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TERMS AND CONDITIONS OF USE

THESE TERMS AND CONDITIONS OF USE CONTAIN LEGAL OBLIGATIONS.  PLEASE READ THESE TERMS AND CONDITIONS OF USE BEFORE USING THE PRODUCT.

1.  Introduction and Agreement

1.1  MOOTIVATION TECHNOLOGIES CORP. (Incorporation No. BC1078280) (“Mootivation”) has developed, owns and operates Moodle and Totara plugins and a Thinkific App (collectively, the “Plugins”) and an application for computers and mobile devices under the name “Mootivated” and “Motrain” which facilitates online student learning in an interactive and customizable environment (collectively, the “App”), together with a web-based platform which enables students/teachers/managers to design content to be accessed and used within the App (the “Design Platform”).  The App and the Design Platform are made available subject to compliance with these terms and conditions of use (the “Terms of Use”).

1.2  Use of the  Plugins, App and Design Platform (collectively, the “Product”) is permitted only on the condition that the user (“You”) agrees to these Terms of Use.  By accessing and using the Product, and by making it available to students, You agree to be bound by these Terms of Use without limitation or qualification.  IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF USE, YOU MUST NOT ACCESS, USE OR MAKE AVAILABLE TO YOUR STUDENTS THE PRODUCT.

1.3  Subject to the terms, conditions and restrictions contained in these Terms of Use, Mootivation hereby grants You the non-exclusive, non-transferable and limited right to use the Product in accordance with these Terms of Use and our privacy policy found here:  https://motrain.com/privacy-policy/ (but for no other purpose whatsoever).

2.  Changes to the Product

2.1  Mootivation may, at any time without notice or liability, and for any reason whatsoever, change, suspend or terminate any aspect of the Product.  Mootivation reserves the right, in its sole discretion, to correct any errors or omissions in any portion of the Product at any time without notice or liability, but does not have a duty to do so.  It is your responsibility to check the Product periodically for changes. If you do not agree with any changes, you may terminate these Terms of Use as set out below.  Your continued use of the Product will mean that you accept and agree to any such changes.

3.  Registration, Account and Password

3.1  To access the Product, You must create an account for the Product with Mootivation (the “Account”) and keep Your Account profile information up-to-date and accurate at all times, including but not limited to, a valid email address. Your Account will include sufficient user spaces for each of Your students (collectively the “Students” and individually a “Student”) to access the App.

3.2  You agree to be responsible for all activities that occur under Your Account, including without limitation maintaining the confidentiality of any passwords or other Account identifiers which You choose or are assigned as a result of any registration or subscription process.

3.3  When using “Mootivated”, You agree to notify Mootivation immediately upon becoming aware of any unauthorized use of Your Account, any unauthorized use of the Product by a Student and/or any breach of the End User Licence Agreement applicable to a Student’s use of the App (the “Student EULA”).

3.4  When using “Mootivated”, You agree that You will ensure that each Student with access to the Product is advised of the need to review and agree to the terms of the Student EULA before using the Product, and of the fact that the Student EULA affects each Student’s rights and obligations with respect to the use of the Product and any content that a Student contributes to the Product through the Design Platform or otherwise creates through the Student’s use of the Product.

4.  Term and Fees

4.1  Use of the Product is subject to a monthly, or annual subscription valid for that duration (the “Subscription”) and payment of the subscription fee associated with such a Subscription (the “Fee”).

4.2  Notwithstanding the foregoing, if the Product is being provided to you on a trial basis, then no Fee is payable for the period of such trial use (the “Trial Period”), provided that continued use of the Product following the expiration of any Trial Period will be expressly subject to the payment of the applicable Fee.

4.3  Your Subscription begins immediately after Your payment of the applicable Fee.

4.4  Your Subscription will continue on a perpetual basis for the time frame purchased until cancelled in accordance with these Terms of Use.

4.5  You may cancel Your Subscription at any time by contacting purchasing@motrain.com or your service provider.  Upon cancelling Your Subscription, no further Fee will be charged, however Mootivation does not issue refunds.  If You cancel Your Subscription, Your membership will continue until the end of the duration for which You have paid in advance without any refund for the period of such time remaining following Your cancellation.

4.6  The Fee is payable in advance and all fees associated with the Product will be payable in the currency of the country You are located in, provided that Motrain reserves the right to require that the Fee be paid in United States dollars regardless of Your local currency.

