MOTI Pilot Program Terms and Conditions

BY CLICKING ON THE "ACCEPT" BUTTON, YOU OR THE ENTITY THAT YOU REPRESENT (“YOU”, “YOUR”, "EVALUATOR") ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND BECOME A PARTY TO THIS Pilot TEST AGREEMENT (THIS "AGREEMENT").  IF EVALUATOR IS ACCESSING THE PLATFORM ON BEHALF OF ANOTHER ENTITY OR INDIVIDUAL, EVALUATOR REPRESENTS AND WARRANTS THAT IT HAS THE AUTHORITY TO AGREE TO THIS AGREEMENT ON such Entity’s or individual’s BEHALF.  EVALUATOR’S CONTINUED USE OF THE EVALUATION MATERIALS (AS DEFINED BELOW) SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT.  IF EVALUATOR DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT OR DOES NOT HAVE AUTHORITY TO BIND the ENTITY ON BEHALF OF WHICH IT IS ACCESSING THE EVALUATION MATERIALS, EVALUATOR MUST CLICK THE "CANCEL" BUTTON AND MAY NOT ACCESS OR USE THE EVALUATION MATERIALS IN ANY MANNER FOR ANY PURPOSE.  IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.

1.         Evaluation.

1.1        License.  Subject to the terms and conditions of this Agreement and Evaluator’s payment of the Evaluation Fee (as defined below), Moti, Inc. (“we”, “us”, “our”, “Moti”) grants to Evaluator a nontransferable, nonsublicensable and nonexclusive license to use Moti’s software (in object code), including without limitation any mobile applications, hardware devices (including the MOTI device), online platform and services and related materials (“Product”) during the Evaluation Period.  Evaluator shall access and use the Product, and any documentation, data, know-how or other information received from Moti or its representatives or licensors (together with the Product, “Evaluation Materials”), solely for Evaluator's trial use, testing and evaluation of the Product (“Pilot Test”), and for no other purpose.  Evaluator acknowledges and agrees that the Product may incorporate functions that restrict Evaluator from exceeding the scope of this license.  Evaluator acknowledges and agrees that its use of the Evaluation Materials is governed by this Agreement and the Privacy Policy at http://www.moti.io/privacy/; provided however that, to the extent the terms of this Agreement conflict with any terms of the Terms and Conditions or Privacy Policy, the terms of this Agreement shall supersede such conflicting terms. 

1.2        Restrictions.  Evaluator shall not:  (a) use any Evaluation Materials to create any similar software, data or documentation; (b) decompile, disassemble or otherwise reverse engineer any Product, or use any similar means to discover the source code or trade secrets therein, or otherwise circumvent any technological measure that controls access to the Product; (c) encumber, transfer, sublicense, distribute, rent, lease, lend, time-share or use the Evaluation Materials in any service bureau arrangement or for the benefit of any third party; (d) reproduce, manufacture, port, create derivative works of or otherwise modify any of the Evaluation Materials, or use any Evaluation Materials in any commercial product or service; or (e) permit any third party to do any of the foregoing.

1.3        Feedback. Evaluator will provide Moti with written reports as requested, which accurately describe in reasonable detail: (a) the portions of the Product that were evaluated; (b) the nature and extent of its use; (c) any errors or difficulties encountered and any characteristic symptoms or conditions (so as to permit Moti to recreate same); (d) assessment of Product functions and performance; and (e) suggested improvements (“Feedback”). 

In any case, Evaluator shall promptly notify Moti in accordance with Section 2.4, if it encounters any material error in the Evaluation Materials.  Moti may, in its sole discretion, attempt to resolve such error.

1.4        Safeguards.  Evaluator agrees that, prior to installing, using or removing the Product, Evaluator shall be solely responsible for backing-up or otherwise protecting all software, data and other information residing on the applicable computer.

1.5        Publicity.   Evaluator agrees that it will, from time to time upon Moti's request, provide reasonable cooperation and assistance in connection with Moti's and fund-raising efforts (such as, for example, writing customer testimonials). 

