Terms and conditions of service

MOVINTRACKS LICENSE AND SERVICE AGREEMENT

On the date of the order.

BETWEEN

Movintracks Barcelona, S.L. (hereinafter “Movintracks”), with corporate domicile at C/ Emili Grahit 91 – Parc Tecnologicudg, Edifici 17003 Girona (SPAIN), and Fiscal Identification Code ESB55183768.

AND

The client, identified by the information provided at the checkout page.

Jointly hereinafter referred to as “the Parties”;

Each Party acknowledges having sufficient legal capacity to execute this Agreement.

WHEREAS

  1. WHEREAS Movintracks has developed a software product and service for managing mobile marketing campaigns called “Movintracks” (the “Movintracks Product and Services” or “Products”), including an online service and dashboard for managing campaigns, and a software program (the “Movintracks SDK”) for integrating with client mobile Apps, activated by NFC or Beacons, and automatically connecting with the Movintracks service (via the “Movintracks API”) for content delivery.  
  1. WHEREAS Client is interested in the use of the Movintracks Product and Services for the purpose of managing its own or its customers’ mobile marketing campaigns.
  1. WHEREAS Client has tested the Movintracks Product and Services and is satisfied that they are adequate for its needs.

5.        In accordance with the foregoing, both Parties jointly agree to formalise this Agreement (“this Agreement”, including all its Annexes) regarding use of the Movintracks Products and Services, in accordance with the following Summary Table, General Terms and Conditions and attached Annexes.

IN WITNESS WHEREOF, the Parties sign this contract in duplicate, with effect on the Effective Date first set out above.

Summary Table with Service Configuration

Client (“Client”)

The information will be set at checkout page.

Contacts

Client Contact person will be set at checkout page.

Movintracks Contact person:

Name:Sara Cartelle

Position: Account Executive

Address: Passeig Sant Joan, 65

Tel: +34 694 47 61 41

Email: hello@movintracks.io

Products

Movintracks Basic:

Movintracks Product and Service, including 1 Dashboard accounts,

access to the Movintracks API and use of the Movintracks SDK for

unlimited installations

Basic 72h mail support

Purpose

Use of the Products: using the  Products for managing Client’s own marketing campaigns [brands, end-customers]

Payment

Payment of the fees is a follows:

  • All fees: monthly in arrears, within 30 days of invoice

Movintracks Account

Bank: La Caixa

Holder: Movintracks Barcelona S.L.

A/C:2100 8133 1302 0012 5467

IBAN:  ES16 2100 8133 1302 0012 5467

SWIFT/BIC:  CAIXESBBXXX Service

Movintracks Service Configuration

Movintracks Basic

Term

Initial term: 1 month from the date of the order.

Renewal: automatic monthly

Dashboard Accounts

1 Accounts

(further accounts subject to purchase)

Included Monthly Unique Users

10.000 monthly unique users included (if the “lowcost” coupon is applyed, then only 200 monthly unique users). Subsequent MUUs to be purchased as per prices below: 0,04 euros for each additional monthly unique user

Included hardware

N/A

Fees

License fee of Movintracks SDK and Movintracks API:

  • Fee: If you choose Movintracks Basic: 15 euros per month (includes first 10,000 monthly unique users at first month)
  • Variable Fee: 0,04 euros for each additional monthly unique user

(VAT not included, if applicable):

Territory

Worldwide.


Movintracks Pro
Term Initial term: 1 month from the date of the order.Renewal: automatic monthly
Dashboard Accounts 3 Accounts, with premium 24 h agent answer delay and video conference support within 72 h agent answer delay if needed.(further accounts subject to purchase)
Included Monthly Unique Users 20.000 monthly unique users included. Subsequent MUUs to be purchased as per prices below: 0,04 euros for each additional monthly unique user
Included hardware N/A
Fees License fee of Movintracks SDK and Movintracks API:

  • Fee: If you choose Movintracks Pro: 49 euros per month (includes first 10,000 monthly unique users at first month)
  • Variable Fee: 0,01 euros for each additional monthly unique user

(VAT not included, if applicable):

Territory Worldwide.
Movintracks Test Kit
Term Initial term: 3 month.Renewal: no option to renewal.
Dashboard Accounts 1 Accounts, with limited e-mail support.
Included Monthly Unique Users Unlimited monthly unique users included.
Included hardware 3 beacons.
Fees 150 euros one-time fee.License fee of Movintracks SDK and Movintracks API.The use of the SDK and API is not available in the test kit. A test app with a test frontend featuring the client’s logo will be provided.

(VAT not included, if applicable):

Territory Worldwide.
Movintracks White label
Term Initial term: 1 month from the date of the order.Renewal: automatic monthly
Dashboard Accounts 5 Accounts, with premium 24 h agent answer delay and video conference support within 72 h agent answer delay if needed.(further accounts subject to purchase). Additional dashboard accounts: 13€ each one.
Included Monthly Unique Users 20.000 monthly unique users included. Subsequent MUUs to be purchased as per prices below: 0,01 euros for each additional monthly unique user
Included hardware N/A
Fees License fee of Movintracks SDK and Movintracks API:

  • Fee: If you choose Movintracks white label: 99 euros per month (includes first 10,000 monthly unique users at first month)
  • Variable Fee: 0,01 euros for each additional monthly unique user

(VAT not included, if applicable)

Territory Worldwide.
Movintracks Free
Term Initial term: 1 month from the date of the order. Renewal: automatic monthly
Dashboard Accounts 1 Account
Included Monthly Unique Users Unlimited users. Movintracks can change how many users are included at anytime.
Included hardware N/A
Terms Limited list of actions

  • Show product info
  • Show alert
  • Vibrate
  • Show survey
  • Play audio
  • Play video
  • Show image
  • Movintracks Free comes with no access to the Movintracks REST API.
  • Movintracks Free comes with low priority e-mail only support: 120 hours max time support.