4.7  Mootivation reserves the right to increase the Fee upon not less than thirty (30) days’ prior written notice to You.

4.8  The Fee is exclusive of GST/HST or any similar or replacement tax(es).

5.  Intellectual Property Rights

5.1  The Product (including the organization and layout of the Product) is, and at all times remains, the property of Mootivation. You agree to abide by all intellectual property notices, information and restrictions on, or displayed within, the Product.

5.2  Certain names, graphics, logos, icons, designs, words, titles and phrases used in relation to the App and/or the Design Platform constitute trade-marks (whether registered or unregistered), trade names or other intellectual property of Mootivation (the “IP Rights”) or third parties (the “Third Party IP”).  Mootivation at all times remains the sole owner of the IP Rights.

5.3  The display of the IP Rights and the Third Party IP does not convey or create any licence or other rights in any of the IP Rights or the Third Party IP, including:

(a)  Any ownership rights in any of the IP Rights or the Third Party IP;

(b)  Any right to use any of the IP Rights or the Third Party IP for commercial purposes including sale, resale, licence or sublicence; or

c)  Any right to reproduce, distribute, post, disseminate, publish, broadcast or transfer any of the IP Rights or the Third Party IP.

Use of any of the IP Rights or the Third Party IP without the express prior written consent of Mootivation or the applicable third parties, as the case may be, is strictly prohibited.

6.  Use and Restrictions

6.1  You agree that You will only use the Product and the IP Rights in strict accordance with these Terms of Use, follow all reasonable policies developed from time to time by Mootivation relating thereto, and otherwise refrain from conduct harmful or potentially harmful to the Product, any of the IP Rights, or Mootivation’s name, reputation or business.

6.2  You acknowledge and agree that the Product may, or may in the future, be used for communication between or among its users (the “Messaging Services”) and that you may receive emails, text messages and/or other instant messages relating to or arising out of Your use of the Product and the Students’ use of the Product, and You hereby consent to the receipt of any such messages or notifications.

6.3  You acknowledge and agree that You will be solely responsible for any and all monitoring and review of Students’ use of Messaging Services and other interactive features of the Product.

6.4  Without limiting the foregoing, You will not, nor will You assist, permit or encourage any Student or any other person or entity to:

(a)  Decompile, disassemble, or otherwise reverse engineer the App or the Design Platform;

(b)  Engage in any systematic extraction of data or data fields, including without limitation e-mail addresses;

c)  Permit a third party who is not a Student to obtain access to the Product or any part thereof;

(d)  With respect to any Messaging Services or other interactive and/or social features which may be provided in connection with the Product You will not and You will not permit any other party to:

(i)  Defraud, defame, abuse, harass, cyberbully, stalk, threaten or otherwise violate the legal rights (including without limitation rights of privacy) of others;

(ii)  Transmit spam or other unsolicited or duplicative messages; or

(iii)  Disclose, harvest or otherwise collect personal or private information, including without limitation e-mail addresses, about any third party without such third party’s express consent;

(e)  Use the Product in any way that contravenes applicable federal, provincial or other laws which apply to You, including without limitation privacy laws, copyrights, trademarks, or patents;

(f)  Modify, rent, lease, loan, sell, distribute, sub-licence or create derivative works or businesses based on the App or the Design Platform, in whole or in part;

(g)  Do anything or omit to do anything that might impair, jeopardize, violate or infringe any of the IP Rights or Mootivation’s rights relating to the Product or any of the IP Rights;

(h)  Oppose, contest or otherwise challenge the validity of any of the IP Rights or Mootivation’s rights relating to the Product or any of the IP Rights; or

(i)  Claim, use, or apply to register, record or file any trade-mark, trade name, copyright or design that is identical or confusingly similar to any of the IP Rights including, without limitation, any trade-marks or patents included in the IP Rights, or that is derived from or based on any of the IP Rights; in or with respect to any jurisdiction whatsoever.

6.5  You hereby acknowledge and agree that:

(a)  A Student’s access to and use of the App can be revoked at any time without notice by Mootivation in the event that such Student is in breach of the Student EULA or if otherwise required by law; and

(b)  If your platform permits, you may have the ability to revoke a Student’s access to the App at any time by removing the permission status for such Student in the App, and You have a positive obligation to do so as and when required by applicable law.

