Master License Agreement

1.         AGREEMENT

1.1       This agreement (the “Agreement”) is by and between LeapMotiv Inc., a Canadian corporation located at 1405-700 King Street West, Toronto, ON, M5V 2Y6, Canada,  (“we”, “us” or “LeapMotiv”) and the entity on behalf of which you are entering into this Agreement (“you” or “Customer”).  This Agreement governs Customer’s use, and LeapMotiv's provision, of the LeapMotiv prospect interview service and related technology (the “Service”).  Reference to Customer herein shall include Customer Affiliates, and Customer shall be responsible for any breach of this Agreement by its Affiliates.

1.2       By agreeing to these terms and conditions, you represent and warrant that you have the authority to bind the Customer to all of the terms and conditions of this Agreement.

2.         DEFINITIONS

As used in this Agreement, the following terms shall have the meanings specified below.

“Affiliate” means any corporation or other entity that controls, is controlled by, or is under common control with a Party.

“Available Brief” shall mean a Brief that Customer is entitled to request.

“Available Prospect Interviews” shall mean, with respect to each Available Brief, the total number of Prospect Interviews that LeapMotiv will conduct on behalf of Customer.

“Brief” shall mean a request by Customer for LeapMotiv to conduct interviews on behalf of potential purchasers of Customer’s products and services.

“Confidential Information” shall include, without limitation, technical, business and financial data, information, documents and materials relating to either Party (the “Disclosing Party”) and its Affiliates, and their respective customers, contractors, agents, suppliers and licensees disclosed to the other Party (the “Receiving Party”) that is confidential to the Disclosing Party and which shall include all information relating to the Service and the terms and conditions of this Agreement (which information shall be deemed to be LeapMotiv's Confidential Information) and all information which, by the nature of the circumstances surrounding the disclosure, ought to be treated as confidential.

“Effective Date” is the earlier of: (i) the date of the first License Order Form entered into hereunder; or (ii) the date on which you accept these terms and conditions.

“License Order Form” means a license order form entered into by Customer.  License Order Forms may be entered into prior to or after agreement to these terms and conditions, and each License Order Form will be deemed to be part of this Agreement and incorporated herein by reference.

“Platform” shall mean the password protected software-as-a-service platform by which the Service is provided by LeapMotiv, along with any update, fix, alteration or other improvement.

“Prospect Interview Recordings” shall mean recordings of Prospect Interviews, which will be made available to Customer by way of the Platform during the Service Term.

“Prospect Interviews” shall mean interviews conducted by LeapMotiv on behalf of Customer.

“Service Term” shall have the meaning attributed to such term in Section 11.1 below.

3.         LICENSE TO USE THE PLATFORM

3.1       Subject to the provisions contained in this Agreement, LeapMotiv hereby grants to Customer, and Customer hereby accepts, a non-exclusive, non-assignable, worldwide, revocable license, during the Service Term, to access and use the Platform.

3.2       Customer shall limit access to the Platform solely to Customer’s internal users.  For clarity, neither Customer nor any of its representatives shall be entitled to use the Platform as part of any resale, time-sharing or service bureauing arrangement, or to grant any sublicense to use the Platform. 

3.3       Customer may not, directly or indirectly, including through any person or entity under its control or direction, in any form or manner, copy, distribute, reproduce, modify or prepare derivative works of the Platform, or decompile, reverse engineer, disassemble or otherwise attempt to derive the source code for the Platform.

3.4       Customer shall take all reasonable security measures required to ensure that access to the Platform is restricted to those personnel who need access to the Platform in order to perform their duties to Customer, and Customer shall ensure that all such users are informed of and comply with the restrictions set out in this Agreement, including without limitation, those set out in Section 5.2.  Customer shall be fully responsible for all of its authorized users' access to, and use of, the Platform.

4.         LICENSE ORDER FORMS; BRIEF REQUESTS

4.1       During the Service Term, Customer shall be entitled to request that LeapMotiv fulfill a specific Brief, up to the maximum number of Available Briefs. Each such request will include, at a minimum, the following details: hypothesis statement, target customer segment, titles, contacts.        

4.2        In the event LeapMotiv reasonably believes that Customer’s request is deficient in any manner (e.g. if it provides unclear or incomplete information or insufficient direction for conducting Prospect Interviews), LeapMotiv will notify Customer at the e-mail address of the authorized user who requested the Brief, and LeapMotiv’s obligation to commence work on the applicable Brief will be postponed until such time as Customer has responded to LeapMotiv’s questions or request for additional information.