Movintracks can change the list of available actions at anytime.

Movintracks can change the way in which the ads are placed, the kind of the campaigns or any other detail at anytime.

Movintracks can cancel accounts at anytime and at its sole discretion for any reason.

Territory Worldwide.

TERMS AND CONDITIONS

THESE TERMS AND CONDITIONS ARE SUBJECT TO CHANGE WITHOUT NOTICE, FROM TIME TO TIME IN OUR SOLE DISCRETION.

  1. DEFINITIONS

In this Agreement, terms with capitals shall have the following meanings:

  • Client App: means a software application for mobile devices integrating the Movintracks SDK, associated to a Dashboard Account, for enabling Interactions with the Movintracks Products and Services configured by Clients or Client Customers.
  • Client Customers: third party customers of Client that acquire mobile marketing campaign services managed by Client based on Movintracks Products and Services, (either white branded or otherwise) and associated with a Dashboard Account;  
  • Confidential Information: means information provided by one Party (the “Disclosing Party”) to the other Party (the “Recipient”) or to which the Recipient has access under this Agreement that: (i) is marked confidential; or (ii) if disclosed orally or not marked confidential, is identified prior to disclosure as Confidential Information or (iii) whether oral, written, or electronic, and whether or not marked confidential contains or consists of the Disclosing Party’s information and data which forms part of customer information, account information, information regarding business planning and business operations, information regarding administrative, financial, or marketing activities, employee information, know how and proprietary information.
  • Data Protection Legislation: means all applicable laws and regulations relating to or impacting on the processing of personal data and privacy enacted in the countries where the data originated from and/or is processed.
  • Documentation: means any documentation to the Products in whatever form, whether electronic, digital or otherwise.
  • Effective Date: means the date mentioned at the top of this Agreement.
  • End Users: users of mobile devices having downloaded and using a Client App (integrating the Movintrack SDK), that interact with the Movintracks Products and Services and receives content determined by Clients or their End-Customers, using Movintracks Products and Services.   
  • Interactions (and “Interact”): means data interactions between Client Apps and Movintracks servers when all conditions triggering such Interactions have been met. Interactions are delivered as part of the campaigns set up by the Client or Client Customers in the Movintracks Services. Examples of Interactions are: deliver a discount coupon to the user, show a product information page, send a notification or vibrate.
  • Monthly Unique User: unit of account for recording and calculating the fees due hereunder for a given Client, being an End-User with a mobile device having a Client App that has at least one Interaction in a given month with the Movintracks server. End-Users mobile devices are anonymously associated to Dashboard Accounts by way of unique user-codes, thus Movintracks has a record of the Monthly Unique User associated to each Dashboard Account and Client and/or Client Customer. 
  • Movintracks API: means Application Programming Interface where the interface allows the programmable access to Movintracks server.
  • Movintracks Dashboard: Movintracks online control panel for configuring the use by Clients and Client Customers of the Movintracks Products and Services, available at http://app.movintracks.io/ and whose use is subject to terms set out in Annex 1
  • Movintracks Dashboard Accounts: means Client or Client Customers user accounts in the Movintracks Dashboard, accessed at http://app.movintracks.io/.
  • Movintracks SDK: software program enabling access to and use of the Movintracks Services via the Movintracks API to enable content delivery to End-Users. The SDK is distributable to End-Users under the terms of this Agreement.  
  • Specifications: means the technical specifications of the Movintracks Products and Services, set forth in the Documentation, the current version of which is available on download of the Movintracks SDK and which may be updated from time to time by Movintracks in line with new versions of the Products and Services.
  1. TERM AND TERMINATION
  1. This Agreement shall commence on the Effective Date, and shall continue in force for the initial period set out in the Summary Table (“Initial Term”), unless otherwise terminated as provided herein. At the end of this initial period, the Agreement will be automatically renewed for successive periods indicated in the Summary Table, unless notice of non-renewal is provided as per the Summary Table.
  1. This Agreement may be terminated with immediate effect by notice in writing by either Party if the other Party is in material, persistent or continuing breach of any of its obligations under the terms of this Agreement and, where such breach is remediable, fails to remedy such breach within fifteen (15 ) days of written notice to do so.
  1. Either Party may (without prejudice to its other rights) terminate this Agreement by giving thirty (30) days’ prior written notice to the other Party (the Defaulting Party) if the Defaulting Party stops or suspends, or declares any intention to stop or suspend, its business or payment of its debts or any class of its debts generally or is or becomes unable to pay its debts or otherwise becomes insolvent or is subject to insolvency or similar proceedings.
  1. If a Party is prevented from performing its obligations under this Agreement by a force majeure event which continues for more than thirty (30) business days then the other Party will be entitled to terminate this Agreement without liability to the Party affected by the force majeure event forthwith on giving written notice.
  1. If this Agreement is terminated or for any reason expires:
  1. the Parties shall act in good faith and shall co-operate with the other to fulfil their obligations hereunder;
  2. each Party will cease use of the other Party’s Confidential Information in relation to this Agreement and will  return to the other Party all Confidential Information belonging to the other Party that is in its possession, custody or control;
  3. Client will stop and will ensure that its Client Customers stop using the Movintracks Products.
  4. In the event that Movintracks is the Defaulting Party under clause 2.2 or 2.3, Client has the right to continue using the Products under the terms hereof for a period of 15 calendar days from such termination/expiry to enable orderly transition of business.
  1. The termination of this Agreement for any reason whatsoever, or its expiry shall not affect any provision comprised in this Agreement which is expressed to survive or to operate in the event of the termination of this Agreement (which shall include without limitation the following Clauses: 2 (Termination), 7 (Intellectual Property Rights), 9 (Data Protection), 8 (Confidentiality), 11 (Liabilities) and 12 (Other).
  1. Without prejudice to the foregoing, the Movintracks may temporarily suspend the rights granted hereunder to Client, on notice to Client, by way of deactivating Client’s Dashboard Accounts and use of the Movintracks API, either (a) on any breach by Client of clause 3 (License) hereof and/or (b) in the event of delay or non-payment of any compensation due for more than 15 calendar days.
  1. If Client is in arrears for more than 30 calendar days, Movintracks may terminate this Agreement forthwith on notice to Client, without prejudice to any claims for payment, damages and interest due to Movintracks.
  1. If either Party validly terminates this Agreement under this Clause, then that Party shall incur no liability to the other as a result of such termination. Movintracks will not be responsible for any liability or damage suffered by Client as a result of any suspension or termination in accordance with the terms of this Agreement.
  1. LICENSE
  1. Subject to the terms and conditions hereof, Movintracks grants Client a non-exclusive, non-transferable (except to the extent needed for the purposes of this Agreement) license during the term of this Agreement, to use the Movintracks Products and Services for the purposes set out in this Agreement for itself and for Client Customers the Territory set out in the Summary Table. Such use includes the following licenses:
  1. a license to access and use the Movintracks Dashboard Accounts, according to the terms set out in Annex 1, for managing  Client’s or its Client Customers’ marketing campaigns; and
