercial, civil, administrative, social security, or any other filed by the employees. and/or contractors of Motti against Client, employees or any other officer of Client. The Client is not and will not be responsible for the workers hired by Motti.
Customer agrees to provide future business referrals to potential Motti customers. Likewise, the Client authorizes Motti to include him in the list of clients that Motti has in its promotional material and on its website.
Any specific mention of the Licensed Software and the Services contracted by the Customer under this Agreement may be used by Motti as an advertising or informational medium, without the need for prior authorization by the Customer.
ELEVENTH. Fortuitous Event and Force Majeure.
None of the Parties will be responsible for the delay or lack of compliance with the obligations respectively under their responsibility derived from this Contract that are derived by fortuitous event or force majeure, and in such case, the term for the fulfillment of the respective obligation will be shall be deemed extended for a period equal to the duration of the conditions preventing compliance.
TWELVETH. Applicable Law and Jurisdiction.
For everything related to the interpretation, compliance and execution of this Agreement, the Parties expressly submit to the laws Delaware in the United States of America, thus renouncing any other jurisdiction or jurisdiction that could correspond to them by reason of their present or future domicile or for any other reason.
These terms and conditions are effective as of the date of Client registration to the Motti solutions. Motti reserves the right to modify these Terms and Conditions with effect for the future at any time.