4.3       For clarity, in no event will Customer have the right to “carry forward” any unused Available Briefs beyond the period specified in the applicable License Order Form, or apply unused Available Prospect Interviews towards another Available Brief unless expressly agreed otherwise in the License Order Form.

4.4        Each License Order Form will entitle Customer to the following basic services for up to the number of Available Briefs set out therein: (i) a 2 year Interview License Term (as defined below); and (ii) access to a shared LeapMotiv client service representative via e-mail or telephone. 

4.5       Each License Order Form will commence on the order start date set out therein and will remain in force until the order end date set out therein.   

5.         LICENSE TO USE PROSPECT INTERVIEW RECORDINGS

5.1       LeapMotiv hereby grants Customer an exclusive, non-transferable license to review the Prospect Interview Recordings, solely for Customer’s internal product development purposes, during the term set out in the applicable License Order Form (the “Interview License Term”) and as otherwise set out herein.

5.2 Customer acknowledges that Prospect Interviews will be conducted with outside parties that may include potential purchasers of Customer’s products and services, academics, thought leaders, and others whose willingness to speak candidly and provide useful information will be contingent on disclosure of the contents of Prospect Interview Recordings being restricted to Customer’s internal users only and Prospect Interview Recordings not being shared with media, social media platforms, potential customers or any other external parties, or in any case studies, testimonials, advertising or promotion.  Accordingly, Customer acknowledges and agrees that the contents of Prospect Interview Recordings and the identity of individuals with whom Prospect Interviews are conducted will be deemed Confidential Information of LeapMotiv and subject to the limitations and restrictions set out in Section 8 below.

6.         OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS

6.1       Customer acknowledges and agrees that LeapMotiv and its suppliers own all right, title and interest in the Platform and the Prospect Interview Recordings, and in all patents, trademarks, trade names, inventions, copyrights, know-how, and trade secrets or other intellectual property rights relating to the Platform, Prospect Interview Recordings or the marketing thereof.  The use by Customer of the Platform and Prospect Interview Recordings is authorized only for the purposes herein set forth and upon termination of this Agreement for any reason, or expiration of the Service Term or Interview License Term (as applicable), such authorization shall immediately cease.  There are no implied licenses granted under this Agreement, and all rights not expressly granted to Customer in this Agreement are reserved. Without limiting the generality of the foregoing, Customer acknowledges and agrees that: (i) Customer’s rights with respect to the Prospect Interview Recordings are limited solely to the right to use such Prospect Interview Recordings in accordance with this Agreement during the applicable Interview License Term (and not at any time after expiration or termination of the Interview License Term); and (ii) in no event will ownership of any of the Prospect Interview Recordings be transferred to Customer.   

6.2 LeapMotiv acknowledges and agrees that Customer owns its products, services, trade secrets, other intellectual property and other information and materials (collectively “Customer Intellectual Property”) provided by Customer for use in connection with the Service.  LeapMotiv is hereby granted a limited, non-exclusive, non-transferable, revocable license to use such Customer Intellectual Property solely as required to fulfill its obligations under this Agreement, and upon termination of this Agreement for any reason, or expiration of the Service Term, such authorization shall immediately cease. LeapMotiv shall not modify or use Customer Intellectual Property on any materials without prior written approval, except in accordance with the requirements of a Brief.

7.         FEES AND PAYMENTS

7.1       Customer shall pay to LeapMotiv the fees and charges set out in each License Order Form in accordance with the payment terms set out therein.

7.2       All fees are nonrefundable unless the Agreement or License Order Form is terminated due to LeapMotiv’s breach pursuant to Section 11.2, in which case, the Customer shall be entitled to receive a  prorated amount of the fees refunded for the period unused.  For clarity and avoidance of doubt, LeapMotiv shall have no obligation to issue refunds or credits for any unused Available Briefs or Available Prospect Interviews, partial months or in connection with any downgrade, cancellation, termination or otherwise.  If LeapMotiv provides discounts, incentives or any other special pricing terms in a License Order Form, in no event will such discounts, incentives or other special pricing terms affect any previously agreed upon License Order Form or be deemed a precedent for future License Order Forms.  The pricing terms in each License Order Form relate to that specific License Order Form only.

7.3       The fees and charges payable hereunder do not include any applicable sales, use, excise, GST, HST, value-added or other taxes or duties.  Customer is responsible for paying same each of which shall be provided as a separate line item on the invoice.