  2. a license to download, install and use the Movintracks SDK, to connect to the Movintracks API, and integrate and distribute this SDK in Client Apps made by or for Client or its End-Customers; and
  3. A license to connect to and use the Movintracks API for the above purposes.  
  1. For the avoidance of doubt,
  1. Movintracks SDK may only be used as a part of a larger work (mobile App) subject to all of the terms and conditions of this Agreement, including the restrictions set out in Annex 1. As such, it can be sub-licensed and distributed to any third party End-Client integrated in a Client App, provided that the terms of Client App license are no less protective of Movintracks than the terms of this Agreement; and
  2. Movintracks Dashboard Accounts may be resold and attributed to Client Customers, and used in accordance with the terms set out in Annex 1, subject to prior written notification of Client Customer details to Movintracks.
  1. As express conditions of this license, Client agrees:
  1. To pay the license fees set out herein
  2. Not to decompile, disassemble, or otherwise seek to reduce the object code of the Movintracks SDK to it source code form.
  3. Not to use the Movintracks Products, in any form or by any means possible, other than the purposes specified herein or as permitted by mandatory law.
  4. Not to modify or change without approval of Movintracks any brand and any indication of IPRs contained in Movintracks Products and Services and Documentation.
  5. Not to disclose or reveal the Products and Services (including SDK) to any third party, except information required by third parties for the integration of the SDK into Client Apps in accordance with Clause 3.2.
  6. Not to use the Movintracks Products and Services to build a service or a product that competes with Movintracks Barcelona SL in any of its business operations, current or future.
  7. Not to stop, tamper with or modify the logs of the Products or any part of such logs.  
  1. RIGHTS AND OBLIGATIONS OF THE PARTIES
  1. Movintracks: In addition to its other rights and obligations hereunder: 
  1. Subject to Client’s compliance with the terms and conditions of this Agreement and payment of the fees established in Clause 6, Movintracks shall provide support and maintenance to Client pursuant to the terms and conditions specified in Annex 2 (“Support and Maintenance”). Movintracks shall not be obliged to provide support to either (a) Client Customers or End Users or (b) any third party developers using or integrating the SDK for Client or Client Customers. Support to such persons shall be channelled by the Client.
  2. Client shall also be entitled to have under the terms of this Agreement all the new features that Movintracks will introduce in its Products without any additional charge.
  3. Movintracks may acknowledge that Client or its Client Customers use Movintracks Products and Services, in its marketing collateral (including but not limited to its website, communications with the press and company public presentations). The acknowledgement will be limited to the sentence “Movintracks provides proximity marketing services to [Client/Client Customer]” that may be accompanied by a logo of Client/Client Customer. Any PR or marketing by Movintracks not included in the previous sentence will require prior approval from Client.
  1. Client: In addition to its other rights and obligations hereunder, 
  1. Client undertakes to pay all fees when due.
  2. Client has right to the number of Dashboard Accounts set out in the Summary Table. Client may purchase additional accounts on request to Movintracks, at Movintracks list prices.
  3. Client will use and will ensure that its Client Customers use the Dashboard Accounts in accordance with the terms hereof, including Annex 1.
  4. Client may develop technologies (e.g. its own dashboards) to interface with the Movintracks API using the Movintracks SDK or Movintracks Dashboard, for the commercialisation of mobile marketing campaign services to third parties. These technologies may include a) online applications/websites and/or b) mobile applications. All uses of the Movintracks Products and Service via these technologies must comply with this Agreement.
  5. Client will not include warranties, express or implied, to its Client Customers or End-Users or any other third part with respect to the functionalities of the Movintracks Products and Services that differ in any manner from those made by Movintracks, and in particular shall not make any such representations or warranties on behalf of Movintracks. In the event it does so, it will be solely responsible for such warranties.
  1. REPORTING
  1. The Movintracks Products and Services generate activity indicators (including logging of Monthly Unique Users) on use of the Products and Services that are used to provide the Movintracks Services, to optimise and improve provision of services hereunder, to improve features of those products, and to calculate Fees. Such reports will be the basis for invoicing hereunder.
  1. Movintracks will provide Clients on a periodic basis a report on the activity indicators for the purpose of managing its accounts.  
  1. Client agrees not alter or prevent or attempt to prevent the recording of these activity indicators in any form or manner. In the event of any attempt to do so, the licenses granted hereunder will be temporarily or permanently deactivated and this agreement terminated.
  1. LICENSE FEES
  1. In consideration for the licenses granted hereunder and provision of the Movintracks Products and Services, Client agrees to pay the fees set out in the Summary Table. All fees are non-refundable once paid.
  1. Variable Fees are calculated on the basis of the Reports provided under Clause 5.  Within 5 working days of sending the Report, both parties will review it and will agree the Variable Fees for the period. Movintracks will invoice Client for such amount in the following 10 days, and Client will settle the fee in accordance with these terms.
  1. Prices set out in this Agreement are in Euros and may be subject to applicable withholding tax required by applicable laws. All payments are to be made to Movintracks in Euros to Movintracks’ account set out in the Summary Table, unless otherwise agreed. Client will be responsible for exchange rate and bank transfer fees.  
  1. In the event of any late payment, Client shall pay a late fee equal to statutory interest rate applicable in Spain on the due date. Said interest shall be calculated from the due payment date to actual payment date on a daily basis.
  1. INTELLECTUAL PROPERTY RIGHTS
  1. Movintracks retains all rights, title and interest (including IPRs) in and to the Movintracks Products and Services, including the Movintracks SDK, Movintracks API and Movintracks Dashboard (together, Movintracks Technologies). Client expressly acknowledges that it does not acquire more rights to the Movintracks Technologies licensed herein other than those specified in this Agreement.
  1. Client will inform Movintracks in writing and on a timely basis of all claims or procedures that it is aware of in which Movintracks Products and Services are involved, as well as all of the defects that could be object of claims. Movintracks will have the right to assume the defence of such claim without reservation of rights and Client agrees to cooperate with Movintracks in such procedure.
  1. In the event of a claim that any of the Movintracks Products and Services infringes any IPRs belonging to a third party, Movintracks will:
  1. procure for Client the right to continue using such Movintracks Products and Services free from any liability for such infringement; or
  2. modify the Movintracks Products and Services in such a way as not to disrupt the provision of services by Client to its End-Clients or End-Users (so as to avoid the infringement); or
  3. if neither a. nor b. is possible, Movintracks will reimburse to Client the amount  received by Movintracks under this Agreement up to the infringement date.
  1. Notwithstanding the foregoing, Movintracks will have no responsibility for IPR claims arising from unauthorized modifications or misuse of the Movintracks Products and Services made by Client or Client Customers if such IPR claim is the result from such unauthorized modifications or misuse.
  1. CONFIDENTIALITY
  1. Each party shall maintain the confidentiality of any Confidential Information exchanged pursuant to this Agreement. In return for the disclosure by the Disclosing Party of Confidential Information, the Recipient shall (except as expressly permitted by this Agreement or with the written consent of the Disclosing Party):

