Terms of Use

1. Terms of use

(a) Thank you for visiting our website. This website is operated by Motive Holdings Pty Ltd (ACN 620 026 142) of Level 8, 11 York Street, Sydney NSW 2000 (we , us and our). Please read these terms of use carefully as they apply to your use of this website including any content on it (the Website).

(b) By accessing or using the Website you agree to be bound by these terms of use. You should immediately cease using our website if you do not agree to these terms of use.

(c) We may revise these terms of use from time to time. We will display a notice on the Website indicating when any such revisions have been made. These terms of use were last updated on 13 December 2020.

(d) To contact us on any of these terms of use, please use the email info@motiveos.com

2. Registration
2.1 Registration

(a) You are not required to register to use the Website. However certain features on the Website may only be available if you do register.

(b) When you register, we may provide you with an initial password (which you may be able to change at a later stage) and user name which is personal to you. You must keep any user name and password that are allocated to you private, and not disclose them to any other person. If you have lost or forgotten your password, you can request that we send a reminder email containing your password to your registered email address.

(c) You may cancel your registration, by notifying your account manager and providing your user name, or cancel online within the motiveOS application.

(d) We may suspend or cancel your registration, either temporarily or permanently, if you breach, or we reasonably believe you have breached, any of these terms of use.

2.2 Eligibility

To create an account, you must be at least 18 years of age.

3. Use of content on the Website

(a) The Website is subject to copyright and possibly other intellectual property rights.

(b) We grant you a limited, non-transferable licence to access and use the Website solely for your personal, non commercial purposes.

(c) We (or our licensors) retain all right, title, and interest in and to the Website, and nothing you do on or in relation to the Website will transfer any intellectual property rights to you or, except for the licence referred to in paragraph (b), licence you to exercise any intellectual property rights unless this is expressly stated.

(d) Except as provided in these terms of use, any use or copying of the Website for any other purpose is expressly prohibited, unless prior written consent is obtained from us. You may contact us at info@motiveos.com if you wish to seek such consent.

(e) Subject to applicable law, we may revoke the permission referred to in paragraphs (b) and (d) at any time and may suspend or deny your access to or use of the Website without notice if you breach, or we reasonably believe you have breached, any of these terms of use.

4. Linking to this Website

(a) We encourage you to provide links to the Website. While you may use the name “motiveOS.com” in the text of any such link, you may not use the motiveOS logo or any of our other trademarks without our prior written consent.

(b) You must not frame this Website or represent or imply that any part of the Website belongs to anyone other than us.

(c) If we notify you that we object to the manner in which you provide links to this Website, you must immediately cease providing such links.

5. Purchasing terms
5.1 Subscriptions

Some parts of the Website are billed on a subscription basis (“Subscription(s)”). You will be billed in advance on a recurring and periodic basis (“Billing Cycle”). Billing cycles are set either on a monthly or annual basis, depending on the type of subscription plan you select when purchasing a Subscription.

At the end of each Billing Cycle, your Subscription will automatically renew under the exact same conditions unless you cancel it or we cancel it. You may cancel your Subscription renewal either through your online account management page or by contacting our customer support team.

A valid payment method, including credit card, is required to process the payment for your subscription. You shall provide us with accurate and complete billing information including full name, address, state, telephone number, and a valid payment method information. By submitting such payment information, you automatically authorize us to charge all Subscription fees incurred through your account to any such payment instruments.

Should automatic billing fail to occur for any reason, we will issue an electronic invoice indicating that you must proceed manually, within a certain deadline date, with the full payment corresponding to the billing period as indicated on the invoice.

5.2 Free service

motiveOS may offer you certain features or a limited version of the Service on a cost-free basis. Unless earlier terminated as described in these Terms of Service, you can use the Freemium Services until the current Service offering expires and will not be extended by us or you upgrade to a paid account.

At any time and without notice, we reserve the right to (i) modify Terms of Service of our Free product offer, or (ii) cancel such Free product offering.

5.3 Fee Changes

Motive Holdings Pty Ltd, in its sole discretion and at any time, may modify Subscription fees for the Subscriptions. Any Subscription fee change will become effective at the end of the then-current Billing Cycle.

We will provide you with a reasonable prior notice of any change in Subscription fees to give you an opportunity to terminate your Subscription before such change becomes effective.