2.         PAYMENT.

2.1        Evaluation Fee.  Evaluator agrees to pay Moti an “Evaluation Fee” equal to the price quoted at http://www.moti.io/get-moti/ and agrees to be responsible for all taxes and other governmental assessments.  

2.2            Billing.  Moti uses a third-party payment processor (the “Payment Processor”) to bill for the Evaluation Fee.  The processing of the Evaluation Fee will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement.  We are not responsible for error by the Payment Processor.  By choosing to use the Evaluation Materials, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for any use of such Evaluation Materials in accordance with the applicable payment terms and you authorize us, through the Payment Processor, to charge your chosen payment provider (your “Payment Method”).  You agree to make payment using that selected Payment Method.  We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment.

2.3        No Refunds.  No refunds of the Evaluation Fee will be given except in the event of the Pilot’s cancellation.

2.4        Product Issues .  Should you receive an incorrect, damaged or faulty Product, please contact Moti at hello@moti.io within seven (7) days of receipt and we will arrange, as appropriate and depending on availability, a Product exchange or credit.  We may require return of the Product before providing an exchange or credit.  

3.         Proprietary Rights.

3.1        Confidentiality.  Except for the specific rights granted by this Agreement, Evaluator shall not use, possess, publish or otherwise disclose any Evaluation Materials without the prior written consent of Moti.  Evaluator shall receive the Evaluation Materials in strict confidence, and use all reasonable efforts to protect the Evaluation Materials.  Evaluator shall bear responsibility for any breach of confidentiality by anyone the Evaluator grants access to the Evaluation Materials.  Evaluator agrees to keep confidential the fact that it is evaluating the Product.  The results of Evaluator's use and evaluation of the Product, and all reports and records pertaining thereto, shall be considered Evaluation Materials for the purposes of the confidentiality provisions of this Agreement.

3.2        No Implied Licenses.  Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Moti or its licensors shall retain all right, title and interest (including patents, copyrights, trade secrets and trademarks) in and to the Product and other Evaluation Materials.  Evaluator shall not take any action inconsistent with such ownership.  Evaluator shall not alter or remove any printed or on-screen proprietary or legal notice contained on or in copies of any Evaluation Materials.

3.3        Developments.  Evaluator hereby assigns to Moti all right, title and interest (including patent rights, copyright rights and all other intellectual and industrial property rights throughout the world) in and to all Feedback, inventions (whether or not patentable), works of authorship, know-how, ideas and information made, conceived or reduced to practice, in whole or in part, by Evaluator during the term of this Agreement that relate to the subject matter of, or arise out of, the Evaluation Materials.  Evaluator will promptly disclose and provide all such inventions, works and other developments to Moti.  At Moti's request and expense, Evaluator agrees to provide assistance to evidence, record and perfect such assignments, and to obtain, maintain, enforce and defend any rights assigned.

3.4        No Interference.  Evaluator agrees not to use any information or other knowledge gained through use of the Evaluation Materials to provoke an interference with any patent application which Moti has filed with respect to the Product, or to amend any claim in any of Evaluator's pending patent applications to expand such claim to read on, cover or dominate any invention (whether or not patentable) relating to the Product.

4.         Term and Termination.

4.1        Evaluation Period.  This Agreement shall commence on the Effective Date and remain in effect until the earlier of (a) ninety (90) days after the Effective Date or (b) Evaluator's notice that it has completed the evaluation (the “Evaluation Period”), unless extended by Moti in writing, at its sole discretion.  This Agreement may be terminated sooner by Moti at any time, effective upon five (5) days prior written notice to you(or, in the case of any breach or threatened breach hereof, effective immediately upon written notice given by the non-breaching party).  The Product may incorporate functions that will render it inoperable after the Evaluation Period.

4.2        Effects of Termination .   Upon any termination or expiration of this Agreement, all rights, obligations and licenses shall cease, except that the provisions of Sections 2 (Payment), 3 (Proprietary Rights), 5 (Warranty Disclaimers), 6 (Liability Limitations), 7 (General Provisions) and this Section 4.2 shall survive.