(i) use the same care and discretion to avoid disclosure, publication, or dissemination of the Disclosing Party’s Confidential Information as the Recipient uses with its own similar information that it does not wish to disclose, publish, or disseminate;

(ii) use the Disclosing Party’s Confidential Information solely for the specific purpose for which it was disclosed under the Agreement;

(iii) observe a general obligation of discretion regarding the information received from the Disclosing Party;

(iv) ensure that the employees and subcontractors of the Recipient are bound by an obligation of confidentiality;

(v) keep secret, treat as confidential and preserve the confidentiality of all Confidential Information disclosed to the Recipient;

  1. The Recipient shall not disclose, publish, or disseminate the terms of this Agreement without the prior written consent of the other, except to the extent permitted by this Clause 8.
  1. Upon request from the Disclosing Party, the Recipient shall promptly return to the Disclosing Party all Confidential Information, or any item thereof if such is requested, having come into the Recipient’s possession, including, but not limited to, original documents, drawings, models, samples, disks, data, and any copies thereof which have been received or derived by the Recipient as a part or result of this Agreement.
  1. This Clause 8 shall not apply to any information which:

(i) is or becomes generally available to the public other than as a result of a breach of this Clause;

(ii) is acquired from a third party owing no obligation of confidence to the Disclosing Party in respect of that information, where the use or disclosure accords with rights lawfully granted by that third party;

(iii) is independently developed by the Recipient without use of the Disclosing Party’s Confidential Information;

(iv) is already known by the Recipient at the time of its receipt, as evidenced by its written records;

(v) the Recipient is required by any applicable laws to disclose, provided always that the Recipient shall, to the extent reasonably possible whilst complying with the applicable laws, have notified the Disclosing Party of such requirements prior to any such disclosure and provided the Disclosing Party with a reasonable opportunity to contest the requirement to disclose the information or to limit the extent of the disclosure; or

(vi) is necessary to disclose in the framework of legal proceedings between the Parties.

  1. The Recipient Party shall promptly notify the Disclosing Party if it becomes aware of any unauthorised use or disclosure of any Confidential Information.
  1. PERSONAL DATA
  1. Movintracks is data processor of any End-User data of Client or Client Customers (each, a “Data Controller”) and will only process such personal data in accordance with the Data Controller’s instructions, will act on those instructions as reasonably necessary for the performance of obligations under this Agreement and only for the purposes of this Agreement. Data Controller’s instructions include the use and configuration of Movintracks services using the Dashboard Accounts.
  1. The Parties will ensure that adequate technical, organisational and security measures are taken against unauthorised or unlawful processing of personal data and against accidental loss of or destruction to personal data to comply with all applicable Data Protection Legislation. Each Party will from time to time comply with any reasonable request made by the other Party to ensure compliance with the measures referred to in this Clause.
  1. Movintracks will not store, copy, retransmit or use any personal data or the content of any communications resulting from the existence of this Agreement except for purposes authorised by Client in accordance with the scope of this Agreement. In particular, Movintracks may not transfer personal data disclosed pursuant to this Agreement to third parties without Client’s prior written consent and only in full compliance with all applicable Data Protection Legislation.
  1. The storage of personal data that may be processed by Movintracks as data processor for Client may be outsourced to Amazon Data Services Ireland Ltd or its sister companies in European Union.
  1. On termination of this Agreement, Movintracks shall delete all personal data managed in name of any Data Controller except if any Law provides otherwise (in such case the personal data shall be returned to the other Party).
  1. Client shall take and shall ensure that its Client Customers shall take all the appropriate measures to collect and process personal data of its End-Users according to applicable Data Protection Laws. Movintracks will not be liable for any breach of such laws by Client or Client Customers, and Client will indemnify Movintracks for any loss or damage suffered by Movintrack due to any such breach.