6.6  Without limiting anything else contained herein, with respect to the acquisition and use of the virtual currency which may be earned by Students through the use of the App (“Coins”), You acknowledge and agree as follows:

  • You have the option to make certain items, events and/or activities (the “Goods”) available for purchase by Students through the redemption of Coins in the App’s “virtual marketplace” (the “Store”);
  • Neither Apple nor Google is a sponsor of or otherwise involved in any way with the Store, the Goods, the Coins or any related activity, and accordingly will have any liability or responsibility to You with respect thereto;
  • Mootivation will have no obligation to monitor the Store and will have no liability for any Goods that You choose to make available in the Store. Without limiting the foregoing, You will be solely responsible for ensuring that all Goods made available to Students in the Store, together with Students’ the use of the Store function of the App itself, comply with all applicable laws of Your jurisdiction and You will indemnify and hold harmless Mootivation from and against any damages or losses in any way arising out of or relating to the acquisition or use of any Goods you make available in the Store;
  • Mootivation reserves the right at any time and in its sole discretion to modify, revoke access to and/or terminate the Store and Coin functions of the App, without notice or liability to You or the Students; and
  • Coins may not be sold, transferred, assigned, redeemed or exchanged for cash or other items of monetary value.

7.  Premium Shipping Integration

7.1  Mootivation provides the option of integrating with the Product the ability for You to enable the delivery of any items purchased or otherwise obtained through the use of the Product from a third-party shipping provider (the “Shipping Provider”) selected by You, provided that such shipping integration option (the “Premium Shipping”) will be subject to applicable Fees, as may be set and amended by Mootivation from time to time.

7.2  With respect to the Premium Shipping, You acknowledge and agree that Mootivation will only be responsible for the following:

  • The initial set-up and integration into the Product of the Premium Shipping with Your selected Shipping Provider, subject to the payment of the applicable Fees;
  • Facilitating the provision of the shipping information inputted into the Product by You and/or Students to the Shipping Provider, provided that Mootivation will have no obligation to verify the accuracy of such information;

7.3  You will be solely responsible for the following:

(a)  All shipping costs, insurance costs, and any other costs charged by the Shipping Provider relating to the delivery of any items shipped through the Premium Shipping option;

(b)  Entering into any contracts with the Shipping Provider in relation to the Premium Shipping, and for greater certainty Mootivation will not be a party to any such contract; and

c)  Any and all issues relating to missing items, damaged items, incomplete items, item tracking, returns or any other support requests of a Student or other user of the Product relating to the Premium Shipping, together with any and all costs associated therewith and any and all customer-service requests in relation to such issues;

7.4  You will indemnify and save harmless Mootivation from and against any and all losses, damages, injuries, liabilities, obligations and costs (including without limitation legal costs on a solicitor-and-client basis) that may be incurred by or claimed against Mootivation as a result of or arising out of the Premium Shipping, save and except to the extent that such losses, damages, injuries, liabilities, obligations and costs relate to Mootivation’s obligations under this Agreement.

7.5  As a condition of Mootivation making the Premium Shipping available to You, You will pay to Mootivation an initial connection Fee to be mutually agreed upon by Mootivation and You before the activation of the Premium Shipping function, having regard to the time and complexity involved in the integration of the Premium Shipping in the Product based on the Shipping Provider’s specific requirements.

7.6  In the event that You wish to change the Shipping Provider or add a new Shipping Provider at any time during the term of this Agreement, an additional Fee will be payable to Mootivation as a condition of such change, such Fee to be mutually agreed upon by Mootivation and You, based on the criteria set out in clause 7.5 above in relation to the requirements of the new Shipping Provider.

8.  Disclaimers

8.1  You expressly understand and agree that:

(a)  The App and the Design Platform are provided on an “AS IS” and “AS AVAILABLE” basis;

(b)  Any use of, or reliance on, the Product is at Your sole risk;

(c)  Mootivation will have no obligation to review or approve, and expressly disclaims any and all liability in relation to, any user-generated content created by Students in connection with the Product, including without limitation any content that may be offensive, infringe on third-party intellectual property rights or otherwise violate applicable laws or the rights of Students or other third parties;

(d)  MOOTIVATION AND ITS LICENSORS, LICENSEES OR AFFILIATES AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS DO NOT MAKE ANY, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW EXPRESSLY DISCLAIM ALL, REPRESENTATIONS, WARRANTIES, COVENANTS AND CONDITIONS, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, WITH RESPECT TO THE PRODUCT INCLUDING, WITHOUT LIMITATION:

(i)  WARRANTIES OR CONDITIONS OF TITLE AND NON-INFRINGEMENT;