Your continued use of Website after Subscription fee change comes into effect constitutes your agreement to pay the modified Subscription fee amount.

5.4 Refunds

Except when required by law, paid Subscription fees are non-refundable.

6. Accuracy and completeness of content

(a) While every effort has been made to show as accurately as possible the colours of any content forming part of the Website, we cannot guarantee that your computer monitor will display the colour of such content accurately.

(b) The material provided and views expressed by other users of the Website are the materials of those users and are not ours.

7. User Content

(a) You must not provide any material through the Website (Your Content) that:

  • (i) infringes the intellectual property or other rights of another person;
  • (ii) is defamatory, offensive, abusive, pornographic, profane or otherwise unlawful, including material that racially or religiously vilifies, incites violence or hatred, or is likely to insult or humiliate others based on race, religion, ethnicity, gender, age, sexual orientation or any physical or mental disability;
  • (iii) relates to unlawful conduct;
  • (iv) creates a privacy or security risk to any person, including by soliciting personal information from any person;
  • (v) solicits money from any person;
  • (vi) is false, misleading or deceptive;
  • (vii) contains financial, legal, medical or other professional advice;
  • (viii) would harm, abuse, harass, stalk, threaten or otherwise offend;
  • (ix) would reflect negatively on us, including our goodwill, name and reputation;
  • (x) tampers with, hinders the operation of, or makes unauthorised modifications to the Website;
  • (xi) would breach any applicable laws; or
  • (xii) would result in civil or criminal liability for you, us or any third party.

(b) By providing us with any of Your Content, you:

  • (i) grant us a non-exclusive, worldwide, royalty-free, perpetual licence (including a right of sublicence) to use, copy, modify Your Content in connection with our provision and promotion of the Website; and
  • (ii) warrant that you have the right to grant such licence.

(c) You agree to indemnify and hold us (including any of our directors, officers, employees and contractors) harmless from any claim made by any third party arising out of Your Content.

(d) We may, without notice to you, review, modify or remove any of Your Content in our absolute discretion including where we believe it violates these terms of use.

(e) Our Website is not designed to be a long-term storage medium. You are solely responsible for securing and backing up Your Content.

8. General restrictions

In using the Website, you must not:

(a) provide us with inaccurate or incomplete information;

(b) violate any applicable laws, or use the Website for any purpose that is unlawful;

(c) distribute viruses, spyware, corrupted files, or any other similar software or programs that may damage the operation of any computer hardware or software;

(d) collect or store data about other users of the Website; or

(e) engage in any other conduct that inhibits any other person from using or enjoying the Website.

9. Warranties and liability

(a) All express or implied guarantees, warranties, representations, statements, terms and conditions relating to these terms of use and the Website that are not contained in these terms of use, are excluded to the maximum extent permitted by law.

(b) In particular, and without limiting paragraph (a):

  • (i) while we endeavour to provide a convenient and functional Website, we do not guarantee that your requirements will be met or that your use of the Website will be uninterrupted, error free or that the Website is free of viruses or other harmful components; and
  • (ii) we cannot be responsible for any loss, corruption or interception of data sent to or from our Website which occurs outside of our computer systems (such as those which occur while being sent over the internet).

(c) We recommend that you install and use up-to-date anti-virus, anti-spyware and firewall software on your computer.

(d) Nothing in these terms of use excludes, restricts or modifies any guarantee, term, condition, warranty, or any right or remedy, implied or imposed by any legislation which cannot lawfully be excluded or limited, including the Australian Consumer Law which contains guarantees that protect the purchasers of goods and services in certain circumstances.

(e) If any guarantee, term, condition or warranty is implied into these terms of use under the Australian Consumer Law or any other applicable legislation (a Non-Excludable Provision) and we are able to limit your remedy for a breach of the Non-Excludable Provision, then our liability for breach of the Non-Excludable Provision is limited to one or more of the following at our option:

  • (i) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or
  • (ii) in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.

(f) Subject to paragraphs (g) and (h) and our obligations under the Non-Excludable Provisions, and to the maximum extent permitted by law, our maximum aggregate liability for all claims under or relating to these terms of use or the Website whether in contract, tort (including negligence), in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term or on any other basis, is limited to AUD $100 or, in relation to each order for goods that you place with us, the price you have paid to us in respect of those goods (if it is higher).