        

  1. WARRANTIES AND DISCLAIMERS
  1. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and the Agreement does not breach any current legal or contractual obligation of that party.
  1. Movintracks warrants to Client that
  1. Movintracks Products and Services will be provided according to the general standards of the sector applicable to this technology and the service levels set out in Annex 2.
  2. Movintracks Products and Services will operate in accordance with and conform to the Specifications set forth in the Documentation.

If at any time during the term of this agreement, Client discovers one or more material or significant defects or errors in the Movintracks Products and Services as delivered, or any other respect in which any of the Movintracks Products and Services as delivered fails to conform to the provisions of this warranty, Movintracks shall, as sole and exclusive remedy, use reasonable efforts under the Support Terms in Annex 2 to correct such defect, error or non-conformity, provided that adequate notice and description of the defect or error is provided to Movintracks.

  1. Other than expressly stated in this clause, Movintracks Products and Services are provided “AS IS” and all other implicit or explicit conditions, representations and warranties, whether legal or of any other kind, including without limitation any implicit warranty of merchantability, satisfactory quality or suitability, are disclaimed to the maximum extent permitted by the applicable law. In particular but without limitation, except as expressly set out herein:
  1. There is no warranty regarding the reliability, suitability, quality, adaptability, veracity, availability, precision or totality of the Movintracks Products and Services or its contents.
  2. There is no warranty that (a) the use of Movintracks Products and Services are secure, suitable, uninterrupted or functioning without errors or in combination with other hardware, software, systems or data; (b) the Products and Services meet Client’s or Client Customers’ needs or expectations; (c) that the errors or faults can be corrected; or (d) the Movintracks Products and Services or the servers providing the Products and Services do not contain a virus or other harmful components.
  3. There is no warranty as to continuity of use of third party applications connected to the Movintracks Products and Services (e.g. social media services, etc.), as these third party services may modify their technical specifications and APIs, thus affecting connectivity.
  1. Client accepts that not all End-Users in circumstances of triggering an Interaction will cause an Interaction to occur (and thus receive a determined content). This is because Client Apps using Movintracks products depend on internet connectivity and availability, as well as End User mobile device hardware and software (including operating systems and their updating and configuration), and compete with other mobile applications for use of resources and connectivity of mobile devices, which affects activation and triggering of Interactions.
  1. The limited warranties provided by Movintracks this clause do not cover (i) parts of the Movintracks Products and Services that have been subjected to misuse, tampering, modification, experimentation, alteration, negligence, or faulty installation; (ii) Initial installation, installation and removal of the Movintracks Products and Services for repair, and shipping costs; (iii) Configuration of the Movintracks Products and Services; (iv)  Damage that occurs due to Force Majeure or failures due to power surge; (v) Any hardware, software, firmware or other materials or services provided by anyone other than Movintracks; (vi) repair of Products by anyone other than Movintracks or (vii) Damage that occurs due to use of the Movintracks Products and Services that is (a) in breach with this Agreement, (b) against the compulsory law an legal norms or (c) not in conformity with the Specifications.

 

  1. LIABILITIES
  1. Movintracks will not be responsible for any loss or damage arising out of inadequate or wrongful use of its Products and/or Services by Client or Client Customers, nor will it be responsible for damage or loss that Client or Client Customers may suffer as a result of improper use. Movintracks will exclusively and only be responsible for direct damage caused as a consequence of the Products and Services not complying with their Specifications.
  1. To the maximum extent permitted by applicable law, neither Party will in any event be responsible for indirect loss, loss of profits nor for shortfalls in receipts or damages to third parties (including so-called punitive, special, exemplar, accidental losses) derived from provision or use of Movintracks Products and Services or caused by the execution or performance of this Agreement, including derived from the use or the incapacity to use the Movintracks Products and Services, or due to any Contents obtained through the Movintracks Products and Services, or any interruption,  imprecision, error or omission, regardless of its cause.
  1. In any case, the total liability of Movintracks hereunder owed to the other Party, for any concept, will be limited as a maximum to the amount of money received by Movintracks from Client under this Agreement up to the date of notice of claim.  
  1. OTHER
  1. Assignment. The Parties shall not, without the other party’s prior written consent, assign, sublicense, or otherwise dispose of the whole or any part of this Agreement, except that the Agreement may be assigned to any member of the Parties’ corporate group in the event of corporate reorganisation.  Any consent, if given, shall not affect the other party’s obligations or liabilities under this Agreement.
  1. Entire Agreement. This Agreement constitutes the entire agreement between the Parties in relation to its subject matter, and replaces and extinguishes all prior agreements, draft agreements, arrangements, undertakings, or collateral contracts of any nature made by the Parties, whether oral or written, in relation to such subject matter. Each Party acknowledges that in entering into this Agreement, it has not relied upon, and shall have no rights or remedies (whether in tort, under statute or otherwise) in respect of any statements, collateral or other warranties, assurances, undertakings or representations (whether innocently or negligently made) by the other Party.
  1. Communications. Reports, invoices, bug reporting and other general communications may be made by email, effective on confirmed receipt of the same in any manner. Any notice or other formal communication required to be given hereunder (“Notice”) shall be in writing, signed by or on behalf of the Party giving it and may be served by sending it by burofax, delivering it by hand or sending it by first class post to the address and for the attention of the relevant party whose details are set out in the Summary Table (or as otherwise notified from time to time).
  1. Severability. If any clause, or part of a clause, of this Agreement is found by any court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable, the legality, validity or enforceability of the remainder of the clause or paragraph which contains the relevant provision shall not be affected, unless otherwise stipulated under applicable law. If the remainder of the provision is not affected, the Parties shall use all reasonable endeavours to agree within a reasonable time upon any lawful and reasonable variations to the Agreement which may be necessary in order to achieve, to the greatest extent possible, the same effect as would have been achieved by the clause, or the part of the clause, in question.
  1. Variations. No variation of this Agreement shall be effected unless made in writing and agreed by the Parties.
  1. No Partnership or Agency. The Parties are independent contractors and no other relationship is intended, including without limitation, a partnership, franchise, joint venture, agency, employer/employee, or master/servant relationship. Neither Party shall act in a manner that expresses or implies a relationship other than that of independent contractor; or have any authority to bind the other Party.
  1. No Waiver. No failure or delay by either Party in exercising any of its rights, powers or remedies provided by this Agreement or by Law shall be deemed to be a waiver of that right, power or remedy and no waiver by either Party of any breach by the other Party of this Agreement shall be construed as a waiver of any subsequent breach of the same or any other provision.
  1. Costs of each of the Parties. Each Party shall bear its own costs and expenses in connection with the preparation, negotiation, and execution of this Agreement.
  1. Counterparts / Execution. This Agreement may be executed in counterparts, each of which will be deemed an original agreement for all purposes and which collectively will constitute one and the same agreement.
  1. Governing Law and Jurisdiction. This Agreement shall be governed by the laws of Spain, excluding its choice of law provisions. Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or validity thereof, shall be referred to and finally resolved by the courts of Barcelona (Spain). The United Nations Convention on Contracts for the International Sale of Goods does not apply.