(ii)  WARRANTIES OR CONDITIONS THAT THE PRODUCT AND THE CONTENT THEREOF WILL BE USEFUL OR MEET YOUR REQUIREMENTS OR EXPECTATIONS, THAT THE PRODUCT WILL BE AVAILABLE, UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR FREE OF DEFECTS, COMPUTER VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE RESULTS THAT MAY BE OBTAINED THROUGH USE OF THE PRODUCT WILL BE COMPLETE, ACCURATE OR RELIABLE;

(iii)  WARRANTIES OR CONDITIONS AS TO SECURITY; AND

(iv)  WARRANTIES OR CONDITIONS ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, WITH RESPECT TO THE PRODUCT.

8.2  No information, whether oral or written, obtained by You from Mootivation, its licensees or employees or from the Product, shall create any warranty not expressly stated in these Terms of Use.

9.  Limitation of Liability

9.1  YOU EXPRESSLY UNDERSTAND AND AGREE THAT IN NO EVENT WILL MOOTIVATION, ANY OF ITS LICENSORS, LICENSEES OR AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS HAVE ANY RESPONSIBILITY OR LIABILITY IN CONNECTION WITH THE PRODUCT FOR ANY LOSS OR DAMAGES WHATSOEVER, WHETHER BASED ON CONTRACT, NEGLIGENCE OR OTHER LEGAL BASIS, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR OTHER DAMAGES ARISING FROM OR IN CONNECTION WITH THE USE OF OR ACCESS TO THE PRODUCT OR FAILURE OF THE PRODUCT (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES SUFFERED AS A RESULT OF OMISSIONS OR INACCURACIES IN THE PRODUCT).  THESE LIMITATIONS APPLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF MOOTIVATION HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS OR IF SUCH LOSS OR DAMAGE WAS FORESEEABLE.

9.2  You expressly acknowledge that Mootivation is making the Product available to You in reliance on the limitations and exclusions of liability and the disclaimers set forth herein and that the same form an essential basis of the contract between You and Mootivation.  You expressly agree that the limitations and exclusions of liability and the disclaimers set forth herein will survive, and continue to apply in the case of, a fundamental breach or breaches, the failure of essential purpose of contract, the failure of any exclusive remedy or the termination or suspension of Your use of, or access to, the Product.

10.  Your Representations and Warranties

10.1  You represent and warrant that:

(a)  You and Your Students are using the Product in a jurisdiction where access to, or use of, the Product (or any part thereof) is not prohibited or illegal;

(b)  All acts and things done in connection with Your access and use of the Product and the use and access of the Product by Your Students, including without limitation uploading or otherwise inputting personal information about your Students or other identifiable individuals, have been done with all necessary consents, rights, powers and authorities;

c)  You will not use, or permit your Students to use, the Product or any part thereof, and in particular any Messaging Services, to harass, cyberbully or defame other users, or otherwise violate the Criminal Code (Canada) or any other applicable laws and regulations; and

(d)  You are fully able and authorized to enter into, and abide by, these Terms of Use.

11.  Indemnity and Injunctive Relief

11.1  YOU AGREE TO INDEMNIFY AND SAVE HARMLESS MOOTIVATION and each of its directors, officers, employees and agents from and against any and all losses, damages, injuries, liabilities, obligations and costs (including without limitation legal costs on a solicitor-and-client basis) that may be incurred by or claimed against Mootivation as a result of or arising out of any and all uses of the IP Rights, the App or the Design Platform by You or your Students, including uses contrary to these Terms of Use and any and all breaches by You of these Terms of Use.  You further acknowledge that a breach by You of these Terms of Use may cause Mootivation irreparable harm for which damages would not be an adequate remedy and, therefore, agree that, in addition to all other rights and remedies, Mootivation will be entitled to injunctive relief against a continuing or further breach by You without the necessity of proof of actual damages.  The provisions hereof will survive the termination of Your access to the Product.

12.  Termination

12.1  You acknowledge and agree that Mootivation may, at any time without notice, in its sole and absolute discretion and without cause, suspend or terminate Your access and/or the access of any Student to the App and/or the Design Platform.  You further agree that Motivation will not be liable to You or any other person as a result of such suspension or termination.

12.2  Without limiting the foregoing, use of the Product may be terminated by Mootivation immediately and without notice at any time should You fail to pay the Fee when required to do so or otherwise be in default of any of the terms of these Terms of Use.