5.         Warranty Disclaimers.

Evaluator acknowledges and agrees that the Evaluation Materials ARE experimental, PRELIMINARY or untested.  the evaluation materials are provided "AS IS," without warranty.  Moti makes no promise that the Product will function on any machine or in any environment, or that its operation will MEET EVALUATOR'S REQUIREMENTS, RESULT IN ANY OUTCOME, OR be error-free or uninterrupted.  MOTI disclaims all warranties, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, REGARDING THE EVALUATION MATERIALS, including the implied warranties of TITLE, NONINFRINGEMENT, ACCURACY, QUIET ENJOYMENT, MERCHANTABILITY and FITNESS FOR A PARTICULAR PURPOSE, AND ALL IMPLIED WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.  MOTI MAKES NO promise THAT ANY DEFECT IN THE EVALUATION MATERIALS CAN OR WILL BE FIXED, OR THAT ANY SUCH EFFORT WILL BE MADE.

6.         Liability Limitations.

In no event shall MOTI OR ITS LICENSORS BE LIABLE to Evaluator with respect to the subject matter of this agreement for any cause whatsoever regardless of the form of any claim or action (whether in CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERwise), for (A) any LOSS OR INACCURACY OF DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (B) ANY INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES or PROFITS OR INVESTMENT LOSSES, OR (C) ANY DIRECT DAMAGES IN EXCESS OF THE evaluation fee, EVEN IF MOTI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  Moti SHALL NOT BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.

7.         General Provisions.

7.1        Third Party Software.   Nothing in this Agreement will be construed to limit any rights granted under the Open Source Licenses.  Evalutor acknowledges that Evaluation Materials may be distributed alongside or contain or use certain third party software, including Open Source Software (“Third Party Software”).  Third Party Software is (in addition to the terms and conditions of this Agreement), subject to and governed by the respective licenses for the Third Party Software.

7.2        Entire Agreement.  This Agreement (including any agreements referenced herein) constitutes the entire agreement between the parties with regard to, and supersedes all prior negotiations, understandings or agreements (oral or written) between the parties relating to, the subject matter of this Agreement (and all past dealing or industry custom).  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.  No changes, modifications or waivers may be made to this Agreement unless in writing and signed by both parties.  The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights.  Except as specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy.  In the event that any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

7.3        Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflicts of law provisions.  The sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in New York, and both parties consent to the jurisdiction of such courts with respect to any such action.  In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover from the other party the actual costs and expenses (including reasonable attorneys' fees) that it incurred in connection with such action or proceeding and enforcing any judgment or order obtained.

7.4        Relief.  Evaluator acknowledges and agrees that, in the event of any breach or threatened breach of any use restriction or confidentiality obligation hereunder, Moti may suffer irreparable damage for which it will have no adequate remedy at law.  Accordingly, Moti shall be entitled to injunctive and other equitable remedies to prevent or restrain, temporarily or permanently, such breach or threatened breach, without the necessity of posting any bond or surety.  Such remedies shall be in addition to any other remedy that Moti may have at law or in equity.

7.5        Notices.  All notices under this Agreement will be in writing, in English, and will be deemed effective when personally delivered, when sent by confirmed fax, or three (3) days after being sent by prepaid express courier, or five (5) days after being sent by prepaid certified or registered mail to the address of the party set forth herein, or such other address as last provided to the other party by written notice.

7.6        Assignment.  This Agreement and the rights and obligations hereunder may not be assigned or otherwise transferred by either party without the prior written consent of the other party, except that Moti (without consent) may assign its rights and obligations hereunder to any of its affiliates or to any successor to all or substantially all of its business or assets.  Any attempted transfer in violation hereof will be void and of no effect.  This Agreement or the relevant provisions will be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties.

7.7        Independent Contractors.  The parties shall be independent contractors in the performance of their obligations under this Agreement, and nothing contained herein will be deemed to constitute either party as the agent or representative of the other party, or both parties as joint venturers or partners for any purpose.