Annex 1 – Conditions of use of Movintracks Dashboard and Movintracks SDK

The following terms (“Terms”) apply to use of the Movintracks Dashboard and SDK

  1. Definitions:

Access Codes: access credentials provided by Movintracks to enter and use the Movintracks Dashboard. 

Client Apps: means a software application for mobile devices integrating the Movintracks SDK, associated to a Dashboard Account, for enabling Interactions with the Movintracks Products and Services configured by Clients or Client Customers.

Movintracks Dashboard: means Movintracks’ online control panel for configuring the use by User of the Movintracks Products and Services, available at http://app.movintracks.io/ and whose use is subject to these Terms.

Movintracks Products and Services: products and services for managing mobile marketing campaigns of User accessed and configured through the Movintracks Dashboard, and includes without limitation the Movintracks SDK.

User Data: means any data, information or material that User may have transmitted or uploaded to the Movintracks Service during use of the Movintracks Dashboard and Services.

Provider: means Movintracks Barcelona, S.L., or a client of Movintracks Barcelona, S.L. having the right to grant use of the Movintracks Dashboard to User.

User: means a person (legal or natural) having been granted access credentials and using the Movintracks Dashboard and SDK pursuant to these Terms.

  1. License Grant and Conditions
  1. Subject to compliance with these Terms, User is granted a worldwide right, non-transferable and non-exclusive right to access the Movintracks Dashboard to use the Movintracks Products and Services for its own company use only. Subject to early termination, this Agreement is granted for the period agreed on in User’s contract or order form previously subscribed with Provider.
  2. As conditions of this Agreement, and except as specifically agreed with Provider, User may not (i) license, sublicense, sell, resell, transfer, assign, distribute or make available to third parties, or exploit commercially with third parties User’s access to the Movintracks Dashboard or use of any contents or services therein (or accessible through this service), in whole or part; (ii) modify or make works derived or based on the Movintracks Dashboard; (iii) create Internet deep “links” to the Movintracks Dashboard or “mask” or “duplicate” the Movintracks Dashboard in or through any server or mobile device; or (iv) carry out any reverse engineering or access to the Movintracks Dashboard  and the Movintracks Products and Services available through the Movintracks Dashboard or API, or modify any technology underlying the Movintracks Dashboard, to (a) create a competing product, software or service, (b) create a software, product or service using ideas, features, functions or graphics similar to those of the Movintracks Dashboard, or (c) copy any ideas, features, functions or graphics of the software, product or Movintracks Products and Services.
  3. In addition, User agrees:
  1. That Access Keys and use of the Dashboard may be deactivated if relevant fees are not paid to the Provider.  
  2. Not to decompile, disassemble, or otherwise seek to reduce the object code of any element of the Movintracks Products and Services to their source code form, especially but not limited to the Movintracks SDK.
  3. Not to reduce any element of the Movintracks Products and Services to their source code form, especially but not limited to the Movintracks SDK, except as permitted by mandatory applicable law.
  4. Not to modify or change without approval of Provider any brand and any indication of IPRs contained in Movintracks Products and Services, IPRs, and Documentation.
  5. Not to disclose or reveal the SDK available under these Terms, or any part of it, in any form, to any third party, except for information regarding the SDK required by third party/enterprises for integration of the SDK into the Client Apps.
  6. Not to stop, tamper with or modify the Information Fee or any part of it.
  1. User may not and will ensure that its internal authorised users will not, through or via the Movintracks Products and Services (including the SDK): (i) send or store material that contains software with virus, worms, trojans or codes, files, command sequences, harmful computer agents or programs; (ii) interfere or affect the integrity or performance of the Movintracks Products and Services or the data it contains; or (iii) try to obtain unauthorized access to the Service or related systems or networks.
  1. User Content and User Activities
  1. Provider will not monitor or control User Data. User alone is responsible of the accuracy, quality, integrity, legality, reliability, suitability and intellectual property rights in the use of all User Data uploaded or transmitted by User to the Movintracks Products and Services (e.g. marketing messages), and all User activities on the Dashboard.
  2. User grants Provider a world-wide, non-exclusive, transferable (only in the scope needed for the purposes of this Agreement) license during the term of this Agreement, to all the rights of Intellectual Property and trademarks about the User Data that are needed for the purpose of this Agreement (especially but not limited to right to the reproduction, distribution, public communication, transformation and use).
  3. User warrants to Provider that all its User Data and User activities comply with all applicable local, state-wide, national or international laws, treaties and regulations related to the use of the Service, including without limitation uses related with data privacy, electronic communications and transmission of technical or personal data, publicity/advertisement, trademarks, competition law or unfair competition, e-commerce, Intellectual Property Rights and fundamental rights.
  4. User shall indemnify and hold harmless Provider against any claims, liabilities, losses, damages, costs and expenses (including attorneys’ fees) arising from any claim arising from User Data and User activities on the Movintracks Dashboard.
  5. On termination of User’s account (other than for default by the User), at the request of User made during a period of thirty (30) days following termination, a file with all User Data currently in the Movintracks Service will be made available to User.
  1. Security of Access Codes
  1. User must: (i) keep its Access Codes confidential and notify Provider immediately of any unauthorized use of passwords or accounts or any other breach of security that is known or suspected; (ii) inform Provider immediately and do everything possible in order to stop immediately any unauthorised copy or distribution or use of the Movintracks Products and Services of which the User or its authorised internal end-users become aware or suspect; and (iii) not pretend to be another user of the Movintracks Products and Services or offer information or false identity to obtain access to or use of the Service.
  2. User’s Access Codes cannot be shared or used by more than only one User, but they can be reassigned at a given moment to new Users that replace previous Users that have terminated their account with Provider.
  1. Personal Data
  1. Provider is data processor of any End-User data under the control of User (who is “Data Controller”). Provider acting as a data processor will only process personal data in accordance with the User’s instructions, will act on those instructions as reasonably necessary for the performance of obligations under this Agreement and with the only proposes of this Agreement.  
  2. Provider and User will ensure that adequate technical, organisational and security measures are taken against unauthorised or unlawful processing of personal data and against accidental loss of or destruction to personal data to comply with all applicable Data Protection Legislation. Provider and User will from time to time comply with any reasonable request made by the other to ensure compliance with the measures referred to in this Clause.