12.3  Sections 8, 9, 10 and 11 of these Terms of Use will survive the termination of these Terms of Use for any reason.

13.  No Agency

13.1  You and Mootivation are independent contractors and no agency, partnership, joint venture or employee-employer relationship is intended or created by these Terms of Use.

14.  Choice of Law

14.1  You agree that all matters relating to these Terms of Use, including the use of the Product, shall be governed exclusively by the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without reference to conflict of law principles, save and except to the extent that applicable law provides otherwise.  Mootivation and You each agree to submit to the jurisdiction of the courts of the Province of British Columbia and to waive any objections based upon venue.

15.  Force Majeure

15.1  Neither party is liable for any delay, interruption or failure in the performance of its obligations if caused by acts of God, war (declared or undeclared), fire, flood, storm, slide, earthquake, power failure, inability to obtain equipment, supplies or other facilities not caused by a failure to pay, labour disputes, or other similar event beyond the control of the party affected which may prevent or delay such performance, other than a lack of funds or other financial matters.  If any such act or event occurs or is likely to occur, the party affected shall promptly notify the other, giving particulars of the event.  The party so affected shall use reasonable efforts to eliminate or remedy the event.

15.  Privacy Protection for Children

15.1  Our App is approved for use by minors under 18 years of age (precisely, 13~18). Congress and the FTC have taken special steps to assure that children under 13 years of age don’t share their personal information on the Internet without the express approval of their parents. Congress passed the Children’s Online Privacy Protection Act in 1998 and the FTC wrote a rule implementing the law. The FTC has taken law enforcement actions against companies that failed to comply with the provisions of the law and has issued a report to Congress assessing how companies have complied with it.

15.2  We comply with the California Eraser Law (a.k.a. Privacy Rights for California Minors in the Digital World) The law defines such a forum, as one “created for the purpose of reaching an audience that is predominately comprised of minors, and is not intended for a more general audience comprised of adults.”

15.3  Although the federal Children’s Online Privacy Protection Act (“COPPA”), 15 U.S.C. § 6501–6506, and the FTC’s COPPA Rule, 16 C.F.R. Part 312, regulate children’s privacy and have led to some guidance on when websites are “directed to minors” (as well as on the ways “actual knowledge” of a minor’s status is obtained outside of collecting date-of-birth), COPPA and the FTC’s rules apply only to minors under 13. We do not knowingly collect personally identifiable information from children under 13. If you are a parent, guardian, teacher, or school official and you learn that a Child under the age of 13 has provided us with Personal Information without consent, please contact us at support@mootivated.com. If we become aware that we have collected Personal Information from a child under age 13 without verification of parental consent, we will remove that information from our servers within 10 business days.

15.4  If you are using our App in the United States of America, you represent and warrant that you are solely responsible for complying with the Child Online Privacy Protection Act (“COPPA”), which requires parental consent for online collection of personal information from children under 13. When obtaining Consent, you must provide parents with a copy of our Privacy Policy found here:  https://www.mootivated.com/privacy-policy/.

16.  General

16.1  In these Terms of Use “You” and “Your” means you, your employees and any other person or entity on whose behalf you have the authority to accept these Terms of Use, all of whom shall also be bound by these Terms of Use to the extent permitted by law.

16.2  These Terms of Use, together with Mootivation’s Privacy Policy, constitute the entire agreement between Mootivation and You with respect to Your use of the Product and supersede all previous communications, representations and agreements, whether oral or written, between the parties with respect to the subject matter hereof, there being no representations, warranties, terms, conditions, undertakings or collateral agreements (express, implied or statutory) between the parties other than as expressly set forth in these Terms of Use.

16.3  If any section (or part thereof) of these Terms of Use is determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such determination shall not affect the remaining sections (or parts thereof) of these Terms of Use, which shall remain in full force and effect.  Mootivation’s failure to insist upon or enforce strict performance of any section of these Terms of Use or any right shall not be construed as a waiver of any such section or right.

16.4  These Terms of Use will enure to the benefit of and be binding upon the parties and their respective successors and assigns.  Mootivation may assign its rights and duties under these Terms of Use at any time without notice to You.  You may not assign Your rights and duties under these Terms of Use to any individual or entity at any time.

16.5  Any communications to Mootivation in relation to these Terms of Use and/or the App or Design Platform may be made to:

Contact:         JEFF CAMPBELL

Email:             support@motrain.com