7.4       Any additional expenses that are incurred by LeapMotiv in providing the Service on behalf of Customer, and for which LeapMotiv seeks reimbursement, will be pre-approved by Customer.

8.         CONFIDENTIALITY; NON-SOLICITATION

8.1       The Receiving Party shall not at any time during the Service Term or for a period of 5 years after any termination or expiration of this Agreement, publish, disclose, or otherwise divulge any Confidential Information of the Disclosing Party to any third party, except to those of the Receiving Party’s employees, representative or agents who have a need to know such Confidential Information and who are bound by confidentiality obligations no less stringent than those contained in this Agreement, nor shall the Receiving Party use any such Confidential Information of the Disclosing Party for any purpose other than to perform its obligations or exercise its rights under this Agreement.  The Receiving Party shall take all reasonable measures to maintain the confidential nature, and protect the secrecy, of all Confidential Information of the Disclosing Party, which measures shall include the degree of care that the Receiving Party utilizes to protect its own information of a similar nature, but in no event less than a reasonable degree of care.  The Receiving Party shall promptly notify the Disclosing Party in writing of any misuse or misappropriation of Confidential Information of the Disclosing Party which may or should come to the Receiving Party’s attention.  The foregoing restrictions shall not apply to information that (i) is known to the Receiving Party without any confidentiality restrictions at the time of disclosure to the Receiving Party, (ii) has become publicly known through no wrongful act of the Receiving Party, (iii) has been rightfully received by the Receiving Party from a third party authorized to make such disclosure without restriction, (iv) has been approved for release by written authorization of the Disclosing Party, or (v) was independently developed by the Receiving Party without the use of the Confidential Information.  In addition, nothing in this Agreement shall prohibit the Receiving Party from disclosing Confidential Information if legally required to do so by judicial or governmental order or by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process in a judicial or governmental proceeding; provided that the Receiving Party shall (i) give the Disclosing Party prompt notice of such required disclosure prior to disclosure, (ii) cooperate with the Disclosing Party to contest such disclosure or seek a protective order with respect thereto, and/or (iii) in any event only disclose the exact Confidential Information, or portion thereof, specifically required to be disclosed.

8.2       Upon termination or expiration of this Agreement, and upon the request by the Disclosing Party, the Receiving Party shall immediately stop using and shall return to the Disclosing Party all Confidential Information of the Disclosing Party, all copies, notes, diagrams, computer memory media and other materials that contain any portion of such Confidential Information, and, in the case of Customer, all specifications, data sheets, drawings and designs relating to the Platform, and reproductions thereof, and any and all similar materials in any way, in whole or in part, based thereon, as well as any and all similar materials which in any way contain, reflect or relate to the Platform. 

8.3       Notwithstanding the foregoing, it is understood that the Receiving Party’s computer systems may automatically back-up the Confidential Information of the Disclosing Party. To the extent that such computer back-up procedures create copies of any such Confidential Information, the Receiving Party may retain such copies in its regular archival or back-up computer storage system(s) for the period that such archives or back-ups are normally kept by the Receiving Party. All archived or backed-up Confidential Information shall be subject to the remaining confidentiality and non-use restrictions under this Agreement. 

8.4 Customer acknowledges that LeapMotiv’s relationships with its employees, consultants and independent contractors (collectively, “LeapMotiv Personnel”) constitute valuable business relationships of LeapMotiv with whom Customer would not be acquainted if it was not receiving the Service under this Agreement. Accordingly, during the period commencing on the Effective Date and continuing until the date that is 12 months following the last day of the final Interview License Term under this Agreement (the “Restricted Period”), Customer will not, without the prior written consent of LeapMotiv, either on its own behalf or on behalf of or through any third party, directly or indirectly: (i) solicit, entice or persuade, or attempt to solicit, entice or persuade, any LeapMotiv Personnel to end or reduce their relationship with LeapMotiv; or (ii) employ, hire, cause to be employed or engaged, or solicit the employment or the engagement, of any individual that is or was at any time during the Restricted Period, a LeapMotiv employee, consultant or independent contractor.