  3. Provider will not store, copy, retransmit or use any personal data or the content of any communications resulting from the existence of this Agreement except for purposes authorised by User in accordance with the scope of this Agreement. In particular, Provider may not transfer personal data disclosed pursuant to this Agreement to third parties without Client’s prior written consent and only in full compliance with all applicable Data Protection Legislation.
  4. The storage of personal data that may be processed by Provider as data processor for User may be outsourced to Amazon Data Services Ireland Ltd or its sister companies in European Union.
  5. On termination of User’s account, Provider shall delete all personal data managed in name of any Data Controller except if any Law provides otherwise (in such case the personal data shall be returned to the other Party).
  6. User shall take all the appropriate measures to collect all the personal data according to applicable Law.
  1. Termination
  1. User accepts and recognizes that if it has materially breached these Terms for any reason, and said breach has not been corrected in a period of fifteen (15) days after the notice of breach, Provider may terminate User’s Dashboard account on notice with immediate effect, and Provider has no obligation to preserve the User Data which may be deleted.
  2. In the event of termination of User’s Dashboard account for cause, unless otherwise agreed in writing with the Provider, all User rights to access or use the Movintracks Products and Services will terminate immediately and neither Provider nor any other Provider will be obliged to preserve or send any data to the User.
  1. Warranty and Disclaimer
  1. Provider warrants to User that
  1. Movintracks Products and Services will be provided according to the general standards of the sector applicable to this technology and agreed service levels; and  
  2. Movintracks Products and Services will operate in accordance with and conform to the Specifications set forth in the documentation accompanying the Movintracks SDK.
  1. If User discovers one or more material or significant defects or errors in the Movintracks Products and Services as delivered, or any other respect in which any of the Movintracks Products and Services as delivered fails to conform to the provisions of this warranty, User must notify Provider and Provider shall, as sole and exclusive remedy, use reasonable efforts to correct such defect, error or non-conformity provided that adequate notice and description of the defect or error is provided to Provider.
  2. Other than expressly stated in this clause, Movintracks Products and Services accessed through the Dashboard are provided “AS IS” and all other implicit or explicit conditions, representations and warranties, whether legal or of any other kind, including without limitation any implicit warranty of merchantability, satisfactory quality or suitability, are disclaimed to the maximum extent permitted by the applicable law. In particular but without limitation, except as expressly set out herein:
  1. There is no warranty regarding the reliability, suitability, quality, adaptability, veracity, availability, precision or totality of the Movintracks Products and Services or its contents.
  2. There is no warranty that (i) the use of Movintracks Products and Services are secure, suitable, uninterrupted or functioning without errors or in combination with other hardware, software, systems or data; (ii) the Products and Services meet User’s needs or expectations; (iii) that the errors or faults can be corrected; or (iv) the Movintracks Products and Services or the servers providing the Products and Services do not contain a virus or other harmful components.
  1. There is no warranty as to continuity of use of third party applications connected to the Movintracks Products and Services (e.g. social media services, etc.), as these third party services may modify their technical specifications and APIs, thus affecting connectivity.
  2. User accepts that not all End-Users in circumstances of triggering an Interaction will cause an Interaction to occur (and thus receive a determined content). This is because  Client Apps using Movintracks products depend on internet connectivity and availability as well as End-User mobile device hardware and software (including operating systems and their updating), and compete with other mobile applications for use of resources and connectivity of mobile devices, which affects activation and triggering of Interactions.
  3. The limited warranties provided by Provider this clause do not cover (i) parts of the Movintracks Products and Services that have been subjected to misuse, tampering, modification, experimentation, alteration, negligence, or faulty installation; (ii) Initial installation, installation and removal of the Movintracks Products and Services for repair, and shipping costs; (iii) Configuration of the Movintracks Products and Services; (iv)  Damage that occurs due to Force Majeure or failures due to power surge; (v) Any hardware, software, firmware or other materials or services provided by anyone other than Provider; (vi) repair of Products by anyone other than Provider or (vii) Damage that occurs due to use of the Movintracks Products and Services that is (a) in breach with this Agreement, (b) against the compulsory law an legal norms or (c) not in conformity with the Specifications.
  1. Intellectual and Industrial Property
  1. This Agreement does not involve a sale of any product and, except as expressly set out herein, does not confer to the User any property right to or Movintracks Products and Services, including without limitation the technology underlying the Movintracks Products and Services or any Intellectual or Industrial Property Rights therein held by the Provider and its licensors, distributors and other business partners.
  1. Liabilities
  1. Provider will not be responsible for any damage or loss arising out of inadequate or wrongful use of its Products and/or Services by User, nor will it be responsible for damage that User may suffer as a result of improper use. Provider will exclusively and only be responsible for direct damage caused as a consequence of the Movintracks Products and Services not complying with their Specifications.
  2. To the maximum extent permitted by applicable law, Provider will not in any event be responsible for indirect loss, loss of profits nor for shortfalls in receipts or damages to third parties (including so-called punitive, special, exemplar, accidental losses) derived from provision or use of Movintracks Products and Services or caused by the execution or performance of this Agreement, including derived from the use or the incapacity to use the Movintracks Products and Services, or due to any contents obtained through the Movintracks Products and Services, or any interruption,  imprecision, error or omission, regardless of its cause.
  3. In any case, the total liability of Provider hereunder owed to User, for any concept, will be limited as a maximum to the amount of money paid by User for use of the Movintracks Products and Services up to the date of notice of claim.  
  1. Other
  1. Movintracks Barcelona, S.L. may take action against User to protect its legitimate interests with respect to the provision and use of Movintracks Products and Services.
  2. Governing Law and Jurisdiction. This Agreement shall be governed by the laws of Spain, excluding its choice of law provisions. Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or validity thereof, shall be referred to and finally resolved by the courts of Barcelona (Spain).  

