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1. Parties

These terms and conditions (“Terms and Conditions”) regulate the relationship between Motimate AS (corporate registration number 917 385 947), Karvesvingen 1, 0579 Oslo (“Motimate”) and the entity described as the customer (“the Customer”); each referred to as a “Party” and collectively as the “Parties”.

2. Definitions

«Confidential information» means any information regarding the business or operations of a Party that is of confidential nature. However, Confidential Information shall not include any information that:

  1. At or prior to the time of disclosure by the disclosing Party was known to the receiving Party through lawful means;
  2. At or after the time of disclosure by the disclosing Party becomes generally available to the public through no act or omission by the receiving Party;
  3. Is developed by the receiving Party independently of any Confidential Information it receives from the disclosing Party; or
  4. The receiving Party receives from any third person without confidentiality obligations.

«Intellectual Property Rights» means all patents, copyrights, design rights, trademarks, service marks, trade secrets, know-how, database rights and other rights of a similar nature, whether registered or not.

«Date for roll out» is the date from when the Customer agreed to launch the Services and users will be invoiced from.

«Services» means all services to be provided by Motimate under the Agreement.

«Users» means all users enrolled in Motimate.

«Contract start date» defines when on-boarding fee will be invoiced.

«Onboarding» means work related to on-boarding and setting up the account .

3. Software as a service

Motimate shall deliver software/application as a service (SaaS) to the Customer. The content of the Services is described on Motimate’s webpage and in presentations that may be given by Motimate to the Customer prior to concluding this Agreement.

The Services are provided «as is», on a best efforts basis, without representations and warranties of any kind, unless otherwise is specifically agreed in writing. In particular, the Customer acknowledges and agrees that the Services may not be error-free, and that there may be lack of availability, although Motimate will use its best efforts to avoid it to occur and to mitigate consequences therefrom.

4. Integration services

Motimate will provide integration services to the Customer, if agreed. Integration services will be invoiced based on actual hours spent, and with the hourly fees set at NOK 1250 per hour ex VAT.

5. Support services

The Customer may request Motimate to perform support services. In general support is free for the Customer. If there are tasks that are not included in general support Motimate shall give the Customer written notice, including number of payable hours, before the work is started. Agreed hours will be invoiced.

6. Changes to the services

Motimate may continuously work to improve, modify and otherwise make changes to the Services. The Customer acknowledges and agrees that the scope of the Services may change over time, that functionality may be lost or altered, that specific Services may no longer be provided or may be replaced with materially equivalent Services. Motimate shall notify the Customer in advance if changes materially and adversely will affect the Customer’s use of the Services.

7. Obligations of customer

The Customer shall use the Services in accordance with the Agreement. The Customer shall comply with reasonable instructions and policies for use of the Services made available by Motimate from time to time.

The Customer shall without undue delay notify Motimate in writing of any unauthorised use of the Services that comes to the Customer’s knowledge. Motimate shall have the right, in its sole discretion, to decide the relevant measures to prevent or otherwise handle such unauthorised use, and the Customer shall co-operate and provide reasonable assistance in respect to such measures.

The Customer shall without undue delay notify Motimate in writing of any incidents or errors concerning the Services that are discovered.

8. Payment terms

The Customer shall pay to Motimate the fees specified in the Agreement. Motimate will invoice the customer from the Contract Start Date.

Motimate shall issue invoices for the services based on agreed price.Customer shall pay the invoice within the number of calendar days from receipt of invoice.

All fees in this Agreement are exclusive of taxes, such as VAT.

Motimate shall be entitled to adjust the fees at the beginning of every calendar year by an amount equivalent to the increase in the consumer price index of Statistics Norway (KPI), with the initial reference index value being the index value for the month in which the Agreement was formed.

In the event of late payment, default interest shall be charged at the interest rate prevailing from time to time according to the Norwegian Act relating to interest on overdue payments.

9. Intellectual property rights

Nothing in this Agreement shall be construed to assign any Intellectual Property Rights pertaining to the Services. Motimate exclusively own and retain ownership to its Intellectual Property Rights, including to any developments and improvements to the Services.

Motimate grants to the Customer during the term of the Agreement a limited, non-exclusive, non-transferable license to use Motimate’s Intellectual Property Rights pertaining to the Services solely to the extent necessary to enjoy its rights under the Agreement.

The Customer shall ensure and be responsible for that the content of any posts (pictures, videos, etc) made by its personnel on the software/applications does not infringe the copyright, trademark, privacy and other rights of third parties.

10. Confidentiality

The Parties agree not to disclose Confidential Information received in connection with the Agreement to any other person, or use any Confidential Information for any purpose other than as contemplated herein, without the prior written consent of the disclosing Party. Each Party agrees to take reasonable precautions (no less rigorous than the receiving Party takes with respect to its own comparable Confidential Information) to prevent unauthorised disclosure of the other Party’s Confidential Information. Customer grants Motimate the right to publish logo and name of the Customer.

11. Privacy

Data Processing Agreements governs the terms and conditions for the processing of personal data in the context of the Services.

In the event of inconsistency between these Terms and Conditions and the Data Processing Agreement, the Terms and Conditions shall generally prevail. However, the Data Processing Agreement shall prevail with respect to issues relating particularly to processing of personal data.

12. Compliance

Each Party shall identify, keep themselves updated on, and comply with laws and regulations applicable to the Party and its activities.

13. Limitations of liability

Neither Party may claim compensation for its indirect costs and losses. Indirect costs and losses include, but are not limited to, loss of profits, loss arising as a consequence of reduced or discontinued production, loss due to loss of or damage to data, and claims from authorities, customers and other third parties.

Each party’s aggregate liability for a calendar year will not exceed an amount equivalent to 100 % of the fees payable hereunder during that year.

The limitations of liability shall not apply for any breach caused by willful misconduct or gross negligence.

14. Termination

14.1 Termination for convenience

A Party may terminate the Agreement for convenience with three (3) months’ notice. The invoice(s) for the three (3) months’ termination period will be the higher of (i) the agreed payments based on the use of the Services (excluding Integration services and Support services) during such termination period, or (ii) the invoice(s) for the three (3) months immediately preceding the termination notice.

14.2 Termination for cause

Each Party may terminate this Agreement immediately upon written notice to the other Party due to the other Party’s material breach of the Agreement; provided however that if the breach is capable of cure, the breaching Party will have forty-five (45) days’ from the notice to cure the breach.

14.3 Effects of termination

Upon termination of the Agreement, the Customer shall, unless otherwise agreed, discontinue all use of the Services.

Upon termination of the Agreement, Motimate shall, at the request of the Customer, reasonably facilitate the transfer to the Customer of data owned by the Customer that is stored by Motimate. Upon request of the Customer, Motimate shall also provide reasonable assistance in the hand-over to a new supplier, provided however that Motimate in no event shall be obliged to share its Intellectual Property Rights or Confidential Information with such new supplier. Motimate shall be compensated for such assistance on a time and material basis in accordance with the then current rates.

15. Assignment and subcontracting

Motimate may transfer the Agreement to an Affiliate. Motimate may freely subcontract their rights and obligations pursuant to the Agreement.

Except as set out above, neither Party may assign or in other manner transfer its rights and obligations of the Agreement to others without the prior written approval of the other Party. Any assignment in contravention of this clause shall be void.

16. Governing law and dispute resolution

The Agreement and any conflicts that arise as a consequence of the Agreement shall be governed by and construed in accordance with the laws of Norway.

Any dispute, controversy or claim arising in connection with this Agreement that is not resolved amicably within a reasonable period of time shall be referred by the courts of Norway with Oslo as the legal venue.

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