9.         REPRESENTATIONS, WARRANTIES AND COVENANTS; INDEMNITY

9.1      LeapMotiv represents, warrants and covenants that to its knowledge: (i) the Platform and the use thereof, when used for the purposes for which it was designed and in the manner authorized herein, does not infringe or misappropriate any valid and enforceable intellectual property right or confidential information of any third party; (ii) the Platform will operate substantially in accordance with its specifications; (iii) the Platform does not contain any viruses, worms, time bombs, logic bombs, trap doors, Trojan horses, or similar malicious instructions, techniques, or devices capable of disrupting, erasing, disabling, damaging or shutting down a computer system or software or hardware components thereof; and (iv) LeapMotiv will take reasonable security measures in providing the Service and the Platform in order to protect any data, personal information or intellectual property provided by Customer. 

9.2       Subject to Section 10, LeapMotiv will hold harmless, defend and indemnify Customer against, and pay any resulting final judgments (or settlements that LeapMotiv consents to) for, any claims made by an unaffiliated third party that the Platform infringes its valid and enforceable intellectual property rights.  LeapMotiv’s obligations under this Section 9.2 are subject to all of the following conditions: (i) Customer must notify LeapMotiv, in a timely manner and in writing of the claim; (ii) Customer must give LeapMotiv sole control over defense and settlement of the claim; and (iii) Customer must provide LeapMotiv with reasonable assistance in defending the claim.

9.3       Except as expressly set out herein, the Service, the Platform and the Prospect Interview Recordings are provided to Customer on an “as-is”, “as available” and “with all faults” basis, and LeapMotiv expressly disclaims any and all representations, warranties and conditions concerning the Service, the Platform and the Prospect Interview Recordings, including any and all representations, warranties or conditions of design, merchantability or fitness for any particular purpose, and any and all representations, warranties or conditions that might otherwise arise during the course of dealing, usage or trade and those which may be implied by law. 

10.       LIMITATION OF LIABILITY

10.1     In no event will LeapMotiv or its suppliers be liable to Customer or any of its authorized users for any consequential, indirect, exemplary, special, or incidental damages, or damages for any lost data or lost profits, arising from or relating to this Agreement, even if LeapMotiv has been advised of the possibility of such damages.  LeapMotiv’s total cumulative liability in connection with this Agreement, the Service, the Platform, fulfillment of Brief request, and the Prospect Interview Recordings, whether in contract or tort or otherwise, will not exceed: (i) in the case of liability arising from LeapMotiv’s indemnification obligations under Section 9.2 above, $1 million; and (ii) in the case of any other liability, the amount paid to LeapMotiv under this Agreement in the 12 month period immediately preceding the final event giving rise to such liability.  Customer acknowledges that the fees payable to LeapMotiv under this Agreement reflect the allocation of risk set forth in this Agreement and that LeapMotiv would not enter into this Agreement without these limitations on its liability.

11.       TERM AND TERMINATION

11.1 This Agreement shall commence on the Effective Date and continue until the Order End Date set out in the last remaining License Order Form, unless terminated earlier as set forth herein (the “Service Term”).

11.2 Either Party may terminate this Agreement (or one or more License Order Forms), by written notice to the other Party, upon the occurrence of either of the following events: (i) the other Party becomes insolvent or subject to any proceeding under the federal bankruptcy laws or other similar laws for the protection of creditors; or (ii) the other Party materially breaches any term, provision, representation or warranty of this Agreement, including non-payment, and such breach or default is not cured to the terminating party's reasonable satisfaction within thirty (30) days of written notice to the other Party.  In addition, the Parties may terminate this Agreement, or one or more License Order Forms, by mutual written agreement.

11.3     In the event of any termination of this Agreement:  (a) Customer shall pay LeapMotiv for all fees and charges applicable for the then-current License Order Forms within 10 days after any such termination; and (b) the Service Term and all Interview License Terms will immediately terminate and Customer’s right to use the Platform and the Prospect Interview Recordings will immediately cease.

11.4     The applicable provisions set out in Section 11.3 above will apply, mutatis mutandis, to any termination of one or more License Order Forms.

11.5     Customer acknowledges and agrees that while the Interview License Term under one or more License Order Forms may continue beyond the Service Term, in order to access the Platform Customer must at all times have a valid license, and accordingly, Customer’s access to the Platform will expire at the end of the Service Term.

11.6    Upon termination or expiration of this Agreement for any reason, the following provisions shall survive and remain effective:  Section 6, Section 7, Section 8, Section 9.3, Section 10, Section 11 and Section 12.

11.7     Any termination or expiration of this Agreement will be without prejudice to any obligation of either Party to the other accruing prior to or at such termination or expiration, and any remedies available to one Party due to the other Party's breach of this Agreement will survive termination of this Agreement.