Annex 2 – SUPPORT AND MAINTENANCE

Support and maintenance (S&M) for Movintracks Products and Services is divided into three levels:

Level

Tasks

Responsibility

1

All support on Client Apps and Client technologies (e.g. client dashboard linking to the Movintracks Dashboard), configuration and use of Dashboard to Client Customers

Client

2

Routine operations such as starts and restarts scheduled or due to incidents, conducting regular backups, management of machines, and disk clusters.

Preventive maintenance work the system, care alerts, and resolution of problems detected by this work.

Movintracks

3

Resolution of errors, software failures or undesired behaviour in the Movintracks Products and Services or documentation; modifying the source code or Documentation.

Movintracks

In the event Client requires any other support and maintenance level activities, these will be agreed and charged separately, according to the costs to be agreed by both Parties.

For second and third level support:  

Support period

Monday to friday, 9:30-17:00 CET, except holidays in Barcelona, Spain

Contact data

EMAIL: support@movintracks.com (alternate e-mail: hello@movintracks.io)

Response time

72 hours

For critical errors, please contact Movintracks Support by phone during the support period.

Response Criteria

Movintracks’s initial response may result in resolution of Client’s request or it will form the basis for determining what additional actions may be required to achieve technical resolution of Client’s request. For Service requests received during Off Shift, Movintracks will use commercially reasonable efforts to respond within eight hours of the start of business on the next business day. Movintracks is not responsible for delays in response delivery caused by systems and network problems.

Response levels

Movintracks’s obligations hereunder are:

  • to respond to Client within the indicated period
  • to work diligently on providing a Resolution to reported incidences

“Resolution” means either a software modification or addition that, when made or added to the Movintracks Products and Services, corrects an incident; or a work-around, procedure or routine that, when observed in the regular installation or operation of the Product, eliminates the practical adverse effect of such Incident; or replacement of the Products with one that conforms to specifications.

Movintracks does not guarantee that all incidents may be resolved but will use its commercial reasonable efforts to resolve them.  

Client Responsibilities:

Client agrees to:

  1. ensure that any access codes Movintracks provides to Client for support purposes are used only by Client’s  authorized personnel;
  2. designate a technically qualified representative (called “Primary Technical Contact”) who will be Client’s focal point to whom Movintracks may direct general technical information pertaining to Client’s Supported Products. Customer’s Primary Technical Contact and each caller must have sufficient technical knowledge of the  Movintracks Products and Services and environment to enable effective communication with the Movintracks support centre;
  3. provide Movintracks with all relevant and available diagnostic information (including product or system information) pertaining to software problems for which Client requests assistance;
  4. provide Movintracks with appropriate remote access to Client’s system if necessary to assist Client in isolating the software problem cause. Client will remain responsible for adequately protecting its system and all data contained therein whenever it is remotely accessed by Movintracks with Client’s permission;
  5. use the information obtained under these S&M services only for the support of the information processing requirements within Client’s installations;  and ensure that S&M services are used only in relation to duly licensed Products.
  6. make reasonable efforts to correct any issue and deploy corrections after consulting with Movintracks; and
  7. promptly install all current maintenance patches and resolutions provided by Movintracks.

Training

Movintracks provides training by way of tutorial set out at http://movin.guide (or de “docs” or “documentation” section at http://movintracks.io). Please contact Movintracks if you wish any specialised training (at a fee to be agreed).  

Exclusions from S&M Services

Movintracks is not obligated to provide S&M services in the following situations:

  1. incidents falling under S&M Level 1  indicated above
  2. The incident, as determined by Movintracks, is caused by changes or modifications to the Products provided by Movintracks, resulting in malfunctioning of the Product (except if the changes or modifications were made under the direct supervision of Movintracks);
  3. Movintracks SDK has been damaged or incorrectly installed or configured, or the incident is caused by Client’s negligence, Client’s software or hardware malfunction or other causes beyond the reasonable control of Movintracks;
  4. The Incident is caused by Client’s or third party software not licensed by or through Movintracks;
  5. Client has not installed and implemented any required upgrade (change of version) or maintenance pack(s) so that the Movintracks Products and Services is not a version supported by Movintracks; or
  6. Client has not paid the License Fees when due.