(g) Subject to our obligations under the Non-Excludable Provisions, and to the maximum extent permitted by law, we are not liable for, and no measure of damages will, under any circumstances, include:

  • (i) special, indirect, consequential, incidental or punitive damages; or
  • (ii) damages for loss of profits, revenue, goodwill, anticipated savings or loss or corruption of data,

whether in contract, tort (including negligence), in equity, under statute or on any other basis, whether or not such loss or damage was foreseeable and even if advised of the possibility of the loss or damage.

(h) Our liability to you is diminished to the extent that your acts or omissions (or those of a third party) contribute to or cause the loss or liability.

10. Variation of the Website

We may from time to time and without notice, vary, modify or discontinue, temporarily or permanently, any or all of the Website.

11. Links and advertisements

The Website may contain links to other third party websites and advertisements which include embedded links, which are provided for your information only. We have not reviewed any of the sites linked to the Website and are not responsible for the content or accuracy of any off-site pages or any other sites linked to the Website. The inclusion of any link or advertisement does not imply that we endorse or approve the linked site or the subject matter of the advertisement. You access third party websites entirely at your own risk and subject to the terms and conditions of use for those websites.

12. CONFIDENTIALITY AND PRIVACY
12.1 Confidentiality

Unless the relevant party has the prior written consent of the other or unless required to do so by law, each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms. Each party’s obligations under this clause will survive termination of these Terms. The provisions of clauses 12.1.1 and 12.1.2 shall not apply to any information which:

12.1.1 is or becomes public knowledge other than by a breach of this clause;

12.1.2 is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;

12.1.3 is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or

12.1.4 is independently developed without access to the Confidential Information.

12.2 Privacy

Motive Holdings Pty Ltd maintains a privacy policy that sets out the parties’ obligations in respect of data. You should read that policy since You will be taken to have accepted it when You accept these Terms.

12.2.1 Data Processing Agreement

To the extent Customer Content that includes Personal Information is sent by Customer through the Application Services and Customer’s use of the Application Services involves transferring Personal Information outside the European Economic Area or Switzerland to any country not deemed by the European Commission as providing an adequate level of protection for personal data, the terms of the Data Processing Addendum available on request at info@motiveos.com shall apply to such Personal Information and be incorporated into the Agreement.

13. Infringing or objectionable content

If you believe the Website contains elements that are objectionable, or infringe copyright or any other rights, please contact us by email on info@motiveos.com and provide particulars of such content and a detailed description of why it is objectionable or infringing.

14. General

(a) Additional terms and conditions may also apply to specific portions, services or features of the Website. All such additional terms and conditions apply in addition to, and prevail over, these terms of use.

(b) If any part of these terms of use is held to be unenforceable, the unenforceable part is to be given effect to the greatest extent possible and the remainder will remain in full force and effect.

(c) These terms of use are governed by the laws of New South Wales, Australia. If you are resident in Australia, each party submits to the non-exclusive jurisdiction of the courts of the State or Territory in which you ordinarily reside. If you are not resident in Australia, each party submits to the exclusive jurisdiction of the courts of New South Wales, Australia.

(d) Nothing in these terms of use limits any liability we or you may have in connection with any representations or other communications (either oral or written) made prior to these terms of use, where such liability cannot be excluded (including under section 18 of the Australian Consumer Law).

(e) Subject to paragraph (d), these terms of use supersede all previous agreements, understandings, negotiations, representations and warranties about its subject matter and embodies the entire agreement between the parties about its subject matter.

(f) Neither party will be liable for any failure or delay in performing any of its obligations under these terms if such delay is caused by circumstances beyond that party’s reasonable control.

(g) Your use of the Website is conducted electronically, and you agree that we may communicate with you electronically for all aspects of your use of the Website, including sending you electronic notices.

(h) The provisions of these terms of use which by their nature survive termination or expiry of these terms of use will survive termination or expiry of these terms of use.

(i) No waiver, delay or failure by us to take any action shall constitute or be construed as a waiver of that or any other term, condition, option, privilege or right we may have.

(j) The word “including” when used in these terms of use is not a term of limitation.