12.       GENERAL

12.1     This Agreement, and any claim, dispute or controversy of whatever nature arising out of or relating to this Agreement, shall be governed by the laws (excluding any conflicts of laws principles), and in the courts, of the Province of Ontario and the federal laws of Canada applicable therein.  The United Nations Convention on the International Sale of Goods shall not be applicable to this Agreement.

12.2     Customer shall not make or purport to make any assignment, transfer or conveyance, in whole or in part, of its rights or obligations under this Agreement without the prior written consent of LeapMotiv. Subject to the foregoing, the rights and benefits of the Parties under this Agreement shall accrue to, and run in favor of, each party’s successors and assigns.  The obligations of the Parties under this Agreement shall be binding upon their respective successors and assigns.  Nothing in this Agreement shall be construed to grant any person or entity not a party hereto any rights or powers whatsoever, and no person or entity shall be a third party beneficiary of this Agreement.  

12.3     The provisions of this Agreement are severable.  If any provision or part of this Agreement shall be held by any court or other official body of competent jurisdiction to be invalid or unenforceable for any reason, the remaining provisions or parts hereof shall continue to be given effect and shall bind the parties hereto.

12.4    All notices permitted or required under this Agreement shall be in writing and shall be deemed to have been duly given if: (i) delivered by hand; (ii) sent by electronic means; or (iii) sent by overnight delivery services prepaid and shall be addressed to each Party’s respective address as indicated on LeapMotiv’s website and as provided by Customer during the account registration process.

12.5      In the event that either Party hereto shall be rendered wholly or partly unable to carry out its obligations under this Agreement by reason of causes beyond its reasonable control, including, but not limited to, acts of God, accidents, fire, natural disaster, act of government, shortage of equipment, materials, supplies or services beyond the reasonable control of such party, strike, labor dispute or walkout, Internet backbone outage, or any other cause beyond the reasonable control of the affected Party, then the performance of the obligations of the affected Party shall be excused during the continuance of any inability so caused provided that the Party whose performance is delayed or prevented promptly notifies the other Party of the nature and anticipated duration of the force majeure event.

12.6     The headings of the Sections of this Agreement have been inserted for convenience of reference only and shall in no way affect the interpretation of any of the terms or conditions of this Agreement.  As used in this Agreement, (i) neutral pronouns and any derivations thereof shall be deemed to include the feminine and masculine; (ii) the words “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole, including all attachments, exhibits and schedules as the same may be from time to time amended or supplemented and not to any subdivision of this Agreement; (iii) the words “Party” and “Parties” refer, respectively, to a party or to both of the parties to this Agreement; (iv) the word “including” is not intended to be exclusive and means “including without limitation”; and (v) unless specified otherwise, the word “days” refers to calendar days.  The terms “will” and “shall” are used interchangeably and indicate that the specified action or forbearance is mandatory.  The English language version of this Agreement will be used in construing and interpreting this Agreement if this Agreement is ever translated into any other language.

12.7    It is understood and agreed that, notwithstanding any other provisions of this Agreement, breach of Section 3, Section 5, Section 6 or Section 8 by Customer will cause LeapMotiv irreparable damage for which recovery of money damages would be inadequate, and that LeapMotiv shall therefore be entitled to obtain timely injunctive relief to protect its rights under this Agreement in addition to any and all remedies available at law. 

12.8     This Agreement, including each License Order Form and any exhibits or addenda, contains the entire agreement between the Parties with respect to the transactions referred to herein and supersedes all prior and contemporaneous arrangements or understandings, whether oral or written, with respect to the subject matter hereof.  Except as expressly set out herein, no supplement, modification or amendment to this Agreement shall be binding unless evidenced by a writing signed by the Party against whom it is sought to be enforced.  The failure of either Party to insist in any one or more instances upon performance of any term, covenant or condition of this Agreement shall not be construed as a waiver of its future performance.  The obligations of either Party with respect to such term, covenant or condition shall continue unchanged and in full force and effect.  No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver.  No waiver shall be binding unless executed in writing by the Party making the waiver.

13.       HOW TO CONTACT US

13.1     If you have any questions or concerns about the Platform, you may contact us via e-mail at the following address: support@LeapMotiv.com

13.2     For clarity, without limiting the generality of Section 12 above, in no event will any information or advice provided by LeapMotiv or its representatives via telephone, e-mail or in person serve as an amendment, supplement or waiver of any portion of this Agreement.